QAISER AHMAD HAMIDI, J.- In this case some very interesting and important questions of law arise for consideration, and therefore, it is necessary to set out accurately the facts as they are either admitted or undisputed, before entering into a discussion of the several points to be decided in this petition filed under Article 9 of the Provisional Constitutional Order, 1981, read with Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The petitioners are Trustees of the Karachi Port Trust established under Karachi Port Trust Act,1886, and are a local authority. The respondent No.2 are a registered trade union and are the Collective Bargaining Agent of the workmen employed by the petitioners. The petitioners are governed by the Karachi Port Trust Act, 1886, under the Control of Federal Government and have their statutory rules of service, conduct and discipline. Ever since the inception of Pakistan the working hours of ministerial staff and general shift staff were fixed from the to the by the Chairman of the petitioners and the same were notified by the Secretary of the Board and at no the the working hours were fixed in consultation with the Trade Union/Collective Bargaining Agent of the w- , kers. In February, 1981, the respondent No.2 served a charter of demands on the petitioners in which one of the demands pertained to regulating of working hours. On 4.8.1982 an industrial dispute between the petitioners and respondent No.2 was referred by the Federal Government to National Industrial Relations Commission, the respondent No.1, for adjudication. Demand No.1-A of the dispute so referred related to the revision of the timings of the working hours of the ministerial staff (indoor) working at the Head office and at the site office. In their statement of claim, the respondent No.2, referred to the circular dated 27.7.1981 issued by the petitioners and demanded that this circular be made the award. The petitioners contested this demand by stressing that fixing of the working hours was the managerial function and that the spread over and/or splitting of the working hours was not a condition or service, and as such, the National Industrial Relations Commission, the respondent No.1, had no jurisdiction to make the award in regard thereto. On 31.3.1983 the Chairman, National Industrial Relations Commission gave award in terms of the circular, dated 27.7.1981 issued by the petitioners, in the following words:- "After giving consideration to the respective stands of parties direct that the working hours as per Circular of K.P.T, bearing No.S- 19(1)/77/5230 of 1981 dated 27.7.1981 shall be operative throughout the period of the award, provided that if before the expiry of the period of this Award, there is an emergency or if circumstances have materially changed, the Management may alter the timings of working hours in accordance with the procedure prescribed under the IRO, 1969."
3. On 26.4.1983 the petitioners made an application under section SO read with section 22-D of the Industrial Relations Ordinance, 1969, to the Full Bench of the National Industrial Relations Commission for clarification of the order dated 313.1983 and/or in the alternative treating the application as an appeal for setting aside the award of the Chairman of the National Industrial Relations Commission in this regard. This application/appeal was dismissed by the Full Bench of the National Industrial Relations Commission bn 28.5.1984 holding that:
(a) Union could raise an industrial dispute regarding the hours of working laid down in the Karachi Port Trust Circular.
(b) the Chairman of the National Industrial Relations Commission had jurisdiction to decide this issue of working hours, and
(c) that the period of award being over there was no Occasion for the Full Bench to interfere with the award.
4. It is the case of the petitioners that the award given by the Chairman, National Industrial Relations Commission on 313.1983 and the order passed by the Full Bench of National Industrial Relations Commission on 28.5.1984 are illegal, without jurisdiction and of no legal effect. The petitioners have, therefore, invoked the constitutional jurisdiction of this Court seeking declaration to the following effect:-
(a) that the award given by the Chairman National Industrial Relations Commission on 313.83 is illegal,without jurisdiction and of no legal effect;
(b) that the order passed by the Full Bench of the National Industrial Relations Commission dt 28.5.84 up-holding the award of the Chairman, National Industrial Relations Commission is illegal, without jurisdiction and of no legal effect."
5. We have had the benefit of careful arguments on both the sides. Before we proceed to deal with the contentions raised on behalf of the petitioners, it is necessary to deal with an important point of law raised on behalf of respondent No.2, about the expiry of the period of award, thereby rendering this petition incompetent. With regard to the factual position it is submitted by learned counsel for the petitioners that although the period of award has already expired, but the point in issue is still in dispute and an authoritative decision is necessary to resolve it once for all. In deciding this all important question it is necessary to look into the substance of the matter and not the mere form.
The preliminary objection, therefore, seems to be devoid of any force.
6.It is contended on behalf of the petitioners that although the circular prescribing the weekly hours of work, which the respondent No.2 sought to be implemented on permanent basis was issued by Karachi Port Trust itself, yet the petitioners would contest the same on the ground that raising an industrial dispute on hours of work was not the right of workmen. This question turns entirely on the construction of section 2(Xiii) of the Industrial Relations Ordinance,1969, which defines "Industrial Dispute" in the following words:- "Industrial dispute" means any dispute or difference between employers and employers or between employer sand workmen or between workmen and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person; and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the the being in force;"
7. Admittedly the petitioners are a local authority governed by the provisions of the Karachi Port Trust Act,1886. Rule 10 of the Digest of Pay, Allowances and Leave Rules, which were approved under Board's Resolution No.727, dated the 11th December,1942 and sanctioned under the Government of India, Department of war, Transport, latter No.12-P(20)/37, dated the 2nd February, 1943, deals with the general conditions of service in Karachi Port Trust in the following words:- " Unless in any case it be otherwise distinctly provided the whole the of an officer or servant is at the disposal of the Board and he may be employed in any manner required, without claim for additional remuneration.
8. The expression 'terms and conditions' is, therefore, to be understood in a restricted sense relatable to concrete matters concerning the service of the workmen. This expression when examined in juxta-position with section 2(XIII) of the Industrial Relations Ordinance,1969, must be considered alongwith the provisions contained in the Digest of Pay, Allowances and Leave Rules of Karachi Port Trust.
9. There is also no dispute that the total working hours of the employees in Karachi Port Trust are 36 hours a week and the contention raised on behalf of the petitioners that so long as the total working hours were not increased, it was the right of the management to vary the working hours Keeping in view the exigency of work and business requirement, is not without force. It may be added that there is evidence on record in the form of affidavit to the effect that the working hours of an establishment like Karachi port Trust are to be so fixed that the ministerial staff work in close liaison with the trade, commerce, docks, customs and financial institutions, and if it is not done it may result in lack of harmony and co- ordination. There is, therefore, good deal of force in the contention of the petitioners that the "spread over" and/or the "break-up" of the working hours was not a condition of service and could not constitute an industrial dispute. In this view of the matter, the assumption of jurisdiction by the National Industrial Relations Commission on this limited point was not legal.
10. The case of National and Grindlay Bank Limited. Chittagong and others Vs. The East Pakistan Bank Employees Union Chittagong, and others, reported in PLD 1961 S.C. 383, is the nearest parallel to the present case, wherein it was observed:- " On this point therefore, we would modify the award by adding that the Banks will be at liberty to fix commencing hours of work for the necessary number of their staff, earlier than 9.30 a.m. To enable the office to be placed in readiness for the day's work, and also to keep certain members of the staff in after closing hours in order to clear up the work of the office before closing down, provided that this is done so that the total of 38 hours per week is not exceeded in any ease. We may note that although in the grounds of appeal it was complained for the Banks, that 38 hours are too little, that point was not pressed before us in the appeal."
The cases reported in 1961 Vol: 11 LLJ 526 (Workmen of Hindustan Shipyard (PVT.) Ltd Vs. Industrial Tribunal Hyderabad and others), and Vol: 47 FJR 551 (Oil and Natural Gas Commission Vs. Their Workmen), also support the plea raised on behalf of the petitioner. In the latter citation the Supreme Court of India has observed that the management has full power and discretion in fixing the working hours of the administrative -staff within the limits prescribed by the statute.
12. Mr. Muhammad Tasneem, learned counsel for respondent No.2 has invited our attention to the provisions of sub-section (6) of section 23-B of the Industrial Relations Ordinance, 1969, which provides that the management shall not take any decision in the following matters without the advice in writing of the workers representatives, namely:-
(i) .................................
(ii).........................
(iii) .......................
(v)....................................
(v) regulation of daily working hours and breaks,
(vi) .....................
(vii) ..............................
A bare perusal of this section will show that it applies to a factory employing fifty persons or more.
The award which is the subject matter of the present petition pertains to the working hours of ministerial staff (in door) working at the Head Office and at site offices. The above provision of law is, therefore, not attracted to the present case.
13. After giving the argument addressed at the bar our anxious consideration, we are of the view that the award given by the Chairman National Industrial Relations Commission on 31.3.1983 and the order passed by the Full Bench of the National Industrial Relations Commission on 28.5.1984, up-holding the award are illegal, without jurisdiction and of no legal effect, which are declared as such.
14. In the result the petition is allowed, but the parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.