1984 PLP 535 (PLC)

Trustees of the Port of Karachi v. Abdul Ghani 1983 S C M R 769 rel. M. L. Shahani for Appellant. Qammarul Islam Abbas for Respondent. Date of hearing : 13th December, 1983. The appellant who was employed as a Laskar in the Karachi Port Trust, the respondent herein, was charge‑sheeted for negligence in the per formance of his duties which is said to have resulted in damage by fire to Motor Launch "Talwar", a Launch of K. P. T., which was lying at its moorings in the Karachi Harbour. The appellant was ultimately removed from service by the order, dated 12th September, 1979 on account of the said carelessness and negligence. He filed an application under section 25‑A, I. R. O. before the learned Fifth Labour Court challenging the orders of termination of his service. The learned Fourth Labour Court to which the case was transferred, by its decision given on 2nd December, 1980 held that the grievance petition of the appellant was not maintainable as Stand ing Orders were not applicable to the respondent establishment which according to the learned Labour Court was being carried on by or under the authority of the Federal Government and had statutory rules of dis cipline and conduct for its employees. On appeal to this Tribunal the case was remanded to the learned Labour Court for giving an opportunity to both parties to lead evidence on the point whether the appellant was employed in connection with any docks, wharves or jetties and to give its findings on that issue. The remand and the above direction were ordered in view of the decision of this Tribunal in the case of K. M. C. v. Nawab Bibi and another, decided on 25th November, 1980 wherein it was held that even if an establishment does not qualify for exemption from the opera tion of the Standing Orders under the proviso to subsection (4) of section I of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, an employee of such establishment would be entitled to file a grievance petition, against the termination of his services or other right conferred under the Standing Orders only if it is shown that such an establishment was either an industrial establishment or a commercial establishment for the purposes of the said Ordinance. The learned Labour Court by its order, dated 21st July, 1981 reiterated the view previously held by it, that the Standing Orders are not applicable to the K. P. T. as it qualified for the said exemption under the provisions of the proviso to sub section (4) of section 1 of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, but failed to take notice of specific direction given to it as stated above while remanding the case to it for re hearing. The case was accordingly again remanded to the learned Labour Court for compliance with the direction contained in the said order. The learned Labour Court finally by its order, dated 26th March, 1983 on the basis of evidence recorded by it, held that the applicant was employed in connection with docks, wharves or jetty which would fall within the mean ing of industrial establishment as defined in the Payment of Wages Act, 1936 and adopted in section 2(f ) (I) of the Standing Orders Ordinance. The appellant aggrieved by this order, as no effective order was passed by the trial Court with regard to his re‑instatement, has come up in this appeal.

2. I have heard the learned counsel for the parties, Mr. M. L. Shah.Ani for the appellant and Mr. Qamar Abbas for the respondent and have also perused the material evidence available on the record. In my view, no exception can be taken to the order passed by the learned Labour Court, dated 26th March, 1983 holding that the appellant was employed in con nection with the docks, wharves or jetties, which fell within the meaning of industrial establishment as defined by the provisions of Payment of Wages Act and the Standing Orders Ordinance. The question, therefore, that remains for consideration is as to whether the finding of the learned Labour Court to the effect that the Standing Orders are not applicable to the K. P. T. as it qualified for the said exemption under the provisions of proviso to subsection (4) of section 1 of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, would call for interference by this Tribunal or not. Reliance in that respect has been placed on the authority of the Supreme Court in the case of the Trustees of the Port 0f$ Karachi v. Abdul Ghani (1983 S C M R 769) wherein it was held that the Standing Orders are not applicable to the respondent establishment by virtue of proviso 1 to section 1, clause (4) of the Standing Orders Ordinance, 1968, in as much as the respondent establishment was being carried on by or under the authority of the Federal Government and had statutory rules of discipline and conduct for its employees. Accordingly, since the Standing Orders are not applicable to the respondent establishment, the appellant cannot invoke the provisions of clause (3) of Standing Order 12 and bring his grievance in respect of his removal from service under that clause before the learned Labour Court. Furthermore, he also cannot file a grievance petition under section 25‑A, I. R. O. 1969, in as much as such an application can only be made by a "worker" defined in I. R. O., 1969, but the appellant by reason of his removal of service, which is unconnected with an industrial dispute has ceased to fall within the said definition. Relying on the Supreme Court authority, this Tribunal in Appeal No. KAR‑584/82, decided on 20th November, 1983 held for the detailed reasons given in that order that the appellant cannot move, the Labour Court in a grievance application against the respondent establishment and that the application was not legally main tainable. Accordingly, I find that the application filed by the appellant under section 25‑A, I. R. O., 1969, before the learned Labour Court was not legally maintainable.

3. The result is that the appeal is dismissed. A.E. Appeal dismissed.