1999 PLP 2065 (CLC)

(4)

(5)

(6)

(7)

(8) The following shall be the functions of the Commission, namely‑ (a)

(b)

(c)

(d)

(e)

(g) to deal with cases of unfair labour practices specified in sections 15 and 16 on the part of employers, workmen, trade unions or either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 25‑A or section 34 or in such other way as may be prescribed, and to take, in such manner as may be prescribed by regulations under section 22‑F, measures calculated to prevent an employer or workman from committing an unfair labour practice; (h)

(i).

8. Before proceeding further it would be pertinent to consider whether the workers of defendant No.8 fall within the category of "Dock Labours". It was suggested by Mr. Obaidur Rehman, that irrespective of the fact whether there is a scheme or not, formulated by the Federal Government, still the workers of defendant No.8 fall within the definition of Dock Labours/Workers. The term "Dock Workers" has been defined in section 2(b) of the Dock Workers (Regulation of Employment) Act, 1974, which defined Dock Worker as any person employed or to be employed in any Port or in loading or unloading of ships or other vessels on any work in connection therewith. Further, subsection (c) to section 2 of the Act IX of 1974, employer has also been defined in relation to a Dock Worker which means any person by whom a Dock Worker is employed or is to be employed. The Act IX of 1974 was enacted to regulate the employment‑ of Dock Workers and to ensure their efficient performance. Its application was extended to the whole of Pakistan. It is not the case of any of the party that the provisions of this Act is not applicable to the Dock Workers of Port Qasim. Earlier to the Act IX of 1974 there is another act titled as "The Dock Labourer, Act, 1934, which was enacted to give effect to the convention concerning the protection. against accident workers employed in loading and unloading of ships: Although in this Dock Labour Act, 1934 the labour or worker or employee has not been defined but the "process" was defined as all works, which are required for or are incidental to the loading or unloading of cargo or fuel into or from a ship and is done on board the ship or alongside it. The term "worker" is defined in section 2(b) of the Act, 1934 as any person employed in the processes. It is not disputed that the nature of the job/work being done by the present Dock Workers who are members of the defendant No.8 is in any manner different with the Dock Workers performing work at the Karachi Port Trust. Merely on the ground that no scheme was formulated by the Federal Government in furtherance of Act IX of 1974, the argument that the members of defendant No.8 do not fall within the category of Dock Workers cannot be sustained. Keeping in view the definition of the Dock Workers as provided in the Act, 1974 as well as in the Act, 1934 as well as keeping in view the fact that the Port Qasim Authority has entered into an agreement with the defendant No.8 as Collective Bargaining Agent on behalf of workers working at Port Qasim it is more than sufficient, even at this interlocutory stage, to hold that the members of defendant No.8 are Dock Workers. It would not be out of context to say that according to the definition of employers as envisaged in section 2(c) of the Act IX of 1974 the plaintiff falls within the definition of employer as the said definition has not only used the tense " is employed" but at the same time has also used the phrase "is to be employed". which very well- covers the case of future employees. Therefore, I am of the tentative view that the plaintiff does fall within the definition of employer as envisaged in the Act IX of 1974.

9. Mr. Amir Hani Muslim, has strenuously opposed rejection of the plaint and has referred to paragraphs 3, 5, 7, 8, 9 and 11 of the plaint alongwith the prayer clause and contended that in case the contents of the plaint are admitted to be correct then it indicates that no relationship exists between the plaintiff and defendant No.8 and, therefore, this suit is maintainable. With this view, he further argued that in absence of relationship of employer and employee, the plaintiff could not maintain any grievance petition for violation of section 16 (Unfair Labour Practice) on the part of the workmen, before the National Industrial Relatiqns Commission (hereinafter referred to as the "NIRC"). He has referred to the cases of Muhammad Akhtar etc. v. Abdul Hadi etc. 1981 SCMR 878 and the case of Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR

826. In the first case. It was held by Honourable Supreme Court of Pakistan, while refusing leave to grant appeal that the provisions of Order VII, Rule 11, C.P.C. is not exhaustive of all the situations in which a plaint can be rejected or a suit can be dismissed summarily. In the second case, namely, Jewan and 7 others, (supra) it was held that the rejection of plaint as provided under Order VII, Rule 11, C.P.C. attracts at a stage when the Court has not recorded any evidence in that suit and, therefore, it is with this view that the law permits, consideration of only the averments made in the plaint for the purpose of deciding whether such plaint should be rejected or not. It was further held that it some other material is placed before the Court apart from the plaint, which is admitted by the plaintiff then such material can also be looked into and taken into consideration by the Court while rejecting a plaint but beyond that the Court would not be entitled to take any other thing into consideration. It is well‑settled by this time that a plaint at a preliminary stage can be rejected if Court reaches a conclusion on consideration of the submissions contained in the plaint that such plaint is barred by law. With this view I have accepted the entire contents of the plaint to be correct to see whether it is still hit by the provisions of I.R.O., 1969. Then it was argued by Mr. Amir Hani Muslim that section 18 pertains to industrial dispute and since at present there is no industrial dispute between the plaintiff and defendant No.8, therefore provisions of section 18(I) of the I.R.O., 1969. are not attracted and this suit is maintainable. Provisions of section 18 contemplate existence of any action done in respect or in furtherance of any industrial dispute to which the trade union is a party. But at tile same time it further contemplates that suit or other proceedings shall not be maintainable in respect of an action which amounts to an interference with the trade, business or employment of some other person(s) or with the right of some other person(s). The term "industrial dispute" has been defined in section 2(xiii) of I.R.O. 1969 as any dispute or difference between three categories of persons, namely one employer and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non- employment or the terms of employment or the conditions of work of any person. A rider was introduced in this definition by amendment made in the year 1975. The same is reproduced as fellows;

"

2. Definitions:

(xiii) 'industrial dispute' means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non‑employment or the terms of employment or the conditions of work of any person; (and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in force;)

10. Mr. Obaidur Rehman, in order to show that the provisions of I.R.O., are attracted in a situation as incorporated in the plaint, has referred to the following case-law;

(a) Muhammad Yousuf v. Karachi Dock Labour Board and 2 others 1986 CLC 1619, (b) Syed Mushtaque Hussain Shah v. Riaz Muhammad Hazarvi and another PLD 1978 Kar. 612, (c) The Karachi Stevedores Conference Ltd. v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1986 PLC 113, (d) Karachi Dock Labour Board v. Karachi Stevedores Conference and others 1990 PLC 343, (e) Vera and others v. Messrs Kazi & Kazi, Ltd., and others PLD 1990 SC 435. (f) Unreported case of Karachi Stevedores Conference Ltd. v. Sindh Labour Appellate Tribunal and 2 others Civil Appeal No.42‑K of 1987). (g) Charshanbay v. Karachi Dock Labour Port Karachi 1991 PLC 826.

11. The case of Muhammad Yousuf 1986 CLC 1619 arises 'out of a controversy with regard to disbursement of gratuity to a dock labour registered with Karachi Dock Labour Board. A Constitutional Petition was filed before a Division Bench of this Court challenging the order of Commissioner for Workmen's Compensation which order was declared to be illegal, without lawful authority and of no legal consequence on the ground, inter alia, that Karachi Dock Labour Board is neither an industrial concern, nor an employer nor is it a commercial concern and, therefore, West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968, was not applicable. The dispute in the case of Syed Mushtaque Hussain Shah PLD 1978 Kar. 612 was between two rival employees trade unions and for grant of registration. A civil suit was filed by one of the trade union against the other union seeking an injunction restraining them from obtaining registration. On the objections filed by defendant trade union the plaint in that suit was rejected and the matter went in Appeal, before the Court of District Judge, Karachi. That appeal was sustained and order of Civil Judge was set aside on the ground that section 18 of the I.R.O., 1969 does not cover the dispute of that suit. A learned Single Judge of this Court, Z.A. Channa, J., (as he then was) allowed the civil revision petition, set aside the order of Additional District Court with the following observation:‑‑

"

10. It will be seen that the principle that where a statute creates a right arid also provides machinery for the enforcement of that right, then according to the Karachi Authority referred to above, resort is to be had to the procedure prescribed in the statute creating the right for its enforcement and the jurisdiction of the general civil Courts is barred. This is an old principle which has received recognition in England since ancient times."

12. The rule laid down by a Division Bench of this Court in the cases of Karachi Dock Labour Board 1990 PLC 343 and Karachi Stevedores Conference Ltd. 1986 PLC 113 do not lend any help to either of the party. However, both these cases suggest that where there is a dispute between the Stevedores Companies on one hand and the Karachi Dock Labour Board on the other, the dispute could be settled under the provisions of I.R.O., 1969. In the famous case of Vera and others PLD 1990 SC 435 a Full Bench of the Honourable Supreme Court considered the history of the Dock Workers in reference to the application of its scheme. Since no scheme has been framed by the Federal Government in furtherance of the Act IX of 1974, for the Dock Workers of Port Qasim, in my is of no help. The controversy involved in the case 826 was about the fixation of the age superannuation by the Karachi Dock Labour Board and, therefore, any decision m this regard by a Division Bench of this Court would not lend any support in deciding the present controversy before me. In the unreported case pf Karachi Stevedores Conference (cited at pare. (f) above) leave to appeal was granted by the Supreme Court of Pakistan, to consider inter alia whether the application filed before the Labour Appellate Tribunal under section 50 of the I.R.O., 1969, was maintainable in law. It was held by the Honourable Supreme Court that the view of a Division Bench of this Court was correct and, therefore, appeal was dismissed with the following guidelines, which are reproduced herewith, as it would be helpful in future for the parties involved in the labour or industrial disputes.‑‑

"...There is another aspect of the matter. Although we are clear, on the foregoing treatment of the contentions raised in support of this appeal, that they have no force; yet there is another aspect of the matter, which needs to be mentioned and emphasized. If there would have been a real difficulty in interpreting the agreement between the parties and/or the relevant law, the following principles amongst others, in so far as the parties involved in this case are concerned, would have governed the conclusion. (a) Out of the two possibilities the one in accord with the Islamic social justice would be followed. (b) The worker under the Islamic dispensation is required to put all the capabilities with not only pleasure but zeal so as to give complete and maximum satisfaction moral and material to his employer. Anything which increases his urge to be honest towards his employer should be encouraged rather than what dampens it. (c) If we proceed on the principles of " Ehsan " and "'Edal " in the peculiar nature of the contest before us; while the worker is bound to put in the best with willing devotion for the highest possible benefit to the employer, he in his turn is bound under the principles of Ehsan " and " Edal " to reward him in a pleasing manner. When handling the question of award or reward, it can, depending upon the circumstances of each case, go beyond the measures. The just measure can and should make the award proportionate to the work/output. This particular principle can be illustrated again as earlier done. A workman who does not put in his maximum and confines himself only what is expected of him, gets his wage by including therein the cost of living allowance and also gets his wage for the time spent over and above the duty hours. This includes the cost of living allowance in the overtime wage. Let us take the case of one who within the same hours, produces more than what is in honesty expected of him and, thus, in a way, without any compulsion, gives much more benefit to his employee. Why should not this workman be dealt with, under the principles of " Ehsan" and " Edal " as understood in Islamic jurisprudence and given similar cost of living allowance for the extra benefit/production for the employer. (e) A genuinely satisfied worker in the Islamic dispensation is an asset for the employer; and, I would add, vice versa also."

13. Before non‑suiting a party or for dismissing a suit on the ground that it is trot maintainable for want of jurisdiction there arc four conditions precedent which unless fulfilled, question of ouster of jurisdiction of Civil Court is not complete as held by the Honourable Supreme Court as far back as 37 years ago in the case of Zafar‑ul‑Ahsan v. Republic of Pakistan PLD 1960 SC

113. Following are the four preconditions to complete the ouster of the jurisdiction of a Civil Court. (i) That there must be statutory provision prohibiting from calling in question an order made by an authority constituted under such provision of lam, and that such authority has been constituted under the law. (ii) That the person proceeded against should be subject to the jurisdiction of such authority. (iii) That the ground on which action is taken should be within the grounds provided by such statute. (iv) That the order challenged should be such as could have been made under the said statute.

14. It was further held in the case of Zafar‑ul‑Hassan (supra) by their Lordships of the Supreme Court that the question of omission or irregularity, in case the above conditions are fulfilled, will be the matter for such authority to decide and not for a Court of Law. It was clarified in that case that where the yet proceedings were taken mala fide and the statute was used merely as cloak to cover an illegal act then such order will not be in accordance with law and the suit will be maintainable. (For further reference see the case of Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi PLD 1965 SC 698 followed by me in Usman Punjawani and another v. Government of Sindh and another 1991, CLC 311.

15. It will be seen that immunity granted to a collective bargaining agent or any registered trade union vide section 18(1) of I.R.O. 1969 is in respect to an action arising out of an industrial dispute to which the trade union is a party or where it is an interference with the trade or business or employment of some other person or with the right of some other person to dispose of his capital or his labour. In the instant case no such right of a trade union is involved. In so far the jurisdiction of the N.I.R.C. is concerned it is doubtful whether there exits any relationship of employer and employee between the parties. Unless it is established even prima facie, only then N.I.R.C. will be competent to deal with the cases of unfair labour practice. Recently, it was held by Honourable Supreme Court in the case of Abbasia Cooperative Banks v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3, that "it is a well‑settled principle of interpretation that the provision contained in a statute ousting the jurisdiction of Courts of general jurisdiction is to be construed very strictly and unless the case falls within the letter and spirit of the barring provision, it should not be given effect to. It is also well‑settled law that where the jurisdiction of the Civil Court to examine the validity of an action or an order of executive authority or a special Tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the Tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or Tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or Tribunal; and (d) that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the Tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it follows that where the authority or the Tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the. statute barring the jurisdiction to Civil Court...".

16. As a result of above discussion, I am of the considered view that the defendants were not able to show that the plaint in the suit is liable to be rejected at this stage. Accordingly, through a short order, dated 10‑11‑19147 C.M.A, No.5022 of 1997 was dismissed. Above are the reasons for the said short order. H.B.T./Q‑16/K Petition dismissed