ASHRAF KHAN Versus KARACHI PORT TRUST, KARACHI
DECISION
These 145 appeals from the common order of Labour Court NO.IV Karachi, dismissing the petitions filed separately under section 25‑A of the I.R.O.1969, which I propose to dispose of by a common decision, arise in the following circumstances.
2. On the 1st of March, 1949, the Government of Pakistan accorded sanction for the immediate raising of a Special Central Constabulary Force to patrol the Thole Produce Yards in Karachi, for the protection of cotton bales stored therein for export purpose. This was to be done on the lines of the police force, and subject to discipline under the Police Act. It was to remain under the administrative control of the Inspector‑General of Police, Karachi.
3. Major Saadullah Khan of the North‑Western Frontier Provincial Police and later on of the Crown Representatives Police Force, was appointed the Commandant of the Force. He was vested with the powers of the Deputy Superintendent of Police. The Subedars of the force were given, the powers of the Sub‑Inspectors of Police, whereas the Jamadars were given the powers of the Head Constables. Similarly the Lance Naiks were conferred the powers of the Lance Naik of the Police, and the sepoys were conferred the powers of Police Constable. However, these powers could be exercised only within the TPX area of the K.P.T.
4. At the initial stages the pay of said force was borne by the Federal Government, but in 1950 it was decided that the expenses incurred for the maintenance of the said force should be reimbursed by the Karachi Port Trust by the levy of a special cess on the holders of the Plinths in the Thole Produce Yard Some further changes here and there were effected in 1959, 1977 and 1979, but not being germane to the case, it is not necessary to dilate on the same.
5. The contention of the petitioners was that, by passage of time, the appointments, the retirements, promotions and the payments of the employees were handed over to the KP.T. All the same the petitioners still remained as temporary employees and were denied the facilities and benefits given to the other employees of the K.P.T. They had, therefore, served the requisite notices for the redress of their grievances and thereafter filed the petitions. It was prayed therein that the‑respondent be ordered to regulate the terms and conditions of their service as well as pay all benefits which were being withheld from them. The prayer was couched in the following words:
"(1) declare the applicant as its permanent employees.
(2) order them to pay all the benefits under the labour laws and also make the payment withheld by them illegally."
6. The respondents in their written statements denied the existence of any ties of employer and employees between them. It was said that there was no provision in the budget in the KP.T. for the Special Central Constabulary, It was also alleged that the documents filed by the petitioners in support of the claims were not authentic. The other contentions also came to be denied.
7. Ashraf Khan was the only witness on behalf of the petitioners. The affidavit of one Abdul Razzaq was also filed on their behalf, but it was withdrawn by the latter and he never made himself available for cross examination. It has, therefore, got to be excluded Muhammad Izzatullah Khan, the Commandant appeared on behalf of the respondent.
8. The Labour Court found that the relationship of employer and employee did not subsist between the parties, and as the Special Police Constabulary was subject to Ministry of Interior, Government of Pakistan, section 1, subsection (3), clause (a) of the Industrial Relations Ordinance was therefore, a bar. As such it had no jurisdiction in the matter.
9. The affidavit of Ashraf Khan has it, that Exhs. R/1, R/2 end R/3 which pertain to the creation of the force in 1949, the conferment of police powers on the Special Police force, and the promulgation of the Special Central Constabulary Leave Rules, 1959 respectively were old and ineffective since long. It went on to say that by 1977 the petitioners were no more under the control of the Home Department of the Government of Sindh, or controlled by the Police Rules. Even the Commandant was appointed by Rear Admiral Arshad who was a Chairman of the respondent‑Corporation and the entire staff was under the General Manager, Operations or other Sectional Heads. What was more the entire expenses in connection with the maintenance of the force was met by the respondent. Reference was also made to a Resolution passed by it being Resolution No.444.
10. Ashraf Khan further testified that it was the respondent who issued the identity cards to the petitioners to enter the enclosures, disbursed their pay and also provided treatment to the petitioners in their Hospital and Dispensary.
11. A number of documents mostly in the photostat were also produced in support of these assertions, authenticity whereof stood challenged.
12. The witness had to admit in the cross‑examination that Ghas Bandar, Juna Bandar, West Wharf and Keamari were also under the jurisdiction of the Y P.T. and the watchmen and the Chowkidars of these areas had no access to the T.P.X., which was under their control. He conceded that unlike the uniforms of the staff referred to above their uniform was the one worn by the police. He agreed that the Commandant was always a D.S.P. of Sindh Police, on deputation, but showed his ignorance about the Rules governing discipline. However, he had to concede that they had never received any show‑cause notice, warning or punishment from the respondent, and further that their pay was in accordance with the national pay scale.
13. Exh.R.l, which is a memo. from the Ministry of State and Frontier Regions to the Chief Secretary to the Government of N: W.F.P. is an admitted document. Paragraph 2 thereof reads as under: ‑‑
"It has been decided to organise the force with lines of police force. It will be subject to discipline under the Police Act and will be under the administrative control of the Inspector‑General of Police, Karachi."
14. Exh. R.2 deals with the conferment of powers, paragraph 2 thereof reads as under: ‑‑
(2) I am directed to say that it has been decided to confer Police Powers on the various members of the Special Central Police as shown below: ‑‑
(1) Commandant The powers of an S.P.
(2) Assistant Commandant The powers of a Dy. S.P.
(3) Subedar The powers of Sub‑Inspector
(4) Jamadar The Powers of Head Constable.
(5) Lance Naik Powers of Lance Naik
(6) Constables Powers of Constables.
15. It also mentions that the powers were to be exercised within the T.P.X area only.
16. Exh.R3 are the Rules called the Karachi Special Central Constabulary Leave Rules, 1959 which were to apply to all the members of the Karachi Special Central Constabulary except the Commandant and the Assistant Commandant.
17. Their duties are confined to the T.P.X. alone where cotton bales are stored for export. Cotton is the highest Foreign Exchange earner of the country and the care bestowed on it can well be appreciated The letter from the Ministry of Commerce to the Traffic Manager Karachi Port Trust in reply to a letter, dated 2nd of March, 1963 has the following to say: ‑‑
"To
The Traffic Manager,
Karachi Port Trust, Karachi.
Subject: Special Central Constabulary posted at Thole Produce Yard,
Sir,
I am directed to refer to your Letter No.STB/SU 11/45/59‑13113, dated the 2nd March, 1963, on the above subject, and to say that the question whether the functions of the police force can be taken over by the Port Trust was discussed in the past and it was decided that as long as cotton is stored in the open and sufficient covered go down space is not available, the police force is necessary. This Ministry have been informed that the Police Force has been more efficient in strict enforcement of the `no smoking rule' and preventing the entries of unauthorised persons in the Thole Produce Yard The perusal of fire reports received from the Port Trust show that some slackness has appeared in the supervision of the Yard and fires have occurred which could have resulted in catastrophic loss but for the prompt action taken by the special constabulary. In any case, this Ministry would not advise the taking over of the duties now performed by the Police Force, by the Port Trust Watch and Ward Staff.
Your obedient servant,
(Sd.)
(Muhammad Anwar)
Section Officer,
Government of Pakistan"
18. The issuance of the Identity Card is not disputed by the respondent. After all T.P.X. is a part and parcel of its enclosures. The medical facilities are also admitte4 but, according to the respondent's witness only 3 members of the force are entitled to admission in the Hospital at one time. He added that this was being done on humanitarian grounds. The disbursement of the pay by the Bank Cashier to the staff is also not disputed, but a man of their force remains sitting by the Cashiers' side. It has also been stated by him and it is on the record, that the Commandant is the Drawing and Disbursing Officer in relation to the petitioners. His affidavit also mentions that in 1977 by a notification dated 12‑12‑1977 issued by the Home Department of the Government of Sindh Special Central Constabulary Force came under the functional and disciplinary control of Pakistan Port Police. In the year 1979 Pakistan Port Police was also disbanded and the Constabulary Commandant was declared as "authorised Officer" beside being Drawing and Disbursing Officer.
19. There are 2 labour unions but the petitioners are not permitted to be members thereof. The respondents have a printed schedule of their staff and the names of the petitioners are conspicuous by their absence. It has also been stated that the budget has no provision for the pay of the petitioners. The fact that in a case the Service Tribunal had held that the Force were in the employ of the K.P.T., will be neither here nor there, as the respondents were not a party to it.
20. It is not necessary to examine the document in inutiae, as even the name of the Force itself reveals its identity.
21. That being so, the bar under section 1, subsection (3‑a) of the I.R.O. stares in the face. Further the relief sought are declaratory in nature. The scope of section 25‑A, I.R.O. is very narrow. It permits a workman to bring his grievance in respect of any law guaranteed or secured by him, or under any law or any award or settlement for the time being in force. In other words as held in Muhammad Aqil v. Sindh Labour Appellate Tribunal and another 1974 PLC 194 an application under section 34, I.R.O. certainly does not determine or adjudicate upon the rights of the parties. This section merely provides for enforcement of pre‑existing rights. This judgment was noticed with approval by the Supreme Court in Karachi Pipe Mills Employees' Union, Karachi v. Karachi Pipe Mills Limited, Karachi (1992 SCMR 36). The text of section 34, I.R.O. is analogous to section 25‑A, I.R.O.
22. I am, therefore, of the considered opinion that there. is no merit in these appeals. I will, therefore, uphold the impugned orders and dismiss these appeals.
H.B.T./2224/Lb.S.
Appeals dismissed.