1989 PLP 1146 (CLC)

This appeal under section 104, read with Order 43, Rule 1 C.P.C. has arisen in somewhat unusual circumstances.

2. Appellant Muhammad Abul Olla was serving as Foreman Grade‑111, Pakistan Railways, Karachi, when he was removed from service by respondent No.2, by an order dated 20‑1‑1976. The appellant filed a suit bearing No.166 of 1976, against the respondents in the Court of District Judge, Karachi, for declaration and consequential relief. The respondents contested the suit, but admitted that: ‑ (i) The Plaintiff / Appellant is not 'civil servant' within the meanings of section 2 of the Service Tribunals Act, 1973, and section 2 of the Civil Servants Act, 1973, and as such, the matter does not fall within the jurisdiction of the Service Tribunal of the Government of Pakistan; and (ii) The learned lower Court has the jurisdiction to entertain and adjudicate upon the matters in the suit, in view of the provisions of section 24 of the West Pakistan Civil Courts Ordinance, 1962, as amended from time to time.

3. On 27‑7‑1978, the respondents made an application under Order VII rule 11 , C .P . C praying therein that the plaint filed by the appellant be rejected as the jurisdiction of the Civil Court was barred by the provisions of Industrial Relations Ordinance, 1969. The appellant contested this application, but the plaint was rejected by learned IInd Additional District Judge, Karachi, vide order dated 20‑2‑1979, with the following observation:‑ "Applying the above‑mentioned principles, I am of the view that the jurisdiction of this Court is barred, if not expressly then by implication, for section 25‑A of the Industrial Relations Ordinance, adequately provides efficacious remedies for the grievance of the plaintiff and this matter falls within province of Labour Court, as a special tribunal, to determine the dispute between the parties."

4. The appellant preferred Civil Appeal bearing No.43 of 1979, before this Court, which was heard and disposed of by my brother Sajjad Ali Shah, J, who was pleased to allow it vide judgment dated 14‑10‑1985. While remanding the suit for decision, the following observations were made: "In the light of what is stated above, if the impugned order is examined in depth, it would appear that the learned trial Judge in dismissing the suit summarily was mostly impressed by the fact that according to him plaintiff in the suit was a 'workman', hence remedy was available to him under section 25‑A of I.R.O., and civil suit was barred. On the other hand, the stand taken on behalf of the plaintiff in the suit is that he was at the relevant time not a 'workman', and there is sufficient manifestation about this assertion in the pleadings of the parties and this fact is admitted before me by both the learned Advocates Mr. Manzoor Ali Khan as well as Mr. A.T. Mahmood. In such circumstances, I set aside the impugned order and remand the case to the trial Court for decision strictly according to law."

5. After remand the trial Court framed as many as 8 issues. The parties adduced evidence. The learned IInd Additional District Judge (South), Karachi, vide judgment dated 31‑3‑1987, ordered the return of plaint under Order VII, rule 10 C.P.C., holding that the appellant was a civil servant within the meaning of Civil Servants Act, 1973, and the remedy, if any, lies with Service Tribunal constituted under the Service Tribunal Act, 1973. It is in these circumstances that the present appeal has been filed.

6. I have heard Mr. Abdul Sattar Mughal, learned counsel for the appellant and ~ Mr. Abu Tahir Mehmood, learned counsel for the respondents.

7. The contention regarding the ouster of jurisdiction is based upon the provisions of section 2 (1) (b) of the Civil Servants Act, 1973, which defines 'civil servant' in the following words:‑ "

2. Definitions.‑‑(1) In this Act, unless there is anything repugnant in the subject or context. (a) ...... (b) 'civil servant' means a person who is a member of an All‑Pakistan Service or of a civil service of the Federation, or who hold a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include. (i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract, on work‑charged basis or who is paid from contingencies; or (iii) a person who is a 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923);"

8. A bare reading of this definition would show that a person who is a 'worker' or 'workman' as defined in the Factories Act, 1934, or the Workmen's Compensation Act, 1923 is not a civil servant with in the meaning of the Civil Servants Act, 1973.

9. In order to resolve the question of the existence or absence of jurisdiction it would be desirable if the entire field as emerging from the relevant laws, is taken into consideration. This principle has been laid down in the case reported as Aziz v. Addl. Commissioner, Sargodha (P L D 1975 Lahore 904), referring to the authority in PLD 1971 SC 811, in the following terms:‑ "It was laid down by their Lordships of the Supreme Court in Lahore Improvement Trust, Lahore v. The Custodian Property, West Pakistan, Lahore and 4 others, that before striking down, an order of an authority the entire field of his jurisdiction should be examined and exhausted and thereafter a final conclusion should be reached."

10. In the light of the above principle the wholesomeness of the provisions of all the laws involved, are required to be examined so far as it is necessary from the view point of jurisdiction, since the correct position can be arrived at from the fact as to how the totality of such provisions takes it effect or can be given effect to.

11. Reading the definition of 'workman' as given in the Workmen's Compensation Act, 1923, together with the definition of 'worker' given under clause (h) of section 2 of the Factories Act, 1934, it is apparent B that the appellant, who was working in Railway Workshop as Foreman was associated with the work of cleaning of machinery, and connected with the subject of the manufacturing process was a worker under the Factories Act, 1934. To be more precise it will be useful to reproduce the definition of 'worker', which reads as follows:‑ "Worker' means a person employed directly or through an agency whether for wages or not; in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on."

12. The scope of 'manufacturing process' is again very wide and it includes the process of even repairing with a view to use it. Admittedly the appellant joined the service of Railways as a "mechanical apprentice" and was working as Foreman in Diesel Shed, when his services were dispensed with. To decide whether a person is a worker or not, it is the actual work mainly done or duties performed by him, which have to be looked to and not his designation or emoluments. It is the case of the appellant from the very outset that he is not a civil servant. The respondent have not challenged this position. They took a plea that the appellant being a 'workman' could seek remedy before the competent Labour Court, which plea did not find favour with my brother Sajjad Ali Shah, J, in Ist Appeal No.43 of 1979 who was of the view that the appellant not being a 'workman' within the meanings of Industrial Relations Ordinance, 1969 could not have recourse to the provisions of section 25 A of the Industrial Relations Ordinance, 1969. The appellant was thus left with one forum, viz, the Civil Court, and he had sought remedy against the respondents by filing a civil suit.

13. As observed above, the appellant is not a civil servant within the meaning of Civil Servants Act, 1973. He had, therefore, no C remedy before the Service Tribunal constituted under the Service Tribunal Act, 1973. If any authority is needed, reference may be had to the cases reported as Muhammad Akram Butt v. Islamic Republic of Pakistan, through Secretary, Ministry of Communications, Islamabad and another (P.L.D. 1978 Karachi 90), and Gul Hasan v. Chairman, Pakistan Railway Board and 2 others (1983 PLC (C.S.) 1164). In the first cited authority a Division Bench of this Court held in clear terms that the provisions of the Civil Servants Act, 1973, do not apply to railway servants.

14. The appellant is also not a 'workman' within the meanings of section 2 (xxviii) of the Industrial Relations Ordinance, 1969, The observations of Sajjad Ali Shah, J in Ist Civil Appeal No.43 of 1979, are self‑explanatory, which are reproduced below:‑ "In the instant case appellant, who was plaintiff in the suit at the relevant time, when he was removed from service was Foreman in Grade‑III drawing monthly salary of Rs.827.22. This fact that the appellant was a supervisor at the relevant time and was drawing salary of more than Rs.800 p.m. as claimed by him is not denied, disputed or challenged. It is so admitted in the written statement and Mr. A.T. Mehmood Advocate for respondents also admitted candidly before me that appellant at the relevant time was a Supervisor as Foreman in Grade‑III and was drawing a salary of more than Rs.800 P.M. In these circumstances the undisputed position is that appellant at the relevant time was not a 'worker', hence provisions of section 25‑A of the I.R.O., 1969, would not be attracted in his case." For this reason, the appellant could not invoke the provisions of section 25‑A of the Industrial Relations Ordinance, 1969.

15. Whenever a statute comes up for consideration, it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from ambiguity. When no remedy is provided in any special enactment, the Judge cannot fold his hands and leave the fate of the aggrieved person in the air. The general D principle is that every right has a remedy. It is also general principle that where two remedies are available under the law, one of them must not be taken as operating in derogation to other. But where a special remedy is provided, the general remedy of filing suit is barred. The appellant, who is 'worker' within the meanings of Factories Act, 1934, does not fall within the definition of 'workman' under the Industrial Relations Ordinance, 1969 and therefore, cannot have recourse to special remedy provided under the Industrial Relations Ordinance, 1969. Accordingly, the appellant having a grievance of civil nature has a right to institute the suit before a competent Civil Court. The exclusion of jurisdiction of a Civil Court is not to be readily inferred. The respondents upon whom the onus lay to prove the ouster of jurisdiction, had even conceded to this position at the E initial stage.

16. For the reasons stated above, the impugned judgment is set aside. The appeal is accepted and the suit is remanded to trial Court for decision on merits on all the issues. In view of intricate law points, I leave the parties to bear their own costs. A.A./M‑726/x. Appeal accepted.