1979 PLP 349 (PLC)

3. Mr. S. A. Sarwana, learned counsel for the petitioner, contended that the provisions of the Ordinance were not applicable to the petitioner as there existed no relationship of Employer and Employee between the petitioner and the Dock workers. According to him function of the Board was to register the Dock workers and secure employment for them and such Dock workers were actually engaged or employed by the Stevedores for working on the Dock. The learned counsel contended that thus a special kind of relationship existed between the petitioner and the Dock workers within the meaning of the Act and the Scheme.

4. In order to appreciate the above‑mentioned contentions it is necessary to refer to the definition of the terms "Employer" and "Establishment" as contained in section 2 (viii) and (ix) of the Ordinance, which were as under :‑ "(viii) "Employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employ workmen in the establishment under a contract of employment and includes." (a) an heir, successor or assign as the case may be, of such person or body as aforesaid ; (b) any person responsible for the management, supervision and control of the establishment ; (c) in relation to an establishment run by or under the authority of any Department of the (Federal Government) or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department ; (d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the Chief Executive Officer of that authority ; (ix) "Establishment" means any office, firm industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any 'industry' and, except in section 22‑EE, includes a Collective Bargaining Unit, if any, constituted under that section in any establishment or group of establishments. As the Dock Workers actually do not render any service to the petitioner Board, it cannot be said that they are workmen employed for the purpose of carrying on an "industry", which term, as defined in section 2 (xiv) of the Ordinance, "means any business, trade, manufacture, calling, service, employment or occupation". Assuming that the petitioner Board would fall under any of the categories specified in the term "industry",. but since the Dock workers are not employed by the petitioner, the terms 'Employer', 'Establishment' or 'Industry' would have no reference to the petitioner. Besides the terms "Registered Dock Worker" and "Registered Employer" have been independently defined in clauses (o) and (p) of paragraph 3 of the Scheme as under :‑-- "2 (o) "registered Dock Worker" means a Dock worker whose name is for the time being entered in the register or record ; (p) "registered employer' means an employer whose name is for the time being entered in the employers" register. From the above‑mentioned definitions it is clear that there are independent set of registered Employers for providing employment to registered Dock Workers, whose names are entered in prescribed records or registers maintained by the petitioner as prescribed in the Act and the Scheme. In support of his contentions the learned counsel for the petitioner referred to a judgment of this Court in the case of Karachi Dock Labour Board v. Province of Sind and another (P L D 1977 Kar. 361). One of the questions examined in the said judgment was as to the liability of the petitioner Board for payment of Education cess leviable under the Workers Children (Education) Ordinance, 1972. The provision contained in paragraph 35 (2) of the Scheme which lays down that "a registered Dock worker in Register I, who is available for work, shall be deemed to be in the employment of the Board" was noticed in the judgment and it was held that such provision was a deeming provision and it was by a legal fiction that the Dock workers were considered to be in the employment of the Board for the limited purposes specified in the Scheme so that the Board may have some legal control over them. The learned counsel further relied upon a judgment from the Indian Supreme Court in the case of Vtzagapatnam Dock Labour Board v. Stevedores Association (A I R 1970 S C 1626). In the said judgment the provisions of the Indian Industrial Disputes Act, 1947 and Dock Workers Regulation of Employment Act, 1948 bad come up for consideration and on the examination of the said Act and the Scheme it was held that the Board could not be considered as Employer of Dock Labour Workers. The provisions contained in the two Indian statutes, referred to above, are somewhat similar to the Act and the Scheme under consideration in this petition. The Supreme Court of India further observed that the recruitment and registration of Dock Labour Forces, fixation of their wagrs and dearness allowances, payment of workmen's compensation, taking of disciplinary action and prohibition against employ ment of those who were not registered with the Board did not establish relationship of Employer and Employee between the Board and the Dock Labour Board. The said functions were held to ensure better regulation of employment of Dock Labour and it was found that the Dock Labour Workers were the employees of the Registered Employers to whom they were allotted by the Board. The above two judgments clearly support the conten tion raised on behalf of the petitioner.

5. The upshot of the above discussion is that the provisions of the Ordinance are held inapplicable to the petitioner and the impugned orders s are declared to have been passed without lawful authority and of no legal effect. The petition thus succeeds, but there will be no order as to costs. Petition allowed.