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Appeal No. LHR-127 of 1972, decided on 25th September 1972.

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S. 2(b) & (f)-Indus trial or commercial establishment - Board of Intermediate and Secondary Education Neither an industrial nor a commercial establishment-Employees of Board-Cannot raise an industrial dispute.

A I R 1963 S C 1873 rel.

, Ss. 19 & 20 read with S. 30(2) and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 1(4), proviso-Statutory rules prescribing conditions of service of Board's employees existing Provisions of Ordinance (VI of 1968) not applicable to employees of Board.

S. 20 read with Board of Intermediate Inter. & and Secondary. Education (Lahore) (Conditions of Service) Rules, r. 11- Dismissal from service - Inquiry into allegation against, employee held by an independent ex judicial officer-Such officer putting oil allegations to, employee and giving reasonable opportunity to defend-Mere fact of formal charge-sheet having not been given- Appellate Cannot lead to conclusion of employee having been taken by Tribunal surprise.

Ch. Muhammad Siddiq and Ch. Muhammad Farooq for Appellant.

Abdul Majeed Qureshi for Respondent.

Date of hearing: 4th September 1972.

This is an appeal against the order of the learned Chairman, Punjab Labour Court, Northern Zone, Lahore, passed under section 25-A of Industrial Relations Ordinance, 1969 whereby the learned Chairman accepted the application of Altaf Rasul, respondent, and ordered his re-instatement with all benefits of service. Arguments in appeal were heard on 4-9-1972 and the order-was reserved On the next day i.e. 5-9-1972, the respondent filed an application under section 151, C. P. C. for stopping the proceedings on the ground that he was moving the High Court on the point that this Tribunal had no jurisdiction to decide this appeal. I passed an order on that application to the effect that do action could be taken on the said application unless stay order was issued from- the High Court. It may be mentioned here that during the course of arguments in appeal, this point was never taken up by the respondent and it was only after the close of the arguments, on the day following this application was presented to this Tribunal. Since no stay order from the High Court has been brought to my notice, I proceed to decide this appeal.

2. The facts of the case are that Altaf Rasul, respondent was a temporary junior clerk in the Board of Intermediate and Secondary Education, Lahore. Oil 29-7-1970, a complaint was made against him by one Muhammad Zakaria, another junior clerk, alleging that the respondent had not only abused him but had also threatened him with violence and thereby created rowdism. This application was supported by Assistant Incharge. The matter was reported to the Chairman, Board of Intermediate and Secondary Education, Lahore when suspended him on that very day vide order Exh. R/7. Thereafter, the Chairman appointed a Deputy Secretary of the Board to bold an inquiry against the respondent, who objected to the- said appointment. The Chairman on his objection appointed Mr. Salah-ud-Din Hanif, a retired District and Sessions Judge as Enquiry Officer. Mr. Salah-ud-Din Hanif put the crux of the allegations Exh.R/1 to the respondent and thereafter held inquiry. His report is Exh. R/2 dated 1-10-1971. In that report the charge against the respondent was proved. Later, a - show-cause notice Exh. R/8 with a copy of the Enquiry Officer's report was sent to the respondent to submit his reply. He submitted his reply Exh. P-1 dated 2-11-1971. After that the Chairman of the board of intermediate and Secondary Education, Lahore, vide his order Exh. R/4 dated 6-11-1971 terminated the services of the respondent after giving him a personal hearing. The Sectary of the Board communicated the order of termination to the respondent vide Exh. p/2 dated 8-11-1971. The respondent filed an appeal before the Board comprising of eleven members, which was dismissed. Office Superintendent (Finance) on behalf of the Secretary, informed the respondent vide Exh.R/5 that the Board in its meeting held on 10-4-1972 had considered his appeal against' the order of the Chairman terminating the services and resolved to reject it. The respondent then filed an application under section 29-A of Industrial Relations Ordinance, 1969 before the Chairman, Punjab Labour Court, Northern Zone, Lahore, who holding that since the formal charge-sheet had not been served on the respondent, accepted the application and ordered his re-instatement with full benefits. Against that order the Chairman. Board of Intermediate and Secondary Education, Lahore has preferred this appeal as already mentioned above.

3. The respondent had filed an application under section 25-A of Industrial Relations Ordinance, 1969, before the Labour Court, which reads as follows:-

"Redress of individual grievances.--(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or Trade Union, within three months of the day an which cause of such grievance arises.

(2)

(3)

(4)

(5)

In the present case, the respondent had brought his grievance in respect of any right guaranteed or secured to him under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 in so far as a formal charge-sheet had not been served on him before the enquiry was held. Now the point for determination is whether he is competent to file such application under the aforementioned Ordinance, which applies to industrial as well as commercial establishments. The learned counsel for the appellant at the outset contended that Board of Intermediate and Secondary Education, Lahore was neither an industrial nor a commercial establishment, therefore, the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 did not apply. Under section 2(b) of the afore-mentioned Ordinance, commercial establishment means an establishment in which the business or advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establishment, employs workmen, a unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or sock exchange, a club, a hotel, a restaurant or an eating house, a cinema or theatre, and such other establishment of class thereof, as Govern ment may, by notification in the official Gazette declare to be a commercial establishment for the purposes of this Ordinance. Under section 2(f) industrial establishment means :-

(i) an industrial establishment as defined in clause (ii) of section 2 of the payment of Wages Act, 1936 (1V of 1936) ; or

(ii) a factory as defined In clause (i) of section 2 of the Factories Act, 1934 (XXV of 1934) ; or

(iii) a railway as defined in clause (4) of section 3 o: the Railways Act, 1890 (IX of 1890) ; or

(iv) the establishment of a contractor who, directly or indirectly, employs .workmen in connection with the execution of a-contract to which he is a party, and includes the premises in which, or the site at which; any process connected with such execution is carried on.

Explanation-. Contractor" includes a sub-contractor, headman or agent, From the perusal of the above definitions I find that Board of Intermediate and Secondary Education, Lahore is neither are industrial nor commercial establishment because the powers of the Board are to organize, regulate, develop and control intermediate education and secondary education. In view of the above the employees of the Board cannot raise an industrial dispute. I am fortified in this view by the judgment of the Indian Supreme Court reported in A I R 1963 S C 1873 in which the de finition of "industry", "industrial dispute" and "workman" were considered at length and it was held that wor1: of education carried on by institutions like University. Delhi and all educa tional institutions which have been founded 'primarily for the purpose of imparting education at; not industry. Under these circumstances, the application under section 25-A of the Industrial Relations Ordinance, 1969 was not maintainable.

4. Further the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance'. 1969 will also not apply to the Board of Intermediate and Secondary Education, Lahore because It is hit by proviso to subse6tion (4) of section 1 of the said Ordinance, which reads as follows:-

"Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Central or any Provincial Government where, statutory rules of service, conduct or discipline are applicable to the workmen employed therein."

The Board of Intermediate and Secondary Education, Lahore was constituted under section 3 of the West 'Pakistan (Board of Intermediate and Secondary Education. Lahore) Ordinance, 1961 (XVIII of 1961). Under section 19 of the said Ordinance, the Board has power to make regulations consistent with this Ordinance. Under section 20, the Board has powers to make rules consistent with this Ordinance. Under the above sections Board has statutory rules of service and the relevant rule is rule 11 which reads as follows:-

"Conditions of service.-Except as expressly provided in these Regulations every person who is an employee of the Board, holds office during the pleasure of the Board.

No such person as aforesaid shall be dismissed from service until he has been given a 'reasonable opportunity to defend himself."

By virtue of section 30(2), the regulation laid down by the Government within 3months of the date of the commencement in this Ordinance would become part of the schedule. In other words the rules and regulations framed have become statutory. In view of the above, the West' Pakistan Industrial and Com mercial Employment (Standing Orders) Ordinance, 1968 will not g be applicable and, therefore, the respondent could not bring his grievance iii respect of any right guaranteed or secured to him under that Ordinance.

5. Lastly I find that even on merits, the respondent has no legs to stand 'because the enquiry was held by an independent former judicial officer who gave reasonable opportunity to the respondent to defend himself. Thus rule 11 has been complied with. The mere fact that a formal charge-sheet was not given to the respondent, he cannot claim that he was taken by surprise because all the allegations were put to him before the start of the inquiry.

I, accordingly, accept the appeal, set aside the order of the learned Labour Court dated 9-8-1972 and dismiss the application filed by the respondent under section 25-A of the Industrial Relations Ordinance, 19159.

Appeal accepted.

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