' Z. A. CHANNA , J.-In each of these seven petitions the common question involved is the liability of the respective petitioner to payment of education chess loveable under the Workers' Children (Education) Ordinance, 1972, hereinafter referred to as the said Ordinance. We have accordingly heard all the seven petitions together and they are being disposed of by this judgment.
2. In Petition No, 318 of 1975, the petitioner is the Karachi Dock Labor Board. It is contended that this Board was constituted on 14-1-1974, under the provisions of the Karachi Dock Workers (Regulation of Employment) Scheme, 1973, to which we shall, for the sake of brevity, refer to as the Scheme. The Scheme was framed by the Federal Government in exercise of the powers conferred upon it by section 3 of the Dock Workers (Regulation of Employment) Ordinance, 1973, which was promulgated 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. The Ordinance provided for the framing of a Scheme by the Federal Government inter alla for the registration of dock workers, appointment of Inspectors, transfer of funds for the benefit of workers to the Federal Government or such body as it may constitute for the purpose, recovery of monies due to such funds and cognizance of offences punishable under the Ordinance. It was specifically provided in the Ordinance that its provisions and those of any scheme prepared thereunder would have effect notwithstanding anything to the contrary contained in any other law. The Ordinance was repealed and replaced by the Dock Workers (Regulation of Employment) Act, 1974, which came into force on 1-3-1974. The Act contained substantially the same provisions as those in the Ordinance.
3. It appears that the necessity for the aforesaid law arose because of the steep decline in the output of tonnage handled at the Karachi Port consequent upon the paralyzing effect of 'go slow' tactics adopted by the dock workers, basically due to the rivalry between the two Trade Unions of dock workers. This question was considered in a meeting held at Karachi on 1-11-1972 under the chairmanship of the Minister for Political Affairs and Communications. At this meeting it was Inter alia decided to introduce, within two months, the Karachi Port Workers (Regulation of Employment)
Scheme, commonly known as Decasualization Scheme. In order to implement this scheme it was decided at this meeting to immediately set up a Dock Labour Board, which was required to update the proposed scheme for the Regulation of Employment of Dock Workers and approve rules for the functioning of the proposed Board under the above Scheme. It was also decided at this meeting that the 'Rotation System' introduced in previous August should continue with the modification that Sarongs and Tindal's' would be wedded to their gangs and relate with them."
4. At this stage it may be pertinent to state that the previous practice appears to have been that each of the stevedores at Karachi Port, whose business involves the loading and unloading of Vessels at the port, had a number of Tindals and Savings in his permanent employment, whose duty it was to procure dock workers when required by the stevedore employing him for loading and unloading any vessel. Bemuse of the uncertainty of employment, the dock workers adopted 'go- slow' tactics and resorted to strikes. On account of this state of affairs, which bad a very adverse effect on the turnover at the Karachi Port, resulting in imposition of surcharge by the Shipping lines, the rotation system referred to in the meeting on 1-11-1972 was introduced in August 1972.
According to this system, the 4060 dock workers at Karachi were to be employed by the various stevedores strictly on rotation system. This ensured every dock worker employment strictly in his turn.
5 We may here briefly refer to the main points of distinction between the rotation system referred to above and the decasualization system introduced under the Scheme framed under the Ordinance of 1973. As already indicated, the rotation system merely ensured that every dock worker got work strictly in turn, as and when a ship was to be loaded or unloaded, However, the object of the decasualization system was to ensure greater regularity of employment to dock workers under the supervision of the Karachi Dock Labour Board, to register new and old dock workers, to guarantee registered dock workers minimum monthly wages, to allow such workers attendance allowance and "disappointment money' in cases where they are required to be in attendance but were not employed by stevedores, providing dock workers with group insurance, bonus, medical and other facilities, etc. For the purposes of meeting the expenses on the implementation of the Scheme, as well its own administrative expenses, the Board has been levying contributions from stevedores, ship owners, steamer agents and K. P. T. The contributions which are on the basis of the tonnage loaded and unloaded at the Karachi Port include 'education cess' at the rate of 15 paisa per ton.
6. The Karachi Dock Labor Board, which is the petitioner in Petition No, 318 of 1975, received a letter, dated 1.1-1975, from respondent No, 2, the Excise and Taxation Officer, 'P' Division, stating that the petitioner had not filed a return under the said Ordinance for more than two years and were required to file the return in the prescribed form. The petitioner, in reply, contended that it had been constituted only from 14-1-1974, and that in any case it was not liable to pay education case in respect of dock workers who were not its employees. This reply of the petitioner apparently was not considered satisfactory and the respondents sent the petitioner challah for payment of education cases for the years 1973-74 and 1974-75, amounting to Rs, 8,22,000 and Rs, 8,17700, respectively.
This was followed by a is nice of demand under section 81 of the Land Revenue Act, requiring the petitioner to deposit a sum of Rs, 16,39 700 as education cases within sixteen days. It is this demand notice and the action there'd thereunder that the petitioner has impugned in Petition No, 318 of 19- 5.
7. Tee petitioners in the remaking year 1972-71 they filed their respective returns ender the said noisome, wherein they did not include dock workers Inlayed by them, and Paid education Pen accordingly. Therefore, on 21-8-1975, respondent N. s 3, roe Excise and Taxation Officer 'P' Division, stet them a notice calling upon them to furnish fresh returns, which should include el cu workers Respondent No, 3 ultimately passed an order on 2-9-1975, holding that the stevedores should file returns in respect of dock workers also. The petitioners filed appeals against the aforesaid order but the same were dismissed by the Director Excise and Taxation, respondent No, 2, by his order of 30th March 1976. It is these two orders that have been assailed by the petitioners in petitions Nos.
264/1976 to 269/1976.
8. It was contended by Mr. Iqbal Qazi, the learned counsel for the petitioners in the aforesaid petitions, that the dock workers are not the 'Workers' of the stevedores and as such the latter are not liable to pay education cess in respect of them. The precise argument was that education cess was payable only in respect of such workmen as are employed on monthly or prolonged basis but since the employment of the dock workers by the stevedores was purely of a casual charactor, depending entirely on the stevedore getting the contract to load or unload a ship, and further as the employment was only for so long as the work lasted, the dock workers cannot be considered as 'workers' of the stevedores for the purposes of the said Ordinance.
9. The learned Advocate-General, who appeared for the respondents, on the other hand contended 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 were employed, and that the said Ordinance does not require that such workers should be paid or employed on monthly basis.
10. In order to examine the respective merits of the contending marguerites, it is necessary to refer to the relevant provisions of the said Ordinance. Subsection of section 3 requires every employer of an establishment in which the number of workers employed at any time during a year is not as than twenty to pay education cases to the Provincial Government at the rate of rupees one hundred per worker per annum. For the purposes of proper assessment of the cases, every employer is required to submit a quarterly return showing the number of workers employed in the establishment during the preceding quarter.
11. The words 'Employer', "Establishment" and "Worker" have been defined in the said Ordinance as follows :-
(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."
12. The definition of 'Establishment' in the said Ordinance is extremely wide and would undoubtedly cover the organization and undertakings maintained or run by the stevedores. Since the stevedores have ultimate control over the affairs of their respective establishments, they also undoubtedly are 'employers' for the purposes of the said Ordinance. It is also not disputed that the dock workers perform work for hire or reward in the establishments 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 periods, 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 Labor 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. We consider that in order that an employee be deemed to be 'Worker" for the purposes of the said, Ordinance it is immaterial whether be is paid on daily, weekly, monthly or other basis or even whether his employment is on daily, weekly or monthly basis.
13. The learned Advocate-General referred us, for the purposes of the connotation of the expression "monthly wages not exceeding three hundred rupees", as used in the Workmen's Compensation Act, 1922, to the cases of City and Hall Lines v. Asis Thomas (1) and cooling Equipment company v.
Zabiab Bib, (2). In the Bombay case, it was contended that the workman
(1) A T R 1938 Born, 110 (2) AIR 1943 Lah. 52 ' concerned was not employed on monthly wages and therefore was not deemed to be a 'Workman' for the purpose of the Workmen's Compensation Act, 1922, wherein the definition of 'Workman' excluded the person whose employment was of a casual nature and who was employed otherwise than for the purposes of the employer's trade or business. Repelling this contention it was held as follows "The reference to employment on monthly, wages in section 2(1), sub-clause (n), means employment at wages which do not exceed an average of Rs, 300 a month. It seems to me quite impossible, reading this Act as a whole, to say that it was limited to workmen who are employed by the month so that it would not include workmen employed by the day or by the week or by the year."
14. In the Lahore case, again the question which arose for consideration was whether a person in regular employment, who was paid by the day, is a "workman" for the purposes of the Workmen's Compensation Act, 1922. Relying upon the decision in the above Bombay case, the contention was repelled that a person in regular employment, who happens to be paid by the day, is outside the category of the monthly wages-earner. We are in respectful agreement with the decisions in the above two cases and are of the opinion that they lay down the correct law. The principle on which these two decisions are based would, in our opinion, be also applicable to 'Workers' under the said Ordinance.
15. The only conditions necessary for a person to be deemed to be a 'Worker' for the purposes of the said Ordinance are that he should be employed in an establishment; that he should be employed to do any skilled, unskilled, manual or clerical work; that he should be so employed for hire or reward and finally his monthly wages should not exceed one thousand rupees. In our opinion, the dock workers employed by the stevedores fulfil all the above requirements and we, therefore, have no hesitation in holding that such of the dock workers as are employed by the stevedores are "Workers" in the establishments of the stevedores.
16. The learned counsel for the stevedores made 3 subsidiary submissions, namely:-
(I) That since that Karachi Dock Labour Board had recovered education cases from the stevedores, the latter were not required again to pay the same cases;
(ii) that under the Scheme framed under the Dock Workers (Regulation of Employment) Ordinance, 1973, the dock workers are deemed to be in the employment of the Karachi Dock Labour Board and
(iii) that the stevedores having filed returns under the said Ordinance for the year 1972-73, cannot be asked to file revised returns for the saidperiod and include the dock workers.
17. So far as contention (i) above is concerned, no doubt, the Karachi Dock Labor Board has been recovering from the stevedores, the K. P. T., the ship owners and others an education cases at the rate of 15 paisa per ton, as appears from the minutes of the meeting of the Board held on 1-4-1974, but this education cases is of a different kind and for an altogether different purpose from the education cess payable under the said Ordinance. The education me levied by the Karachi Dock Labor Board was not only on the employers of the dock workers but on all agencies who were benefiting from the quick loading and unloading of ships. Furthermore, it was levied on the basis of the tonnage loaded or unloaded without taking into account the number of workers engaged in loading or unloading operations. The education cases under the said Ordinance, on the other hand, is payable by the employer of the workers at the rate of Rs, 100 per annum per worker.
Furthermore, this education cases is payable to the Provincial Government, while according to the minutes of the sub-committee of the Dock Labour Board, the education cases collected by the Board was to be spent on grant of scholarships and stipends for books etc. To student children of the dock workers. The education cases thus collected by the Karachi Dock Labour Board is altogether different in nature from the education cases payable under the said Ordinance and does not exonerate the stevedores from payment of the education cases under the said Ordinance.
18. 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 a registered dock worker in Register 1, who is available for work, shall be deemed to be in the employment of the Board". 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 latter, are "Workers" of the Karachi Dock Labour Board for the purposes of the said Ordinance.
19. We are also unable to find any merit in the submission of the learned counsel for the stevedores that merely because the latter had filed returns under the said Ordinance for the year 1c72-73, they cannot be asked to file revised returns for the said period. We have already referred to subs section
(2) of section 3 of the said Ordinance which requires every employer to furnish quarterly returns showing the number of workers employed in his establishment during the preceding quarter. It was, therefore, the duty of every stevedore to furnish correct returns in respect of all workers employed by him, including the dock workers employed by him, who, according to us, are "Workers" for the purposes of the said Ordinance. Since the stevedores had failed to show in the Toms furnished by them the number of dock workers employed by them, the respondents were well within their right to require the stevedores to furnish correct returns. In this behalf reference may be made to rule 4(2) of the Sind Workers' Children (Education) Cess Rules, 1974, which empowers the District Excise and Taxation Officer to require an employer to submit revised returns, if in the opinion of such officer the return submitted by the employer is not correct or is not complete.
20. In Petition No, 318 of 1975, Mr. Ajmal Mian, the learned counsel for the Karachi Dock Labour Board, to which we shall refer as the Board contended:-
(I) that the Board was constituted by a notification of the Government of Pakistan, dated 12-1-1974, and obviously for the period prior to that date it cannot be liable to payment of education cess; and
(ii) That 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 a levy upon the beneficiaries of the Scheme for meeting the cost of operating the Scheme and certain other matters.
21. The learned Advocate-General, on the other hand, contended
(1) that the Board had an adequate alternate remedy, by way of appeal to the Director, Excise and Taxation, which it had not availed of, and hence its petition was liable to be dismissed on that account ;
(2) That the Board had in fact levied an educational cases upon the stevedores of about Rs, 8,00,000 which was roughly the amount of educational cases payable in respect of the dock workers under the said Ordinance, and hence on the authority of the decisions of the Supreme Court reported in PLD 1973 SC 236 and PLD 1974 SC 109, the Court should not exercise its discretionary powers in writ jurisdiction in favour of the Board, even it the Court takes the view that the dock workers are not the "Workers" of the Board for the purposes of the Ordinance ;
(3) that the Board had in fact come into existence by the notification of the Government of Pakistan, published in the Gazette of Pakistan of 17th November 1972 ; and
(4) that in any case such of the dock workers as do not secure employment with the stevedores and are paid allowance, "disappointment money" etc. By the Board should be considered to be the workers of the Board for the purposes of the said Ordinance.
22. Before taking up the points raised by the learned counsel for the Board, it would be appropriate to dispose of the two preliminary objections raised by the learned Advocate General. Now, so far as the first point raised by him is concerned, namely, that the Board should have first exhausted its remedy of preferring an appeal against the demand notice to the Director of Excise and Taxation as provided in rule 12 of the Sind 'Workers' Children (Education) Cess Rules, 1974, it may be pointed out that the Board is denying the very basis on which the respondent No, 3 bad issued the demand notice to it, namely, the assumption that the dock workers are its workers for the purposes of the said Ordinance. Its contention is that it is entirely on an erroneous assumption of facts and view of law that the respondent No, 3 bad assumed jurisdiction in the matter. If it be held that the dock workers are not the workers of the Board for the purposes of the said Ordinance, then obviously the respondent No, 3 bad no jurisdiction to issue demand notice to the Lord in respect of such workers.
In Mirdad v. Settlement and Rehabilitation Commissioner (1), it has been held that where the jurisdiction of the tribunal below depended upon the existence of come particular fact, the tribunal cannot by a wrong decision with regard to it, give itself jurisdiction which it would otherwise not pesEss, reference may also be made to the case of All Abbas v. Kishan Singh (2), where their Lordships of the Supreme Court
(1) PLD 1974 SC 193 (2) PLD 1967 SC 294 ' have held that where there has been excess of jurisdiction "the affected party could not be penalized for not throwing themselves again on the mercy of the authorities who were responsible for such excess."
23. So far as the levy of the education cases by the Board is concerned, though this imposition bore the same name as the cases levied under the said Ordinance, as we have already shown the nature and the purpose of the two cases were entirely different. The education cases levied by the Board from the stevedores, ship owners, agents of shipping lines and the K. P. T. Cannot thus be considered to be the 'education cases' payable under the said Ordinance, and the Board cannot be considered to be the agent of the Provincial Government for the collection of the "Education Cass" under the said Ordinance. We also cannot, on the basis of the authorities reported in PLD 1973S C 236 and PLD 1974 SC 109, referred to by the learned Advocate-General, refuse to exercise our discretion in favor of the Board, if we hold that the impugned order passed by respondent No, 3 is patently wrong and in excess of jurisdiction, because there is nothing to show that in imposing education cases upon its "beneficiaries", the Board had done something which was patently unjust or unlawful or the proceeds of this cases were ill-gotten or unlawful gains. It may be pointed out that clause ( j) of subsection (2) of section 3 of the Dock Workers (Regulation of Employment)
Ordinance, 1973, and the corresponding provisions of the Act which resisted the Ordinance lays down that a scheme may provide for "the manner in which, and the person by whom, the cost of operating the scheme is to be defrayed." Clause 50 of the Scheme provides that the cost of operating the scheme is to be met from out of the money paid by the beneficiaries on the basis of the levy to be determined by the Board. The Board thus had the legal right to impose a levy on its beneficiaries, including any levy for education and other purposes aimed at the welfare of the dock workers. The education cases imposed by the Board thus cannot be considered to be unlawful nor the retention or utilization of its proceeds by the Board as unjust.
24. This brings us to a consideration of the point when actually the Board came into existence. No doubt, the Notification of the Government of Pakistan, published in the Gazette of Pakistan of 17-11- 1972, provides for the setting up of the Board, but it may be mentioned that the said notification merely states that it has been decided to set up the Board with representatives of certain bodies as its members. It is, however, not known when this Board actually came into existence.
Furthermore, as is clear from the notification, this Board was set up solely for the purpose of bringing up to date the "decasualization scheme" aid enactment of law for its implementation and to draw up rules for the functioning of the Board. The notification neither made the dock workers the employees of the Board nor gave the Board any control over the dock workers. It was only after the constitution of the Board by the Notification of 14-1-1974, consequent upon the framing of the Scheme under the Dock Workers (Regulation of Employment) Ordinance, 1973, that the Board had legal powers to regulate the employment of deck workers and perform the other functions specified in the Scheme.
25 It only remains to be considered whether the dock workers or any of them are or can be considered to be in the employment of the Board. The learned Advocate General has of course strongly relied upon clause 35(2) of the Scheme which provides that u registered dock worker in Register 1, who is available for work, shall be deemed to be in the employment of the ' Board.
However, the very fact that a legal fiction by way of a deeming claw has been employed tends to show that otherwise the dock workers are not in the employment of the Board. It has already been shown that the purpose of deeming these dock workers to be in the employment of the Board mainly appears to have been to empower the Board and its administrative body to require dock workers to report at call stands or control points and, if so required, to remain at such stands or points. Moreover, the main object of the Dock Workers (Regulation of Employment) Act, 1974, and the Scheme is to ensure regularity in the employment of dock workers by the stevedores and to give necessary powers to the Board to attain this object. The fact that dock workers are not by "Workers" of the Board is further borne out by the definition of "Employer" under the Act which has been defined, in relation to a dock worker, it mean the person by whom a dock worker is employed or is to be employed. All these circumstances impel us to the conclusion that 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" (which is the amount to which a registered dock worker is entitled, who has been engaged for a berth but does not, for reasons unconnected with his default, get the same) etc. To them.
26. For the reasons stated by us above, we are of the opinion that Petition No, 318 of 1975 must succeed while Petitions Nos. 264/1976 to 269/1976 have no substance and merit dismissal. We accordingly allow Petition No, 318 of 1975 with costs and quash the notice of demand, dated 21st day r f March 1975, issued by the Ekcise and Taxation Officer, as being without lawful authority.
Petitions Nos. 264/1976 to 269/1976 are dismissed with costs.