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Petitioner: PRINTING CORPORATION OF PAKISTAN Ltd. VS Respondent: PROVINCE OF SIND through JUDGMENT
Court Name: Sindh High Court Judge(s): Ajmal Mian, Syed Haider Ali Pirzada Title:PRINTING CORPORATION OF PAKISTAN Ltd. vs PROVINCE OF SIND through
JUDGMENT
Reported As: 1985 CLC 1486 Result: Petition dismissed Judgment JUDGMENT ' AJMAL MIAN, J.--The petitioner is a Company incorporated under the Companies Act, 1913 having registered office at Islamabad, has filed the present petition for seeking declaration that the provisions of the Workers' Children (Education) Ordinance, 1972 (hereinafter referred to as the Ordinance) are not applicable to the petitioner-company and the impugned orders dated 23-5- 1977, 29-6-1977 and 26-7-1978 passed by the District Excise and Taxation Officer, Director/Collector, Excise and Taxation (Taxes) of the Government of Sind and the Director-General, Excise and Taxation, Government of Sind, respectively demanding the education cess are illegal, arbitrary, without jurisdiction, without lawful authority and consequently of no legal effect, in the alternative a declaration to the effect that the education cess is not payable by the petitioner in respect of workers who were Government Servants and opted for service under the petitioner corporation. 2.(a) In support of the above petition Mr. Muhammad Ali Sayeed, learned counsel for the petitioners has urged following arguments: (i) That since the ultimate control over the affairs of the petitioner-company is of the Federal Government, the latter is an employer for the purposes of the Ordinance and, therefore, the persons in service of the petitioner company are in the service of the State and hence the provisions of the Ordinance are not applicable to the petitioner. (ii) That in view of section 5 of the Corporation Employees (Special Powers) Ordinance, 1978 (hereinafter referred to as Ordinance XIII of 1978) service of a Corporation has been declared to be service of Pakistan and therefore the provisions of the Ordinance are not applicable.
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(b) On the other hand Mr. Abdul Sattar Shaikh, learned Additional Advocate-General has contended as follows: (i) That the petitioner-company has ultimate control over its affairs and the Printing Press which is being run by it and not the Federal Government and, therefore, the provisions of the Ordinance are applicable. (ii) That under Ordinance XIII of 1978 the service of a Corporation has been declared to be service of Pakistan for the purpose of service matters referred to in sections 3 and 5 and not for all other purposes and, therefore, the provisions of the Ordinance are applicable. 3. Before taking up the above first contention, it may be pertinent to refer to the relevant provisions of the Ordinance, namely, sections 2, 3 and 4 of the Ordinance, which read as follows: "2. In this Ordinance, unless there is anything repugnant in the subject or context,- (a) "employer", in relation to an establishment, means the person who has ultimate control over the affairs of the establishment; (b) 'establishment' means any office, firm, industrial unit, undertaking, shop or premises in which workers are employed for the purpose of carrying on any business, trade, manufacture, calling, service, employment or occupation; (c) 'worker' means any person employed, whether directly or through any other person, in any establishment to do any skilled or unskilled, manual or clerical work for hire or reward whose monthly wages do not exceed one thousand rupees,but does not include- (i) Persons in the service of the State including members of the Armed Forces, Police Force and Railway servants; (ii) Persons employed in any undertaking under the control of any Defence organisation or Railway administration; and (iii) Persons in the service of a local council, a municipal committee, a cantonment board or any other local authority. 3.(1) Every employer of an establishment in which the number of workers employed at any time during a year is twenty or more shall pay to the Provincial Government an education cess at the rate of one hundred rupees per worker per annum. (2) Every employer shall, within every three months beginning from the first day of the calendar month following the commencement of the Workers' Children (Amendment) Act, 1973, prepare and deliver, or cause to be prepared and delivered, in the form and to the officer prescribed by the Provincial Government, a return showing the number of workers employed in the establishment during the preceding quarter and shall subscribe a declaration of the truth of the return at the foot thereof. (3) The levy of 'education cess shall be on the basis of the number of workers shown in the return referred to in subsection (2). (4) The Provincial Government shall provide education free of cost up to Matric to one child of every worker employed in an establish ment referred to in section 3. ' Explanation.-- 'Education free of cost' includes provision of text books free of costs and exemption from admission fee, tuition fee, examination fee and school fund." ' It may be noticed that under the above-quoted clause (a) of section 2 an employer in relation to an establishment has been defined as the person who has ultimate control over the affairs of the establishment. The term establishment has been defined to any office, firm, industrial unit, undertaking, shop or premises in which workers are employed for the purpose of carrying on any business, trade, manufacture, calling, service, employment or occupation; whereas worker has been defined to mean any person employed whether directly or through any other person in any establishment to do any skilled or unskilled, manual or clerical work for hire or reward whose monthly wages do not exceed one thousand rupees, but the person in the service of the State
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including members of the Armed Forces, Police Force and Railway servants, person employed in any undertaking under the control of any Defence organisation or Railway administration and persons in the service of local council, a municipal committee, a cantonment board or any other local authority, have been expressly excluded from the above definition of the worker. ' It may further be noticed that under the charging section, namely section 3, inter alia it has been provided thath every employer of an establishment in which the number of workers employer at any time during a year is 20 or more shall pay to the Provincial Government an education cess @100 rupees per worker per annum. 4. Mr. Muhammad Ali Sayeed in furtherance of his above argument has referred to the averments contained in the petition and the documents annexed thereto in order to demonstrate that the ultimate control of the petitioner-company vests in the Federal Government and that the employees of the petitioner company are in fact in service of the State. He has referred to sub- paras. (1) and (2) of para. 3 of the Memorandum of Association, which provide the object of the company namely: ' To acquire and undertake the business, property/assets and liabilities of all or any of the Government Printing Presses in Pakistan and their affiliated offices etc., on such terms and conditions as may be mutually agreed and to reorganise them, operate, manage and run them as commercial printing houses and undertake the Government Printing work, now handled by the above-referred presses or any increased work on normal commercial lines, and ' To absorb in its organisational set up those persons from amongst previous employees of the said Government Presses, who opt for the Company's service or those who are required by the Government of Pakistan to join the Company's service. These staff members will be subject to Company's service regulations, efficiency standards and educational tests. ' He has also referred to Article 7(b) of the Articles of Association, which provides that 'A' class ordinary shares are the promotors' shares, all or part which will be subscribed by or on behalf of the Government of Pakistan. The 'B' class ordinary shares are the Private Sector shares which may be subscribed by parties other than the Government of Pakistan. It may be pertinent to point out that under clause (a) of above Article 7 the share capital of the petitioner company is Rs.5,00,00,000 divided into 50,00,000 ordinary shares of Rs.10 each classified into 30,00,000 'A' class ordinary shares and 20,00,000 'B' class ordinary shares. He has referred to Article 91 which inter alia provides that until 'B' class ordinary shares have been issued and taken up in accordance with these Articles of the Company all Directors shall be appointed by the holders of 'A' class ordinary shares i.e. the Government of Pakistan acting through Secretary, Ministry of Education and that thereafter 'B' class ordinary shareholders, if any, shall be entitled to elect and appoint their Directors in proportion to their share holdings as compared to the total paid-up shares. He has further referred to Annexures 'H' and 'H-1' to the petition, which are two certificates dated 1-8-1979 and 9-12-1978 respectively, issued by the Government of Pakistan, Ministry of Education, certifying that the petitioner is working as an agent of the Government of Pakistan and no formal transfer of the building occupied by the petitioner Press Karachi formerly Government of Pakistan Press, Karachi, has yet been taken over and that the petitioner Corporation is entirely financed, controlled and managed by the Ministry of Education, Government of Pakistan. It has, therefore, been urged by Mr. Muhammad All Sayeed learned counsel for the petitioners that for all intents and purposes the ultimate control of the petitioner company vests in the Federal Government and the employees of the petitioner- company are in fact in service of the State. ' On the other hand Mr. Abdul Sattar Shaikh, learned Additional Advocate-General has invited our attention inter alia to sub-para. (14) of para. 3 of the Memorandum of Association which empowers the petitioner company to appoint such person, firm or company as may be deemed expedient to be consultants, secretaries, managers, representa tives and agents of the Company upon such
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terms and conditions as the company may determine, and also to appoint and remunerate the directors, administrators, officials and employees of the company or any person or firm or company rendering services to the company out of or in proportion to the returns of the profits of the Company or otherwise as the Company may deem fit. It has therefore been contended by him that the ultimate control of the petitioner Printing Press vests in the petitioner company and that the workers covered by the definition of the worker given in the Ordinance working in the petitioner printing press cannot be held to be service of State. 5. Mr. Muhammad Ali Sayeed has referred to the case of Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd. PLD 1975 SC 244, in support of his above contention, in which the question before the Hon' ble Supreme Court of Pakistan was, whether a writ of mandamus can be issued in respect of a directorship of a public limited company, and while considering the above question reference was also made to the phrase "performing functions in connection with the affairs of the Federation or a Province" employed in Article 201 of the Interim Constitu tion of the 1972 and Article 199 of Constitution of Pakistan, 1973 and with reference to the Corporations set up by the Federal Government or a Provincial Government, the following observations were made: "Now, what is meant by the phrase "performing functions in connection with the affairs of the Federation or a Province." It is clear that the reference is to governmental or State functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e. by the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory Corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in the belief that, free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning by appointing the heads and other senior officers of these Corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities. ' Examples of such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affairs of the Federation of a Province. (See Deputy Managing Director, National Bank of Pakistan v. Attaul Haq, PLD 1965 SC 201, Wall Muhammad v. General Manager, WAPDA, Lahore PLD 1964 Pesh. 167, Chairman, East Pakistan Industrial Development Corporation v. Rustam Ali, PLD 1966 SC 848, Muhammad Ashraf Pervaiz v. Agricultural Development Bank of Pakistan PLD 1973 Lah. 425, Abdul Razzaq v. WAPDA PLD 1973 Lah. 188 and R.T.H. Janjua v. National Shipping Corporation, PLD 1974 SC 146. ' However private organizations or persons, as distinguished from Government or semi- Government agencies and functionaries cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regulated by laws made by the State. Accordingly, a joint-stock company, incorporated under the Companies Act, for the purpose of carrying on commercial or industrial activity for the benefit of its share holders, cannot be regarded as a person performing State functions, just for the reason that its functioning is regulated by law or that the distribution of its
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manufactured products is subject to Governmental control in the public interest. The primary test must always be whether the functions entrusted to the organisation or person concerned are indeed functions of the State involving some exercise of sovereign or public power; ' whether the control, of the organisation vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not. ' On the basis of the above observations of the Hon'ble Supreme Court, it was vehemently urged by Mr. Muhammad Ali Sayeed that it cannot be denied that the petitioner company is a Corporation of the nature referred to in the above-quoted passage from the Supreme Court judgment as in fact it is performing the function of a Federal Government Press which was previously managed by the Federal Government itself, now it is being managed through the instrumentality of a company incorporated under the Companies Act, though under the control of the Federal Government. 6. It may be true that the petitioner Company is now performing the function of a Government Printing Press and in that context it can be said that it is performing functions in connection with the affairs of the Federation of Pakistan. But we may point out that under the Memorandum and Articles of Association there is no prohibition against taking of private work. In this regard, it will suffice to quote hereinbelow sub-paras. 3, 4, 5, 6, 7, 8 and 9 of para. 3 of the Memorandum of Association, which read as follows: (3) To undertake printing and publishing of text-books, as one of its principal functions. (4) To carry on all or any of the business of printers, stationers, block-makers, lithographers, type- founders, stereo-typers, electrotypers, photographic printers, photolithographers, chromo- lithographers, engravers, die-sinkers, book-binders, designers, draughtsmen, paper and ink- manufacturers, book sellers, publishers and dealers in or manufacturers of any other articles or things of a character similar or analogous to the foregoing or any of them or connected therewith; manufacturing and printing of cartons, packages, specialised containers for various commodities; manufacturers, importers, exporters and dealers in raw material, articles and things required for purpose of manufacture and printing of items in which the company is interested and to establish and maintain show rooms for this purpose; and of distributors, contractors, suppliers and sellers of the said articles to Government, military, railway, semi or fully autonomous bodies and private organizations. (5) To carry on any other business, whether manufacturing or otherwise, which may seem to the Company capable of being conveniently carried on in connection with the above or calculated directly or indirectly to enhance the value of or render profitable any of the Company's property or rights. (6) To acquire and undertake the whole or any part of the business, property and liabilities of any person or organization whether corporate or not, carrying on any business which the Company is authorised to carry on, or possessed of property suitable for the purposes of this Company. (7) To apply for, purchase, or otherwise acquire, any patents, brevets d'invention, licences, concessions, and the like, conferring any exclusive or non-exclusive or limited right to use, on any secret or other information as to any invention which may seem capable of being used for any of the purposes of the Company, or the acquisition of which may seem calculated directly or indirectly to benefit the Company, and to use, exercise, develop, or grant licences in respect of, or otherwise turn to account the property, right or information so acquired. (8) To enter into partnership or into any arrangement for sharing profits, union of interest, co- operation, joint venture or reciprocal concession, with any person or company carrying on or engaged in, any business or transaction which this Company is authorised to carry on or engage in
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any business or transaction capable of being conducted so as directly or indirectly to benefit this Company. And to lend money to, guarantee the contracts of or otherwise assist, any such person or company and to take or otherwise acquire shares and securities of any such company, and to sell, hold, reissue, with or without guarantee, or otherwise deal with the same. (9) To take, or otherwise acquire, and hold shares in any other company having objects altogether or in part similar to those of this Company, or carrying on any business capable of being conducted so as directly or indirectly to benefit this Company." 7. We are inclined to hold that the above judgment does not support the contention of the learned counsel for the petitioner that the workers working in the petitioner company and drawing up to Rs.1,000 in terms of the definition of the worker given in the Ordinance can be said to be in service of State. They are in fact in service of the petitioner Company as pointed out hereinabove the company has the power to employ any person under the Memorandum of Association. The mere fact that the Federal Government has totally subscribed 'A' class shares and appoints the directors or that it issues directives from time to time will not change the status of the petitioner workers into the status of service in State. The concept of "person in the service of the State" is a very old concept and in fact is now akin to the phrase "persons in the service of Pakistan". In this regard reference may be made to Articles 242 and 275 of the Constitution of Pakistan, 1973. It has been consistently held by the Supreme Court that the employees of Corporations established by the Federal Government are not in service of Pakistan. Reference may be made in this regard to the following cases:- (i) Chairman East Pakistan Industrial Development Corporation, Dacca and another v. Rustam All PLD 1966 SC 848, in which the employee was of a Corporation established by the Provincial Government. (ii) R.T.H. Janjua v. National Shipping Corporation, PLD 1974 SC 146 in which the appellant before the Supreme Court was an employee of the National Shipping Corporation established by the Federal Government. (iii) Abdul Salam Mehta v. Chairman, Water and Power Development Authority and another 1970 SCMR 40. (iv) Shahid Khalil v. Pakistan International Airlines Corporation, Karachi 1971 SCMR 568. (v) Lt.-Col. Shujauddin Ahmed v. Oil and Gas Development Corpora tion, reported in 1971 SCMR 566. ' It will be instructive to reproduce a passage from the last cited case, in which somewhat identical argument was advanced:- "The petitioner now seeks special leave to appeal and it is contended on his behalf that the learned Judge in the High Court was wrong in taking the view that the ratio of the decisions of the Supreme Court cited above was applicable in this case. According to him, the respondent Corporation was in all respects a Government department, for, the Government contributed the entire capital of the Corporation, appointed all its directors and could remove them at its discretion. The Board of Directors of the Corporation also functioned subject to the instructions of the Central Government. It had no power even to borrow or to raise funds without the consent in writing of the Central Government. ' In these circumstances, it is urged that the respondent Corporation being under the executive control of the Government was performing functions of the Government and, therefore. everyone who was employed by the Corporation was under Article 176 of the Constitution a person holding a civil post in connection with the affairs of the centre, to whom the guarantees given by Article 177 applied. Service in the Corporation was also it is contended, service of Pakistan within the meaning of Article 242 of the Constitution of 1962.
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' We are unable to agree with this contention. The provisions of the statutes, under which the respondent Corporation, the East Pakistan Industrial Development Corporation and other statutory bodies had been created in Pakistan, are not radically different. There too the Government holds the bulk of the shares, appoints a Managing Director and Chairman of the Board, audits the accounts of the statutory Corporations through its own appointed Auditors and has the power to direct those corporations to carry out its instructions. ' The consistent view of this Court hithertofore has been that the employees of such statutory corporations do not acquire the status of Government servants nor are the guarantees given by the Constitution applicable in their case. The High Court was, therefore, in our view, right in vacating the order of interim injunction, for according to the law of Master and Servant, a contract of service cannot be specifically enforced. It follows, therefore, that no temporary injunction can either be granted in such case. This petition is, accordingly dismissed." ' From the above-quoted passage of the Supreme Court judgment, it is evident that the consistent view of the Supreme Court has been that a person serving in a Corporation cannot be said to be a person holding a civil post in connection with the affairs of the Centre toB whom a guarantee was given inter alia under Article 177 of the late) Constitution of Pakistan, 1962. ' In this connection, it may be pertinent to refer to a recent case of the Hon'ble Supreme Court namely, Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194, in which the Hon'ble Supreme Court while dealing with the case of an employee of the Agricultural Development Bank of Pakistan reiterated the above consistent view that an employee of a Corporation is not a civil servant and that relationship is that of Master and Servant. But at the same time, it has been held that in case of a breach of statutory rules pertaining to the termination of service, the employee will be entitled to claim relief of reinstatement. It may be advantageous to reproduce the relevant observations, which read as follows: "Even where the employee is not…
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