1992 P L C 474

[National Industrial Relations Commission]

Present: Ataullah Sajjad Chairman, Mahmood Akhter, Senior Member and Munir
Ahmad Mughal, Member
HASSAN AHMED BARIAH and another
versus
THE DIRECTOR-GENERAL, ARCHAEOLOGY DEPARTMENT KARACHI and
another
Appeal No. 12(96) of 1990, decided on 7th October, 1991.
(a) Industrial Relations Ordinance (XXIII of 1969)------S. 2(xiv)---"Industry"---Archaeology, which was neither a business nor a trade nor a
manufacture nor a service nor employment nor occupation and where no workmen were
employed to create an art, in fact was not industry within meaning of section 2(xiv) of
Ordinance---Poet's work would not be called industry because no workmen are employed
to create poetry---Work of artist or of any other intellectual person also could not be
called industry, including educational institutions.
(b) Industrial Relations Ordinance (XXIII of 1969)------Ss. 2(xiv) & 8---Industry---Registration of Trade Union---Archaeology Department's
work, which was more in nature of national heritage or ancient history, would not fall
within definition of term "industry" because the Department did not carry on a business,
trade, manufacture, calling, service employment or occupation through employer worker
relationship--Archaeology Department's establishment was also not an office, firm,
industrial unit, undertaking, shop or premises in which workmen were employed for
purpose or carrying on a business, trade, manufacture, calling, service, employment or
occupation---Workmen of Archaeology Department who were Government employees,
could not be registered as a Trade Union under Ordinance, 1969, in circumstances.
Safdar Jung Hospital v. Kuldib Singh Sethi 1970 II LLJ 266; Federated Municipal Shire
Council Employees of Australia v. Melbourn Corporation 26 CLR 508; Barahmo Samaj
Educational Society and others v. West Bengal College Employees Association and others
1968 PLC 678; 1976 PLC 670 and Aiyasha Bhawani Academy's case 1975 PLC 354 rer.
Hartz Muhammad Yunus, Representative for Appellants.
Aminur Rehman for Respondents.
ORDER

MAHMOOD AKHTER (SENIOR MEMBER).---The question raised in this appeal is

whether the workmen of the Archaeology Department, Karachi and Archaeology
Directorate, Lahore could be registered as a trade union under Industrial Relations
Ordinance, 1969 or not. The Registrar of Industry-wise Trade Unions who considered this
question on original side rejected the plea of the union for registration of trade union in
the Department. He accepted the plea of the Department of Archaeology that the said
union cannot he registered under the law as the employee of that Department are the
Government Employees who have no right to gel their union registered. The petitioner

urged that the Registrar of Trade Union, Karachi, in the said Department at Karachi, has
already registered a union but even that plea did not prevail with the Bench.
2. We have heard the detailed arguments of both sides.
3. It is urged, albeit mistakenly that the equity of treatment under the law shall be denied
to the petitioners if their union is not given the same treatment as to workmen of Pak
PWD, who can form trade union and those trade unions are registered under the
Industrial Relations Ordinance, 1969. This plea has no force because of the doctrine of
equality before law. A reference to word `industry' is necessary in this behalf. "Industry"
as defined under clause 2(xiv) of the Industrial Relations Ordinance, 1969, reads as
follows:"industry" means any business, trade, manufacture, calling, service, employment or
occupation".

4. It may be seen that the first three words business, trade and manufacture are those
fields of human endeavour which are peculiar to employers and the last four words
namely calling, service, employment or occupation are those which arc peculiar to
workmen. In the case Management of Safdar Jung Hospital v. Kuldib Singh Sethi (1970
II LLJ p. 266) (272) (SC), Mr. Hidayatullah, Chief Justice of the Indian Supreme Court
stated that the definition of `industry' read as a whole denotes a calling, enterprise in
which employers and employees are associated. 1t does not exist either by employers
alone or by employees alone. It exists only when there is a relationship between
employers and employees, the former engaged in business, trade, undertaking,
manufacture or calling of the employers and the latter engaged in any calling, service,
employment, handicraft or industrial occupation or avocation. There must, therefore, be
an enterprise in which the employers follow their avocation as detailed in the definition
and employ workmen who follow one of the avocations detailed for workmen. The
definition no doubt seeks to define industry with reference to employer's occupation but
includes the employee, for without the two there can be no industry. An industry, is only
to be found when there are employers and employees, the former relying upon the
services of the latter to fulfil their own occupation". In a case of Australian jurisdiction
(Federated Municipal Shire Council Employees of Australia v. Melbourn Corporation 26
CLR 508), the Justices Isaacs and Rich, JJ. analysed the term industrial dispute and in the
process constituted "industrial disputes" occurred when, in relation to operations in which
capital and labour are contributed in cooperation for the satisfaction of human wants and
desires, those engaged in respecting either a share of the produce or other activity of
Municipal Corporation would fall within the ambit of definition. The Court held in that
case that although Municipal activity utterly regarded as business or trade yet it will fall
within the scope of word "industry". The Industrial Relations Ordinance conceives of
workmen or employers engaged in an establishment which is an office, a firm and
industrial unit undertaking, shop or premises in which workmen are employed for the
purposes of carrying on any industry. Archaeology is neither a business nor a trade nor a
manufacture nor a service nor employment nor occupation. It is in fact not an industry
where no workmen are employed to create an art. A poet's work will not be caller!
industry because no workmen are employed to create poetry. Similarly the work of artist,
any other intellectual provisions also cannot be called industry, including educational
institutions are not considered to be covered by the , definition of the term industry under
the Industrial Relations Ordinance, 1969. The High Court of Calcutta held in Barahmo
Samaj Educational Society and others v. West Bengal College Employees Association
and others (1968 PLC 678) that an educational institution is not an industry. Similarly, in
1976 PLC 670 it was held that Fatimah Jinnah Medical College was not an industry. In
the case of Aiyasha Bhawani Academy (1975 PLC 354) also it was held that educational
institution is not an industry. In this view Archaeology which operates musea and

undertakes digging up renovation and maintenance of historical sites also performs a

work of educational nature.

5. In this view of the matter Archaeology Department's work does not fall within the
definition of the term industry. It is more in the nature of national heritage or ancient
history, but not a business, trade, or manufacture, or employment, in which workmen and
employers by joint endeavour produce,' services or goods. The Archaeology Department
is therefore not an industry because; they do not carry on an industry (i.e. a business,
trade, manufacture, calling, service employment or occupation) through the employer
worker relationship. The Archaeology Department's establishment is not an office firm
industrial unit undertaking shop or premises in which workmen are employed for the
purpose of carrying on a business, trade, manufacture, calling, service, employment or
occupation.
6. This appeal is therefore dismissed being of no merit.
H.B.T./174/N.I.R.C.

Appeal dismissed