1985 PLP 936 (PLC)

The petitioner through this writ petition seeks a declaration to the effect that an order, dated 23rd August, 1975, of respondent No. 1 is patently without lawful authority and of no legal effect.

2. The facts briefly are that respondent No. 2 made an application under section 25-A of the Industrial Relations Ordinance, 1969, against the petitioner in the Junior Labour Court, Rawalpindi questioning the legality of the order terminating her service by the petitioner on 5th March, 1975 on maintaining that she was working in the petitioner's Industrial School since 1964. Her last pay was Rs. 150 plus other allowances. The service of respondent No. 2 was terminated without any reason. The termination was illegal and without any lawful authority The post which she held was not abolished. She had been reinstated by the Labour Court, vide order, dated 23rd February, 1974 against the first order of termi nation of her service and again her service was terminated on 5th March, 1974. The second order was mala fide based on personal dislikeness. She prayed for the reinstatement in service with all the back benefits.

3. The application was resisted by the petitioner which took up the position that respondent No. 2 was neither a workman nor a worker as defined by the Industrial Relations Ordinance, so the petition was not maintainable for lack of locus standi. Respondent No. 2's service was terminated and she was given a month's pay in lieu of the notice. Res pondent No. 2 refused to receive the money order. In any case the petitioner was willing to pay the same to respondent No.

2. The petitioner had full authority to terminate the service of the respondent and that too without assigning any reason after giving one month's notice or one month's pay in lieu thereof. Respondent No. 2 had no grievance against the petitioner.

4. The position of the petitioner as well as that of respondent No. 2 as gathered from the facts placed before the Labour Court is that the petitioner is an educational institution which imparts technical education to the female students in sewing, cutting, knitting and needle work etc., where respondent No. 2 as admitted by her is a teacher, According to the petitioner in the school there are only two teachers and one servant. The school is being run by a Managing Committee which is competent to termi nate the service of any of the employees.

5. The Junior Labour Court concluded that the West Pakistan Indus trial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable to the petitioner's school. There were three employees which was an admitted fact. The service of respondent No. 2 had been terminated and she had been offered one month's pay in lieu of the notice which offer was admitted by respondent No.

2. Respondent No. 2 had failed to prove that under which law, settlement or award, her guaranteed or secured right, had been infringed or violated by the petitioner. At the maximum the right of respondent No. 2 could be considered under the Shops and Establishments Act whereunder the service of an employee could be terminated either by giving him/her one month's notice or one month's pay in lieu thereof. The learned Labour Court dismissed the petition, vide its order, dated 29th May, 1975.

6. Being aggrieved of the aforesaid order respondent No. 2 filed an appeal in the Punjab Labour Court No. 2 (respondent No. 1), The appellate Tribunal came to the conclusion that respondent No. 2 had a genuine grievance, though not guaranteed by any law. Her dismissal with out any rhyme and reason was unwarranted, The grievance could not be termed as fanciful but that was a genuine grievance. It accepted the appeal and set aside the order of .the Junior Labour Court vide its order, dated 23rd August, 1975.

7. The learned counsel- for the petitioner has contended that respon dent No. 2 was not a worker either under the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968 or the Industrial Relations Ordinance, 1969, so she had no locus standi to invoke the provisions of section 25-A, subsection (6) of the Industrial Relations Ordinance, 1969. The Attock Industrial School was not an industry as such was not amenable to the jurisdiction of the Labour Court. The appellate Tribunal having found that there was no right guaranteed by any law (for re-instatement) that was purely whimsical then to say that respon dent No. 2 had a genuine grievance. One month's pay in lieu of the notice was sufficient to terminate her service. A formal show-cause notice could not be insisted upon. The relation obtaining between the petitioner and respondent No. 2 was that of a master and servant. In support of his case the learned counsel for the petitioner has relied upon K. G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others (P L D 1976 Lah. 1097) in this case the question of law vis-a-vis K. G. Old Principal Christian Technical Training Centre, Gujranwala and other similar institutions which required determi nation was that whether education was an industry or in other words whether educational institutions were governed by the Industrial Relations Ordinance, 1969, so the decision of the question required an interpretation of the definition of "Industry" as provided in the Ordinance in the context of Labour and Industrial laws of the country. After analysing the law obtain ing on the subject and referring the various decisions the learned Judge observed, "it is, therefore, clear that given their plain ordinary dictionary meaning words used to define industry, words which have been always, and are even now, a part of the definition, viz. Business, Trade, Manu facture, Calling, Service, Occupation are of the widest amplitude and include in their sweep every conceivable human activity which is not casual, recreational or a past time. Literal construction certainly leads to that end and to no other. However, one accepted principle of interpretation already reproduced used is that use in a statute, amending or otherwise, of a term which has received a judicial construction gives rise to the presumption that the term is used in that sense. . ." It was further observed ; "applying these tests to the individual cases we find that Christian Technical Training Centre is an educational and training establishment. If it is maintaining an industrial unit (a workshop) rendering services on payment, advertising its product, it is as an incidence of vocational education and of training programme designed to ensure job opportunities to the trainees. Therefore, what is incidental to the main purpose cannot detract in any manner, from its being an education institution." The University of Delhi and another v. Ram Nath and others (A I R 1963 S C 187), in this case it was held that reading section 2(g), (j) and (s) together it was clear that the work of imparting education continued by educational institutions like the University of Delhi and the college run by it was not an industry within the meaning of section 2(j). 1t would be unreasonable to hold that educational institutions were em ployers within the meaning of section 2(g), or that- the work of teaching carried on by them was an industry under section 2(j), because essentially the creation of a well-educated, healthy young generation imbued with a rational progressive outlook on life which was the sole aim of education, could not at all be compared or assimilated with what might be described as an industrial process ; Employees Union, Jamia Karachi v. Registrar, Trade Unions, Sind and 2 others (1981 P L C 403), in this decision the scope of section 2 of the Industrial Relations Ordinance, 1969 as to `industry' with reference to the University and the Board of Education was considered and it was held that the nature and character of duties and functions performed by the University or Board could not be termed as those of an industry, Ghulam Sarwar and another v. Principal Government Teachers Training College Khairpur (1982 P L C 771), in this case it was held that the Government Teachers Training College, Khairpur was an educational institution and was meant purely for the training of Government teachers. That could not be deemed to be an industrial commercial establishment for the purpose of the Stand ing Order. The employees of the institution were not entitled to file a grievance petition against the termination of their services, under section 25-A of the Industrial Relations Ordinance, 1969.

8. The learned counsel for respondent No. 2 has supported the order of respondent No. 1 by maintaining that the petitioner is an industrial concern since its products sold in exhibition fetch money to the institution and the position of respondent No. 2 is that of a worker within it. The grievance petition could be brought under section 25-A of the Industrial Relations Ordinance, 1969 and was rightly accepted by respondent No.

1. The learned counsel on legal aspect as to the position of the petitioner and in support of the case of respondent No. 2 has relied upon A. F. Ferguson cfc Co. v. 5th Sind Labour Court Karachi and another (1974 P L C 98), in this case it was held that the definition of `industry' under section 2 of the Industrial Relations Ordinance, 1969, was wide enough to include professions and . large professional establishments, for example a firm of Chartered Accoun tants, lawyers and the like, so the Labour Court had the jurisdiction to entertain the demands of the workers through their unions in such establishment.

9. From the presentation of the case the admitted position is that the school is being run by admitting the female students against fees to acquire technical education appertaining to sewing, cutting and needling and on the success of the students in imbibing therewith the education they are issued with the diplomas. There are two teachers who impart techni cal education and a female servant who is otherwise an attendant in the school. The school is maintained and run by a Managing Committee. Respondent No. 2 has been acting as a teacher In the school since 1964. Since the onus was upon respondent No. 2 so as to prove that Attock Industrial School (petitioner) was an industrial concern and her position there was that of a worker, as such her application under section 25-A of the Industrial Relations Ordinance, 1969 was competent and the Labour Court had the jurisdiction to decide the same, therefore, for this the respondent No. 2 before the Labour Court is to be taken into considera tion. To show this educational institution as an `industry' she stated that vocational work was done in the school and the things which were made in the school were put in the annual exhibitions and were sold that way. The income of those things used to be deposited in the school. There were registers of attendance, pay and of exhibitions in the school.

10. Now regarding the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968 as to its application with in the context of this case a reference is to be had to clause (a) of sub section (4) of section 1, which reads :- "It applies to ; (a) Every industrial establishment or commercial establishment where in 20 or more workmen are employed directly or through any other person whether on behalf of himself or any other person or were so employed on any day during the preceding twelve months ;" However, the Government may by notification in the official Gazette from time to time specify in this behalf such class or classes of other industrial and commercial establishment.

11. The petitioner institution does not keep the requisite number of the employees so as to attract the provisions of this Ordinance, therefore, an employee in this institution is not in the status of a worker nor there is any notification issued by the Government that to this institute the applica tion of the said Ordinance is to be extended. Section 2, clause (xiv) of the Industrial Relations Ordinance, 1969, gives the definition of 'industry' as "industry means any business, trade, manufacture, calling, service, employ ment or occupation." Viewed in the light of the above-quoted decision i.e. K. G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others, vis-a-vis the definition of 'industry' as given in the abovesaid Ordinance, the petitioner's school cannot by any ratiocination be regarded as an industry as defined in the Industrial Relations Ordinance, 1969 so as to attract its application. The petitioner institution decidedly is an educa tional school being run on a small scale for imparting technical education so as to train the students to equip them for their future struggle with the education of arts they are trained about. The articles produced by the school are exposed as alleged by respondent No. 2 at annual exhibitions and are sold. Such a casual income cannot make the petitioner's school as an industry within the definition of the aforesaid Ordinance. It can be regarded as an incidence of vocational education and not the basic asser tion of it. It has been admitted by respondent No. 2 in her statement that this income is kept in the school, so such an income if the school keeps, the presumption is that it is spent on the development and progress of the school, not that school is being run so as to secure earnings. By position on the facts and circumstances respondent No. 2's relation was that of master and servant whereunder the service could be terminated by on month's notice or one month's pay in lieu thereof which was in fact done1 by the petitioner. If at all aggrieved her remedy at that time was to file a suit for damages in the civil Court.

12. The conclusion is that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the Industrial Relations Ordinance, 1969 being not applicable, the petition moved by respondent No. 2 m the Labour Court under section 25-A of the Industrial Relations Ordinance as a grievance petition was not competent and the C Labour Court had no jurisdiction to adjudicate upon. It was rightly observed so by the Junior Labour Court, therefore, this writ petition is accepted and the order, dated 23rd August, 1975 passed by respondent No. I is hereby declared as without lawful authority and of no legal effect, without any order as to costs. A. A. Petition allowed.