1994CLC721 (PLP)

"It is, therefore, prayed that the Hon'ble Court may be pleased to restrain the respondents from continuing with their proposed acts of entering into BOT contract as per Annexure `B' to the Petition and further this Hon'ble Court may be pleased to declare that the impugned action of transferring Berths Nos. 14 to 17 of East Wharf of Karachi Port to private party and all acts incidental and ancillary thereto being proposed and acted upon by the respondent No.1 in particular and other respondents in general are without lawful authority and of no legal effect and the respondents be permanently restrained from pursuing the impugned transfer of the Berths to the private party. (ii) Cost of the petition. (iii) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of this case." The case of the petitioners, in brief, is that petitioner No.1 is a registered Trade Union of Workers of Karachi Post Trust and the petitioner No.2 Karachi Harbour and Dock Workers Union is Collective Bargaining Agent of registered dock workers and it represents about 6,000 workers, who presently are working at Karachi Port. The respondent No.1 is a statutory body and it has been constituted, under the Karachi Port Trust Act, 1886, hereinafter called `the Act'. The respondent No.2 is Controlling Ministry of respondent No.1. The respondent N6.3 is a Private Limited Company, engaged in stevedoring and tally contractor's operations. The Board of respondent No.1, under the Act, is competent to lease immovable property and do other works not inconsistent with the provisions and the purpose of the Act. It is the duty of the Board to construct wharves, jetties, etc. to maintain and operate all such installations and to levy charges, tolls for the services rendered by the Board in handling cargo, including loading and unloading and berthing of the ships. The Board maintains staff and servants responsible for efficient traffic, security, loading and discharge of cargo on the ships at the Port. The workers, so engaged by the Board, are the members of . the petitioners Unions. It is alleged that recently the respondent No.1 has proposed to transfer Berths Nos. 14, 15, 16 and 17 of East Wharf of Karachi Port Trust to respondent No.3, under a proposed contract known as, Build, Operate, and Transfer basis contract (BOT contract). It is also the case of the petitioners that the terms of the proposed contract were kept secret till recently, when the petitioners came to know of said agreement/contract. Thereafter, the petitioners approached the respondent No.1 through appropriate channels and were informed in writing by Karachi Dock Labour Board vide Letter No.KDLB/P/99‑A/PM, dated 27th May, 1992, that K.P.T. Authorities were negotiating with a Private Container Terminal Operator, and that the K.P.T. Authorities were requested to safeguard the interest of the Dock workers. It is said that proposed agreement is not yet executed and is likely to be executed in very near future, as the validity period of 120 days, contained in the letter of intent, has already expired. The petitioners have claimed that the intended acts of respondent No.1 are inconsistent with the provisions of the Act and against the interest of the petitioners. According to the petitioners, the Berths Nos. 14 to 17, which are being transferred to respondent No.3, will be managed by said respondent through its own staff and in this manner the statutory rights of the petitioners guaranteed/secured under the Industrial Relations Ordinance, 1969, or under any other law, would be infringed. Before dealing with the contentions of the petitioners, it would be advantageous to refer about the Constitution of the Board of the respondent No.1 and Sections 41, 43, 43‑A of the Act. The duty of carrying out the provisions of the Act is vested in the Board, which is called. The Trustees of the Port of Karachi'. The Board is a body corporate and has perpetual succession and common seal. It shall consist of 11 members. The Government shall, from time to time, appoint a person as the Chairman of the Board and the person so appointed may be a Public Officer or not. The Chairman shall be a trustee. As regards remaining trustees, one shall be elected by the Chambers of Commerce and Industries, one shall be elected by the Karachi Chambers of Commerce and Industries Karachi, one shall be elected by the Karachi Cotton Association, Karachi, one shall be elected by the Pakistan Shipping‑owners Association, Karachi, and one shall be elected by Karachi Municipal Corporation, and 5 of whom one shall be a non‑official associated with the Karachi Port Trust Labour Union, shall be appointed by the Central Government. Under section 41 of the Act, the Board may, by an order in writing and subject to conditions contained in the same, permit any person to make erect or fix below high‑water mark within the Port any Wharf, dock, quay, stage, jetty, pier, erection or mooring. Under section 43, the Board is competent to frame, alter a scale of tolls, dues, rates, and charges for the landing and shipment of goods of the wharves, quays, stages, jetties and piers. Under Section 43‑A, the Board. is also competent to frame, alter a scale of charges for use of dock. It is contended on behalf .of the petitioners that the Board of respondent No.1 is a delegate of the Government to the extent of the rights, privileges, duties, functions, and obligations specified in the Act, as such, it has no right to further delegate its functions to any outside agency. Also, it has been argued that the rights, terms and conditions of employment of the workers of petitioners unions are secured by statute namely, under the provisions of the Act; and the Karachi Dock Workers (Regulation of Employment) Act, 1974 and by virtue of proposed agreement the respondent No.3 would be empowered to deal with those secured rights in .its own manner. It has also been submitted on behalf of the petitioners that entire Port is to be operated in terms of the provisions of the Act, but by virtue of (BOT) the respondent No.3 would apply its own regulations. Learned counsel for the petitioners also urged that the respondents have no legal rights to contract with the Private Party transferring their statutory duty of levying charges and tolls etc. ' As against this, learned counsel. for the respondent No.1 submitted that the functions, as laid down in the Act, may be carried out by the Board itself or through some Private Agencies up to the extent permissible by law; therefore, the plea of the petitioners that, all functions vested in Karachi Port Trust, are to be carried out by the officers and servants of the Karachi Port and/or by the members of the petitioners‑Union, is contrary to the provisions of the Act. Elaborating it, he submitted that loading and unloading of the cargo is carried out at the Port by the stevedors duly licensed by the Karachi Port Trust. He also mentioned that loading and unloading activities, pertaining to container cargo are carried out with the assistance of Gantary cranes in Private Sector. Learned counsel also pointed out that besides, petitioners Unions, other workers are working at the Karachi Port, who are members of other Trade Unions are not members of any union at all. Learned counsel mentioned that the agreement annexed by the petitioners is not final and lot of changes have been carried out in it and it is still under negotiations and its terms are yet to be finalised. The constitution of the Board shows that it consists of 11 members, who represent different organisations, as mentioned earlier. Prima facie, it can not be presumed that the Board will violate any provisions of the Act for the that matter the trustees will ignore those provisions for reason that all questions before the Board are to be decided by a majority of the votes of the trustees present, and for the purpose of quorum at least four trustees shall be present, from the beginning to the end of a meeting. Thus, enough safeguard is provided in the Act itself to see that the acts are done in accordance with the provisions of the Act. Learned counsel for the petitioner, has‑not drawn our attention to any specific section of the Act, saying that it was being violated. From the parawise comments of respondent No.1 it is evident that Chaudhry Muhammad Ashraf Khan a non‑official associated with Karachi Port Trust Union, as trustee of K.P.T., participated in the negotiations with regard to the terms of proposed agreement. A perusal of various provisions of the Act reveals that the Board is competent to carry out its duties through the private Agencies, of course, subject to the conditions laid down by the law. For example, under Section 32 (2) of the Act, the Board may be special agreement with the masters of vessels or the owners of goods, permit goods to be landed and shipped by others than the servants of the Board. Under Section 34 of the Act, the Board may, with previous sanction of the Central Government, direct that no goods shall be landed or shipped from or in any sea‑going vessel within the Port, save at such wharves, quays, stages, jetties and piers, and may in like manner alter, vary, or revoke any such order. Likewise, the Board under Sections 41, 43, 43‑A as mentioned earlier, is competent to discharge its duties, in respect of the subject‑matters, mentioned in these sections: At this stage there is nothing on record to show that the Board is exceeding from its power. The terms and conditions of the proposed agreement, as repeatedly argued by the learned counsel for the respondents, have not yet been finalised. It being so the apprehensions of the petitioners with regard to retrenchment of workers, change in their status, and change in terms and conditions of their services, are ill‑founded. Learned counsel for the respondents have submitted that no action prejudicial to interest of the workers would be taken and the final agreement, if arrived at, would be approved by the Federal Government of Pakistan. Accordingly, we do not find any substance in this Petition and the same is dismissed with no order as to costs. Misc. Application No. 6257/92 and Misc. Application No. 2529/92 1 have become infructuous and are dismissed. AA./0‑24/K Petition dismissed.