MUHAMMAD ROSHAN ESSANI, J.--- Aggrieved from the order passed by the Election Tribunal, Karachi in Election Petitions Nos. 28 and 29 of 2001, whereby the learned Presiding Officer in exercise of powers under rule 83 of Ordinance, 2000 declared the election of the returned candidates Dr. Muhammad Saleem son of Sharif Hussain, Nazim, and Fazal Rahim son of Pir Dad Khan, Naib Nazim of UC-1, Bhutta Village, Kemauri Town, Karachi (West), being joint candidates as void, petitioner filed this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. Brief facts for the purpose of disposing of the petition are that the .Petitioners contested election and filed their nomination papers for the office of Nazim and Naib Nazim for UC- I, Bhutta Village, Kemauri Town, Karachi, which were accepted without any objection from respondents Nos. 1, 2 and 3 and were allotted symbol of "Peacock" for the said election. The respondents Nos. 1 and 3 also contested election for the office of Nazim and respondent No. 2 contested election for the office of Naib Nazim for the same Union Council. The petitioners were declared as successful/elected candidates and were duly notified as such.
Aggrieved by the result of the election, the respondents Nos. 1, 2 and 3 filed Election Petitions Nos. 28 and 29 of 2001.
"6. That para 10 of the petition is also denied as far as the KDLB is concerned that is an autonomous body, and if the petitioner had any grievance, he would have filed the objection with the returning officer on the date fixed for the said purpose after the nomination papers were filed."
The learned Presiding Officer of the Election Tribunal without framing any issue, "Whether petitioner is in the employment of KDLB or note?" and "Whether on account of such employment petitioners were not qualified to contest the election in terms of Section 14(g) of Ordinance, 2002?", allowed the election petition on the basis of the averments made in the written statement.
3. Heard Mr. Rasheed A. Razvi, learned counsel for the petitioners, and Mr. Salahuddin Khan Gandapur, learned, counsel for the respondents.
4. Learned counsel for the petitioners argued that there are two types of workmen in the Karachi Dock Labour Board, one are those who are directly under the employment of the Karachi Dock Labour Board and the other are registered as the workers by the Karachi Dock Labour Board so as to allow them to work at port and regulating their work. The learned counsel further argued that those, who are employees of Karachi Dock Labour Board, may not be qualified in terms of Section 14(g) of Ordinance, 2000 to contest election, but those, who are merely registered as "dock workers", but in fact they are in employment of the stevedores, cannot be disqualified on account of such registration.
5. On the other hand, the learned counsel for the respondent No. 1 argued that in view of the categorically admission made by the petitioners in their written statement that the petitioners are in service of Karachi Dock Labour Board, there was no need of framing any issue and the learned Presiding Officer rightly passed the orders as the petitioners were not qualified to contest the election.
6. We have given our anxious consideration to the respective arguments advanced by the learned counsel for the parties.
7. The Federal Government in exercise of powers conferred by Section 3 of the Dock Workers (Regulation of Employment) Ordinance, 1973 framed a scheme known as Karachi Dock Workers (Regulation of Employment) Scheme, 1973. In the said Scheme the term "registered dock workers" has been defined as a "dock worker" whose name is for the time being entered in the register or record, whereas "registered employer" has been denied as an employer whose name is for the time being entered in the employer register.
8. Rule 8(d) of the said Scheme provides that the Board shall be responsible for dealing with all the matters of policy and in particularly may "accept registration of newly licensed stevedores on the employed registered.
9. Rule 9(o) provides that the Chairman shall have full administrative and exclusive powers to deal with all matters relating to the day to day administration of the Scheme and in particular to sanction the transfer of registered dock workers from one category to another at the request of registered employer or on such workers as provided for in the Scheme.
Rule 29 of the Scheme reads as under:- "29. Guaranteed minimum wages in a month". (1) A registered dock worker in Register I shall be paid wages for such minimum number of days in a month as may be prescribed from time to time at the wage rates prescribed, appropriate to the category to which he permanently belongs even though no work may be found for him for the prescribed number of days in a month. The days on which work is allotted to a registered dock worker shall be counted towards the prescribed number of minimum days. The guaranteed minimum wages excluding overtime in a month that may be decided by the Board from time to time shall not be less than those guaranteed under any law, award of settlement whichever is more: Provided that such minimum wages guaranteed in any settlement shall not be less than those guaranteed under the settlement, dated the 8th February, 1972, between the stevedores and workers".
Rule 35(1) provides that every registered dock worker shall be deemed to have accepted the obligation of this Scheme and sub-rule (2) of rule 35 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, whereas rule 36 provides obligation of registered employers and said rule provided that every registered employer shall accept the obligations of the Scheme and further provides that a registered employer shall not employ a dock worker other than a registered dock worker who has been allocated to him by the Administrative Body in accordance with the provisions of paragraph
(e) of clause 11.
10. In the case of Vera and others v. M/s. Kazi and Kazi Ltd. (PLD 1990 SC 435), the dock board took the stand before the Hon'ble Supreme Court that 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 wages in a month.
11. In order to appreciate the point, we would like to cite an illustration of collie/loader service provided at railway station. Although. Their uniform, regulations, wages are fixed by railway authorities, but they are not the employees of railway authorities.
12. In view of above, we have come to the irresistible conclusion that there can be two types of workers with Karachi Dock Labour Board, one, who are under the direct employment with the Karachi Dock Labour Board and other, who are registered workers, who have been registered and enrolled as workers to work at Port, but not drawing salary from the Karachi Dock Labour Board and for all practical purposes their employers are stevedores. We are not making any detailed comments on this issue intentionally at same may cause prejudice to either of the parties before us for the reason that issue whether the petitioner is an employee comes within the definition of dock workers directly under the Board or is a dock labour under the employment of some stevedores, is yet to be decided after framing of issues and providing of an opportunity of leading evidence if so required. The learned Presiding Officers also apparently committed error of law in passing the orders without providing an opportunity to the petitioners to explain statement made by them in paragraph 6 of their written statement. The said paragraph is reproduced hereinabove and there is nothing in the said paragraph from which inference can be drawn that the petitioners made an admission of his/their employment with Karachi Dock Labour Court.
13. In view of above, we set aside the impugned order and remand back the case to Election Tribunal to decide the same afresh in accordance with law.