These four constitutional petitions all raise a common issue, namely, whether seamen who have served for sometime, including those who have served as hotel-boys and bakermen, on board a particular ship, and obtained a continuous discharge certificate, have a vested and enforceable right to be re--engaged on that ship.
2. The appellant in each of these four petitions is a person who had entered into an agreement with the Pan Islamic Steamship Company Limited, hereinafter referred to as the company, for providing victuals on board the ships of the Company on agreed rates and on other terms and conditions which were specified in the agreement. The agreement Inter alia provided that the butlers/chief stewards, pantry-men and cooks will be selected by the company but with the approval of the contractors, but according to roster turn and shipping officer procedure. Respondent Mohammad Amil in Petition No. 407 and respondent Abdul Jabbar in Petition No. 408 of 1974 were engaged on board the ship Safina Hajjaj, belonging to the Company, as hotel-boys, while respondent Zahir Ahmed in Petition No. 409 and respondent Zainuddin in Petition No. 410 of 1974 were engaged on the same ship as bakers. It appears that though these 4 respondents had every year been engaged in the above capacities on the ship, s. s. Safina Hajjaj, they were not engaged on that ship for the Haj season during the year 1973. The 4 respondents accordingly filed a complaint under section 25-A of the I. R. O. Against the petitioner, claiming that he had illegally refused to engage them in order to pressurise them into withdrawing the proceedings which they had instituted against the petitioner under the Payment of Wages Act for not paying their proper dues for the preceding year.
3. The Junior Labour Court has held that the respondents were the employees of the petitioner, that they were permanent work--men for the purposes of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and that the petitioner had illegally refused to re- engage them. He accordingly ordered that the petitioner should allow the 4 respondents to serve under him as usual for the Haj season. The petitioner went up in appeal to the Labour Court against the decision of the Junior Labour Court, but it concurred with the finding of the Junior Labour Court and dismissed the appeal.
4. As the respondents have chosen to remain absent, despite due service, I have had the benefit of hearing only Mr. Zia Pervez, the learned counsel for the petitioner, and have been denied the advantage of hearing arguments on behalf of the respondents.
5. The sole issue which falls to be considered in the instant case is whether the respondents have a right to be re-engaged on the ship, s. s. Safina Hajjaj, and the petitioner is free to engage them.
Though the respondents were engaged on the Safina Hajjaj as hotel-boys and bakermen, they are deemed to be crew of the ship and thus would be considered to be seamen. The engagement of seamen upon Merchant ships and their terms and conditions of service, including terms as to payment of remuneration, are governed by the Merchant Shipping Act, 1923. Section 26-A of the said Act provides that the Central Government may make rules relating to the engagement of seamen, their employment on various ships and other matters affecting maritime labour generally.
The section further provides that rules under this section may among other matters provide for the principles and procedure to be followed by ship owners in engaging and promoting seamen. In pursuances of these statutory provisions, the Pakistan Merchant Shipping (Seamen's Employment)
Rules, 1961, have been issued by the Central Government, which were published in the Gazette of Pakistan, Extraordinary, dated 15-7-1961. These rules provide for the maintenance of general roster of seamen to be maintained in the shipping office, the submission by ship owners seeking engagement of seamen at any port in Pakistan of indents to the Shipping Master, the call-up by the Shipping Master on receipt of such indents of the requisite number of seamen from the appropriate Roster, the offer by the Shipping Master to ship-owners of the services of the seamen of each category on the basis of rotation and the engagement by the ship-owner of seamen so offered by the Shipping Master. The rules further provide that a seaman may refuse engagement offered to him by rotation in accordance with the conditions laid down by the Shipping Board and the ship--owner may, for reasons which the Shipping Master considers satisfactory, reject any seaman offered to him. It will thus be seen that in the matter of engagement of a seaman, neither the contractor nor the ship-owner is a free agent. The engagement of a seaman is to be done on behalf of the ship--owner by the Master of the ship in accordance with terms and conditions laid down in section 28 of the Merchant Shipping Act, 1923. There is no allegation whats5ever in the various complaints made by the respondents to the Labour Court that despite the fact that the Shipping Master had sent a call to them and had offered their services to the Pan Islamic Steamship Company or the petitioner, they had refused to engage them. The learned counsel for the petitioner has brought to my notice a sort of a certificate issued by the Shipping Master, to the effect that the caterer or contractor is not authorised to engage pilgrim hotel staff directly but an indent or requisition for such staff is to be submitted to the Shipping office, which selects the hotel crew according to their turn and requires them to join the vessel. This letter is in consonance with the provisions of section 26-A of the Merchant Shipping Act and the rules framed thereunder. Since there is no evidence on record nor even any allegation that the respondents had been called up for engagement on s. s. Safina Hajjaj but either the shipping Company or the petitioner had refused to engage them, it is clear that the respondents can have no grievance against the petitioner, who in fact cannot be deemed to be their employer, or even the Pan Islamic Steamship Company. The grievance, if any, of the respondents would be against the Shipping Master, provided that he has not called them according to their turn in accordance with the Pakistan Marchant Shipping (Seamen's Employment) Rules, 1961. It may be pointed out that originally the respondents had made the Shipping Master a party to the complaints made by them before the Labour Court, but subsequently they gave him up. This action on the part of the respondents suggests that evidently the Shipping Master had not sent a requisition to the respondents as it was perhaps not their turn by rotation for employment, and he had acted in accordance with the rule.
6. For the reasons stated by me above, the orders of the two Labour courts suffer from a patent error, in that the non-employment of the respon--dents by the petitioner was in accordance with the 1961 Rules and was not in violation of any law. I would accordingly set aside the orders of the two Labour Courts as being contrary to law and thus without jurisdiction. All the four petitions are allowed with costs.