1. ' ABDUL KADIR SHAIKH, J.--All these appeals relate to Stevedores, working in the Port of Karachi who, for many decades, employed dock labour through Tindals and Serangs under Licence granted by Karachi Port Trust. The business of Stevedores involves loading and unloading of the goods from the vessels. Under the centuries old system, the Stevedores, for their business, required the engagement of a number of Tindals and Serangs in their permanent employment, on a nominal monthly payment, by way of retainership, and if and when Stevedores required the labour force for any ship, Tindals and Serangs used to procure gang of dock workers for Stevedores to work under them. These workers were registered as dock workers but they were not the employees of any person, nor were they paid monthly wages; they received payment only when they were required to work through the Tindals and Serangs for Stevedores, and they were paid by the Stevedores for the work actually done by them. Their engagement was of a casual nature, for a particular job, and hence there was no certainty of work for the dock labour with any of Stevedores.
2. ' Over the years, number of dock workers increased, and it is said that in September, 1972, they were 4060 in number. There were rival Trade Unions of dock workers and often they resorted to strikes, or adopted go-slow tactics, resulting in heavy congestion at the Port, and Conference Lines had imposed surcharge on the cargo for and from Karachi, which seriously hampered the growth of export and import business of Pakistan. This situation compelled the authorities to evolve some solution. Consequently, this problem was considered in a meeting held at Karachi on 11-9-1972, under the chairmanship of the Minister of Education and Provincial Co-ordination, Government of Pakistan. The meeting, besides the officials, was attended by the representatives of the Stevedores, Bargaining Agent and rival Trade Unions. One of the important decisions taken in this meeting was that "the future system of work at the Docks will he by Gang-Rotation, including Tindals and Serangs. It will he put into effect from 13-9-1972." As a result, all dock labours were given work by rotation on a requisition by any Stevedore who needed dock labour.
3. ' This meeting was followed by another high level meeting on 1-11-1972 under the chairmanship of the Minister for Political Affairs and Communications. At this meeting, it was, inter alia, decided to set up immediately a Dock Labour Board with a view to introduce, within two months, Karachi Port Workers (Regulations of Employment) Scheme. The rotation system already in force under the decision at the previous meeting held on 11-9-1972 was confirmed.
4. ' The Central Government notified the formation of the Dock Labour Board (hereafter referred as Board) under notification published in the Gazette of Pakistan dated 17-11-1972. Under the new system, dock workers were neither the employees of the Stevedores, nor were they permanently attached to them, they became entitled to get work through the Board, by a system of rotation of gangs, and Tindals and Serangs were wedded to these gangs. Tindals and Serangs who under the ages-old system were attached, as retainers to Stevedores, lost their full-time employment with the Stevedores, as Stevedores, as and when required, could get any Tindal or Serang with a gang consisting of dock workers who were to be supplied by the Board to them on a requisition.
5. ' In order to furnish statutory recognition to this arrangement Karachi Dock Workers (Regulation of Employment) Ordinance, 1973 was promulgated with the purpose to regulate the employment of the dock workers in Karachi Port, and to ensure the efficient loading and unloading of ships in Karachi. It empowered the Government to frame a scheme, and accordingly, the Federal Government by Notification dated 3-12-1973 framed Karachi Dock Workers (Regulation of Employment) Scheme, 1973 (hereafter referred as Scheme) under which Karachi Dock Labour Board was established with effect from 12-1-1974.
6. ' Before this Board was set up, the said Ordinance was repealed and replaced by the Dock Workers (Regulation of Employment) Act, 1974. It is however, the admitted position that the said Scheme is the scheme under the Act. It may be stated at this stage that under the Scheme, the Board was empowered to fix the number of dock workers to he registered under the various categories, to increase or decrease the number of registered workers in any category, to determine the wages, allowances and emoluments of dock workers and to take disciplinary action against them. The Board was also empowered to ensure minimum wages for dock workers, and dock workers could not leave their employment except by giving one month's notice in writing to the Board. The Scheme also empowered the Board to levy an Education Cess, very similar if not identical, to that under the Workers' Children (Education) Ordinance, 1972, and it is also the admitted position that the Board collects this Education Cess from Stevedores.
7. ' The dispute in Civil Appeals Nos. 126-K to 134-K of 1976 arose as the Stevedores, served notices on Tindals and Serangs terminating their services in these words: "We regret to inform you that consequent upon the introduction of "Rotation System" and regulation of your employment through the Dock Labour Board, your services are no longer required by us, as your employment is not controlled by us as such any more. Your services as Retained Serang/Tindal are therefore terminated with immediate effect and you may arrange to collect your settlement dues including one month's pay (Retaining Fee) in lieu of notice immediately from our office."
8. ' The Tindals and Serangs filed a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969 before the Fourth Junior Labour Court, Karachi, which succeeded by the decision dated 24-9-1973 whereby Stevedores were directed to withdraw the termination notice against the Tindals and Serangs, who were to be considered as continued employees of the respective Stevedores. The Stevedores filed appeals against the decisions, but these were dismissed.
9. However, on Constitution petitions filed by the Stevedores in the High Court of Sind and Baluchistan, the decision was reversed as the High Court took the view that since there was no evidence before the Junior Labour Court that either the Tindals and Serangs were in a permanent employment of the Stevedores or they could be kept in employment by the Stevedores under the changed circumstances, the finding was based on no evidence. The Constitution petitions were accordingly allowed.
10. ' Leave to appeal was granted by this Court by the order dated 26-1-1976 in order to examine, inter alia, the submission that Stevedores have for over 100 years paid Tindals and Serangs monthly retainership, and it could not have been the intention of the Federal Government that by constituting the Board, Stevedors be enabled to dismiss Tindals and Serangs, or, in other words stop monthly payment of retainership to them.
11. ' It is an admitted position that under the scheme an individual dock worker is not permanently attached to, or in the regular/permanent employment of any of the Stevedores. It is also an admitted fact that Tindals and Serangs and the gang of the dock workers are supplied to the Stevedores by the Board, on rotational basis, if and when required by the Stevedores. It is thus obvious that no Stevedore has any worker permanently attached or engaged by him. The ages-old system by which Stevedores required the engagement of a number of Tindals and Serangs in their permanent employment, on a nominal monthly payment by way of retainership, was totally abolished, and a new revolutionary system was created with the set up of the Board. Under the new arrangement, dock workers as well as Tindals and Serangs were to work with any Stevedore to whom they were attached by the Board according to their rotation. The system of permanent employment whereby Stevedores could exercise a certain degree of control on Tindals and Serangs, by virtue of payment of retainership fee, was discontinued, and Stevedores were no longer obliged to pay the retainership-fee to the Tindals and Serangs. It is also admitted that the new arrangement which was brought about after the decision at the high level meetings held on 11-9- 1972 and 1-11-1972, referred to in the earlier part of the judgment, was acted upon by the Stevedores as well as the Tindals and Serangs. In the first meeting held on 11-9-1972 it was decided that "the future system of work at the dock will be by Gang Rotation, including Tindals and Serangs. It will be put into effect from 13-9-1972." In the subsequent meeting held on 1-11-1972, it was noted that Rotation System was popular with the workers, and should continue with some modifications, in that, Tindals and Serangs would be wedded to their gangs and will rotate with them. It was in these circumstances that Stevedores served the impugned notice to Tindals and Serangs by which what was indeed the actual position that obtained at that time was confirmed. Admittedly with the set up of the Board, the employment of a particular Tindal or Serang with a particular Stevedore came to an end, and the dock workers as well as Tindals and Serangs started to work with any Stevedore to whom they were attached by the Board according to their rotation to get work. Learned Judges in the High Court have correctly summarised the situation that "by the introduction of Dock Labour Board and coming into force the new system of allotment of dock labours on rotation, the concept of employment of any Serang or Tindal with a particular Stevedore vanished absolutely. The Tindals and Serangs not being under the control of any particular Stevedore or performing their functions for any particular Stevedore, the Stevedores in turn are not obliged to give them retainership or any other benefits to which they were entitled under the previous system." Since both the parties, namely, Stevedores on one hand and Tindals and Serangs on the other hand acted upon the above arrangement, and in fact they could not do so otherwise under the Scheme that was introduced, their previous relationship stood severed. It is not even the case of the Tindals and Serangs that after the introduction of the new arrangement they could continue to work under the basis of old relationship. The impugned notices, therefore, only confirmed the state of affairs that obtained between the parties. We, therefore, find no justification for interfering with the impugned judgment dated 8-9-1975, and Civil Appeals Nos. 126-K to 134-K of 1976 have no merit.
12. ' It is, however, clarified that this judgment will not preclude the Tindals and Serangs from claiming any benefits of employment which may be admissible under the law in spite of the termination of their employment with the Stevedores concerned.
13. ' In Civil Appeal No, 33-K of 1978 and connected appeals, the application of the provision of Workers'
14. Children (Education) Ordinance and the Rules framed thereunder has been challenged. Under the provision of the Ordinance, every employer of an establishment in which the number of workers employed at any time during a year is not less than 20, is to pay Education Cess at the rate of Rs,100 per worker per annum.
15. ' The words "Employer", "Establishment" and "Worker" have been defined in the said Ordinance as under:-- "(a) "Employer" in relation to an establishment means the person who has ultimate control over the affairs of the establishment.
(b) "Establishment" means any office, firm, industrial unit, undertaking, shop or premises in which workers are employed for the purpose of carrying on any business, trade, manufacture, calling, service, employment or occupation.
(c) "Worker" means any person employed whether directly or through any other person, in any establishment to do any skilled, or unskilled, manual or clerical work for hire or reward whose monthly wages do not exceed one thousand rupees."
16. ' The Board received a letter dated 1-1-1975 from the Excise and Taxation Officer, P-Division, Karachi stating that the Board had not filed any return under the said Ordinance for more than two years, and it was required to file these in the prescribed form. The Board, in reply, contended that it had been constituted only from 14-1-1974, and that, in any case, it was not liable to pay the 'Education Cess' in respect of dock workers or its employees. This reply was not considered by the Department as satisfactory, and, therefore, a challan for payment of Rs,8,22,000 and Rs,8,17,700 for the years 1973-74 and 1974-75 was issued. This was followed by a notice of demand under section 81 of the Land Revenue Act, requiring the Board to deposit sum of Rs,16,39,700 as Education Cess within 15 days. It was in these circumstances that the Board challenged the Departmental action in Constitutional Petition No, 318 of 1975. The Stevedores also received notice for payment of Education Cess for the years 1972-73 and they challenged the levy of this Cess in Constitutional Petitions Nos. 264 to 269 of 1976.
17. ' On behalf of the Board, it was contended that the Board constituted by the notification dated 12-1- 1974 was a different Board, than the one set up earlier, and in any case the dock workers are not the "workers" of the Board, which is a statutory authority charged with the duty of looking after the welfare of the dock workers, registering them, regulating their employment with the Stevedores, ensuring that the registered dock workers get a guaranteed minimum wage in a month, imposing levy upon the beneficiaries of the scheme for meeting the cost of operating the Scheme and certain other matters.
18. ' It was contended on behalf of the Stevedores that the Dock Workers are not their "workers", and as such they are not liable to pay 'Education Cess' under the Ordinance. The precise argument was that the Education Cess was payable only in respect of such workers as are employed on monthly or some regular basis, and since the employment of dock workers by the Stevedores was purely of a casual character, depending entirely on the Stevedores getting a contract of load or unload of a ship and further as the employment was only for such period as the work lasted, the dock workers cannot be considered as "workers" of the Stevedores for the purpose of the said Ordinance.
19. ' On the other hand, it was contended on behalf of the Department that the Stevedores were required to pay Education Cess in respect of all workers employed by them, including dock workers, irrespective of the period for which such workers are employed, and that the said Ordinance does not require that workers should he paid or employed on monthly basis.
20. ' On review of the provisions of law, the learned Judges in High Court held that the Dock Workers are not workers of the Board, for, the main object of the Dock Workers (Regulation of Employment) Act, 1974, and the Scheme is to ensure regularity in the employment of the Dock Workers by the Stevedores, and to give necessary powers to the Board to attain this object. According to learned Judges, the Board was not an "Employer" as defined under the Act which in relation to a Dock Worker means "a person by whom a Dock Worker is employed or is to he employed." All these circumstances, according to the learned Judges, show that the Dock Workers are not the workers of the Board for the purposes of the said Ordinance, despite the fact that the Board exercises certain powers in respect of them and in certain cases pays allowances, disappointment money etc. ' Learned Judges, however, took the view that Stevedores fall within the meaning of "Employer" under the Ordinance and the definition of the word "Employment" is wide enough to cover the organisations and undertakings maintained and run by them. In this behalf, learned Judges observed as under:- "Since the Stevedores have ultimate control over the affairs of their respective establishments, they also undoubtedly are "employer" for the purpose of the said Ordinance. It is also not disputed that the dock workers perform work for hire or reward in the establishment of Stevedores. It is not contended that any dock worker earns a monthly wage exceeding one thousand rupees. However, it was contended on behalf of the learned counsel for the Stevedores that reference to "monthly wages" in the definition of "Worker" in the said Ordinance would seem to indicate only such workers as are engaged or paid on monthly basis and would exclude the type of casual employment given to the dock workers, who are engaged for short period, when the occasion requires, and have no element of permanency in their employment. It was further contended that because of the 'Rotation System' introduced in the employment of dock workers, the dock workers are not attached to the Stevedores who are required to employ them in turn according to the Register maintained by the Dock Labour Board so that one gang of dock workers may work for a Stevedore for only a few days and then be replaced by a second or a third gang and so on. We are unable to accept the argument that the words "Monthly Wages" in the definition of "Worker" narrows the definition to only those workers who are either employed or paid on monthly basis. The expression "Monthly Wages" has been used only for the purposes of fixing the total emoluments earned by a worker during a month, beyond which he would not be deemed to be a worker for the purposes of the said Ordinance. It is immaterial whether he is paid on daily, weekly, monthly or other basis or even whether his employment is on daily, weekly or monthly basis".
21. ' It was contended on behalf of the Stevedores that the dock workers are the employees of the Board in view of the provision made in the Scheme itself under its paragraph 35(2) which is to the effect that: "A registered dock worker in Register 'A' who is available for work shall be deemed to be in the employment of the Board."
22. ' In this regard the learned Judges observed as under:-- "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 employment of the Board only for the limited purpose 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 latter, are "Workers" of the Karachi Dock Labour Board for the purpose of the said Ordinance."
23. ' As regards the levy of the Education Cess by the Board from the Stevedores, learned Judges observed that the nature of the purpose of the two Cesses is entirely different. The Education Cess levied by the Board from the Stevedores, shipping agencies and the shipping lines and the K.P.T.
24. Cannot thus be considered to be Education Cess payable under the Ordinance as the Board cannot be considered to be the agent of the Provincial Government for the collection of the Education Cess under the Ordinance.
25. ' In this regard, learned Judges further observed that the purpose of deeming clause that Dock Workers are to be in the employment of the Board is to empower the Board to rotate and call at stands or control points and, if so required, to remain on such stands and points.
26. ' On the view of the case reproduced above, learned Judges allowed the Constitution petition filed by the Board, dismissed those filed by the Stevedores.
27. ' Leave to appeal was granted by this Court in order to appreciate the submission, inter alia, that learned Judges in the High Court failed to appreciate that after the enforcement of the Scheme, neither the Tindals/Serangs nor the Dock Workers can be said to be the employees of Stevedores.
28. In this behalf it was further urged that the provisions of the Ordinance and the Rules framed thereunder do not even contemplate payment of Education Cess by Stevedores in view of the peculiar nature of employment of dock labour by Stevedores through the Board. It was further urged that the Stevedores cannot be held liable to the payment of the Education Cess as this Cess was being paid by them to the Board under the Scheme. The question for consideration also arose with regard to the payment of Education Cess by the Board.
29. ' In order to appreciate various submissions made at the Bar, it is appropriate that we may refer to the relevant provisions of the Ordinance.
30. ' The words "Employer", "Establishment" and Worker" are defined as under:--
(a) "Employer" in relation to an establishment means the person who has ultimate control over the affairs of the establishment.
(b) "Establishment" means any office, firm, industrial unit, undertaking, shop or premises in which workers are employed for the purpose of carrying on any business, trade, manufacture, calling, service, employment or occupation.
(c) "Worker" means any person employed whether directly or through any other person, in any establishment to do any skilled, or unskilled, manual or clerical work for hire or reward whose monthly wages do not exceed one thousand rupees."
31. ' Under the provision of section 3, every employer of an establishment in which the number of workers employed at any time during the year is not less than 20, is liable to pay Education Cess at the rate of Rs,100 per worker per annum. Under the subsection (2) of section 3 every employer is required to prepare and deliver a Return showing the number of workers employed in the establishment during the preceding quarter, and the levy of the Education Cess is to be made on the basis of the number of workers shown in the Return. According to Rules framed under the Ordinance, the Education Cess is due annually, and may be demanded or recovered either in a lump sum for a year, or quarterly or six monthly basis as may be considered appropriate by the District Excise and Taxation Officer.
32. ' In view of the admitted position that no individual is permanently attached to or in the regular employment of any Stevedores, and that a Gang of Dock Workers is supplied to the Stevedores by the Board, on Rotational Basis, if and when required by the Stevedores, it is obvious that no Stevedore has any worker attached to or engaged by him. It was stated at the Bar that the total number of Registered Dock Workers are in the range of more than 6,000 and total Registered Employers (Stevedoring Companies) are more than 20 in number. Thus in view of this peculiar type of relationship between the Dock Workers vis-a-vis the Stevedores, if the provisions of Workers'
33. Children (Education) Ordinance are made applicable to the Stevedores, then each of these 6000 Dock Workers is a worker of each of over 20 Stevedoring Companies. In other words, each Stevedoring Company would be liable to pay for all the dock labourers, who are over 6000 in number, and the Education Cess payable for over 6000 dock employees would be as many times as the number of the Registered Stevedoring Companies which presently are over 20. The situation such as this, obviously, is not contemplated by the Ordinance and the Rules framed thereunder.
34. The provisions of the Ordinance contemplate a normal relationship between an Employer and a Worker, and not a situation that exists between Stevedores and Dock Workers under the Scheme. In view of the peculiar nature of employment contemplated by the Scheme there can be no escape from the conclusion that the provisions of the Ordinance are not attracted to the existing relationship between the Stevedores and the dock labour of the Karachi Port. We therefore hold that the levy of Education Cess from the Stevedores in relation to their employment of Dock Workers falls outside the scope of the Ordinance and is thus not warranted by law.
35. ' The position pointed out by the High Court with regard to the relationship between the Board and the dock labour also does not contemplate liability of Education Cess by the Board, and we wholeheartedly agree with the views expressed by the High Court. For these reasons there is no force in Civil Appeal No,40-K of 1978 filed by the Provincial Government against Karachi Labour Board, and Civil Appeals Nos.33-K to 38-K of 1978 and Civil Appeals Nos. 41-K to 47-K must succeed.
36. ' In Civil Appeal No,140-K of 1983, the dispute relates to the legality of the Resolution, being BR No,99 of 1981 passed by the Board in the meeting held on 28-10-1981 which reads as under:- "The Board fixed 60 years age limit for retirement of all categories of Registered Dock Workers on KDLB Roster and approved retirement of Tindals and Serangs as per particulars given in the list attached as Annexure 'C' to these minutes except Mr.Dilawar S/o Hanan Khan whose case will he referred to the Medical Board for verification of his age. If he is found 60 years old, he will be discharged otherwise he will be retained in the service till he completes retirement age."
37. ' Pursuant to the Resolution, notice was issued by the Board to appellants, who are Tindals and Serangs, which reads as under:- "Subject: Retirement on superannuation.
38. ' Since you have already reached the age of superannuation, the Board under B.R.No,99/81 has approved your retirement. Your name will be struck off from the "Roster" after one month from the date of issue of this letter. You are directed to collect your dues after surrendering your Identity, Attendance and Medical Card."
39. ' Appellants challenged the vires to this notice in Constitutional Petition No,D-1085 of 1981 which led to Civil Appeal No,140-K of 1983 and it was submitted on their behalf that since appellants are not the employees of the Board, the impugned notices terminating their services are illegal and void.
40. On the other hand, it was urged on behalf of the Board that Board is the Regulating Body in sofar as certain terms and conditions of the Registered Dock Workers are concerned, and as such the Board has the authority to fix the age of superannuation of the Registered Dock Workers, and to remove their names from the Register. The precise argument was that although Registered Dock Workers are not the employees of the Board, yet the Board has the power to remove them from the Register on their attaining the age of superannuation.
41. ' Learned Judges in the High Court referred to Dock Workers (Regulation of Employment) Act XI of 1974 and the Scheme under the Act known as Karachi Dock Workers (Regulation of Employment)
42. Scheme 1973. It is useful to refer to the relevant provisions of the Act and the Scheme at this stage: "Dock Workers (Regulation of Employment) Act, 1974. Preamble: ' Whereas it is expedient to provide for regulating the employment of dock workers to ensure efficient performance of dock work, expeditious and economic turn-round of ships and vessels and speedy transit of goods through the port;
2. Definitions:
(b) "dock worker" means a person employed or to be employed in any port on loading or un- loading of ships or other vessels or on work in connection therewith;
(c) "employer" in relation to a dock worker, means the person by whom a dock worker is employed or is to be employed;
3. Power to make scheme:
(1) The Federal Government may, by notification in the official Gazette, make a scheme for the registration of dock workers with a view to ensuring greater regularity of employment and for efficient and economic turn-round of ships and vessels.
(2) In particular and without prejudice to the generality of the foregoing power, such scheme may provide for--
(a) the application of the scheme to such classes of dock workers and employers as may be specified therein;
(b) defining the obligations of dock workers and employers subject to the fulfilment of which the scheme may apply to them and the circumstances in which the scheme shall cease to apply to any dock workers or employers;
(c) regulating the recruitment and entry of dock workers into the scheme and their registration, including the preparation and maintenance of registers, the removal, either temporarily or permanently, of names from the register and the imposition of fees for registration;
(d) regulating the employment and conduct of dock workers and the terms and conditions of such employment, including rates of remuneration, hours of work and conditions as to holidays and pay in respect thereof and safeguarding the rights, privileges and interests of dock workers under the scheme;
(e) Securing that, in respect of periods during which employment or full employment is not available for dock workers to whom the scheme applies and who are available for work, such workers will, subject to the conditions of the scheme, receive a minimum pay;
(f) managing the property and funds created for the benefit of dock workers;
(g) prohibiting, restricting or otherwise controlling the employment of dock workers to whom the scheme does not apply;
(h) the training and welfare of dock workers in so far as satisfactory provision thereof does not exist apart from the scheme;
(i) health and safety measures in places where dock workers are employed in so far as satisfactory provision thereof does not exist apart from the scheme;
(j) the manner in which, and the person by whom, the cost of operating the scheme is to be defrayed;
(k) constituting, whether as a body corporate or otherwise, the authority to be responsible for the administration of the scheme; and
(1) such incidental and supplementary matters as may be necessary or expedient for the purpose of the scheme.
(3) A scheme shall apply to such port or group of ports as the Federal Government may, by notification in the official Gazette, specify in this behalf.
(4) A scheme may further provide that a contravention of any provision thereof shall be punishable with imprisonment for such' term as may be specified but in no case exceeding six months in respect of a first contravention or one yea in respect of any subsequent contravention, or with fine which may extend to such amount as may be specified but in no case exceeding two thou and five hundred rupees in respect of a first contravention or five thousand rupees in respect of any subsequent contravention, or with both imprisonment and fine as aforesaid.
43. ' Karachi Dock Workers (Regulation of Employment) Scheme 1973. Clause 2. Objects and Application
(1) The objects of the Scheme are to ensure greater regularity of employment for dock workers and to secure that an adequate number of Dock workers is available for the efficient performance of dock work, expeditious and economic turn-round of ships and speedy transit of goods through the Port.
44. ' Clause 7, Function of the Board:
(1) The Board may take such measures as it may consider desirable for furthering the objectives of the Scheme set out in clause 2, including measures for:
(a) ensuring the adequate supply and the full and proper utilization of the dock labour for the purpose of facilitating the rapid and economic turn- round of vessels and the speedy transit of goods through the Port; (1)) regulating the recruitment and entry into and the discharge from the Scheme of dock workers and the allocation of registered dock workers in register (i) and in the reserve pool to registered employers;
(c) determining and keeping under review, in consultation with the Administrative Body, the number of registered employers and registered dock workers from time to time on the registers or records and the increase or reduction to be made in the numbers in any such register or record."
45. ' Clause 8. Responsibilities and duties of the Board in meeting: ' The Board in meeting shall be responsible for dealing with all matters of policy and in particular may -
(a) Fix the number of workers to be registered under various categories;
(h) increase or decrease the number of workers in any category on the register from time to time as may he necessary after a periodical review of the registers and anticipated requirements.
46. ' Clause 14. Maintenance of Registers etc:
2. The Workers' Register.
(a) The workers' register shall he maintained in the forms prescribed by the Board for this purpose.
(b) The registers of dock workers shall he as under:
(i) Register of dock workers other than those in the reserve pool (Register No,(i).
(ii) Register of leave reserve/trainees (Register No,(ii). Clause 15. Classification of Workers in Registers:
(1) The Board shall arrange for the classification of workers by categories in the registers.
(2) Dock workers registered under the Scheme shall be classified into:
(a) Wharf Serang.
(b) Ship Tindal.
(c) Wineman.
(d) Dock Worker.
47. ' Clause 16. Fixation of number of workers on the Register: ' The Board shall in consultation with the Administrative Body determine, before the commencement of registration in any category, the number of workers required in that category.
48. ' Clause 17. Registration of existing and new workers:
(1) (a) At the commencement of the Scheme only those dock workers who have been verified by the Dock Labour Board as genuine workers shall be eligible for registration.
(b) The qualification for new registration shall be such as may be prescribed by the Board having regard to local conditions, physical fitness, capacity and/or experience but not more than 40 years of age.
49. ' Clause 19. Medical Examination: (1)................
(2) If the Administrative Body deems it necessary, a worker shall undergo free of charge a medical examination by a Medical Board to be constituted by the Chairman. The decision of the Medical Board shall be final. If a worker is found permanently unfit by the Medical Board the Chairman shall terminate his services and pay such benefits as may be admissible to him under the Scheme.
50. ' Clause 39. Wages, Allowances and other condition of service of certain Classes of workers: Unless otherwise specifically provided for in the 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 interval, holidays and other conditions of service shall be such as may be prescribed by the Board for each category of workers; and
(b) the fixation of wage periods, time for payment of wage and deductions from wages shall be in accordance with the provisions of the Payment of Wages Act, 1936.
51. ' Clause 45. Termination of Employment:
(1) The employment of a registered dock worker shall not be terminated except in accordance with the provisions of the Scheme.
(2) A registered dock worker shall not leave his employment with the Board except by giving one month's notice in writing to the Board or forfeiting one month's wages in lieu thereof.
(3) When the employment of a registered dock worker with the Board has been terminated under sub-clause (1) or (2) above, his name shall forthwith be removed from the register or record by the Administrative Body, and all dues and benefits accruing under this Scheme will immediately be paid to him."
52. ' It is an admitted position that there is no specific provision in the Scheme that authorises the Board to fix the age of retirement of Registered Dock Workers, and consequently remove their names from Registers on their attaining the age of retirement. Learned counsel appearing for the Board before the High Court relied upon the above mentioned clauses of the Scheme, particularly, Clause 7(a) and (b), which provide that the Board may take such measures as it may consider desirable for furthering the objectives of the Scheme, including measures for ensuring the adequate supply and the full and proper utilization of the dock labour for the purpose of facilitating the rapid and economic turn-round of the vessels and the speedy transit of the goods through the Port. He also referred to Clause 8 (a) and (b) which authorises the Board to fix the number of workers in any category from time to time.
53. ' Learned Judges in the High Court who dealt with the case took the view as under: "In our view the 1973 Scheme does not give any power to the respondent Board to fix the age of superannuation of dock workers at 60 years and the name of a registered dock worker who has attained the age of 60 years cannot be removed by the respondent Board from the register of dock workers solely on the ground of age. Clause 17 of the 1973 Scheme lays down the principles relating to registration of existing and new dock workers On the qualification for new registration of a dock worker, i.e, a dock worker who had not been verified by the Board as a genuine dock worker at the commencement of the 1973 Scheme, is that he is not more than 40 years. Then one of the conditions for the registration of a dock worker in any new category is that he is not more than 60 years. These provisions indicate that at the time of framing the 1973 Scheme, the Federal Government was conscious of the age factor being a relevant consideration for a dock worker to be brought on the register of dock workers. For new registration 40 years is the maximum age for being eligible. Registration in a new category requires the dock worker to be not more than 60 years. In spite of specifically providing maximum age for new registration and for registration in a new category, the Federal Government did not make any provision about the age of retirement in the 1973 Scheme. By fixing the maximum ages for certain kind of registrations only and by consciously neither fixing the age of superannuation of registered dock workers nor giving any specific power to the respondent Board to fix the age of superannuation, in our view the 1973 Scheme gives no authority or power to the respondent Board to fix the age of superannuation of registered dock workers. No doubt the respondent Board is responsible for the administration of the 1973 Scheme but this is subject to the provision of the Scheme. And the 1973 Scheme, as it stands today, does not give the power to the respondent Board to fix the age of the superannuation of the dock workers and then to retire them.
54. ' The stand of the respondent Board vis-a-vis the dock workers is not that of an ordinary employer.
55. Respondent Board is neither the employer as defined in Section 2(c) of Act IX of 1974 nor the registered employer as per the definition in clause 3(p) of the 1973 Scheme. As we see it, the respondent Board has only those powers and functions vis-a-vis the dock workers as are specified in the various clauses of the 1973 Scheme or as can be spelt out from the provisions of the Scheme.
56. It is only for such limited purposes that the respondent Board may be considered as the employer of the registered dock workers. The power that may be attributed to an ordinary employer under the general law to fix the age of superannuation, therefore, cannot be attributed to the respondent Board."
57. ' On this view of the case learned Judges allowed the petition and declared the impugned Resolution and the notices issued to the appellants as having been made without lawful authority and to he of no legal effect.
58. ' Leave to appeal was granted by this Court in order to appreciate the plea that the Board has ample power under the Scheme to fix the age of retirement of Registered Dock Workers.
59. ' At the' hearing of the appeal, Mr. S.A. Sarwana, learned counsel for the petitioner, submitted identical pleas before us as those advanced by him before the High Court in defence of the Constitution Petition. It is however, admitted position that the Scheme does not specifically authorise the Board to fix the age of retirement of Registered Dock Workers. Reliance placed by the learned counsel on the provision of the Clause 17 of the Scheme as to the bar of age beyond 60 years for registration of Dock Workers for work in any new category is totally misconceived, for in spite of the fact that the framers of the Scheme were conscious of the age factor being a relevant consideration for registration of Dock Workers in a new category, they placed no restrictions as to the age of the registration of those persons who were Dock Workers at the commencement of the Scheme for whom the only qualification prescribed was that only those were eligible who are verified by the Board as genuine Dock Workers. It is therefore clear that even those who were above the age of 60 years were eligible for registration as Dock Workers subject to their verification by the Board as genuine Dock Workers. If, therefore, a genuine Dock Worker above the age of 60 years was automatically eligible for registration as a Dock Worker under the provisions of the Scheme itself, it requires little imagination to conceive the futility of an argument that the Scheme provides for a power in the Board to fix the age of retirement of Registered Dock Workers. All the other arguments advanced by the learned counsel for the petitioner have already been dealt with by the High Court and rejected for the reasons with which we whole-heartedly agree. We, therefore, find no merit in civil appeal No,140-K of 1983.
60. ' In the final result the following appeals are dismissed: (i) Civil Appeals Nos.126-K to 134-K of 1976.
(ii) Civil Appeal No,40-K of 1978.
(iii) Civil Appeal No,140-K of 1983. And the following appeals are allowed:
(i) Civil Appeals Nos. 33-K to 38-K of 1978 and Civil Appeals Nos. 41-K to 47-K of 1978.
61. ' With the result that the levy and the demand of Education Cess under the Workers' Children (Education) Ordinance from the Stevedoring Companies is declared as illegal and without lawful authority and the impugned notices are quashed.
62. ' The parties in all these cases are left to bear their own costs.