2021 S C M R 294

[Supreme Court of Pakistan]

Present: Mushir Alam, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

SHAHEEN AIRPORT SERVICES and another---Petitioners

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION through Chairman and others---Respondents

Civil Review Petitions Nos. 310, 311 and 217 of 2018, decided on 7th December, 2020.

(Against the judgment dated 28.3.2018 passed by this Court in C.As. Nos. 970 and 971 of 2013 - C.M.A. for permission to argue the case)

Industrial Relations Act (X of 2012)---

----S. 2(xvii)---Sindh Industrial Relations Act (XXIX of 2013), S. 2(xvi)---Shaheen Airport Services ('the petitioner')---Not a charitable organization---Claim of the petitioner as being a charitable institution was declined throughout by the High Court and by the Supreme Court, by way of judgment under review---High Court found that 'Shaheen Foundation' appeared to be a charitable institution but that could not be said about Shaheen Airport Services ('the petitioner'); that petitioner organization only existed for making profit, and fact that it yielded its profit to Shaheen Foundation which in turn used it for charitable purposes could not make the petitioner a charitable organization---Supreme Court upheld said findings of the High Court in the judgment under review---Once such finding had come to record, the petitioner could not claim the benefit of S. 2(xvii) of Industrial Relations Act, 2012 or of S. 2(xvi) of Sindh Industrial Relations Act, 2013 in order to claim immunity---Review petitions were dismissed.

Khalid Anwar, Senior Advocate Supreme Court (via video link) and Rashid Anwar, Advocate Supreme Court for Petitioners (in Civil Review Petitions Nos. 310 and 311 of 2018).

Shahid Anwar Bajwa, Advocate Supreme Court for Petitioner (in Civil Review Petition No. 217 of 2018).

Sohail Mahmood, Additional AGP, Ayyaz Shaukat, DAG and Ibrar Saleem, Dy. Reg. NIRC for Respondents.

Ch. Faisal Farid, Additional AG Punjab, Rab Nawaz Zahid, Director IRI and Fazal Hussain, Director Labour for the Government of Punjab.

Date of hearing: 7th December, 2020.

JUDGMENT

SAJJAD ALI SHAH, J.---(C.M.A. 7552/2020) In view of the fact that Mr. Khalid Anwar, Sr. ASC for the review petitioner was provided an opportunity to address the Court through video-link from his Office, therefore, this application seeking permission to argue the case through an alternate counsel has become infructuous and is disposed of accordingly.

CRPs Nos. 310 and 331 of 2018: The petitioner-Shaheen Airport Service seeks review of para 22 of our judgment dated 28.3.2018 which reads as follows:-

"22. There is yet another question involved in the matter, namely, the appellant-Shaheen Airport Services is a charitable organization or not. It is the case of the appellant that charitable organizations are excluded from the operation of both the federal and provincial law, therefore, regardless of the question whether the appellant is a trans-provincial establishment for purposes of the federal law or whether it comes within the ambit of the provincial law, the appellant falls outside the purview of both the IRA, 2012 and the SIRA, 2013, resultantly, no trade union can be registered within the appellant. In this regard it is to be noted that the learned High Court has considered this question in detail and has held that the federal law was applicable to Shaheen Airport Services as the same was operative in more than one province and that Shaheen Airport Services did not qualify as a charitable organization in view of the activities that were entailed in the operation of its business. We are in agreement with the findings of the learned High Court."

2. Mr. Khalid Anwar learned Sr. ASC for the review-petitioner contends that the applicability of the Industrial Relations Act, 2012 ('IRA, 2012') and the Sindh Industrial Relations Act, 2013 (`SIRA 2013') to the petitioner was assumed on the ground that the High Court has considered this question in detail and, therefore, in the judgment under review it was maintained that the Federal law was applicable to the petitioner Shaheen Airport Services as the petitioner was operative in more than one province and that it did not qualify as charitable organization in view of the activities that were entailed in the operation of its business. Per counsel such findings were per incuriam as IRA 2012 as well as SIRA, 2013 expressly exclude its application to all business, trade, manufacture, calling, service, including fishing, mining, agriculture, extraction, exploration, processing, print and electronic media, employment or occupation of producing goods or services for sale. in order to support his contention, counsel has referred to the provisions of section 2(xvii) of the IRA, 2012 and section 2(xvi) of SIRA 2013. It was next contended that the findings of the High Court in Para 15 of its judgment that charity or no charity, it is the activity of the establishment that determines whether it falls within the ambit of industry or not and the answer to this question posed lies in the definition of word industry as given in section 2(xiv) of the Industrial Relations Ordinance, 1969, are erroneous and are based on the assumption that after the repeal of IRO, 2008 through sunset clause on 30.4.2010 and before the promulgation of SIRA, 2013, the Industrial Relations Ordinance 1969 stood revived. Again such findings are per incuriam and against the law laid down by this Court in the case of Air League of PIAC Employees through President v. Federation of Pakistan Ministry of Labour and Manpower Division Islamabad and others (2011 SCMR 1254) wherein it was clearly held that IRA, 2012 would be applicable retrospectively with effect from 1.5.2010 when the IRO, 2008 ceased to exist. It was, therefore, contended that dislodging the status of review petitioner as charitable institution by examining its activities was not permissible as envisaged in sections 2(xvii) of IRA, 2012 and 2(xvi) of SIRA, 2013 and, therefore, the findings of the High Court to that extent were per incuriam and consequently the adoption of this Court of such findings in para 22 calls for review.

3. On the other hand, it was contended that the very status of the review petitioner as a charitable institution was questioned and there are concurrent findings which assert that the petitioner is not a charitable institution. It was contended that if the character of the review petitioner as charitable institution is assumed, then there is no denial that the applicability of industrial relations laws would be barred as provided in IRA, 2012 and SIRA, 2013 as pleaded.

4. It is evident from the record that the claim of the review petitioner as being a charitable institution through out was declined and therefore, was held to be amenable to relevant labour laws and ultimately the review petitioner filed the referred petition inter alia, seeking a declaration regarding its status as a charitable institution and the High Court after hearing the parties, again refused to give such declaration by holding:

"... though Shaheen Foundation may be, and it appears is a charitable institution but that cannot be said about the petitioner's establishment i.e. SAPS. SAPS only exists for making profit. The fact that it yields its profit to Shaheen Foundation which in turn uses it for charitable purposes could not make SAPS a charitable organization. Doing so would tantamount to making, in the words of Justice Krishna lyer "Good Samaritans" into "clever industrialists".

And ultimately this Court in paras 22 upheld such finding that the review petitioner is not a charitable institution. Once such finding has come to record, the review petitioner cannot claim the benefit of section 2(xvii) of IRA, 2012 or of section 2(xvi) of SIRA, 2013 in order to claim immunity. These review petitions consequently fail and are, therefore, dismissed.

CRP No. 217 of 2018: Due to paucity of time, hearing of this review petition is adjourned.

MWA/S-50/SC Petition dismissed.