1991 PLP 525 (PLC(CS))

2. The brief facts of the case are that the respondent No. 1 is working as a teacher in Railway Boys High School at Sukkur and was confirmed as Assistant Teacher in Graduate Pay Scale from 6-12-1961. However, his seniority was disturbed vis-a-vis respondent No. 2, who was employed as a temporary teacher in Samasatta School on 20-5-1965. On coming to know about this, he preferred a departmental appeal but he received no reply. He after serving the grievance notice upon the appellants, filed the grievance petition.. The appellants in their reply statement resisted the grievance petition on the ground that respondent No. 1 was not a workman, that the Labour Court had no jurisdiction and that the seniority had been fixed in accordance with the orders of learned Punjab Labour Appellate Tribunal, Lahore. Respondent No.2 in this appeal, who was respondents No. 4 in the grievance. petition and whose seniority was challenged by the grievance petition, did not file any reply statement and he remained absent.

3. I have heard Mr. Shabbir Awan, the learned Advocate for the appellants and Mr. Muhammad Ashraf Khan, learned Advocate for the respondent No. 1. respondent No. 2 remained absent even before this Tribunal.

4. The first question that is to be considered is whether the appellant is a workman or a civil servant. The civil servant is defined in section 2(b) of the Civil Servants Act, 1973, which inter alia excludes from the definition of civil servant a person as defined as workman in the "Factories Act, 1934, or the Workmen's Compensation Act, 1923.

5. It is not the case of respondent No. 1 that he is a workman as defined in the Factories Act, but it is contended that he is a workman as defined in the Workmen's Compensation Act. Section 2(1) (n) of the Workmen's Compensation Act, defines the `workman' as under:-- "2(1)(n) `Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is:-- (1) a Railway servant as defined in section 3 of the Railways Act, 1890 (IX of 1890) not permanently employed in any administrative, district or sub -divisional office of a railway and not employed in any such capacity as is specified in Schedule Il, or (ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II."

6. Clauses (i) and (xii) of the. Schedule 11 are applicable to the railway servants and may be reproduced, as under:-- (i) employed, otherwise than on a Railway in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity; xxx xxx xxx xxx employed upon a Railway as defined in clause (4) of section 3, and subsection (1) of section 145 of the Railways Act, 1890 (IX of 1890), either directly or through a sub-contractor, by a person fulfilling a contract with the Railway administration." The respondent No. 1 is admittedly a Railway servant and also a School teacher employed in Railway school. The Railway school is not an administrative, district and sub-divisional office and a person working in a School cannot be said to be permanently posted in administrative, district or sub-divisional office. The duties under Schedule 11, as prescribed in clauses (i) and (xii) are not the duties which the respondent No. 1 was performing as School Teacher, therefore, his case falls under the definition of workman as defined in sub-clause (i), reproduced above. 1, therefore, hold the respondent No. 1 to be a 'workman'.

8. On merits, it is admitted by Mr. Khisal Ahmad, Head Clerk Education, Headquarters' office, Pakistan Railway, Lahore, who was examined for appellants, that the respondent No.l was appointed as school teacher on 5-9-1955, while respondent No. 2 was appointed on ad hoc basis on 5-12-1961. The respondent No.l was given Graduate Pay Scale in 1958, while the respondent No.2 got the Graduate Pay Scale on his appointment in 1961. The respondent No.l passed B.T. examination in 1961, while respondent No.2 passed his B.E.D. examination m 1974. The respondent No.l was confirmed from 6-12-1961, while the respondent No.2 has not yet been confirmed. He also admitted that the respondent No.l was in Pay Scale 16 for the past 7/8 years, while the respondent No.2 now is in B.P.S.

15. He had also admitted that the promotion from B.P.S. 15 to 17 is awarded by the Headquarters Lahore on the basis of combined seniority on all Pakistan basis. He states that B.P.S. 16 is not a higher grade. It appears that respondent No.2 had filed a grievance petition claiming seniority against the teachers in Samasatta Railway School which was allowed by the learned Labour Court and was confirmed by the learned Labour Appellate Tribunal, Punjab. It also appears from the admission of this witness that the teachers upto B.P.S. 9 are governed by the Divisional Personnel Officer, while the next promotion after B.P.S. 9 is 15 which is governed by the Headquarters at Lahore. In the written statement, the appellants had stated that the seniority was maintained of all the teachers schoolwise. As the respondent No.2 had claimed seniority as against his School teachers of Railway School, Samasatta, in his grievance petition before the learned Labour Court at Multan, therefore, the decision of the learned Labour Court will not affect the seniority of respondent No.l who was neither a party in those proceedings nor he was posted at Samasatta Railway School at the relevant time. It appears that the seniority list is maintained Schoolwise uptill B.P.S. 9 whereas after B.P.S. 15, the seniority is maintained on all Pakistan basis. While maintaining that seniority the overall principles of fixing seniority had to be considered by the appellants. The order of the learned Labour Court or the learned Labour Appellate Tribunal Punjab, had not been produced before this Tribunal, but, as pointed above, the grievance in the said grievance petition was with regard to the seniority of respondent No. 2 vis-a-vis other teachers in the Railway School Samasatta. These orders of the learned Labour Court or the learned Labour Appellate Tribunal did not fix the seniority of the respondent No.2 on all Pakistan basis and did not declare hi m a senior to the respondent.

9. If the date of the appointment is to be taken for the purpose of seniority or if the date of confirmation is taken for the said purpose or even the date when B.P.S. 15 was granted; is taken for the purpose of seniority, the admissions of Mr. Khisal Ahmad clearly show that the respondent No. 1 was appointed earlier; was confirmed earlier; and was given B.P.S. 15 earlier than the respondent No.2, therefore, he was senior to respondent No.2. The respondent No. 2 has not chosen to contest the grievance petition in the Labour Court nor he has filed appeal in this Tribunal. As such, the fixation of seniority of respondent No.2 above respondent No.1 was against the established principle of fixation of seniority as well as against the principles of natural justice, as there is no evidence to show that the respondent No.l was heard before his seniority was disturbed.

10. I see no merits in this appeal which is accordingly dismissed. M.Y.H./1578/Lb.S Appeal dismissed.