1. ' By this Constitutional Petition, the Petitioner has called in question two orders, impugned hereunder, one passed by respondent No, 3 on application under section 15 of Payment of Wages Act and second by respondent No, 2 as an appellate authority dismissing the appeal. It is prayed by the petitioner that both these orders be declared to have been passed without jurisdiction and lawful authority and are of no legal effect.
2. ' Shortly stated the relevant facts are that respondent No, 1 namely Ahmed son of Gaggo, who retired as Dock worker filed an application under section 15 of the Payment of Wages Act of 1936 before the authority appointed under that Act claiming gratuity to the tune of Rs, 10,600 for his 20 years service as per terms of the Memorandum of settlement dated 26th March, 1974 against Karachi Dock Labour Board (hereinafter to be referred as the Board). This application was contested and objections were raised that there was no relationship of master and servant between the parties and further that the said Board was not an industrial establishment hence authority bad no jurisdiction to try the dispute. The authority mentioned above-recorded evidence of Ahmed, who is respondent No, 1 before me and Muhammad Safdar, Assistant Personnel Officer on behalf of the Board and vide order dated 15th December, 1977 allowed the claim as made plus costs of Rs, 60 The Board filed an appeal under section 17 of the Payment of Wages Act which has been dismissed vide order dated 20th May, 1978 by the Vth Sind Labour Court, Karachi. Being aggrieved by these two orders the Board has filed this Petition in which Ahmed son of Gaggo, Sind Labour Court No, 5 and Payment of Wages Authority have been impleaded as respondents Nos. 1, 2 and 3 respectively.
3. ' Mr; S. A. Sarwana. Counsel for the petitioner has contended before me that proceedings before the authority were not competent for a number of reasons. Firstly that there is no relationship of employer and employee between the Petitioner and respondent No,
1. In this context it was submitted by him that respondent No, 1 was an employee of Stevedores at the Dock, who paid his wages for services rendered from time to time. It was further submitted by the learned counsel that the role played by the Board is entirely different from that of an employer and has characteristics of a regulatory body. He traced the history of the Board by submitting that on 3rd November, 1973 Dock Workers (Regulation of Employment) Ordinance, 1973 was promulgated for the purpose of regulating the employment of Dock Workers to ensure efficient performance of Dock work, expeditious and economic turn around of ships and vessels and speedy transit of goods through the port. Under section 2 of the Ordinance "Dock worker" has been defined to mean a person employed or to be employed in any port on loading or unloading of ships or other vessels or on work in connection therewith. "Employer" is defined to mean in relation to a Dock Worker, the person by whom a Dock Worker is employed or is to be employed. Under section 3 of this Ordinance powers have been given to the Federal Government to make a Scheme for the registration of Dock Workers for the purposes specified thereunder. On 3rd December, 1973 the Federal Government enforced the Scheme to be called as the Karachi Dock Workers (Regulation of Employment)
4. Scheme, 1973 which came into force at once and was made applicable to the port of Karachi. The objects of the Scheme as specified therein are to ensure greater regularity of employment for Dock workers and to ensure that an adequate number of Dock workers is available for the efficient performance of Dock work, expeditious and economic turnround of ships and speedy transit of goods through the port.
5. ' Before the constitution of Board under the Scheme, the practice was that Stevedores at Karachi port employed Tindals and Seranges on permanent basis, to engage dock workers from time to time to carry out the assignments given to Stevedores of loading or unloading vessels. This uncertainty of employment of the dock workers resulted into "go-slow" tactics and strikes. To offset such effects and to ensure greater regularity of employment for dock workers this Scheme was introduced to provide job opportunities to adequate number of dock workers for efficient performance of dock work. Under the scheme the Board is authorized to register dock workers as well as employers by maintaining two separate registers. Both "registered dock workers" and "registered employers', are further defined under paragraph 3 which provides definitions. The former is defined to mean a dock worker, whose name is for the time being entered in the register or record and the latter is defined to mean an employer whose name is for the time being entered in the employers register. Under clause (8) of the Scheme the Board is made responsible for dealing with all the matters of policy including the fixation of number of dock workers to be registered under various categories and the increasing or decreasing such number of dock workers in any category, accepting registration of newly licenced Stevedores on the employers register, prescribing forms, records, registers and statements required to be maintained under the Scheme. The Board is further empowered to determine the wages, allowances and other conditions of service and refax the guaranteed minimum wages after periodical review, to fix the rate of levy and contribution to be made by the registered employers to the various welfare schemes and measures administered, operated or adopted by the Board and to issue directions for the speedy output by the registered dock workers and turn around of ships. Registered dock workers under the scheme are further required to pay registration fee to the Board and get identity card, attendance card, and wage card and further Board maintains service record of registered dock workers containing complete record of commendation for good work, promotions, compensation paid and disciplinary action taken against the workers. Likewise under clause 24 of the Scheme such record of employers is also maintained in detail including record of disciplinary action taken against them. Clause 35 of the Scheme specifies obligations of registered dock workers and clause 36 likewise specifies obligations of registered employers. Under the last- mentioned clause it has been made mandatory for a registered employer not to employ a dock worker other than a dock worker who has been allocated to him by the Administrative Body and further it is incumbent upon a registered employer to submit to the Administrative Body set up under the Scheme particulars of the tonnage handled by registered dock workers in piece-rate and such other statistical data as may be required in respect of such workers engaged by him. A registered employer is bound to pay to the Administrative Body as directed by the Board levy payable and gross wages due to registered dock workers. A registered employer is also bound to make payment as contributions to the Dock Worker Welfare Fund.
6. ' Clause 39 of the Scheme very categorically spells out that unless otherwise specifically provided for in this scheme, it shall be an implied condition of the contract between a registered dock worker and a registered employer that-
(a) the rates of wages allowances and overtime, hours of work, rest intervals, holidays and remuneration in respect thereof and other conditions of employment shall be such as may be prescribed for each category of workers ; and
(b) the fixation of wage periods, time for payment of wages and deductions from wages shall be in accordance with the provisions of the payment of Wages Act, 1936.
7. ' Under clause 44 of the Scheme the Chairman of the Board is given special disciplinary powers to take action against registered dock workers if they resort to "go slow" tactics. Under clause 45 employment of a registered dock worker can be terminated in accordance with the provisions of the scheme. Clause 50 of the Scheme requires that the cost of operating the Scheme shall be met from out of money paid by the beneficiaries on the basis of levy to be determined by the Board from time to time. "Beneficiaries" are defined in clause 3 of the Scheme meaning all those who have direct or indirect interest in the operation of Scheme and who are represented on the Board.
8. ' Furthermore the composition of the Board as envisaged under clause (4) of the Scheme clearly indicates that the Board is a regulatory body and cannot be deemed as an employer. The Board is composed of 14 members appointed by the Federal Government consisting of 4 members representing the Federal Government to be appointed respectively as Chairman, who shall be Chairman of the trustees of port of Karachi, Director of Labour, Government of Sind, two Senior Executives of Karachi Port Trust. Five members representing the Dock Workers, nominated by the Collective Bargaining Agent of such workers, two members representing the Karachi Stevedores, two members representing Pakistani Ship owners, one member representing Foreign shipping interests. The composition of the Board as stated above and various provisions of the Dock Workers (Regulation of Employment) Ordinance. 1973 which was replaced by the Act in 1974 and Scheme framed thereunder spot-lighted above clearly show the intention of the law makers to constitute the said Board as statutory body in order to regulate relations between the registered Dock workers on one hand and their registered employers, who are Stevedores to evolve better working system to ensure greater regularity of employment for Dock Workes for the efficient performance of Dock work. Expeditious and economic turn round of ships and speedy transit of goods through the port. It is crystal clear that Board as set up is not intended to he employer of Dock Workers.
9. ' The counter argument of Mr. S. A. Channa, counsel for respondent No, 1 is that the Board has taken upon itself the full responsibility of the employment of the registered Dock workers and has the powers to hire and fire as such the Board is "employer". In this context reference is made to clause 35(2) of the Scheme which provides that a registered dock worker in Register I, who is available for work, shall be deemed to be in the employment of the Board. This argument is not valid for the reason that the use of the words," shall be deemed to be in the employment of the Board" is in technical sense and for the limited purposes specified in the Scheme so that the Board may have legal control over the registered dock workers. This point has been effectively dealt with in the decision of Division Bench of our High Court in the case of Karachi Dock Labour Board v. Province of Sind and another (1) with relevant portion at page 366 which is reproduced as under :- "The contention that all the dock workers are the employees of the Karachi Dock Labour Board is based upon paragraph 35(2) of the Scheme, which provides that 'as registered dock worker in Register 1, who is available for work, shall be deemed to be in the employment of the Board'.
10. ' The fact that a deeming clause has been used shows that it was by a legal fiction that the said workers were considered to be in the employment of the Board. This was necessary in order to empower the Board to require the registered dock workers to be available for work at the call stands or control. Points and also to bar such workers from engaging themselves for employment under a registered employer (Stevedore) unless they were allocated to that employer by the administrative body of the Karachi Dock Labour Board. The Karachi registered dock workers are thus to be deemed to be in the employment of the Board only for the limited purposes specified in the Scheme, and so that the Board may have some legal control over them. This provision in the Scheme can by no means be construed to mean that the dock workers, who are placed for employment with the stevedores and are paid by the letter, are "Workers" of the Karachi Dock Labour Board for the purposes of the said Ordinance".
11. In view of what is stated above I feel inclined to hold that the Board cannot be deemed to be employer of registered Dock Workers within the' {{FOOT NOTE}}
(1) PLD 1977 Kat.. 361 {{FOOT NOTE}} ' framework of the Dock Workers (Regulation of Employment) Act, 197 and the Scheme made thereunder and the employers in that context are stevedores.
12. ' The next contention of Mr. Sarwana is that the Board is not an industrial establishment and is not covered by section 2 (ii) (b) of the Payment of Wages Act which provides that "Industrial Establishment" means any "dock, wharf or jetty. According to the learned counsel the Board as constituted cannot be equated with dock, wharf or jetty. The employers under the said Act and Scheme framed thereunder are stevedores who are registered as employers of the registered Dock Workers. On the other hand the contention of Mr. Channa is that the Board is "Industrial Establishment" and further that there is an agreement dated 26th March, 1974 which is a memorandum of Settlement signed by workers on one side and employers on the other side. He has further pointed out that on the side of employers this settlement is signed by three members of Karachi Dock Labour Board as such the Board is a party to the settlement and is bound by it and has to make the payment of gratuity as provided under Demand No, 10 specified therein. He has further submitted that respondent No, 1 namely Ahmed son of Gaggo, who is a registered Dock Worker has fulfilled all the requirements and has retired on medical grounds, therefore he is entitled to the gratuity as envisaged under Demand No, 10 of the settlement referred above on the basis of his past 20 years service as on the date of verification he has been shown to be more than 45 years of age in the register of the Board. It appears to me that no doubt the settlement is signed by three members of the Board representing the employers and even clause 11 of the Scheme provides that the administrative body is to act as agent of registered employers to make payment to each registered dock worker of all earnings due to him from the registered employer and all such monies payable by the Board to such workers in accordance with the provisions of the Scheme. Clause 8 of the Scheme further empowers the Board to determine the wages, allowances and other conditions of service and refix the guaranteed minimum wages and also fix the rate of contributions to be made by the registered employers to the various welfare schemes and the measures administered, operated or adopted by the Board and also the Board is competent to endeavour to resolve all such disputes about which request for adjudication is made by the parties concerned. In spite of this it is clear that employers are stevedores and the recovery is to be made from the employers. The Board is not an employer and is not an industrial establishment under the provisions of the Payment of Wages Act, because the Board is not a factory and is 8 also not covered within the mischief of dock, wharf or jetty as contemn plated under section 2 of the said Act. In this context Mr. Sarawana has relied upon the case of Vizagapatnam Dock Labour Board v.
13. Stevedores Association and others (1) in which it is held that the Dock Labour Board constituted under the Dock Workers (Regulation of Employment) Act, 1948 and the Scheme of 1959 framed thereunder is not the employer and furthermore the Board is not an industry. The relevant portion at page 1634 is reproduced as under :- ' The matter can also be considered from another point of view, viz. Can it be stated that the Board is carrying on an industry, so as to attract the provisions of the Industrial Disputes Act ? We have already referred to the various circumstances which will show that there is no employment as such of the dock worker by the Board. As observed by this Court in Ghymkhana Club Union v.
14. Management (1968) 1 SCR 742 at p. 752 (AIR 1968 SC 554 at p. 561)
15. ' What matters is not the nexus between the employee and the product of the employer's efforts but the nature of the employer's occupation. If his work cannot be described as an industry his workmen are not industrial workman and the disputes arising between them are not industrial disputes. The cardinal test is thus to find out whether there is an industry according to the connotation of the word in the first part. The second part will then show what will be included from the angle of employees.
16. ' Dealing with the definition of Industry, this Court further observed : ' The definition of 'industry' is in two parts. In its first part it means any business, trade, undertaking, manufacture or calling of employers. This part of the definition determines an industry by reference to occupation of employers in respect of certain activities. These activities are specified by five words and they determine what an industry is and what the cognate expression 'industrial' is intended to convey. This is the connotation of the term or what the word denotes. We shall presently discuss what the words 'business, trade, undertaking, manufacture or calling, comprehend. The second part views the matter from the angle of employees and is designed to include something more in what the term primarily denotes. By the second part of the definition any calling, service, employment, handicraft or industrial occupation or avocation of workmen is included in the concept of industry. This part gives the extended connotation. If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry, under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part. But the second part standing alone cannot define `industry'. An industry is not to be found in every case of employment or service.
17. ' In the same reported case on page No, 1635 it is held in the concluding paragraph as under : ' Applying the above principles to the case on hand, in our opinion it is clear that it cannot be stated that the Board functioning under the Act, and the Scheme, carries on any industry so as to attract the provisions of the Industrial Disputes Act. As a claim for any type of bonus can be met only from the actual employer in respect of any industry and as we have held that the Board is neither the employer nor carries on any industry, it follows that the Industrial Tribunal was wrong in directing the Board to pay bonus for the years in question. In this view the order of the Industrial Tribunal, dated 24th May, 1968 has to be set aside.
18. It may be pointed out that .'Industry" is defined under section 2 of the Industrial Disputes Act, 1974 as meaning any business, trade, undertaking, manufacture or calling of employers and including any calling, service employment, handicraft or industry, occupation or avocation or workmen. It may also be mentioned here that the provisions of the Dock Workers (Regulation of Employment)
19. Act, 1948 (applicable in India) and Scheme framed thereunder are similar to the provisions of Dock Workers (Regulation of Employment) Act, 1974 and Scheme framed thereunder (applicable in Pakistan). The upshot of discussion made above is that the Dock Labour Board is not an employer of the Dock Workers and also is not an industrial establishment as such the claim filed by respondent C No, 1 before authority appointed under the payment of Wages Act against the Chairman, Karachi Dock Labour Board was not competent and consequently both the orders impugned in this Constitutional Petition are hereby set aside to be without lawful authority.
20. ' Before parting with this judgment it would be pertinent to point out that respondent No, 1 namely Ahmed son of Gaggo, who has been attending the hearings in the Court appeared to be completely blind. His name is entered in the register of Dock Workers maintained by the Board. It is not disputed that after registration he ceased to work or be available for work on medical grounds and produced such medical certificate on the basis of which he sought retirement. Medical certificate dated 28th August, 1974 issued by doctor available in the record of respondent No, 3 clearly shows that he was declared unfit to work due to left blind eye and very poor vision in the right eye. I trust that the Board as an agent of employers in all fairness on humanitarain grounds would look into his claim and get him optimum fair-deal.