2018 PLP 27 (PLC N)

JUSTICE (R) ALI SAIN DINO METLO, MEMBER.

Invoking suo motu revisional jurisdiction of this tribunal, the applicants seek to set aside order, dated 28th May, 2016, of the Sindh Labour Court No.05, Karachi, suspending transfer of respondents 21 to 42 and framing issues only regarding role of CBA in the selection of workers for promotion, notwithstanding the fact that CBA was not party and no relief was claimed against it.

2. Briefly, the facts are that, on 27th February 2016, the applicants issued a circular/notice for transferring dockworkers to which by Qura Andazi (drawing lots). Out of 200 dockworkers, who applied for transfer, 80 were selected by drawing lots. Out of them, 22 surrendered their selection in favour of respondents 21 to 42 and they were substituted in their place.

3. Respondents 01 to 20, who were unlucky in the draw, challenged the substitution and filed Application No.04 of 2016, before the labour court, contending that transfer of respondents 21 to 42 to winch without following procedure of selection by Qura Andazi (drawing lots) was wrong. They prayed: (a) to declare transfer of workers to winch without selection by drawing lots as illegal and of no legal effect; (b) to restrain the applicants from making selection without drawing lots, and (c) to direct the applicants to select worker for transfer to winch by drawing lots as per their circular.

4. Along with their main application, respondents 01 to 20 filed application for temporary injunction on which the labour court suspended transfer of respondents 21 to 42 and framed three issues regarding role of CBA.

5. Selection, registration, promotion, employment, discipline and other terms and conditions of dockworkers are regulated by the Dock Workers (Regulation of Employment) Act, 1974, and the rules framed under it i.e. the Karachi Dock Workers (Regulation of Employment) Scheme, 1973 (Scheme). They are registered by the Karachi Dock Labour Board (Board) and employed by the employers (stevedores) registered by the Board. The registered employers can employ only the registered workers.

6. Accordingly to paragraph 15 of the Scheme, the workers are classified into four categories: (a) Wharf Serang (b) Ship Tindal (c) Winchman (d) Dock Worker

7. According to paragraph 18 of the Scheme, a vacancy in any higher category is to be filled from the next lower category on the basis of seniority, merit, fitness and record of past service. In other words, on seniority-cum-fitness basis, as merit and past record are included in fitness. This is a time tested method generally followed in promotions of lower grade employees.

8. In the present case the board selected 80 winchmen from dockworkers not on the basis of seniority-cum-fitness basis but by drawing lots. Out of them, 22 surrendered their selection in favour of respondents 21 to 42 and they were substituted.

9. The objection of respondents 01 to 20 is not to the selection by drawing lots but to the substitution of respondents 21 to 42 on the basis of surrender of selection in their favour. According to them, it was a kind of discrimination against them in the sense that substitution of 22 workers deprived them of trying their luck again in the draw of lots for the selection of 22 winchmen.

10. Labour courts are courts of limited and not of plenary jurisdiction. A worker can take to the labour court his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement. He can also take to the labour court a case of unfair labour practice and the court shall deal with such grievance or case according to the procedure provided under the Sindh Industrial Relations Act, 2013 (SIRA). This is the case of purported unfair labour practice and not of individual grievance, as respondents 01 to 20 have not claimed any relief for them.

11. Selection of respondents 21 to 42 by surrender and substitution doesn't come within purview of unfair labour practice as defined in section 17 SIRA. There is no force in the contention of learned counsel for the respondents 01 to 20 that selection of respondents 21 to 42 by surrender and substitution, being discrimination against them, amounts to unfair labour practice within meaning of clause (c) of section 17(1) of SIRA. The essential condition of discrimination against a worker under this clause is that it should be on the ground that he is, or is not, a member or office-bearer of a trade union. In their application before the labour court, respondents 01 to 20 did not plead that they were discriminated against on account of being or nor being members or office-bearers of any trade union.

12. It is, therefore, clear that application of respondents 01 to 20 was, on the face of it, not maintainable and the labour court was not justified to issue the temporary injunction and frame issues regarding role of CBA. Even if the application were maintainable, the case was not fit for grant of the temporary injunction, as balance of convenience was not in favour of grant of injunction. It was in favour of its refusal. Suspension of transfer of 22 workers will have the effect of adversely affecting efficient performance of dock work causing big loss to the national exchequer. Refusal of injunction will not cause any inconvenience or loss to respondents 01 to

20. Grant of injunction will not benefit them and refusal will not adversely affect them. They will remain on same position whether or not injunction is granted.

13. Learned counsel for the respondents 01 to 20 cited the cases of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 Supreme Court 879), Dr. Mubashir Hassan v. Federation of Pakistan (PLD 2010 Supreme Court 265), Syed Mahmood Akhtar Naqvi v. Federation of Pakistan (PLD 2013 Supreme Court 195), Karachi Stevedores Conference (NLR 1988 TD 179), Pak Suzuki Motor Co. (1992 PLC 198) Noor Muhammad v. Civil Aviation Authority (1987 CLC 393), Khawaja Auto Cars (1984 PLC 1554) and Punjab Road Transport Board (1982 PLC 336). These precedents are not relevant to the facts of this case. None of them pertain to unfair labour practice, while the question involved in the present case is of unfair labour practice.

14. The argument of learned counsel for respondents 01 to 20 that revisional powers of this tribunal are very limited is also not tenable. As is clear from the words used in the statute that this tribunal can examine 'correctness, legality or propriety' of an order passed by a labour court. In the case of Abdul Razzak v. Chairman Area Electricity Board, Hyderabad (2000 PLC 74 Karachi) it was held that scope of revisional jurisdiction of this tribunal was broader as it was not restricted by the conditions for the exercise of appellate jurisdiction.

15. Learned counsel for respondents 01 to 20 also argued that in order to ensure transparency and to prevent the applicants from doing dishonesty, the applicants might be directed to make selection by Qura Andazi. The argument is not acceptable. First, there is no guarantee of transparency in drawing lots and it will be extremely difficult to detect any prove any dishonesty committed in drawing lots. Second, a labour court or this tribunal cannot give direction for following a procedure contrary to law simply because no one has challenged it.

16. The labour court while suspending transfer of respondents 21 to 42, decided to proceed with a not maintainable application by framing irrelevant issues. No useful purpose will be served to proceed with the application when the facts pleaded do not constitute unfair labour practice.

17. In view of the above facts, circumstances and reasons, the order of the labour court is set aside and the Application No.04 of 2016 of the respondents 01 to 20 before the labour court, being not maintainable, is dismissed. JK/32/SLT Application accepted.