2003 PLP 118 (PLC)

3. The learned counsel representing the petitioner, that is Pakistan Railway, Peshawar Division, argued that Pakistan Railways was owned and controlled by the Federal Government and therefore, after the insertion of section 2‑A in the Service Tribunals Act, all employees of the Pakistan Railways regardless of the nature of their work are deemed to be civil servants for the purpose of jurisdiction of the Federal Services Tribunal. As such the Service Tribunal has exclusive jurisdiction regarding the terms and conditions of service of these employees. It was argued that the Tribunal has misinterpreted; the relevant provision of law by holding that workmen are excluded from the provision of section 2‑A whereas it is only from the definition of civil servants as given in the Civil Servants Act that workmen are excluded therefrom. The learned counsel placed reliance upon S. Zafar Ijaz v. Chairman, Steel Mills Corporation (1998 PLC (C.S.) 777), Zaheerullah v. Chairman WAPDA (2000 SCMR 826) and Dr. Muhammad Arsala v. Chancellor Quaid‑e‑Azam University (2000 SCMR 181).

4. Responding to the above arguments; the learned counsel representing respondent No.2, Shah Pasand, contended with reference to certain statutory provisions, which shall be referred to later, that Pakistan Railways is a department of the Federal Government, which has two categories of employees, Civil servants and workmen. That the former have always had recourse to the Federal Service Tribunal and the latter to the Labour Court. That the insertion of section 2‑A has not brought about change in this area as this newly‑added provision was intended to provide remedy to aggrieved employees of authorities, Corporations etc. owned or controlled by the Federal Government whereas Pakistan Railways was not such an authority and is part of the Federal Government. The learned counsel further argued that the workmen already had a forum established under different Labour Laws for the redressal of their grievances and section 2‑A was meant to provide remedies to other employees who had no such forum available for the redressal of their grievances.

5. The question before us is whether after the inclusion of section 2‑A in the Service Tribunals Act, 1973, all employees of Pakistan Railways, including workmen, would be deemed to be civil servants for the purpose of seeking redressal of grievances from the Service Tribunal. The definition of Civil Servants in the Civil Servant Act, 1973 is given in section 2(1) (b) as follows:‑ (b) "civil servant" means a person who is a member of all Pakistan service or of a civil service of the Federation or who holds a civil post in connection with the affairs of the Federation, including any such post connected with the definition but does not include; (i) (ii) ... (iii) a person who is a worker or "workman" as defined in the factories Act, 1934 (Act 25 of 1934) or the Workmen's Compensation Act 1923 (Act VIII of 1923). Under section 2 (a) of the Services Tribunals Act, 1973, "civil servant" has been defined as a person who is or has been a civil servant within the meaning of Civil Servants Act, 1973. To this provision, section 2‑A was added which reads as under:‑ "Service under certain corporations etc. to be service of Pakistan. ‑‑‑Service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act." Prior to the addition of section 2‑A in the Service Tribunals Act, 1973, (which shall be referred to simply as section 2‑A) the employees of Pakistan Railways would either approach the Service Tribunal or, in case of workmen, would seek redressal under the Labour Laws as they were excluded from the definition of "civil servant" for the purpose of the jurisdiction of the Services Tribunals Act, 1973. The confusion arose after the inclusion of section 2‑A which did not make any distinction amongst the employees for the jurisdiction of the Services Tribunal regarding terms and conditions of their services and that is why in the present cases the Labour Court without giving any finding on the question had asked to parties to seek clarification from the Labour Appellate Tribunal.

6. The application of section 2‑A has been the subject of a number of judgments of the superior Courts, some of them we would recently refer to. In Zahirullah v. Chairman WAPDA, (ibid), it was held that the employees of those organizations, authorities etc. who have been declared as civil servants under section 2‑A shall be deemed to be civil servant for the purpose of Services Tribunals Act without distinction as to whether they are regular employees, contractual employees or workmen. This clarification was made because under the definition of Civil Servants given in the Civil Servants Act, and which is also relevant for the Service Tribunals Act, contractual or temporary employees and workmen had been excluded from the definition of "civil servants". In other words, all employees, temporary, contractual or workmen employed by organization etc. mentioned in section 2‑A can only seek redressal of their grievances in the Services Tribunal regarding their terms and conditions of service. For the employees of the Federal Government, who do not fall within the scope of section 2‑A, the definition of civil servant in section 2 of the Civil Servants Act and the exception thereto would still be valid with the result that Federal Government employees who are workmen as defined in section 2 (1) (b) (iii) would not be considered as civil servant for the purpose of Services Tribunals Act, 1973. Further support for this view can be found in Syed Aftab Ahmad v. K.S.C.E. (1999 SCMR 197) and Zafar Ijaz v. Chairman Steel Mills Corporation (1998 PLC.(C.S.) 777) ‑‑‑ a judgment of the Sindh High Court.

7. The next question is whether the Pakistan Railways is part of the Federal Government or an authority, Corporation, body or organization for the purpose of section 2‑A. The learned counsel representing the respondents had referred to a number of provisions for the purpose of showing that Pakistan Railways is a Federal Government Department. He made reference to section 3 (6) of the Railways Act, 1890 which defines "Railways Administration" or "Administration". In the case of a Railways Administration by the Government means the Manager of the Railway and includes the Government and in the case of Railways Administration by a Railways Company means the Railways Company. Reference was also made to the President's Order Province of West Pakistan (Dissolution) Order 1970 (President's Order No.1 of 1970). In Article 7 (a) it was provided that the Pakistan Western Railways vesting in the Government of West Pakistan immediately before that date shall, together with all funds constituted for the purpose of that Railways vests in the President for the purpose of the new Provinces. The new Provinces established by President Order No.1 of 1970 were the Province of Balouchistan, North‑West Frontier Province, the Punjab and Sindh. Clause (3) of Article 7 further provided as follows:‑ (3) Notwithstanding anything to the contrary contained in any contract or agreement or in any condition of services, all employees of the Government of West Pakistan engaged for the purposes of the Pakistan Western Railways and serving immediately before the appointed day shall, as from that day, be deemed to be employees of the President serving, however, in connection with the affairs of the new Provinces; and such employee's shall continue to be governed by the same terms and conditions of service as were applicable to them immediately before that day." ,

8. The Pakistan Railways have two categories of employees; those who are civil servants, who are subject to the Efficiency and Discipline Rules, 1973 and the other category are those to whom the Pakistan Railways Establishment Code applies except a person who is a civil servant within the meaning of Civil Servants Act‑1973. For the latter employees, the Federal Government has, in exercise of powers conferred upon it by Article 241 of the Constitution of the Islamic Republic of Pakistan, enacted Railways Servants (Efficiency and Discipline) Rule, 1975. Article 241 empowers the Federal Government to amend the existing rules until the Legislature makes a law under Article 240 of the Constitution. Article 240 of the Constitution relates to appointments and conditions of services of persons in the service of Pakistan and provides that in case of services of the Federation, post in connection with the affairs of the Federation and of the Pakistan Services, the Parliament shall make laws. According to the Rules of Business, 1973 made by the Federal Government in exercise of powers conferred by Articles 90 and 99 of the Constitution, Pakistan Railways appears as part of the Railways Division of the Federal Government.

9. The above discussion shows that the Pakistan Railways is a Department of the Federal Government and as such its employees hold posts in connection with the affairs of the Federation. It is, therefore, not an authority, Corporation, Body or Organization within the meaning of section 2‑A. Its employees are, therefore, either civil servants within the meaning of section 2 (1) (b) of the Civil Servants Act or fall within the exception thereto, including section 2 (1) (b) (iii).

10. We, therefore, hold that the employees of Pakistan Railways are employees of the Federal Government and for the purpose of redressal of grievances regarding terms and conditions of service are unaffected by addition of section 2‑A of the Services Tribunals Act, 1973. Thus, if the contesting respondents are found to be workmen, the Labour Court will have the jurisdiction to entertain a grievance petition. Consequently, the impugned judgments of the Labour Appellate Tribunal are upheld and the writ petitions are dismissed. S.A.K./639/P Writ petitions dismissed.