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Writ Petition No.1618 of 1976, decided on 19th June, 1979.

‑‑‑Ss. 2(xiv), 25‑A & 38(3)‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1(4)‑ Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction in labour cases‑‑Mayo Hospital employees, whether could seek redress before Labour Court‑‑Mayo Hospital running under full Government control rendering services free of charge mostly, cannot be, held, as "industry"‑‑Grievance not identified as flowing from any statutory rule or provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑Labour Court assuming jurisdiction and accepting grievance petition against termination of service of such employee, held, having not been identified with reference to any rule or law relief could not be granted in terms in which same was granted and (ii) provisions of Industrial Relations Ordinance, 1968 could not be invoked for redress of grievance‑‑High Court in writ jurisdiction setting aside order of Labour Court declaring same as without lawful authority and of no legal effect.

Aftab Iqbal Ch. for Petitioner.

Ijaz Anwar for Respondent No. 1.

Dates of hearing: 4th March and 7th April, 1979.

The Government of the Punjab has invoked the Constitutional jurisdiction for challenging a decision of the Punjab Labour Court dated 12‑6‑1976 directing it to re‑instate in service the respondents Nos. 1 to 8.

2. The facts of the case are that the aforesaid respondents were engaged as contingent staff and at the time of regularisation of their employment it was found that it could not be done under the policy of the Government on the subject. They were not continued on regular posts and hence, they made a grievance of it before the Junior Labour Court in proceedings under section 25‑A of the Industrial Relations Ordinance. The Junior Labour Court held that these respondents were Government servants and the Labour Court had no jurisdiction in the matter. On appeal it was found by the Labour Court that these employees were no doubt employed as contingent staff but were made permanent in middle of 1974 and their services were dispensed with in the end of 1975. A submission was made before the learned Labour Court with regard to its jurisdiction in the matter on the ground that Mayo Hospital where the respondents were engaged did not fall in the category of an industry for the purposes of Industrial Relations Ordinance and hence, it was said the jurisdiction of the Labour Courts stood excluded. The Labour Court found that it was an undertaking and the termination of the employee's service was without justification and directed the respondent to re‑instate the appellants within a week. The Government has taken up the ground that the Labour Courts had no jurisdiction in the matter. As they were civil servants, they were governed by their own rules of employment and they could not be accommodated as permanent employees. As regards the jurisdiction of the Labour Courts, the case has been argued on two main grounds. Firstly, it has been contended that Mayo Hospital is not an industry whatever be the amplitude of its definition and for that reason the Industrial Relations Ordinance could not be of avail to the employees. For this purpose reliance is placed on a decision given by me in a case of educational institutions, K.G. Old v. Presiding Officer P L D 1976 Lah. 1097. The second ground is that the Standing Orders Ordinance gets excluded so far as these respondents are concerned on the strength of first proviso to section 2 of the Standing Order No. 1, which reads:

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

3. So far as the first ground is concerned, it was held by me in the case cited as precedent that in the context of Industrial and Labour Laws the expressions "business., trade, manufacture, calling, service, employment or occupation" 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 production 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. Applying that test it cannot be said that the Mayo Hospital under the full control of the Government rendering services free of charge mostly is an Industry. For that reason the Industrial Relations Ordinance would not be applicable and its provisions could not be invoked for getting the grievance redressed.

4. The rights, if any, which the respondents claimed had to be first identified by reference to the rule or tie law and then redress provided in the manner adjusted to the infraction of the right. In the present case the right has not been identified as flowing from any particular statutory rule of the Government or of the Standing Orders Ordinance. The question which required determination in the context e was whether a contingent employee had to be confirmed on his own terms or on the terms provided by the rules, whether the confirmation, if any, which took place was in accordance with the law on the subject and by an authority competent to do so. These matters have not been attended to, the relief could not be granted in terms in which it has been granted.

5. In the circumstances, this petition is allowed. The order of the Labour Court is declared to be without lawful authority and of no legal effect. In the circumstances, there shall be no order as to costs.

A . E. /629/ Lb Petition allowed.

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