1991 PLP 846 (PLC)

Since no remedial steps were taken by the official respondents, the present petition has been filed. The learned counsel for the petitioners has contended that the petitioners cannot be treated as employers of the cleaning workers who are registered as dock workers with the aforesaid Board under the Act IX of 1974, read with the aforesaid Scheme of 1973. He has relied on the case of Vera v. Kazi & Kazi Limited (PLD 1990 SC 435). In the above-cited case, several appeals filed by the different parties were decided by the Hon'ble Supreme Court. The facts of the above cited case are that the ship tindals and wharf serangs used to be in the employment of Stevedores on retainer ship basis. The functions of the serangs and tindals used to be to provide labour force to Stevedores whenever required for work on ships. Because of the workers' strikes, problems were created at the port. To solve the said problems, meetings were held and as observed in the above case:- The Central Government notified the formation of the Dock Labour Board (hereafter referred as Board) under notification published in the Gazette of Pakistan dated -17-11-1972. Under the new system dock workers were neither the employees of the Stevedores, nor were they permanently attached to them, they became entitled to get work through the Board, by a system of rotation of gangs, and tindals and serangs were wedded to these gangs. Tindals and serangs who under the ages-old systems were attached as retainers to Stevedores, lost their full-time employment with the stevedores, as stevedores, as and when required, could get any tidal or serang with a gang consisting of dock workers who were to be supplied by the Board to them on a requisition. In order to furnish statutory recognition to this arrangement Karachi Dock Workers (Regulation of Employment) Ordinance, 1973 was promulgated with the purpose to regulate the employment of the dock workers in Karachi Port, and to ensure the efficient loading and unloading of ships in Karachi. It empowered the Government to frame a scheme, and accordingly, the Federal Government by Notification dated 3-12-1973 framed Karachi Dock Workers (Regulation of Employment) Scheme, 1973 (hereafter referred as Scheme) under which Karachi Dock Labour Board was established with effect from 12-1-1974. Before this Board was set up, the said Ordinance was repealed and replaced by the Dock Workers (Regulation of Employment) Act, 1974. It is, however, the admitted position that the said Scheme is the scheme under the Act. It may be stated at this stage that under the Scheme, the Board was empowered to fix the number of dock workers to be registered, under the various categories, to increase or decrease the Number of registered workers in any category, to determine the wages, allowances and emoluments of dock workers and to take disciplinary action against them. The Board was also empowered to ensure minimum wages for dock workers, and dock workers could not leave their employment except by giving one month's notice in writing to the Board." The aforesaid enactment led to issuance of letters of termination of service of the Serangs and Tindals by the Stevedores. The Serangs and Tindals filed grievance petitions under section 25-A of the Industrial Relations Ordinance, 1969, challenging the termination of their services and the Labour Court issued the directions for withdrawal of termination notices. The Stevedores filed appeals against the above decisions which were dismissed, but the petitions filed in this Court succeeded on the ground that neither the Tindals and Serangs were in permanent employment of the Stevedores nor they could be kept in employment by the Stevedores under the changed circumstances. The Serangs and Tindals brought the matter before the Supreme Court but their appeals were dismissed with the following observations:-- "Admittedly with the set up of the Board, the employment of a particular Tindal or Serang with a particular Stevedore came to an end, and the dock workers as well as Tindals and Serangs started to work with any Stevedore to whom they were attached by the Board according to their rotation to get work. Learned Judges in the High Court have correctly summarized the situation that "by the introduction of Dock Labear Board and coming into force of the new system of allotment of dock labours on rotation, the concept of employment of any Serang or Tindal with a particular Stevedore vanished absolutely. The Tindals and Serangs not being under the control of any particular Stevedore or performing their functions for any particular Stevedore, the Stevedores in turn are not obliged to give them retainer ship or any other benefits to which they were entitled under the previous system". Since both the parties namely, Stevedores on one hand and Tindals and Serangs on the other hand acted upon the above arrangement, and in fact they could not do so otherwise than under the Scheme that was introduced, their previous relationship stood severed. It is not even the case of the Tindals and Serangs that after the introduction of the new arrangement they could continue to work under the basis of old relationship. The impugned notices, therefore, only confirmed the state of affairs that obtained between the parties. The above decision is equally applicable to the dock workers who include the cleaning workers. The learned counsel for the respondent No. 2, contended that the cleaning workers are not the dock workers. He did not elaborate the point urged by him. It is an admitted position that the members of respondent No. 2, are registered with the Dock Labour Board and are governed by the requirements off the aforesaid Act and the Scheme. Different gangs of such workers are formed who are wedded with particular Tindal and on requirement of such workers by Stevedores the workers are provided on rotation basis, for their casual employment by the petitioners. The status of Tindals and Serangs, Dock Workers of any category, including the cleaning workers, is the same and they are governed by the same law. Therefore, it can be held without any fear of contradiction that the cleaning workers are not employed by the petitioners. To clarify the position, it may further be stated that admittedly, none of the members of respondent No. 2 are in permanent employment of any of the petitioners. The learned counsel for the petitioners has relied on the definition of the term "employer" in section 2(viii) of Industrial Relations Ordinance, 1969, which reads as under:- . "

2. Definitions.--In this Ordinance, unless there is anything repugnant in the subject or context-- (viii) "Employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs 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) .......................... (d) (e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof; Under the aforesaid Act and the Scheme, it is not the choice of the Stevedores to choose particular Serang, Tindal or Dock Worker or to fix their wages for the work to be performed by them. They do not exercise any control over the workmen provided by' the Board to the Stevedores. No doubt, Dock Workers including the Cleaning workers do work under the supervision of the Stevedores and are paid for the specific work executed as fixed by the Board. This B is to be seen in the perspective of the fact that the gangs of workers constituted by the Board, work by rotation and a particular gang after having finished the work with a particular Stevedore is rotated for work by another Stevedore and thus in a day, they may work with more than one Stevedore or with none at all. Under these circumstances, the petitioners cannot be said to be the employers of the said Workers/Workmen. The definition of the worker or workman as provided in the aforesaid Ordinance means any person who is employed in an establishment or industry for hire or the reward either directly or through a contractor. The words "in an establishment" are of specific importance in the context of the definition of employer. If the workers are to be treated in employment of each of the establishments of the petitioners who are different and independent legal entities, it would lead to the same devastating consequences, note whereof has been taken by the learned Judges of the Supreme Court with regard to the Dock Workers while considering the levy of education cess on the Stevedores. Their Lordships observed at page 444 as under:-- Thus in view of this peculiar type of relationship between the Dock Workers vis-a-vis the Stevedores, if the provisions of Workers' Children (Education) Ordinance are made applicable to the Stevedores, then each of these 6,000 Dock workers is a worker of each of over 20 Stevedoring Companies. In other words, each Stevedoring Company would be liable to pay for all the dock labourers, who are over 6,000 in number, and the Education Cess payable for over 6,000 dock employees would be as many times as the number of the Registered Stevedoring Companies which presently are over 20." The learned counsel for the petitioners has contended that since the petitioners are not the employers, the logical consequence would be that the Cleaning Workers cannot be termed as Workers. There can be no cavil to the aforesaid logical consequence: It is, therefore, contended that the provisions of Industrial Relations Ordinance- would not be attracted for the formation of respondent No. 2 also as they are not the workers or workmen as defined in the said Ordinance. Section 6 of the said Ordinance provides the requirement of application to be submitted by a Trade Union for registration and section 7 provides that a Trade Union shall not be entitled to registration under the Ordinance unless, inter alia, all its members are workmen. As held above, the members of the respondent No. 2, are not the Workers and Workmen, they cannot form a Trade Union. The learned counsel for respondent No. 2, has contended that the petitioners are a `group of establishments' and, therefore, since the members of the respondent No. 2, have to work only for the aforesaid group of establishments, they ought to be deemed and treated as in employment of the petitioners. The argument is misconceived. The word "group of establishments" does not mean group of such establishments as are owned by different persons and each exists in its own right, but refers to establishments which are owned by the same legal entity, be a person, partnership concerned or body corporate as has been observed in the case of Muhammad Aqil v. Chairman, Sindh Labour Appellate Tribunal and another reported in 1974 P L C 194, with reference to section 22-EE of the Ordinance, that an employer may have more than one establishments, for example, offices in a commercial area, shops in business area, or one or more industrial units in an industrial area. To the above may be added the several institutions and organisations that have their branches and industrial units in more than one city, district or even province. Since the provisions of Industrial Relations Ordinance are not applicable to the Cleaning Workers who are one of the category of the Dock Workers, the registration of respondent No. 2, as a Trade Union and certification thereof as Collective Bargaining Agent by respondents Nos. 1 and 3, is without jurisdiction and unlawful. Consequently, the petition is allowed with no order as to cost. AA./A-1084/K Petition accepted.