1979 PLP 337 (PLC)

(4) Stephen Paul, Propaganda Secretary. (5) Albert, Executive Member. (6) Maqbool, Executive Member. (7) Lawrence Lazrus, Executive Member, and (8) Emanuel Das, Member of the Union. The allegations against these eight employees were that they had illegally struck work, had taken away the keys of their Departments, had instigated and incited several other employees of the Hospital to go on illegal strike and that on 10‑6‑1979 at about 6 p.m. during working and visiting hours of the Hospital they alongwith others indulged in brick bating, which caused injuries to several employees and jeopardized lives of several patients and visitors. The concerned employees were required to give their explanations in writing within three days of the receipt of charge‑sheet. They were also placed under suspension. On 28‑6‑1972 the said employees submitted individual explanations to the Medical Director denying the allegations levelled against them. The Medical Director hurriedly appointed an Inquiry Officer, who was an outsider to hold an inquiry against the said employees. The employees concerned made various representations to the Medical Director that the Enquiry Officer was biased and partial against the employees and that he should be substituted by an impartial Inquiry Committee. Their protest was not considered, enquiry was held ex parte against them and on the basis .of the report of the Enquiry Officer, the employees were dismissed from service by the Medical Director, United Christian Hospital Employees' Union challenged the order of dismissal of eight employees by way of a petition under section 25‑A of the Ordinance before the learned Labour Court. In that petition it was alleged that the order of dismissal of the aforesaid eight employees were illegal, void and wrongful on the following grounds :‑-- (a) That an Industrial dispute was pending between the Management and the Union. The employees concerned were mostly the office‑bearers of the Union, and therefore their dismissal, without the permission of the Court was violative of section 47 of Industrial Relations Ordinance, 1969. (b) That the charge of going on illegal strike was not all borne out by the facts. The employees were merely on a token protest. They were forcibly turned out of the Hospital by the Medical Director with the help of the Police and his partymen. In spite of the intervention by Dr. Ghulam Hussain, M. N: A. and Javed‑ur‑Rehman the then Special Assistant to the Governor, the eight employees concerned were not allowed to resume their duties, (c) that the charge of the employees being disorderly and riotous was baseless and not borne out by the facts, (d) that the Inquiry Officer was partial and biased against the employees and the enquiry proceedings were thus vitiated, (e) that the employees concerned were not afforded an opportunity to explain the charges levelled against them and to produce their defence. The enquiry was conducted ex parte against them.

3. The Management of U. C. H. resisted the petition not only on merits but also raised the following preliminary objections :‑(1) That the petitioner‑Union had no locus standi to file the present petition as it was illegally constituted, inasmuch as, its constitution was in violation of the provisions of section 7 (d) of the Industrial Relations Ordinance, 1969. (2) That the petition under section 25‑A was not also maintainable for the reason that the provisions of section 25‑A (1) regarding the service of the grievance notice were not complied with, (3) That the U. C. H. was not an industry within the meaning of I. R. O. or Industrial and Commercial Establishment within the meaning of W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and, therefore, this Court had no jurisdiction to entertain this petition.

4. The learned Labour Court overruled the preliminary objections Nos. 1 and 3 and upheld preliminary objection No. 2 and dismissed the petition.

5. Aggrieved by the above decision, United Christian Hospital Employees' Union has preferred this appeal. The Management of the United Christian Hospital has also preferred cross‑appeal against the findings of the learned Labour Court on preliminary objection No.

3. Since both these appeals arise out of the same decision, they will be disposed of together by one judgment.

6. I will take up the cross‑appeal by the Management first. The learned Labour Court relying on the judgment of Sind & Baluchistan High Court in the case, A. F. Farguson & Company v. 5th Sind Labour Court, Karachi and another (1974 P L C 98), held that the United Christian Hospital was an industry. The Lahore High Court in a recent judgment in Writ Petition No. 1210 of 1973 entitled, "Mr. K. G. Old Principal v. Presiding Officer, Labour Court etc." (P L D 1976 Lah. 1096) has held that the Christian Training Centre, Gurjanwala, the Punjab Printing Press and the Board of Intermediate and Secondary Education, Sargodtha were not industries under the Industrial Relations Ordinance, 1969. In this judgment test was laid down as to what institutions are industries. It is observed therein :‑-- "A review of the Australian and Indian cases makes it clear that in the sphere of Industrial and Labour Law the terms `Busiress, Trade and Manufacture' were without exception given not their plain dictionary meaning but their popular and conventional meaning. Their retention in the definition would clearly suggest that it was not intended by the Legislature to either enlarge their meaning or to further limit it. The expressions, `calling, service, employment or occupation' have also never been understood or interpreted in their plain dictionary meaning. Instead they have been held to be controlled by and taking their colour from opening words, Business, Trade and Manufacture. The upshot of the entire discussion is that the use of the expres sion Business, Trade, Manufacture, Calling, Service, Employment or Occupation" in the definition of Industry in Industrial Relations Ordinance is not in its ordinary dictionary meaning but in its popular and conventional meaning. In the context of Industrial and Labour Laws, these expressions apply to any enterprise which is organized and is systematic depending substantially, if not entirely, on the cooperation between Labour and Capital, and having as its object production, distribution and consumption of wealth, or the produc tion or provision of material services. The enterprise as a whole has to be looked at to find out its raison d'etre, and any part of it which is incidental, ancillary or an adjunct cannot determine the character of the whole." In that judgment reliance was also placed on the judgment of Indian Supreme Court in the case of Safdar yang Hospital (1970 L L 1266), wherein it was held that a Hospital was not an industry. The view expressed by the Sind & Baluchistan High Court in the case of A. F. Farguson & Company v. 5th Sind Labour Court, Karachi and another eras not agreed upon.

7. Now applying the test laid down in the aforementioned judgement one has to see as to whether United Christian Hospital is an industry. This Hospital is being run by a society registered under the Societies Registration Act, 1860. The objects of this society according to the constitution of U. C. H. Inter alia, are to establish and maintain a hospital for the care of the sick and for prevention of diseases with equal benefits to all without reference to race, class or creed to provide educational facilities as far as resources permit for those preparing to serve for the care of the sick, of the prevention of the disease or the promotion of health; and to promote enquiry and research as far as resources permit into matters concerning health and disease and whatever may contribute thereto. It is also provided that no member of the Boar of Director shall receive any payment in return for his service as the member of the Board of the Directors except that he may be recompensated for out of pocket expenses incurred in connection with the attendance at meetings of the Board and provided further that the employees of the Board of Directors who are by virtue of office or election made members of the Board shall not be considered to be drawing their regular salaries a member of the Board of Directors. The enterprise as a whole has to b looked at to find out its raison d'etre, and any part of it which is incidental ancillary or an adjunct cannot determine the character of the whole. I, therefore, hold that the United Christan Hospital is not an industry under the Industrial Relations Ordinance, and as such the U. C. H. Employees, Union had no locus standi to file and maintain the petition under section 25‑A of the Ordinance.

8. In the result the cross‑appeal filed by the Management is accepted and the petition filed by the Union is rejected. In view of the above, appeal filed by the employees' Union automatically stands rejected. Order accordingly.