1. ' MAMOON NAZI, J.---By this judgment we propose to dispose of C.P. Nos. 210 of 1990 and 126 of 1990 as common questions of law are involved therein.
2. ' The petitioners in the two petitions had been employed as dock workers. In the case of Narain s/o Pana he was retired from service after attaining the age of 60 years in August, 1987, vide resolution B.R. No, 31/87 passed by the Karachi Dock Labour Board which provided as follows:- "B.R.No, 31": ' The agreement on all demands, reached between the KDLB Negotiation Committee and the CBA of the dock workers, with reference to the Charter of-Demands submitted by CBA, was approved by the Board. A copy of Memorandum of Settlement is attached as annexure "A" to the minutes."
3. ' It may be point out the settlement entered into between the Board and the C.BA. Dated 9-4-1987 provided for retirement of dock workers at the age of 60 years.
4. ' So far as the case of Petitioner Char Shambay is concerned, the Petitioner was given notice of retirement dated 13-2-1990, which proposed to retire him from service with effect from 16-3-1990, after his attaining the age of 60 years. Although the said notice referred to the same resolution of the dock workers, but Mr. Obaidur Rehman has invited our attention to an amendment introduced by the Federal Government in the Karachi Dock Workers (Regulations of Employment) Scheme 1973, whereby, by virtue of powers exercised by it under section 3 of Act XXVII of 1973 it amended entry (t) in clause 8 vide Notification SRO 39 (KE)/87, dated 11-2-1987 and vested the said Board with power to "fix the age of superannuation of the registered dock workers". Clause (f) therefore, after the said amendment reads as follows:- "(f) determine the wages, allowances and other conditions of service, "fix the age of superannuation of the registered dock workers" and refix the guaranteed minimum wages in a month after review."
5. ' Our attention has also been invited to a resolution passed by the said Board after the said amendment called B.R. No, 96 dated 28-6-1989 which reads as follows:-"B.R. No, 96: The Board decided as follows:- ' Fixed 60 years age limit for retirement of all categories of Registered dock workers on KIDLB Roster under Clause 8 (f) of Karachi Dock Workers (Regulation of Employment) Scheme, 1973.'
6. ' Both the petitioners have challenged their respective retirement as being without lawful authority and of no legal effect. Reliance has been placed by Mr. Ameer Ahmed Khan their learned counsel, on a judgment of this Court in the case of Karachi Dock Labour Board v. Province of Sindh and another (PLD 1977 Karachi 361). This judgment was, consequently, confirmed by the Supreme Court in the case reported as Vera and others v. Messrs Kazi and Kazi Ltd. And others PLD 1990 SC 435. The relevant observations in this case which appear at pp. 450 and 451 of the report are reproduced as follows:-- "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 powers 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 agq. 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 kinds 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 giN7e the power to the respondent Board to fix the age of the superannuation of the dock workers and then to retire them. `The stand of the respondent Board vis-a-vis the dock workers is not that of an ordinary employer.
7. 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.
8. 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.'
9. "On this view of the case learned Judges allowed the petition and declared the impugned Resolution and the notices issued to appellants as having been made without lawful authority and to be of no legal effect.
10. "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.
11. "At the hearing of the appeal Mr. SA. 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 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 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."
12. ' No doubt, as is clear from the observations of the Hon'ble Supreme Court just reproduced by us in this judgment, it was held that retirement of the dock workers after attaining the age 60 years was not warranted by law. It may be pointed out at the same time that in the cases before the Supreme Court, the workers had been retired purely on the strength of Board's Resolution No, B.R. No, 31, which no doubt, had purportedly been passed under the said Scheme of 1973, but the same was before the said amendment introduced in the said Scheme through Notification SRO 39 (KE)/87, which as has been pointed out earlier, came into force on 11-2-1987. It is, therefore, .Clear that when the impugned action was taken against the petitioners in the earlier cases, there was no provision in the said Scheme vesting the Board with power to retire the dock workers after they had attained the age of superannuation. However, as is evident from the said amendment, this defence was subsequently removed and power was given to the Board, to fix age of superannuation of the registered dock workers. The Board after the said amendment has passed Resolution No, B.R. 96, fixing the age of superannuation for such workers as 60 years. It is pertinent to point out that although the judgment of the Supreme Court was given on 18-4-1989 by which time the said amendment had already been introduced in the said Scheme, but the attention of the Supreme Court was not invited to this amendment by the learned counsel appearing in the case. This is clearly visible from the judgment of the Supreme Court, as no reference can be found to the said amendment introduced in the said Scheme. Although Mr. Amir Ahmed Khan has very heavily relied upon this judgment of the Hon'ble Supreme Court as well as the judgment of this Court, but in our opinion, both the judgments are not attracted to the facts of the present case, as is evident from the observations made therein. The petitions filed by the dock workers were allowed mainly for the reason that no such power to retire the dock workers after their reaching the age of superannuation could be derived from any provision made in the said Scheme. However, as we have just pointed out, after the said amendment introduced in the said Scheme, power could be derived by the Board from the said amendment for fixing the age of retirement of dock workers.
13. This power has actually been exercised by the Board in the form of Resolution, reference to which has earlier been made in this judgment. We are, consequently, of the view that the .Case of the Petitioners is clearly distinguishable.
14. Now, turning to the case of petitioner Narain, no doubt, he was retired from his employment before Resolution B.R. No, 96 had been passed by the Board, but now since the age of retirement has been fixed by the Board under power vesting in it under the same scheme, the petitioner can be retired after he has reached the age of superannuation. Consequently notwithstanding the fact that power to retire the petitioner was initially exercised without lawful authority, but in view of the said amendment no useful purpose would be served by reinstating the petitioner in service since such power can now be exercised by the respondents under the Resolution passed after the amendment. So far as the case of petitioner Char Shambay is concerned, since the impugned action has been taken after introduction of such amendment in the said scheme and passing of a fresh Resolution in this regard under the said scheme, it cannot be said that the respondents have acted without lawful authority. In the result, the petitions are dismissed. The parties are left to bear their own costs.