1990PLC159 (PLP)

Whereas it is expedient 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;

2. Definitions: (b) "dock worker" means a person employed or to be employed in any port on loading or un‑loading of ships or other vessels or on work in connection therewith; (c) "employer" in relation to a dock worker, means the person by whom a dock worker is employed or is to be employed;

3. Power to make scheme: (1) 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. (2) 1n particular and without prejudice to the generality of the foregoing power, such scheme may provide for‑‑ (a) the application of the scheme to such classes of dock workers and employers as may be specified therein; (b) defining the obligations of dock workers and employers subject to the fulfilment of which the scheme may apply to them and the circumstances in which the scheme, shall cease to apply to any dock workers or employers; (c) regulating the recruitment and entry of dock workers into the scheme and their registration, including the preparation and maintenance of registers, the removal, either temporarily or permanently, of names from the register and the imposition of fees for registration; (d) 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; (e) Securing that, in respect of periods during which employment or full employment is not available for dock workers to whom the scheme applies and who are available for work, such workers will, subject to the conditions of the scheme, receive a minimum pay; (f) managing the property and funds created .for the benefit of dock workers; (g) prohibiting, restricting or otherwise controlling the employment of dock workers to whom the scheme does not apply;' (h) the training and, welfare of dock workers in so far as satisfactory provision thereof does not exist apart from the scheme; (i) health and safety measures in places where dock workers are employed in so far as satisfactory provision thereof does not exist apart from the scheme; . (j) the manner in which, and the person by whom, the cost of operating the scheme is to be defrayed; ' (k) constituting, whether as a body corporate or otherwise,‑the authority to be responsible for the administration of the scheme; and (1) such incidental and supplementary mattes as may be necessary or expedient for the purpose of the scheme. (3) A scheme shall apply to such port or group of ports as the Federal Government may, by notification in the official Gazette, specify in this behalf. (4) A scheme may further provide that d contravention of any provision thereof shall be punishable with imprisonment for such term as may be specified but in no case exceeding six months in respect of a first contravention or one year in respect of any subsequent contravention, or with fine which may extend to such amount as may be specified but in no case exceeding two thousand five hundred rupees in respect of a first contravention or five thousand rupees in respect of any subsequent contravention, or with both imprisonment and fine as aforesaid. Karachi Dock Workers (Regulation of Employment) Scheme 1973. Clause

2. Objects and Application: (1) The objects of the Scheme are to ensure 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: Clause

7. Function of the Board: (1) The Board may take such measures as it may consider desirable for furthering the objectives of the Scheme set out in clause 2, including measures for: (a) ensuring the adequate supply and the full and proper utilization of the dock labour for the purpose of facilitating the rapid and economic turn round of vessels and the speedy transit of goods through the Port; (b) regulating the recruitment and entry into and the discharge from the Scheme of dock workers and the allocation of registered dock workers in register (i) and in the reserve pool to registered employers; (c) determining and keeping .under review, in consultation with the Administrative Body, the number of registered employers and registered dock workers from time to tune on the registers or records and the increase or reduction to be made in the numbers in any such register or record." Clause

8. Responsibilities and duties of the Board in meeting: The Board in meeting shall be responsible for dealing with all matters of policy and in particular may ‑ (a) Fix the number of workers to be registered under various categories; (b) increase or decrease the number of workers in any category in the register from time to time as may be necessary after a periodical review of the registers and anticipated requirements. Clause

14. Maintenance of Registers etc:

2. The Workers' Register. (a) The workers' register shall be maintained in the forms prescribed by the Board for this purpose. (b) The registers of dock workers shall he as under: (i) Register of dock workers other than those in the reserve pool (Register No.(i). (ii) Register of leave reserve/trainees (Register No.(ii). Clause

15. Classification of Workers in Registers: (1) The Board shall arrange for the classification of workers by categories in the registers. (2) Dock workers registered under the Scheme shall be classified into: (a) Wharf Serang. (b) Ship Tindal. (c) Wineman. (d) Dock Worker. Clause

16. Fixation of number of workers on the Register: The Board shall in consultation with the Administrative Body determine, before the commencement of registration in any category, the number of workers required in that category. Clause

17. Registration of existing and new workers: (1) (a) At the commencement of the Scheme only those dock workers who have been verified by the Dock Labour Board as genuine workers shall be eligible for registration. (b) The qualification for new registration shall be such as may be prescribed by the Board having regard to local conditions, physical fitness, capacity and/or experience but not more than 40 years of age. Clause

19. Medical Examination: (1) ................ (2) If the Administrative Body deems it necessary, a worker shall undergo free of charge a medical examination by a Medical Board to be constituted by the Chairman. The decision of the Medical Board shall be final. If a worker is found permanently unfit by the Medical Board the Chairman shall terminate his services and pay such benefits as may be admissible to him under the Scheme. Clause

39. Wages, Allowances and other condition of service of certain Classes of workers: Unless otherwise specifically provided for in the Scheme, it shall be an implied condition of the contract between a registered dock worker and a registered employer that (a) the rates of wages; allowances, and overtime, hours of work, rest interval, holidays and other conditions of service shall be such as may be prescribed by the Board for each category of workers; and (b) the fixation of wage periods, time for payment of wage and deductions from wages shall be in accordance with the provisions of the Payment of Wages Act, 1936. Clause

45. Termination of Employment: (1) The employment of a registered dock worker shall not be terminated except in accordance with the provisions of the Scheme. (2) A registered dock worker shall not leave his employment with the Board except by giving one month's notice in writing to the Board or forfeiting one month's wages in lieu thereof. (3) When the employment of a registered dock worker with the Board has been terminated under sub‑clause (1) or (2) above, his name shall forthwith be removed from the register or record by the Administrative Body, and all dues and benefits accruing under this Scheme will immediately be paid to him." It is an admitted position that there is no specific provision in the Scheme that authorises the Board to fix the age of retirement of Registered Dock Workers, and consequently remove Their names from Registers on their attaining the age of retirement. Learned counsel appearing for the Board before the High. Court relied upon the above mentioned clauses of the Scheme, particularly, Clause 7(a) and (b), which provide that the Board may take such measures as it may consider desirable for furthering the objectives of the Scheme, measures for ensuring the adequate supply and the full and proper utilization of the dock labour for the purpose of facilitating the rapid and economic turn‑round of the vessels and the speedy transit of the goods through the Port. He also referred to Clause, 8 (a) and (b) which authorises the Board to fix the number of workers in any category from time to time. Learned Judges in the High Court who dealt with the case took the view as under: "In our view the 1973 Scheme does not give any power to the respondent Board to fix the age of superannuation of dock workers at 60 years and the name of a registered dock worker who has attained the age of 60 years cannot be removed by the respondent Board from the register of dock workers solely on the ground of age. Clause 17 of the 1973 Scheme lays down the principles relating to registration of existing and new dock workers On the qualification for new registration of a dock worker, i.e. a dock worker who had not been verified by the Board as a genuine dock worker at the commencement of the 1973 Scheme, is that he is not more than 40 years. Then one of the conditions for the registration of a dock worker in any new category is that he is not more than 60 years. These provisions indicate that at the time of framing the 1973 Scheme, the Federal Government was conscious of the age factor being a relevant consideration for a dock worker to be brought on the register of dock workers. For new registration 40 years is the maximum age for being eligible. Registration in a new category requires the dock worker to be not more than 60 years. In spite of specifically providing maximum age for new registration and for registration in a new category, the Federal Government did not make any provision about the age of retirement in the 1973 Scheme. By fixing the maximum ages for certain kind of registrations only and by consciously neither fixing the age of superannuation of registered dock workers nor giving any specific power to the respondent Board to fix the age of superannuation, in our view the 1973 Scheme gives no authority or power to the respondent Board to fix the age of superannuation of registered dock workers. No doubt the respondent Board is responsible for the administration of the 1973 Scheme but this is subject to the provision of the Scheme. And the 1973 Scheme, as it stands today, does not give the power to the respondent Board to fix the age of the superannuation of the dock workers and then to retire them. The stand of the respondent Board vis‑a‑vis the dock workers is not that of an ordinary employer. Respondent Board is neither the employer as defined in Section 2(c) of Act IX of 1974 nor the registered employer as per the definition in clause 3(p) of the 1973 Scheme. As we see it, the respondent Board has only those powers and functions vis‑a‑vis the dock workers as are specified in the various clauses of the 1973 Scheme or as can be spelt out from the provisions of the Scheme. 1t is only for such limited purposes that the respondent Board may be considered as the employer of the registered dock workers. The power that may be attributed to an ordinary employer under the general law to fix the age of superannuation, therefore, cannot be attributed to the respondent Board." On this view of the case learned Judges allowed the petition and declared the impugned Resolution and the notices issued to the appellants as having been made without lawful authority and to be of no legal effect. Leave to appeal was granted by this Court in order to appreciate the plea that the Board has ample power under the Scheme to fix the age of retirement of Registered Dock Workers. At the hearing of the appeal, Mr. S.A. Sarwana, learned counsel for the petitioner, submitted identical pleas before us as those advanced by him before the High Court in defence of the Constitution Petition. It is however, admitted position that the Scheme does not specifically authorise the Board to fix the age of retirement of Registered Dock Workers. Reliance placed by the learned counsel on the provision of the Clause 17 of the Scheme as to the bar of age beyond 60 years for registration of Dock Workers for work in any new category is totally misconceived, for in spite of the fact that the framers of the Scheme were conscious of the age factor being a relevant consideration for registration of Dock Workers in a new category, they placed no restrictions as to the age of the registration of those persons who were Dock Workers at the commencement of B the Scheme for whom the only qualification prescribed was that only those were eligible who are verified by the Board as genuine Dock Workers. It is therefore clear that even those who were above the age of 60 years were eligible for, registration as Dock Workers subject to their verification by the Board as genuine. . Dock Workers. 1f, therefore, a genuine Dock Worker above the age of 60 years was automatically eligible for registration as a Dock Worker under the provisions of the Scheme itself, it requires little imagination to conceive the futility of an argument that the Scheme provides for a power in the Board to fix the age of retirement of Registered Dock Workers. All the other arguments advanced by the learned counsel for the petitioner have already been dealt with by the High Court and rejected for the reasons with which we whole‑heartedly agree. We, therefore, find no merit in civil appeal No.140‑K of 1983. In the final result the following appeals are dismissed: (i) Civil Appeals Nos.] 26‑K to 134‑K of 1976. (ii) Civil Appeal No.40‑K of 1978. (iii) Civil Appeal No.140‑K of 1983. And the following appeals are allowed: (i) Civil Appeals Nos. 33‑K to 38‑K of 1978 and Civil Appeals Nos. 41‑K to 47‑K of 1978. With the result that the levy and the demand of Education Cess under the Workers' Children (Education) Ordinance from the Stevedoring Companies is declared as illegal and without lawful authority and the impugned notices are quashed. The parties in all these cases are left to bear their own costs. M.B.A./V‑1/S Order accordingly.