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Petitioner: Messrs MUTUAL FUNDS ASSOCIATION OF PAKISTAN (MUFAP) VS Respondent: FEDERATION JUDGMENT
Court Name: Sindh High Court Judge(s): Gulzar Ahmed, Shahid Anwar Bajwa Title:Messrs MUTUAL FUNDS ASSOCIATION OF PAKISTAN (MUFAP) vs FEDERATION
JUDGMENT
Reported As: 2010 PLC 306 Result: Petition dismissed Judgment JUDGMENT ' SHAHID ANWAR BAJWA, J.---The petitioner in this petition is Mutual Funds Association of Pakistan Ltd., which is public company limited by guarantee, incorporated under the Companies Ordinance, 1984. It is stated in the petition that the petitioner does not have share capital and has been granted licence dated 12-11-2008 by the Government as a Trade Organization. It is further stated that the petitioner plays a role in the development of capital market by promoting and developing both open ended and closed ended mutual funds, investment advisors and asset management companies. It is also stated in the petition that the petitioner has its members comprising of Asset Management Companies, Investment Advisors and Pension Fund Managers. It is also stated that petitioner's members manage funds of their investors in respect of unit trusts schemes, open- ended and closed ended mutual funds and voluntary pension schemes. It is also stated in the petition that the mutual funds are managed by Asset Managers, Pension Funds are managed by Pension Fund managers and Investment Companies are managed by Investment Advisors. It is also stated that neither does the petitioner nor any such Assets Manager, Pension Fund Manager or Investment Advisor employ any worker/employee. 2. The Workers' Welfare Fund Ordinance, 1971 was promulgated by the President of Pakistan on or about December 9, 1971. Under the Workers' Welfare Fund Ordinance, which is applicable to Industrial Establishment a Workers' Welfare Fund is constituted. Under section 4 of the Ordinance, every industrial establishments whose total income in any year is not less than 500,000 Rupees is required to pay the fund, in respect of that year, a sum equal to 2% of its total income. Thereafter
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organizational set up is laid down and it also prescribes purposes of (Section 6) to which money of the fund may be applied and these primarily are for the purpose of measures for the welfare of workers for workers. 3. Industrial Establishment is defined in the Ordinance of 1971, in the following words: "(f) "Industrial establishment" means- (i) any concern owning or managing a factory, workshop or other establishment in which articles are produced, adapted or manufactured with the aid of electrical, mechanical, thermal, nuclear or any other form of energy transmitted mechanically and not generated by human or animal agency; (ii) any concern working a mine or quarry or natural gas or oilfield; (iii) any concern running a public transport service; (iv) any concern engaged in the carriage of men and goods by inland mechanically propelled vessels; (v) any concern engaged in the growing of tea, coffee, rubber or cinchona; and (vi) any other concern or establishment which the (Federal Government) may, by notification in the official Gazette, declare to be an industrial establishment for the purposes of this Ordinance, but does not include any concern or establishment which is owned by Government, or by Corporation established by Government or by a Corporation the majority of the shares of which is owned by government; 4. Through the Finance Act, 2008 (Section 8) clause (iva) was added in the Workers' Welfare Fund Ordinance. The said clause reads as under:- "(iva) any establishment, to which the West Pakistan Shops and Establishments Ordinance, 1969 (W.P. Ordinance No, VIII of 1969), for the time being applies;" 5. Petitioner filed this Constitutional Petition in view of the above amendments and made the following prayers:-- "A. Declare that Mutual Funds, Pension Funds, Collective Investment Schemes and Investment Companies are not `establishments' under the West Pakistan Shops and Establishment Ordinance 1969; B. Declare that Mutual Funds, Pension Funds, Collective Investment Schemes and Investment Companies are not `industrial establishments' under the Workers' Welfare Fund Ordinance, 1971; C. Declare that the impugned amendment made by the respondent No,1 through the Finance Act, 2008, in section 2(f) of the Workers' Welfare Fund Ordinance, 1971, whereby the definition of 'Industrial Establishment' in the said Ordinance has been made applicable to any establishment to which the West Pakistan Shops and Establishment Ordinance, 1969, applies, is arbitrary, void, of no legal effect, and is against the principles of natural justice; D. Declare that Mutual Funds, Pension Funds, Collective Investment Schemes and Investment Companies are not liable to pay any contribution/amount to the Workers' Welfare Fund under the Workers' Welfare Fund Ordinance, 1971; E. Restrain the respondents, jointly and severally, from demanding and/or claiming any amount from Mutual Funds, Pension Funds, Collective Investment Schemes and Investment Companies on account of contribution for the Workers' Welfare Fund under the Workers' Welfare Fund Ordinance, 1971, and/or from taking any coercive action in this behalf against any of the above entities; 6. Learned counsel for the petitioner made the following submissions:-- (i) The petitioner Association does not employ any worker and therefore, provisions of the Workers' Welfare Fund Ordinance, 1971 are not applicable to the petitioner. The petitioner in this regard referred to the preamble of the Ordinance of 1971 and also to the preamble of the West Pakistan Shops and Establishments Ordinance, 1969.
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(ii) Preamble of the Workers' Welfare Fund Ordinance indicates that it is for benefit and welfare of workers. Learned counsel relied upon Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others, PLD 2007 SC 571 to contend that preamble is the key to interpretation. (iii) Learned counsel referred to Article 16 of its Memorandum of Association to contend that the petitioner is also an aggrieved person in respect of its members and therefore, is entitled to maintain a petition and also prayed for relief in respect of its members. (iv) Learned counsel referred to Article 70 and 73 of the Constitution and contended that the amendment in the Workers' Welfare Fund Ordinance was not, and could not be, in the nature of money bill and therefore it should have been passed in accordance with the procedure prescribed under Article 70 of the Constitution which requires a bill to be separately passed by both the houses before being submitted to the President for his assent rather than under Article 73 of the Constitution which prescribes procedure for money bills and it lays down that money bill will only be passed by the National Assembly and thereafter, without being transmitted to and approved by the Senate, it is to be submitted before President for his assent. Learned counsel submitted that since the amendment in the Workers' Welfare Fund Ordinance, 1971 was made through the Finance Act, 2008 which was passed as a money bill, and therefore was not transmitted to Senate after having been passed by the National Assembly and since the amendment was not in the nature of money bill as the money bills are defined in Article 73(2) of the Constitution therefore, the amendment in the Ordinance of 1979 by the Finance Act, 2009 having not been brought about in accordance with the procedure prescribed under Article 70 is ultra vires of the Constitution and is consequently of no legal. Effect. Learned counsel in this regard relied upon Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others, PLD 2009 SC 879 at page 113. Learned counsel also relied upon Messers Saif Textile Mills Ltd. v. Pakistan through Secretary, Finance (Finance Division) Islamabad and 3 others, PLD 1998 Peshawar 15 and Messers Fatima Enterprises Ltd. v. Federation of Pakistan through Secretary, Education, Ministry of Education, Islamabad and others, 1999 MLD 2889 in this regard. While on the same point, the learned counsel submitted that subject of labour welfare legislation is contained in entry 26 of the concurrent list and therefore it in any case could not have been treated as a money bill. (v) Since the Mutual Funds, Pension Funds and Investment Funds are registered as Trust therefore, the West Pakistan Shops and Establishments Ordinance, 1969 is not applicable to them. Learned counsel also referred to letter dated 29-1-2010 issued by the Chairman, Securities and Exchange Commission of Pakistan addressed to Chairman, Federal Board of Revenue wherein similar stand had been taken by the Chairman SECP. 7. Mr. Ashiq Raza, learned D.A.-G. While rebutting the contention advanced by the learned counsel for the petitioner made the following submissions:- (1) That the amendment in the Ordinance of 1971 is in the nature of money bill as it imposes a tax. He in this regard relied upon Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others, PLD 2009 SC 879. (2) That the amendment is in the nature of tax on income and is within the legislative competence of the Parliament and is covered by Entry 47 of Part-I of Federal Legislative List as contained in Fourth Schedule to the Constitution of Islamic Republic of Pakistan. Learned counsel relied upon Elahi Cotton Mills Ltd. And others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others, PLD 1997 SC 582 and Pakistan Burma Shell Ltd. And another v. Federation of Pakistan, through Secretary, Ministry of Finance, Government of Pakistan, Islamabad and 3 others, 1998 PTD 1804 which is a decision by a Full Bench of this Court.
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(3) Under Article 73(4) decision of the Speaker of the National Assembly is final and therefore cannot be called in question in writ petition before this Court. (4) That the petitioner is not an aggrieved person in respect of any right with its members may have. 8. We have considered the submissions made by the learned counsel and have also gone through the case-law cited at the bar as well as the record. 9. The petitioner as stated in Para 1 of the petition is licensed as a Trade Organization and renders assistance and provide common services and facilities to the persons engaged in the field of mutual funds etc. In the petition the petitioner has prayed not only for relief regarding himself but has also sought relief in respect of Mutual Funds, Pension Funds, Collective Investment Schemes and Investment Companies. Learned counsel for the petitioner relied upon Item 16 of Memorandum of Association to contend that if a member is aggrieved the petitioner is also aggrieved. Said Item 16 is in the following words:- "To promote, support or oppose any legislative or other measures affecting the mutual fund industry or the interests of the members of the association and the investors." 10. In Pakistan Steel Re-rolling Mills Association v. Province of West Pakistan, 1964 PLC 121, it was argued by the respondent that petitioner being an association of Re-rolling Industry is not an aggrieved person for the purpose of Article 98 of the Constitution of 1962 (corresponding to Article 199 of the Constitution of 1973). The subject-matter was that certain notification for declaration of minimum wages was made and the association challenged this notification. Division Bench of the West Pakistan High Court which was seized of the matter held as under:-- "It was said that the association is an "aggrieved party" because it enjoys a consultative status for operating the Ordinance, and that the grievance made in the petition is that in the process of setting up of the minimum Wages Board and the recommendations made by the Board, there has been a departure from the provisions of the Ordinance. An added strength was given to this contention by the fact that there was no other association representing the Steel Mills Owners and that the petitioner-Association was a registered body under the Trade Organization Ordinance of 1961. We consider that none of these considerations confers on the association the character of an aggrieved party within the meaning of Article 98 of the Constitution, as the grievance complained of must in its effect entail a direct injury to the petitioner to make it an aggrieved party, and the injury has to be co-related to the relief sought in the petition to avoid that injury." 11. In Democratic Workers' Union C.B.A. v. State Bank of Pakistan, 2002 PLC (C.S.) 614, the petitioner was a Collective Bargaining Agent and it filed petition seeking prayer for formulation of recruitment policy and also against appointment of certain persons. Division Bench held that the petitioner being a Collective Bargaining Agent could not claim locus standi to invoke jurisdiction of this Court under Article 199 of the Constitution, for the alleged violation of statutory or fundamental rights of its members. It may be pointed out that this was rendered in the presence of provisions contained in section 22(12)(b) of the I.R.O. 1969 which entitled a CBA Union to represent workman in any proceedings. The Bench was fully conscious and noted ,Sindh Alcali's case 1992 SCMR 32 wherein it was held that such proceedings must be at the instance of the individual workman concerned. 12. In Province of Balochistan through Secretary Excise and Taxation Department, Civil Secretariat, Quetta and 2 others v. Murree Brewery Company Ltd. Through Secretary PLD 2007 SC 386, a notification issued by the Provincial Excise Department imposing new duties/fees on distributors of alcoholic beverages was challenged. The petitioner was manufacturer of such alcoholic beverages. It was contended that the permit fee was imposed not on the manufacturer but on its distributors and therefore it is not the manufacturer who can be considered to be an aggrieved person for the purpose of maintaining Constitutional Petition. The Supreme Court after referring to a number of cases from Pakistan as well as from Indian jurisdiction held that even if imposition of
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the fee made products of the petitioner more expensive, the petitioner was not an aggrieved person within contemplation of Article 199 of the Constitution of Islamic Republic of Pakistan. 13. In Muntizma Committee, Al-Mustfa Colony (Regd.) Karachi and 3 others v. Director Katchi Abadies Sindh and 5 others PLD 1992 Kar. 54. It was held as under:- "In the instant case, the persons who will be affected by the allotment of the land comprised in 3- 1/2 acres are the residents occupying the same or inhabitants of Abbas Town, secondly 3-1/2 acres land was not reserved for playground, Eidgah, hospital, maternity home and school for the residents of the Town but surely not the petitioner No,1. The' petitioner No,1 has no legal right and therefore is no question of the infringement of a legal right. The petitioner No,1 has no interest in 3- 1/2 acres land and is not, therefore, an aggrieved person." 14. Apart from the above, there is another reason that the petitioner cannot be held to be entitled to maintain a petition in respect of its members. Whatever is the decision passed in this petition, how can it be held, and binding upon, against persons who are not party to this petition. Suppose tomorrow a member of this association comes with a similar petition and when he is shown decision of this petition what is there to stop him from saying that he was not a party in this petition and therefore how could order made in this petition be valid against such a member. In order to constitute res judicata it is essential that order be made between the same parties. Mere fact that one of the objects as contained in the Memorandum of Association of the petitioner is promoting etc., interest of its members is not sufficient to put the petitioner in the shoes of its members and hold him entitled to maintain petition in respect of a cause which could conceivably cause grievance to its members. Therefore, we hold that petitioner is not an aggrieved person in respect of applicability of the amendment introduced in the Workers' Welfare Fund Ordinance, 1971 by Finance Act, 2008 to its members and therefore, is not entitled to maintain this petition in respect of grievance, if any and whatsoever they may be, of any of its members. 15. It was contended by the learned counsel for the petitioner that the petitioner does not employ any worker and therefore provisions of the Workers' Welfare Fund Ordinance of 1971 are not applicable to the petitioner. In this regard the petitioner referred to the preamble of the Ordinance of 1971. Preamble reads as under:-- "Whereas it is expedient to provide for the establishment of a Workers' Welfare Fund, for providing residential accommodation and other facilities for workers and for matters connected therewith or incidental thereto". 16. For the purpose of deciding contention of the learned counsel, reference may also be made to section 4(1) of the Ordinance. It is in the following words:- "4. Mode of payment by, and recovery from, industrial establishments.-- (1) Every industrial establishment, the total income of which is in any year of account commencing on or after the date specified by the Federal Government in the official ' Gazette in this behalf is not less than five lakh of rupees shall pay to the Fund in respect of that year a sum equal to two per cent of its total income....." 17. Above indicates that under section 4(1) every industrial establishment whose total income is not less than 500,000 Rupees is required to pay 2% of its total income to the fund. This provision may be juxtaposed with the provisions contained in the Employees Old Age Benefit Act, 1976 wherein it is specifically provided that the Act is wily applicable to the establishment where 5 persons are employed. Similarly in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 it is specified that the Ordinance does not apply to establishments where less than 20 workers are employed. Similarly in the Factories Act, 1934, it is specified that at least 5 workers be employed. There is no such condition in section 4(1) of the Ordinance of 1971. Moreover, a reading of the preamble indicates that the Legislature decided to establish a Workers' Welfare Fund for providing
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residential and other facilities for workers. It is not stated that for workers of that particular establishment. It is also no one's case that separate accounts for benefit of workers are maintained and the amount paid to the Workers' Welfare Fund by an establishment is utilized only for the benefit of workers of that establishment by which a particular amount is collected. Therefore, purposes of this Ordinance appears to be to collect funds from all industrial establishments (as defined at a given time) and then to utilize them for benefit of workers employed whereever they may be. Therefore, contention of the learned counsel that the petitioner-company does not employ a worker and therefore, the Ordinance of 1971 cannot be made applicable to it is without any force. 18. Learned counsel for the petitioner also referred to the preamble of the West Pakistan Shops and Establishments Ordinance, 1969 and to certain definitions contained in the Ordinance. Reference here may be made firstly to the newly inserted clause (iva) subsection (0 of section 2 of the Ordinance of 1971 which provision lays down that any establishment to which the West Pakistan Shops and Establishments Ordinance, 1969 for the time being applies is included in the definitions of "Industrial Establishment" as given in the Ordinance of 1971. The Ordinance of 1969 is applicable to establishments. Word 'establishment' is defined in section 2(j) in the following words: "2(j).. "establishment" means a shop, commercial establishment industrial establishment, private dispensary, maternity home, residential hotel, restaurant, eating houses, cafe, cinema, theatre, circus or other place of public amusement or entertainment, and such other establishments or class thereof as Government may, by notification in the official Gazette, declare to be establishments for the purposes of this Ordinance;" 19. Since word 'establishment' includes in it the word 'commercial establishment' as well as word 'industrial establishment'. It would be worthwhile to reproduce those definitions:- "2(e). "Commercial establishment" means an establishment which carried on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession, and includes-- (i) a society registered under the Societies Registration Act, 1860 (XXI of 1860), and a charitable or other trust, whether registered or not, which carries on, whether for purposes of gain or not, any business, trade or profession, or any work in connection with or incidental or ancillary thereto; ' an establishment wherein there is conducted the business of advertising, commission, forwarding or a commercial agency; (iii) a clerical department of factory or of any industrial or commercial undertaking; (iv) an insurance company, joint stock company, bank, brokers' offices or exchange and office of lawyers, income-tax practitioners, registered accountants, contractors and engineers; (v) such other professional establishments or class thereof as Government may, by notification in the official Gazette, declare to be commercial establishment for the purposes of this Ordinance; but does not include a factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment;" "2(o). "Industrial establishment" means a workshop or other establishment in which the work of making, altering, repairing, finishing or packing or otherwise treating any transport, delivery or disposal is carried on, or where any such service is rendered to a customer, and includes such other class or classes of establishments as Government may, by notification in the official Gazette, declare to be industrial establishments for the purposes of this Ordinance, but does not include a factory;" 20. A reading of these definitions would indicate that 'establishment' includes "commercial establishment" and commercial establishment means establishment which "carries on any business, trade or profession or any work in connection with, or incidental to any business, trade or prof slim". What is to be noticed is that not only the establishments who are carrying on any
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business, trade or profession but also establishment which carries incidental or ancillary work to any business,trade or profession are included in the definition of establishment. Well have already reproduced item 16 of the Memorandum of Association of the petitioner. All the other Articles, or at least almost the other articles of the Memorandum of Association pertain to or are related to various businesses, trades or professions. 21. Section 5 of the Shops and Establishments Qrdinance, lists 8 different types of establishments to which the Shops and Establishments Ordinance is not applicable. Obviously the petitioner's establishment does not fall in any of those. Therefore, looked at from whatever angle one may, the Ordinance of 1971 has become applicable to the establishment of the petitioner by, virtue of newly amendment inserted clause (iva) in subsection (t) of section 2 of the Ordinance of 1971. 22. Next contention of the learned counsel for the petitioner was that the amendment was brought through the Finance Act, 2008 and this amendment could not have been brought as a money bill. He relied upon the following observations in Sindh High Court Bar Associations' case (supra):-- "An Act of Parliament is different to and distinct from a Finance Act. All substantial legislation is made by an Act of Parliament, that is to say, the passing of the relevant bill by the two Houses of Parliament as defined in Article 50 of the Constitution. On the other hand, a Finance Act, in general, is concerned with fiscal matters. Since the Constitution, through its Article 176, authorizes only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997, the increase in the strength of Judges through the Finance Act of 2008, which was not passed by Majlis-e-Shoora (Parliament), but by the National Assembly alone, the same would be deemed valid only for financial purposes and not for the purposes of Article 176 of the Constitution." 23. A bare reading of the above would indicate that the honourable Supreme Court has held the amendment to be valid for financial purposes only and not valid for the purpose increasing number of Judges of the…
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