TANZILUR-REHMAN, J.--This is a Constitutional Petition under Article 9 of the Provisional Constitution Order, 1981. The facts giving rise to this petition are that the petitioner No. 1 is the Karachi Stevedores Conference Ltd. a company incorporated under the Companies Act, 1913, whereas petitioners Nos. 2 to 21 are its members/ Stevedores. Carrying on their trade at the Port of Karachi. In 1973 the Dock Workers (Regulation of Employment) Ordinance, 1973 was promulgated, which empowered the Federal Government to frame a scheme regulating, inter alia, the employment of Dock Workers. A scheme was, therefore, framed under section 3 of the Ordinance and published on 3-12-1973 as Karachi Dock Workers (Regulations of Employment)
Scheme, 1973. Under para. 4 of the said scheme defendant No.1, the Karachi Dock Labour Board (hereinafter referred to as the Board) was constituted, as a body corporate having permanent succession, which was deemed to be the employer of dock workers. The said Board had the power to give employment to Dock workers and fix their wages. The petitioner could, therefore, employ only such Dock workers as were made available to them by the said Board. The Ordinance of 1973 was replaced by an Act being Dock Workers (Regulation of Employment) 1974 (IX of 1974) on 1-3-1974. The said Board, however, continued to act as before.
2. On or about 26-3-1974, the Board (respondent No. 1 entered into a settlement with respondent, No. 2, Karachi Harbour and Dock Workers' Union (hereinafter referred to as the Union), which is the Collective Bargaining Agent. This settlement was followed by another settlement, dated 23-7-1976. On the expiry of this settlement respondent No. 1 entered into another settlement on 3-12-1.978. The Dock workers at Karachi Port have been earning their wages under the aforesaid settlement inclusive of their incentive allowance.
3. On or about 17-9-1973 the Federal Government promulgated the Employees Cost of Living (Relief)
Ordinance, 1973, which was on 31-12-1973 replaced by Employees Cost of Living (Relief) Act, 1973, whereunder, every employee, whose monthly wages did not exceed Rs.735 was entitled to be paid a Cost of Living Allowance of Rs.35 per month if his monthly wages did not exceed Rs.700 and or at such rate as together with his wages makes a total of Rs.735 with effect from 1-8-1973. The said Act was amended on 10-9-1974, which provided for additional Costs of Living Allowance to be paid to every employee whose wages did not exceed Rs.1,100 per month after 8-6-1974, whether on time work or piece work basis, equal to Rs.50 per month or 10$ of his monthly wages, whichever is more if his wages did not exceed Rs.1, 000 or at such rate as together with his wages makes a total Rs.1,100, On 7-5-1975 the Act was further amended making provision that every employee in addition to the Costs of Living Allowance from 7-4-1975 be paid Rs.25 per month. On 26th June, 1980 the act was again amended making provision that every employee whose wages do not exceed Rs.1,500 shall in respect of his employment from 1-7-1980 shall be paid Costs of Living Allowance of Rs.40 per month, as provided in subsection (4) of section 3 of the Act. The said Act was further amended on 28th June, 1981 making provision that every employee whose wages do not exceed Rs.1,500 per month shall be paid Rs.40 per month as provided in subsection (5) of section 3 of the Act. The Dock workers who are represented by the respondent No. 2 as their Collective Bargaining Agent have been claiming and respondent No. I has been directing the petitioners to make payment of all the aforesaid Cost of Living Allowances. The petitioners have made payments in view of the direction of respondent No.1. The dispute, however, arose as to the entitlement by Dock workers of the inclusion of Cost of Living Allowance for the purpose of incentive allowance as provided under the settlement of 1974 to which subsequently the other two settlements in 1976 and 1978 were added. The matter was referred by respondent No. 1 to Sind Labour Appellate Tribunal, which was decided in favour of the Dock workers. The petitioners filed Constitution Petition No. 2162 of 1979, against the said decision.
4. It was alleged in para. 4 of this petition that the Dock workers at Karachi Port have been earning their wages under the aforesaid settlement inclusive of their incentive in the minimum as under:- PeriodDock workers earning excluding overtime for a minimum 18 days for the day shift.Dockworkers--- earning Excluding overtime for a minimum of 18 days night shift.
(a)1-8-1973 to 21-3-1974Rs.1,065.50 Rs.1,690.80 (b)22-3-1974 to 30-6-1976.Rs.1,806.80 Rs.2,112.80 (c)1-7-1976 to 2-12-1978.Rs.2,083.00 Rs.2,428.40 (d)03-12-1978 to 6-1-1981Rs.2,668.00 Rs.3,108.60 (e)7-1-1981 to date.Rs.3,067.20 Rs.3,575.80 It was, thus, alleged, that the respondents were not entitled to claim and collect Costs of Living Allowance under the Act. In the circumstances, the petitioners prayed for the grant of following reliefs:-
(a) For a declaration against the respondents that the Dock worker whose monthly earnings are beyond the maximum provided under the Employees Cost of Living (Relief) Act, 1973 and its subsequent amendments are not entitled to any Cost of Living Allowance.
(b) For a direction against the respondents against making any claim, recovering and collecting any Cost of Living Allowance under the Employees Cost of Living (Relief) Act, 1973 and its subsequent amendments or in anywise based thereon for the present, past or future in respect of Dock workers whose monthly earning exceeds the maximum provided under the Act.
5. We have heard Mr. Iqbal Kazi for the petitioners Mr. S.A. Sarwana for respondent No. 1 and Mr. Obaidur Rahman for respondent No. 2. Before proceeding with the merits of this petition we would like to observe, that Constitutional Petition No. 2162 of 1979 also came up for regular hearing before us, which has been dismissed by our order, dated l0-11-1985, upholding the order, dated 8-11-1979 passed by Sind Labour Appellate Tribunal, Karachi that the Dock workers are entitled to the incentive allowance as provided in the settlement referred to above.
6. Learned counsel for the respondents took two preliminary objections at the time of hearing of this petition: firstly, that there are disputed questions of facts, which cannot be decided in a Constitutional petition and secondly that there is alternative remedy available to the petitioners as provided in section 34 of the Industrial Relation Ordinance, 1969.
7. As regards the first contention it was submitted that no monthly account of wages earned by the worker or workers and individual worker bas been submitted. The petitioners have submitted a number of sheets, showing Dock workers' daily wage tonnage report of several dates. They represent the total earning of a group of workers on certain dates and thereby earning at earning of each worker for that day. These stray instances of different dates and periods do not conclusively prove total earning of a worker group of workers for a month so as to entitle or disentitle a worker/workers to the Cost of Living Allowance. Mr. S.A. Sarwana during the course of his arguments invited our attention to sub-para. IV of para. (1) of the counter-affidavit filed on behalf of the petitions as incorrect and misleading. The correct calculation according to the Board, of the wages earned by the Dock workers was stated to be as under:- PeriodDaily wage rate.Dock workers earning excluding overtime and incentive over time for 18 day shift.Dockworkers earning excluding overtime and incentive overtime for 18 days-night shift.
(a) Upto 21- 03-74Rs.15.27 Rs.274.86 Rs.320.02
(b) 22-3-74 to 30-6-76Rs.19.09 Rs.343.62 Rs.401.32
(c) 1-7-76 to 2-12-78Rs.21.95 Rs.395.10 Rs.460.26
(d) 03-12-78 to6-1-81Rs.28.10 Rs.505.80 Rs.589.14
(e) 07-01-81 to-- dateRs.32.31 Rs.581.58 Rs.677.52."
We found that the earning of some of the Dock workers for 18 days, day shift and night shift, during different periods of time were calculated excluding incentive allowance. We, therefore, directed on 24-11-1985 to file statement with regard to Dock workers' earning including incentive allowance during day and night shifts to see whether the total wages inclusive of incentive allowance exceed to Rs.1,500 or not. Mr. S.A. Sarwana, in reply, filed a statement alongwith a letter, dated 15-1-1986 signed by Personnel Administrative Officer of the Board stating that 'the Dock Labour Board does not have a record of overtime and incentive overtime during day and night shifts'. In view of this position, we are not able to come to a conclusion that the Dock Workers' monthly earning including incentive allowance (which has been wrongly termed by the Board as incentive overtime, because the incentive allowance is not paid for a work done after the normal duty hours, but it is paid during normal duty hours for doing loading/ unloading work of an additional tonnage, over and above the minimum tonnage) exceed Rs.1,500 so as to disentitle him to the Cost of Living Allowance. In this circumstance, the Constitutional petition is not competent. For this view, reliance is placed on a decision, reported as A.F.
Ferguson and Co. v. The Sind Labour Court and another PLD 1985 SC 429.
8. Since the first preliminary objection has been upheld by us there is no need for deciding the second preliminary objection as to the availability of alternate remedy for making an application by the petitioners in the Labour Court under the provisions of Industrial Relations Ordinance, 1969, as urged on behalf of the respondents, or decide the legal question involved in the case.
9. However, before parting with this petition, we would like to place on record a statement made by Mr. S.A.
Sarwana in Court that the Board has never claimed Cost of Living Allowance in respect of any person whose earning of wages exceeded Rs.1,500 per month and the statement of Mr. Obaidur Rahman that he does not dispute the legal position that no Dock worker is entitled to claim Cost of Living Allowance whose monthly wages exceed Rs.1,500.
10. With these observations, we dismiss the petition with no order as to costs. The petitioners will, however, be at liberty to seek their remedy as provided in law relating to Industrial disputes.