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Constitutional Petition No. D‑563 of 1980, decided on 30th May, 1984.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑---

‑‑-S. 2 (b), S. Os. 12, 13 &. 15‑Company registered under S. 26, Companies Act, 1913‑Objects of company being to levy fees for services rendered by it and also to realise royalty, or sale price in respect of documents or any information produced by company, but such money could only be utilized for running of organisation and promotion of its objects which were entirely non‑profit oriented‑Company though registered under Companies Act, 1913 but objects of company being rendering of technical assistance to Govern ment, semi‑Government, private organisations and individuals, it was admittedly a non‑profit making organisation‑Such company, therefore, was not "Commercial Establishment" or "industrial establishment" and its employee was not a "workman" for purposes of S. O. 12 (3) and Standing Orders 12 & 15 could not also be invoked in such a case‑Employee of such organisation were governed by terms and conditions of his appointment.

Medical Educational Uplift Fund Association of Seventh Day‑Adventists in Pakistan v. Sind Labour Court, Karachi and others P L D 1978 Kar. 536; Holy Family Hospital Society v. IIIrd Sind Labour Court and another P L D 1979 Kar. 529; Pakistan National Centre through its Chairman v. Presiding Officer Punjab Labour Court P L D 1976 Lab. 1085 and K. G. Old Principal, Christian Technical Centre Gujranwala v. Presiding Officer, Punjab Labour Court Northern Zone P L D 1976 Lab. 1097 ref.

Chamber of Commerce and Industry v. Presiding Officer, Sind Labour Court No. 3 P L D 1979 Kar. 189 distinguished.

Ali Amjad for Appellant.

Shahenshah Hussain for Respondents.

Date of hearing 8th May, 1984.

----This petition arises out of the decision of the Sind Labour Appellate Tribunal, Karachi dated 12th December, 1979 whereby the order of the IInd Sind Labour Court, Karachi was set aside as it found that there was no cause for interference by the Labour Court in the termination of services of the petitioner by the Investment Advisory Centre of Pakistan. The brief facts are that the petitioner was appointed as a telephone cum‑receptionist on 7th November, 1967 by the respondent No. 2. She was subsequently transferred to work as a library assistant but no such transfer order was given to her. It was on 8th May, 1978, when she was informed by the Administrative Officer of the respondent No. 2 that her services were no longer required by the Centre, and she was relieved of her duties on 9th May, 1978 (forenoon). She was also requested to draw her one month's salary in advance in lieu of the notice period and settle her final accounts with the Accounts Branch of the respondent No. 2. The petitioner after sending the grievance notice, approached the Labour Court, challenging the order of the termination of services of the respondent No. 2 by way of filing her application with a request for her reinstatement with all back benefits. The Labour Court set aside the termination order of the respondent No. 2, and directed the respondent No. 2 to reinstate the applicant in service forthwith with all back benefits and continuity in service. It was, however, ordered that she would not be entitled to any wages for the period she had been in service in. the Mineral Development Corporation.

It will be necessary, to examine the status and objects which led to creation of the respondent No. 2. It is a Limited Company registered under section 26 of the Companies Act, 1913. The licence has been issued to it with the stipulation that it shall not apply the profits or other income for other purpose than promoting its objects and shall not pay any dividend to its members. That the object for which the respondent No. 2 has been established is to assist Pakistan Industrial Credit and Investment Corporation Ltd., and Industrial Bank of Pakistan for the analysis and appraisal of loan applications and evaluation of applications for sanctions if required by Investment Promotion Bureau. Its objects are to make studies of areas and sectors in which new private investment is desirable and feasible, to prepare concrete proposals for such proposed investment, to analyse the projects of private investors and putting them into concrete proposals as a base for sound investment, upgrade the training of Pakistan technical staff with a view to enable them to advise the investors, to collect and circulate statistical and other information relating to investment activity, to purchase, take on lease or on exchange, hire or otherwise acquire any real or personal property and to enter into other contracts or engagements deemed necessary or convenient for any of the purposes and objects of the Centre and to do all such other lawful things as the Centre may think incidental or conducive to the attainment of any or all the objects of the Centre. The respondent No. 2 is entitled to charge such fee and lay down such condition for technical advice given or for investigation carried out by the Centre at the request of any person or non‑Government Body as the Board may determine from time to time.

The learned counsel for the petitioner has pointed out to definition of word Commercial Agency as given in Ballentine's Law Dictionary and also has referred to the definitions given in section 2 (b) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. According to him the petitioner's case is covered by section 12 (3) of the Standing Orders Ordinance as the respondent No. 2, in view of the defini tions of the Dictionary meaning and the Sections referred to above, is a Commercial Agency' and its order being without reasons is not within the requirements of Law and, therefore, cannot be sustained under the circum stances of the case. Moreover, the aims and objects of the respondent No. 2 are such that it clearly comes within the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It being a "commercial establishment", it was obligatory on the part of the respondent No. 2 to fulfil the reasons for the termination of the services of the petitioner in writing as the petitioner comes within the definition of "workman". Since the reasons for termination are absent in the case of the petitioner, the order of the respondent No. 2 is liable to be set aside. He has placed his reliance on P L D 1979 Karachi 189.

Mr. Shahanshah‑Hussain, the learned counsel for the respondent No. 2 has contended that the respondent No. 2 is not an industrial organisation in view of section 2 (b) and (f) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 though it is a Company registered under section 26 of the Companies Act, 1913, but it is a non -profitable organisation. It does charge fees but is not motivated to earn profits. Its main source of income is the grant from the Government, and it runs under the authority of Government though it is an Autonomous Body. It has also been contended by him that the principles laid down in the case of Chamber of Commerce and Industry v. Presiding Officer, Sind Labour Court No. 3 (1) are distinguishable from this case as Chamber of Commerce and Industry is a trade organisation, and its objects ace to promote commerce and industry. It being an organisation of industrialists and also a profit making organisation, it cannot be compared with the respondent No. 2.

It has been further contended by him that the respondent No. 2 does not fall within the definitions of "commercial establishment" or "indus trial establishment" as given in the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. He has placed reliance on the case of Medical Educational Uplift Fund Association of Seventh‑Day Adventists in Pakistan v. Sind Labour Court, Karachi and others (P L D 1978 Kar. 536). It has been held in this case that a charitable hospital runs on no profit basis, does not fall within the scope of the definition of either an "indus trial establishment" or "commercial establishment" under Ordinance VI of 1968 and that employees of such hospitals are not "workman" for the purposes of the said Ordinance.

This view was reiterated in the later case of "Holy Family Hospital Society v. IIIrd Sind Labour Court and another (P L, D 1979 Kar. 529). He has placed his reliance on another case of Pakistan National Centre through its Chairman v. Presiding Officer Punjab Labour Court (P L D 1976 Lah. 1085) in which it has been held that a Society registered under the Societies Registration Act, having no motive of profit, it is neither an industrial nor a commercial establishment, therefore, person employed in such society is not a "workman". The guarantees and safeguards provided in the Ordinance VI of 1968 are not applicable to such parson and the Labour Court could not give him any relief. There is an another case, K. G. Old, Principal, Christian Technical Centre Gujranwala v. Presiding Officer, Punjab Labour Court Northern Zone (P L D 1976 Lah. 1097) wherein the principle established is that enterprise be looked at as a whole to find out its raison d'etre as any incident, ancillary or an adjunct part thereof cannot determine character of whole‑Held, what is incidental to main purpose of such establishment cannot detract from its being an educational institution‑orders of labour Court treating work shop of such establishment not to be a part of educational process or education to be an 'Industry" for purposes of Industrial Relations Ordi nance declared to be without lawful authority (P L D 1976 Lahore 1097).

The first question that needs to be resolved is whether the respondent No. 2 is a "commercial establishment", and if so, whether it could be termed as "employer" within the meaning of section 2 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

We have heard the learned counsel for the petitioner as well as respon dent. We have carefully gone through the citations referred to by them. There is no doubt that the objects of the respondent No. 2 are to levy fees for the services rendered by it and also to realise royalty, or sale price in respect of documents, or any information produced by it; but such money can only be utilized for running of the organisation and pro motion of its objects which are entirely non‑profit oriented. We have given A our anxious thought to the case of Chamber of Commerce and Industry, Karachi v. Presiding Officer, Sind Labour Court No.3. The considerations for the Chamber of Commerce and Industry. Karachi as "commercial establishment" are absolutely different. The Chamber was also doing the work of advertisement for which it obtained returns in addition to the fees for weighment and examination as to quality of merchandise. There were also balance‑sheets, showing that the Chamber was a "com mercial establishment", and earned profit. It was also charging its mem bers, for parking of vehicles, for advertisements in the trade journal, for photostat service, and for measurement, we, therefore, hold that the facts of this case are not at all similar to the present case.

There is no doubt that the respondent No. 2 has been registered as a Company under section 26 of Companies Act and further, according to its Memorandum and Articles of Association it can neither show nor can any part of its income be distributed among its members or directors. The objects of the respondent No. 2 are to assist Pakistan Industrial Credit and Investment Corporation Ltd. (P I C I C) and Industrial Bank of Pakistan (I. B. P.) for analysis add appraisal of loan applications, and in the evaluation of applications for sanction, if required by Investment Pro motion Bureau (I. P. B.) which are for laudable purposes of rendering the technical assistance to Government, Semi‑Government, private organisa tions and individuals and it is admittedly a non‑profit‑making organisation.

Therefore, in view of foregoing reasons, and in the light of citations referred to above, we are of the view that neither the respondent No.2 is a "commercial establishment", or "industrial establishment" nor the petitioner is a "workman" for purposes of the Standing Orders, and as a result of it, provisions of the Standing Orders, including Standing Orders 12 and 15 cannot be invoked in this case. The petitioner has rightly been held by the learned Appellate Tribunal, to be governed by the terms and conditions of her appointment which provided thirty days, notice, or wages for thirty days, in lieu of notice, in case of termination of the service of the petitioner. The petitioner is services were, therefore, rightly termi nated, and there is nothing in the case of the petitioner to invoke the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In the result, we dismiss this petition with no order as to costs in the circumstances of the case.

M. Z. M.

Petition dismissed.

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