1. ' CHILE ARIF HUSSAIN, J.---Bythis judgment we intend todispose of C.P. Nos.D-2011, 2012, 2051 and 2289 of 1995, as similar questions of fact and law are involved. The Petitioners have called in question the decision of the Respondents requiring the Petitioners to register themselves and pay contributions in respect of seamen employed through them to perform different services on foreign vessels. It is not necessary to reproduce the facts of each petition, as they appear to be almost identical. It may be sufficient to state that the Petitioners are engaged in the business of recruiting seamen at the Port of Karachi, who are employed to perform duties on different foreign vessels under licences issued by the Director of Shipping, Ministry of Ports and Communication under the Pakistan Marchant Shipping (Seamen's Employment) Rules, 1961.
2. ' The Pakistan Merchant Shipping (Seamen's Employment) Rules, 1961 required the Licensee to maintain record called the "Company Roster" of Pakistan seamen and supply same for registration in the office of Shipping Master Port and Shipping. The terms "Roster" initially used in 1961 was subsequently modified and replaced with the term "List" by the amendment made on 9th May, 1997. Foreign ship-owners place their demand in various categories of seamen to Shipping Master and in turn the Shipping Master arranges to call up requisite number of seamen from the Roster/list of, different Licensee companies including petitioners in accordance with the procedure prescribed by the Board. On acceptance of employment with the ship-owner the seaman enters into an agreement which is normally executed between the master of the ship and the seamen, though sometime signed by the Petitioner on behalf of the shipowner. After engagement of the seamen his name is cancelled from the Roster/list maintained by the Petitioner. The Petitioner does not employ such seamen nor pay any salary to them. It appears that the respondent called upon the Petitioner for registration of the seamen on their list and to pay EOBI contribution on their behalf. Upon their refusal an application under section 33 of the Employees Old Age Benefits Act was filed before the Adjudication Authority. The Adjudicating Authority after hearing the parties vide his order dated 2nd January, 1995 held that the Petitioners are liable to be registered under section 11 of EOB Act, Aggrieved by the said order the petitioner preferred appeal before the Board of Trustees, EOBI, which was dismissed on 5th September, 1995 by the respondent-Authority. The Petitioners impugned the said order in these petitions.
3. ' We have heard Mr. R.F. Virjee, learned Advocate appearing for the petitioner in C.Ps. Nos.D-2011 and 2012 of 1995. Mr. Sher Afgan, learned Advocate appearing for the petitioner in C.P. No,D-2051 of 1995, Mr. Arif Khan, learned Advocate appearing for the petitioner in C.P. No,D-2289 of 1995, Mr. Agha Faquir Muhammad Advocate, representing shipping company which had applied to be joined as a partyand Mr. M.A.M. Namazi, learned Advocates appearing for the Respondents.
4. ' Mr. R.F. Virjee, learned Advocate for the Petitioner, argued that E.O.B. Act is applicable only in Pakistan and this Act cannot be extended to the employees who are performing their duties on vessels outside Pakistan under foreign flag. Learned Advocate argued that in order to make EOB Act applicable three things are necessary viz. Employer, employee and establishment and in the instant case since establishment is situated outside the territory of Pakistan and employer is also non-Pakistani while the Act does not apply beyond Pakistan territory.
5. ' Mr. Sher Afgan, learned Advocate for the petitioner, argued that the petitioner has only supplied seamen to the ship of their principal and acted only as an agent for limited purpose and cannot be termed as employer in respect of the seamen engaged by the ship-owners. Learned Advocate has drawn our attention to sections 41, 54 and 55 of Merchant Shipping Act, 1923. He further argued that the wages have been paid to the seamen by the ship-owners/master of the ship and there is no relationship of employer and employee between the parties.
6. ' Mr. Arif Khan, learned Advocate for the Petitioner argued that the Petitioner was discharging his duties as licence granted to him under Merchant Shipping Act, 1923 and in terms of the said Act they are required to maintain Roster/List of the different categories of seamen looking for job available with them. After receiving the requirement of various ship-owners by the Shipping Master chooses seamen from Roster/List maintained by different shipping licensees and an agreement is executed between the seaman and owner of the ship containing terms and conditions of the service. He argued that the petitioner cannot be termed as an Agent of the ship-owner nor they discharge their duties as an agent of the ship-owner.
7. ' Mr. Agha Faquir Muhammad, learned Advocate, who had filed an application under Order I, rule 10(2) C.P.C. For joining a shipping company argued that the agreement of employment has been executed between the seamen and the Master of the Ship and there is no privity of contract between the Petitioner and seamen. He argued that the agreement executed between the seamen and the master of the ship are governed by ILO Convention 179/1971 and by Merchant Shipping Act.
8. 1923.
9. ' On the other hand, Mr. M.A.M. Namazi, learned Advocate for the respondent, heavily relied upon rule 2(j) of Pakistan MerchantShipping (Seamen's Employment) Rules, 1961 which provided that the term ship-owner includes his agents of representative. He argued that since the Petitioners are agent of the ship-owners accordingly they are liable for insurance of the crew members. Learned Advocate further argued that the disputed question of facts are involved and the finding of facts recorded by Board of Trustees EOBI cannot be disturbed while dealing with the matter under Article 199 of the Constitution.
10. ' We have taken into consideration the respective arguments advanced by the learned Advocate for the parties as well as gone through the record, it appears that the Petitioner has been held liable for contribution under EOBI in respect of seamen supplied by them to foreign ships treating them as an Agent of the foreign ships in terms of rule 2(j) of Pakistan Merchant Shipping (Seamen's Employment) Rules, 1961. The question which requires consideration is whether the Petitioners are an agent of the ship-owners and if so whether as agent they are liable to contribute. Apart from this another question which requires consideration is whether EOB Act is applicable to the seamen who are performing their duties outside territorial water of Pakistan.
11. ' Under section 24(1) of Merchant Shipping Act, 1923 Federal Government or any person duly authorized by the Federal Government in this behalf may grant to such persons as may be deemed fit licensees to engage or supply seamen for merchant ships in Pakistan subsection (2) of section 24 laid down that such licence shall continue for such period, and may be granted or revoked on such terms and conditions as the Federal Government thinks proper. Section 25 prohibits a person to engage or supply a seaman unless he holds a licence under the Act or is the owner of master or mate of the ship, or is bona fide servant and in the constant employment of the owner, or is a shipping master. Section 27 of the Act 1923 provided that master of every ship shall enter into an agreement in accordance with this Act with every seaman whom he engages in and carries sea as one of his crew from any port in Pakistan. Subsection (2) of section 28 provided module terms of the said agreement to be executed between the master of the ship and the seamen.
12. ' Rule 25 provided that on receipt of indents from ship-owners, the Shipping Master shall arrange to call up the requisite numbers of seamen from the appropriate Roster in accordance with such procedure as may be prescribed by the Board.
13. ' The term "Roster" under rule 1961 was substituted with the word "List" by an amendment on 19th May, 1997. Amended rule 10.24(1) provided that all ship-owners or person granted a licence toengage or supply seamen for merchant ships seeking engagement to seamen from company list for employment on their ships either in Pakistan or abroad shall furnish to the Shipping Master requirements for various categories of seamen in respect of specific ships, as soon as such requirement become known. The Shipping Master shall offer to shipowners' or persons granted a licence to engage for supply seamen for merchant ship, the services of the seamen of each category as are eligible and available for employment.
14. From the above provisions of law it appears that the petitioners do not employ seamen for rendering services on foreign vessels. Basically as licensees under the Act they only facilitate foreign vessels to enter into a contract of employment with the Pakistani seamen by providing a list available seamen whose services could be acquired. The choice to recruit a particular seaman however is always that of the ship owner. Indeed at times they may be authorized to sign a contract of employment on behalf of the ship-owner under Rule 2(j) but it is quite clear that in doing so they might be acting as agents for very limited purpose of signing a contract, while fulfilment of its terms would invariably be the obligation of the ship-owner. Only the ship-owner could be treated as an employer even if the seaman is employed through the Petitioner under section 2(c) of the Act.
15. ' It is an admitted position that the Petitioner has been held liable to pay EOBI not because of employment of the seamen by him but as an agent of the ship-owners who engages the seamen on the basis of rule 2(j). Rule 2(j) only provides that the ship-owner includes his agent or representative.
16. From perusal of definition of owner in rule 2(j) it appears that an agent or representative nominated/appointed by the ship-owners included in the definition of the owners. No material has been placed before us that there was any agreement between the ship-owners and the petitioner- Company nominating them as their agent except that in terms of rule 2(j) they are deemed to be an, agent of ship-owners and as such liable for the demand under E.O.B. Act.
17. ' Section 182 of the Contract Act defines an "Agent" as a person employed to do any act for another or represent another in dealings with third persons. None of these requirements attracted in the present case. In the case of Messrs Caltex Oil Pakistan Ltd. Karachi v. Sheikh Rehanud-Din, PLD 1958
(WP) Lahore 63, it was held that where a person was appointed as a dealer of petrol by a petrol company and the dealer was to purchase petrol from the company on payment and sell it at the company's petrol station to customers on a fixed commission, the equipment of the petrol station having also been secured by a deposit ofcertain amount by the dealer with the company held that the dealer was not an agent of the company in selling the petrol, dealer would have done an act principally for and on behalf of himself because he would have been selling his own goods which he had purchased from the company and not merely acting as an agent or intermediary between the customers of the petrol and the company. In the case of Adam Limited v. Messrs Mitsuit and Co., 1997 MLD 2713, a learned Single Judge of this Court held that no person could be regarded as agent working for the principal in absence of authority to that effect. In the case of Abdul Latif v.
18. Gopeswa r Chattoraj, AIR 1933 Calcutta 204, it was held that whatever might be words used in the pleading, the relationship between the parties is to be determined upon the real character of the contract between them. In the case of State of Mysore and another v. Mysore Spinning and Manufacturing Co. Ltd. And others, AIR 1958 SC 1002, while dealings with the facts where sales were made to export licence-holders in India and not to overseas buyers directly, because the sellers were obliged to follow the procedure under the Cotton Textile (Export Control) Order. It was held that this is clearly not a case of agency as a principal does not sell to his agent and even if this was the only way in which an export could be effected, that would not make the exporter the agent of the seller because, by the very act of purchase, the exporter would because a principal and buyer in his own right.
19. In the instant case also there was restriction on the employment of the seamen directly and only those seamen were eligible to be recruited whose names are appearing in the list of the licence- holders in respect of whom foreign ship-owners made request to shipping Master and after following the procedure an agreement was executed between the foreign ship-owners or on his behalf by someone and seamen.
20. ' It is equally to clear that the Employees Old Age Benefits Act has no extra territorial operation and contributions are payable in respect of industries and establishments within Pakistan. Obviously a sea-going vessel with the flag of another foreign State would not come within its purview and even if we consider the Petitioner to be an agent of the ship owner.
21. ' For the foregoing reasons, we would like to hold that the Petitioner cannot be held liabel for payment of EOBI contribution as an agent of the ship-owners and accordingly petitions are allowed.