P L D 1968 Lahore 395 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑

The Municipal Muharrirs Union, Mianwali, the respondent, gave a strike notice to the Muni cipal Committee, Mianwali, raising a certain number of demands. Inter alia, the Union claimed in Demand No. 4 that the Octroi Muharrirs should not be made to work for more than eight hours 4 day and further asked in Demand No. 5 that the children of the employees should be given free education up to the high classes. On failure of the Conciliation Officer to bring about settlement, he issued a Failure Certificate in favour of the Union and it applied under subsection (5) of section 5 of the Industrial Disputes Ordinance, 1959, to the Industrial Court for adjudication of the disputes including Demands Nos. 4 and

5. The Industrial Court allowed both the demands by its award dated the 16th of September 1964, which was published in the Extraordinary Issue of the Gazette of West Pakistan dated the 9th of October 1964. This is an appeal under section 12 (5) of the Ordinance against the award.

2. The appellant in its written pleas before the Industrial Court questioned the jurisdiction of the Court on the ground that any dispute between the employees and the Municipal Committee was not an industrial dispute. The precise contention was that the Committee was not an "industry" within the meaning of clause (g) of section 2 of the Ordinance. The Court did not accept the contention and granted relief to the employees.

3. The decision of the Industrial Court on the question of jurisdiction is assailed before us and it is contended that none of the services rendered by the Committee is covered by the definition of "industry". On behalf of the Union, it was contended that the decision of the Court on the question of jurisdiction was not an award within the meaning of clause (b) of section 2 and that being so, it was not appealable under subsection (5) of section

12. The award is defined in clause (b) of section 2 of the Ordinance to mean "the determination by an Industrial Court of any Industrial dispute or any matter relating thereto and includes an interim award". It is obvious that according to the interpretation clause, the award is not restricted only to the decisions as to the matters raised in the application under subsection (5) of section 5, viz. "determination of industrial dispute or any matter constituting such dispute." The two terms, namely, "matter constituting such dispute" and "matter relating" to the industrial dispute do not connote the same thing; whereas the former is restrictive in its application, the latter is comprehensive and wherever it is used it would also apply to the cases covered by the term "any matter relating thereto." If the Legislature had intended to restrict the term "award" in its application only to the disputes or the matters referred to in subsection (5) of section 5, it would have used the same words in the definition clause. The departure from those words in clause (b) of section 2 is meaningful and it is manifest that a decision on a question although it may not be the determination of an industrial dispute or any matter relating, thereto, yet it would be an award provided the question bears some relationship with the industrial dispute. The appellant raised the question of jurisdiction before the Court which directly related to the dispute because it was with reference to the dispute that it was contended that it did not fall within the definition of section 2 (b). The decision of the Industrial Court an the question of jurisdiction is an award within the meaning of section 2 (b) and the appeal against the same is competent under section 12 (5) of the Ordinance.

4. The appellant in its written statement before the Industrial Court questioned the jurisdiction of that Court inter alia on the ground that the Committee was not an industry as defined in the Ordinance. The Industrial Court held that the Committee was an industry. It falls for determination whether a dispute between a Municipal Committee and its employees is an industrial dispute. The industrial dispute is defined in clause (h) of section 2 of the Ordinance to mean "any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen which is connected with the employment or non‑employment or the terns of employment or with the conditions of work, of any person. Employer, as defined in clause (f) of section 2, includes (i). "In relation to an industry carried on by or under the authority of any Department of a Government, the authority prescribed in this behalf, or where no authority is prescribed, the head of the Department; and (ii) In relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority." Workman, according to clause (n) means "any person including an apprentice employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Ordinance in relation to an industrial dispute, a workman dis‑.harg2d during that dispute but does not include any person employed in the police or armed forces of Pakistan." It is clear from these definitions that Government can also be an employer for the purposes of the Ordinance provided there is an industry carried on by it or under its authority, and an employee of the Government in such an industry is a workman under the Ordinance. Therefore, if the Government or a local authority carries on an industry, any dispute or difference which may arise between any of them and its employees connected with the employment or non‑employment or the terms of employment or with the conditions of any such employee, shall be a dispute or difference between the employer and the workman and for that reason it shall be an industrial dispute within the meaning of clause (h) of section

2. It is also manifest that it is not with reference to all the functions which the Government or the local authority is required to do under the Constitution or the law that it shall be an employer under the Ordinance, but it will be an employer only in respect of such of its functions which it carries on as an industry. Industry is defined in clause (g) as " 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workman." Thus any function of the Government or the local authority which is in the nature of a business or a trade, undertaking, manufacture, or calling of employers will be an industry. In case where the Government manufactures anything or carries on business or trade, them can be no manner of doubt in such cases that it carries on an industry. In cases however, where a particular function of the Government does not have the trapping of business, trade or manufacture, and it has also not any element of profit‑making, a question arises whether those functions are industry within the meaning of clause (g). In other words, can there be an "undertaking" when it has no element of profit or loss involved in it and also it does not manufacture anything? It was argued that in order that a particular enterprise of an employer should be an undertaking, it is necessary that it should have its functions analogous to the carrying on of a trade, business or that it should be some sort of manufacturing concern. The precise scope of the word "undertaking" depends on the interpretation of the definition of the word "industry" in clause (g). The question for our consideration is what is the true meaning of the language which the Legislature has employed in clause (g) of section

2. Maxwell on the Interpretation of Statutes (Eleventh Edition) by relying on Income‑tax Commissioner v. Pemsel (1891 A C 534) and River Wear Commissioners v. Adamson ((1877)2 A C 743) says at page 2: "if the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declare the intention of the Legislature". The word "undertaking" is not defined in the Ordinance. It had also not acquired any technical meaning when it was used in the laws about industrial disputes. It is, therefore, to be understood in its ordinary meaning. In Webster's it is defined as: "

1. Act of one who undertakes, or engages in. any project or business; specif the business of an undertaker (in sense 3), or the management of funerals.

2. Anything undertaken; any business, work, or project which one engages in, or attempts;, an enterprise.

3. A promise or pledge; a guarantee; specif., any promise or security required by law, as in judicial proceedings." There can i.e an undertaking without the element of trade or business or a manufacturing process, because the word "undertaking" is not qualified by the word manufacturing or business. If the Legislature had meant that only manufacturing or trades were to be the industry, it could have no difficulty in making some provision to the same effect. An enterprise can fall within the ambit of an industry although no immediate material gain by way of profit is envisaged.

5. The definition of "industry" is indeed very wide. It however, does not include the regal or sovereign functions of the Government. The primary and inalienable functions of constitutional Government do not fall within the term "industry." Isaacs, J., in The Federated State School Teachers' Association of Australia v. The State of Victoria ((1928‑29) 41 C L R 569) observed at page 585: "Regal functions are inescapable and inalienable. Such are the legislative power, the administration of laws, the exercise of the judicial power. Non‑regal functions may be assumed by means of the legislative power. But when they are assumed the State acts simply as a huge corporation, with its legislation as the charter. Its action under the legislation, so far as it is not regal execution of the law is merely analogous to that of a private company similarly authorised." A question arises whether a Municipality exercises any such functions. The Municipal Committee is a statutory corporation, and the Act constituting it may confer upon it some strictly legal functions, besides regulating to other powers, duties and functions. Supreme Court of America in Versimo Vasquez Vilias v. City of Manila (220 U S 345) expounded the dual character of a municipal corporation thus:‑-- "They exercise powers which are governmental and powers which are of a private or business character. In the one character a municipal corporation is a governmental sub division, and for that purpose exercises by delegation a part of the sovereignty of the State. In the other character it is a mere legal entity or juristic person. In the latter character it stands for the community in the administration of local affairs wholly beyond the sphere of the public purposes for which its governmental powers are conferred." In so far as the Municipal Committee performs the functions of levying and collecting the taxes it is only performing a governmental function. The workmen who are engaged by the Municipal Committee to perform the functions which are in the nature of the regal or the sovereign functions of the Government and have been delegated to the Committee will not fall within the category of workmen and any dispute between them and the Municipal Committee will, therefore, be not an industrial dispute. In this view of the matter, the staff of the Municipal Committee which are employed in connection with the collection of the taxes exclusively will not be workmen because the activities of the Municipal Committee such as assessing and collecting taxes which pertain to the sovereign functions of the State and have been delegated to the Committee, bear no relationship with the term "industry". It is not the case of the respondent‑Union that the Octroi Muharrirs have to perform any other functions except to collect the octroi duty. These Muharrirs being not the workmen o within the meaning of the Industrial Disputes Ordinance, any dispute between them and the Municipal Committee, will not be an industrial dispute.

6. There are other activities of the Municipal Committee such as making and preparing roads, sanitation and conservancy, running the hospitals and the schools. They do not exclusively pertain to the regal or sovereign functions of the Government and can be undertaken by the private concerns of individuals as well. They are, therefore, an undertaking and can be classed as industry within the meaning of clause (g) of section 2 of the will be the Apt. The persons employed in such activities workmen within the meaning of the Ordinance and any dispute which may arise between them and the Committee will be an industrial dispute.

7. In Demand No. 4 it was alleged that the Octroi Muharrirs had to work for twelve hours a day and it was claimed that they should not be made to work for more than eight hours a day. The demand was accepted by the Industrial Court on the ground that in some of the Municipal Committees, Octroi Muharrirs were working only for eight hours a day. Since the appellant has not controverted this statement even in the grounds of appeal, the Industrial Court was justified to accept the demand. In similar circumstances, in Pakistan Petroleum Workers' Federation v. Burmah‑Shell Oil Storage and Distributing Company of Pakistan Ltd. (P L D 1961 S C 479) the Supreme Court had held: "In the Pakistan Petroleum Ltd. case, a question was raised regarding the working hours of motor car drivers. It seems that this Company was working its drivers 51 hours a week as against 48 hours a week required of their drivers by other Companies. The Tribunal reduced the hours of working to this case as well to 43, and the Company has appealed against this award. The award operates to produce uniformity, and I would therefore dismiss the appeal on this point." The same reasoning applies in this case and there was a justification in the demand that the Octroi Muharrirs should not be asked to work more than eight hours a day. It is also borne out by the facts on the' record that the Octroi Muharrirs are over‑worked when they are asked to work for twelve hours. The Municipal Committee made a proposal for the creation of two posts of Octroi Muharrirs for the year 1963‑64 and again they made a proposal for the creation of three posts of Octroi Muharrirs for the year 1964‑65, but‑both the times the Commissioner, Sargodha Division, Sargodha, who is the Controlling Authority of the Committee, rejected their proposals. It seems that the Municipal Committee realised that the existing Octroi Muharrirs were over worked. These Muharrirs, if they had been employed, would have relieved the existing Muharrirs, to some extent, of the burden of their work. It shows that the existing Muharrirs have to put in more work than they are ordinarily expected to do. The demand was legitimate and, but for the finding that the dispute arising in respect of this demand was not an industrial dispute, we would have upheld the order of the Industrial Court on this question.

8. The Industrial Court also accepted Demand No. 5 of the respondent to the extent that the children of the Octroi Muharrirs and peons studying in the municipal schools should be given free education up to the high classes. The Industrial Court has given no reasons for accepting this demand. The Municipal Committee is providing free education to the children of its employees up to the primary standard. The question arises whether the Municipal Committee can be held responsible for the education of the children of its workers. The Royal Commission made the following observations regarding the education of the workers' children at page 28 of their report "We recognise that the education of the industrial population on a large scale must, to some extent, wait on developments in the bigger world outside industry, and that in any event the process must be gradual; but employers in many cases would be making a valuable contribution if they were prepared to develop the education of their workers' children in their factory schools. The non‑working child is likely to get much more advantage from such education than the half‑timer. The difficulty here is the economic pressure which tends to drive the child to work at an early stage. But we believe that employers who, as some have already done, make the small outlay necessary to keep such children at a school will really be doing a great social service. Moreover, they will probably reap the benefit later by introducing a better type of worker, thus paying the way for selected men to rise higher." They further observed: "At the same time the main responsibility for education in industrial areas cannot be thrown upon employers." The Labour Investigation Committee also made the following observations in their report at page 362:‑-- "We are not sure however that provision of educational facilities could be imposed upon employers as a matter of policy. As in the case of medical facilities, if any employers actually do provide such facilities, they must be considered as merely gratis." (We have taken these facts from. Award No. 20 of 1954 of the Industrial Tribunal (Mr. Justice Fazle‑Akbar) In re: East Bengal Railway Administration v. East Pakistan Railway Employees' League). This question has also been dealt with in Pakistan Petroleum Workers' Federation v. Burmah‑Shell Oil Storage and Distributing Co. of Pakistan Ltd., and Cornelius, C. J., observed: "In my opinion, the demand of these workers of the Attock Oil Company for free‑education at the Company's expense was wholly out of the way. What the Company is already doing is entirely outside its proper obligation, and is being done by way of public charity. What has been forced upon the Company in relation to their employees falls in a wholly different field, namely, that of legal obligation and it seems to me that they are right resisting the demand. I would therefore allow the appeal of the Attock Oil Company against this award and direct that it should be set aside." His Lordship also observed "that it is no part of the duty of any of the Companies concerned to establish schools at all. That is the function of the Government, and while such schools may be provided by large Companies ex gratia specially in isolated and remote localities where educational facilities are not available, the duty of providing in this respect cannot be forced upon a Company by a Tribunal, In this view of the matter, there was no justification for the Industrial Court to have accepted demand No. 5 regarding the education up to the high classes to the children of the Octroi Muharrirs and the peons.

9. We would, therefore, allow the appeal of the Municipal Committee against the award and direct that it should be set aside. There shall be no order as to costs. A.H. Appeal accepted.