1986 PLP 1619 (CLC)

AHMAD ALI U. QURESHI, J.‑‑This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The petitioner is son of one late Muhammad Ibrahim who was Dock Worker and whose employment was under the control of respondent No.1. Mr. Ibrahim died on 10th September, 1982. In pursuance of the agreement entered into by the respondent No.1 with the union of Dock workers respondent No.1 deposited with Commissioner for workmen's compensation a sum of Rs. 10,962 on account of gratuity for deceased worker late Ibrahim for disbursement to his nominee. The petitioner who was shown as nominee by deceased Ibrahim in the nomination form which is called Karachi Dock Labour Board Namzadgi Form Barai Gratuity), filed application with the said Commissioner for Workmen's Compensation for the disbursement of the gratuity to him. The application of the petitioner was dismissed by the Commissioner on 10‑3‑1983 mainly on the ground that the petitioner did not come within the definition of dependent as contained in section 2(1)(d) of Workmen's Compensation Act and as such was not entitled to the gratuity amount. His appeal before the learned Sind Labour Appellate Tribunal Karachi was dismissed on 8‑8‑1983 on the ground that no appeal lies against such order of Commissioner Workmen's Compensation Act. As there was no other remedy left open to the petitioner, he filed petition in this Court praying for declaration that the order passed by the Labour Appellate Tribunal on 8‑8‑1983 and the decision of the Commissioner dated 10‑3‑1983 are without lawful jurisdiction and to order the payment of gratuity to the petitioner or in the alternative to order deposit or refund of the aforesaid amount to respondent No.1. The respondents have remained absent. Mr. S.A. Sarwana, learned counsel for the petitioner has argued that the gratuity was to be paid not under the Workmen's Compensation Act but under the Karachi Dock workers (Regulation of Employment) Scheme 1973. He argued that under section 3 of the Karachi Dock Workers (Regulation of Employment) Act, 1974 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. Subsection (2)(d) of this section further provides that such scheme may provide for 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 . Mr. Sarwana further argued that in pursuance of the above provision of law the Federal Government made the scheme which is called Karachi Dock Workers (Regulation of Employment) Scheme, 1973. Under para. 7(1)(k) the Board may take such measures as it may consider desirable for furthering the objectives of Scheme including , measures for maintaining and administering a provident fund and gratuity fund and any other welfare schemes for the registered dock workers . Under para. 8(f) the Board may determine the wages, allowances and other conditions of service and refix the guaranteed minimum wages in a month after review. Mr. Sarwana has produced alongwith the petition copy of the agreement entered into by the said Board with the Dock Workers Union. Demand No.10 of this Settlement provides for payment of pension and gratuity to the dock workers. Sub‑para (ii) of demand No.10 provides that every dock worker who resigns from service or whose services are terminated for any reason other than misconduct, would be paid gratuity in accordance with the ratio provided therein. Sub‑para (iii) provides that in case a dock worker dies while in the service of the Board his dependent shall be paid gratuity in accordance with the provisions as outlined in sub‑para (ii) above through the Commissioner of the area appointed by the Provincial Government under the Workmen's Compensation Act . Mr. Sarwana has argued that Workmen's Compensation Act was not applicable in a case of dock workers who had no fixed or permanent employment. They were members of the dock workers union and the Board was only to regulate their terms of employment but was not employer. The terms and conditions of service of the dock workers were to be governed only by the above mentioned Act and Scheme. The Commissioner under the Workmen's Compensation Act was nominated under the Settlement for the purpose of disbursement only to the dependent whose name was shown by the worker in the nomination form and he could not apply the definition of dependent under the Workmen's Compensation Act in the case of dockyard worker. He has also produced the copy of the nomination form filled by deceased Ibrahim which shows the name of Muhammad Yousif petitioner as nominee who was to receive the full gratuity. It is an admitted position that the petitioner does not come within the definition of defendant as contained in section 2(d) of the Workmen's Compensation Act, 1923. As such it is very relevant for the purpose of decision of this petition to see whether Workmen's Compensation Act is applicable to the Dock Workers or not. The preamble of this Act shows that it was enacted because it was found expedient to provide for payment by certain classes of employers to their workmen the compensation for injury by accident. Learned counsel for the petitioner contends that the respondent No.1, namely, Karachi Dock Labour Board who is liable to pay the gratuity and who in fact has deposited the same with the Commissioner, is not an employer within the meaning of the said Act. In support he has relied on case Karachi Dock Labour Board v. Ahmed and 2 others 1982 P L C

36. In this case which was decided by one of the members of this Bench (Mr. Justice Sajjad Ali Shah) it was held that the Karachi Dock Labour Board was neither an establishment for purpose of payment of Wages Act, 1936 nor is it an employer. My learned brother has traced the history of the Karachi Dock Labour Board in the following words:‑ "Before the constitution of Board under the Scheme, the practice was that Stevedores at Karachi port employed Tindals and Seranges on permanent basis, to engage dock workers from time to time to carry out the assignments given to Stevedores of loading or unloading vessles. This uncertainty of employment of the dock workers resulted into 'go‑slow' tactics and strikes. To off set such effects and to ensure greater regularity of employment for dock workers this scheme was introduced to provide job opportunities to adequate number of workers for efficient performance of dock work. Under the scheme the board is authorized to register dock workers as employees by maintaining two separate registers. Both 'registered dock workers' and 'registered employer', are further defined under paragraph 3 which provides definitions." It may further be pointed that the respondent No.1 is not an, employer in the sense that neither it employs the workers nor does it pay any remuneration to the workers nor does it make any contribution to the welfare fund of the Dock Yard workers from which fund, gratuity is being paid to the dependents of a worker. Under paragraph 7(1)(b) of the Scheme the Board takes such measures as it may consider desirable for regulating the recruitment and entry into and discharge from the' Scheme of dock workers and allocation of registered dock workers in the register and those in the reserve pool to the registered employers. Thus the registered employers have to pay the remuneration to the workers assigned to them and also to pay towards welfare measures under paragraph 5 of the Scheme. Para. 2 of the Scheme which relates to objects and application of Scheme, provides that object of Scheme are for ensuring 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. Thus, there can be no doubt that respondent No.1, Karachi Dock Labour Board constituted under the Scheme is not an employer but is merely a regulatory body. In the above mentioned reported case reference has been made to the case of Vizagapatnam Dock Labour Board v. Stevedores Association and others A I R 1970 S C 1626 wherein it was netu tnai wcK La..,.,.. constituted under the Dock Workers (Regulation of Employment) Act, 1948 and the Scheme of 1959 framed thereunder is not the employer and furthermore the Board was not an industry. The entire problem appears to have arisen due to the letter of respondent No. 1 sent to the Commissioner under Workmen's Compensation Act which is referred to in para. 4 of the impugned judgment of learned Labour Appellate Tribunal. It appears that respondent No.1 by letter dated 25‑1‑1983 moved the Commissioner for disbursement of the amount in accordance with the provisions of Standing Order 12 clause (8) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. If this Standing Order is applicable to the case of the deceased worker then the Workmen's Compensation Act would also be applicable. The preamble of this Ordinance shows that it was enacted to consolidate the law relating to the industrial employment in the then Province of West Pakistan. Under section 1(4) it was made applicable to all industrial establishments employing twenty or more workers and such classes of industrial and commercial establishments) as the Government may from time to time by a notification in the official Gazette specify in this behalf. We have already seen that the respondent No.1 is neither industrial concern nor an employer nor is it a commercial concern as it is not working for any profit or gain and, therefore, Standing Order would not be applicable. This view appears to gain support from the fact that provisions of Standing Order 12(6) and (8) are similar to the; provisions of demand No.10(ii) and (iii). If the Standing Order 12 would have been applicable in the case of dock workers there was no further necessity of any demand from them for the payment of gratuity in the shape of demand No.10. Para. (6) of Standing Order 12 provides that where a workman resigns from service or his services are terminated by employer for any reason other than misconduct he shall be paid a gratuity equivalent to twenty days wages calculated on the basis of the wages admissible to him in the last month of service for every completed year of service or any part thereof in excess of six months. Para. (8) provides that: where a workman dies while in service of the employer his dependents shall be paid gratuity in accordance with the provisions of clause (6) . As compared to the above provisions demand No.10 (ii) of the memorandum of Settlement between the workers and respondent No.1 provides "Every dock worker who resigns from service or whose services are terminated for any reason other than misconduct, shall be paid gratuity equivalent to twenty days wages calculated on the basis of wages admissible to him at the time of his resignation or termination of service for every completed year of service or any part hereof in excess of six months". Demand No.10(iii) provides "In case a dock worker dies while in the service of the Board his dependent shall be paid gratuity in accordance with the provisions as outlined in sub‑para. (ii) above through the Commissioner of the area appointed by the Provincial Government under the Workmen's Compensation Act, 1923". It will be seen that the wording of the provisions in Standing Order as well as in demand No.10 of the Settlement are similar except that word "Employer" used in the above mentioned provisions of the Standing Order is omitted from the provisions of demand No.10. This omission also, supports the contention of the petitioner that respondent No.1 is not Pmployer. As such neither West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 nor the Workmen's Compensation Act are applicable in this case. This payment is to be made in accordance with the Settlement arrived at between respondent No.1 and the Union of Dock Workers in pursuance of which all the workers were asked to fill in nomination papers nominating their dependents. It is further argued that this amount of gratuity is being paid from the contribution made by the registered workers as well as registered employers to the fund constituted by the Board under para. 51 of the Scheme which does not provide for any contribution by the respondent No.1 itself to the fund who simply manages the welfare fund under para. 52 of the Scheme. The contention of the learned counsel for the petitioner is that under demand No.10 the Commissioner under Workmen Compensation Act was only nominated as a trustee for disbursement of the gratuity under demand No.10 of the settlement arrived at between the Dock Workers Union and respondent No.

1. His position is that of trustee only and, therefore, could not exercise any powers as Commissioner under the Workmen's Compensation Act. Of course being appointed under the said Act he was not duty bound to work or act as trustee under some settlement which was not registered with him under section 28 of the Act. He could have refused to act as trustee and could have returned back the gratuity to respondent No.1 for disbursement by them. It may also be pointed that even in the application made to the Commissioner the petitioner did not invoke any provision of the Compensation Act or Standing Order. The petitioner clearly mentioned that he was nominee of the deceased for gratuity, which the employer had deposited with the Commissioner and requested for grant of gratuity amount after proper identification. No doubt the petitioner has referred to respondent No. l as employer but we have already seen that respondent No.1 is not employer of the dock workers and this reference would not confirm upon respondent No.1 the position of an employer. In view of above discussion we are of the opinion that the order of the learned Commissioner for Workmen's Compensation passed under the Workmen's Compensation Act was illegal and without lawful authority and of no legal consequence. Therefore, the order of learned Labour Appellate Tribunal was also without lawful authority and of no legal consequence and as such we set aside the impugned orders and further direct respondent No.2 to make payment of the gratuity to the petitioner if he is found to have been nominated as dependent by the deceased dock worker or in alternative to return the amount of gratuity to respondent No.1 for disbursement to the nominee of the deceased dock worker. A.A. Petition accepted.