1991 PLP (C (PLC(CS))

"212: Administrative Courts and Tribunals:--(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act (provide for the establishment of) one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of-- (a) Matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan, including disciplinary matters; (b) Matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or (c) Matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law. (2) Notwithstanding anything hereinbefore contained where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends (and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal (other than an appeal pending before the Supreme Court,) shall abate on such establishment): Provided that the provisions of this clause shall not apply to any Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, (Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.

3. An appeal to the Supreme Court from a judgment decree, order or sentence of an Administrative Court, or Tribunal shall lie only if the Supreme Court, being satisfied that the case involve a substantial question of law of public importance, grants leave to appeal."

13. It is clear from the text of the Article that one or more Administrative Courts or Tribunals were to be established by Federal Government to deal with the matters relating to the terms and conditions of the `persons in service of Pakistan'. Similarly Provinces were also to establish Administrative Courts or Tribunals for their employees. It is also clear from sub-Articles 1 and 2 that these Tribunals, in respect of terms and conditions of the persons in service of Pakistan or Provinces including disciplinary matters, were to have exclusive jurisdiction and no other Court was to take cognizance of such matters to which the jurisdiction of such Tribunal extended. Then comes Article 240, which reads as under:- "

240. Appointments to service of Pakistan and conditions of service.- Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined-- (a) In the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of (Majlis-e-Shoora (Parliament); and (b) In the case of the services of a Province and posts in connection with the affiars of a Province, by or' under Act of the Provincial Assembly. Explanation.--In this Article, `All-Pakistan Service' means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of (Majlis-e-Shoora (Parliament)."

14. According to this Article the terms and conditions of the persons in service of Pakistan were to be determined by or under Act of Parliament while conditions of persons in service of Provinces were to be governed by or under Act of Provincial Assembly. This was the natural consequence of Article 212 because the earlier civil servants were enjoying Constitutional guarantees. The same having been excluded from the purview of the Constitution, the Parliament in pursuance of this Article proceeded to promulgate Civil Servants Act LXXI of 1973. Similarly the provinces also promulgated the Provincial Civil Servants Acts. These statutes provided the superstructure while for disciplinary matters and' procedure thereof Rules were, promulgated at different levels. In this behalf reference can be made to Punjab Civil Servants E & D Rules, 1975 and Government Servants E & D Rules, 1973, Railway Servants E & D Rules 1975 and Punjab Police E & D Rules, 1975.

15. In Article 212 reference was made to `Service of Pakistan'. The same has been defined in Article 260, which reads as under:- Service of Pakistan' means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of (Majlis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, (Attorney-General, (Advocate-General), Parliamentary Secretary) or (Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Social Assistant to a Chief Minister, Adviser to a Chief Minister) or member of a House or a Provincial Assembly."

16. It is clear from the above definition that the Parliament in the first instance included all persons connected with the affairs of the Federation in the definition of Service of Pakistan and then preceded to exclude elected and Constitutional offices from its scope. The definition is exhaustive and covers in its folds all services. The last provision in the series is contained in Part II of Fourth Schedule, which deals with Federal Legislative list and Item No.1 in Part II is Railways. Then comes the statutory provisions and in this behalf the basic provision is Civil Servants Act, 1973. The same has been enacted in terms of Article 240 and for the time being the definition of `Civil Servant' as given in Section 2(b) is relevant. The same reads as under:- "(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 holds 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, or on work-charged basis or who is paid from contingencies; or (iii) a person who is `worker' or `workman' as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1937);"

17. It is clear from the definition of civil servant that it covers in its folds members of all Pakistan Service, Civil Service of Federation and persons holding posts in connection with affairs of Federation. The definition is even more exhaustive than the definition of Civil Service and only the employees specified in clauses I to III are excluded from the definition of civil servant. The first two clauses namely I and II are not relevant in the present case. The last clause is relevant and relied by the learned counsel for -the petitioners. According to this provision the person, who is `worker' or `workman' as defined in the Factories Act 1934 or in Workmen's Compensation Act are excluded from definition of civil servant. Therefore, in order to find out whether the petitioners are excluded from the category of the civil servant on the force of this exception or not, reference has to be made to said Acts. The definition of `worker' as given in section 2(h) of the Factories Act reads as under:- "`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." Mr. S.A. latif learned counsel in one of the petitions argued that according to the definition of worker as given in Factories Act, all persons employed therein are workers. The definition becomes crystal clear if reference is made to the preamble, which reads as under:- . "An Act to consolidate and amend the law regulating Labour in Factories. Whereas it is expedient to consolidate and amend the law re a latin, Labour in Factories, it is hereby enacted as follows:--" It is, therefore e, clear that the petitioners are not worker as defined in the Factories Act.

18. Now coming to the Workmen's Compensation Act, 1923. The `workman' has been defined in section 2(n), which reads as under:- "(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-- (i) 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 II, or (ii) employed on monthly wages not exceeding (one thousand five hundred) rupees, in any such capacity as is specified in Schedule II, whether the, contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of naval, military or air forces; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them. (2) The exercise and performance of the powers and duties of a local authority or of any department (acting on behalf of the (Government shall, for the purposes of this Act, unless a contrary intention appears, be deemed to be the trade or business of such authority or department. (3) The (Provincial) Government, after giving, by notification in the (official Gazette) not less than three months' notice of (its) intention so to do, may, by a like notification, add to Schedule II any class of persons employed in any occupation, which (it) is satisfied is a hazardous occupation and the provisions of this Act shall thereupon apply (within the Province) to such classes of persons: Provided that in making such addition the (Provincial Government) may direct that the provisions of this Act shall apply to such classes of persons in respect of specified injuries only.)" While the employer has been defined in section II(e) of the same Act and the same reads as under:- "(e) `employer' includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him;" When the definitions of `employer' and `workman' are read together then the inescapable conclusion is that the petitioners are not covered by the definition of workman. The petitioners all belting to supervisory staff and deemed to be within the category of employer in accordance with the Notification dated 15-11 1983, therefore, they are not workmen. It is, therefore, held that the petitioners are neither `worker' nor `workmen'. They are fairly and squarely covered by the definition of civil servant. In this behalf reference can be made to the cases of Pakistan through Secretary to the Government of Pakistan, Ministry of Rahway and Communication v. Muhammad A. Hayat P L D 1962 S C 28; Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs P L D 1970 S C 415 and Muhammad Akram Butt and 2 others v. Islamic Republic of Pakistan through Secretary, Ministry of Communications, Islamabad and another P L D 1978 Karachi 90.

19. The Railway is admittedly a Department of Federal Government, therefore, employees of Pakistan Railway are covered by persons in the service of Pakistan. I am fortified in my view by the judgment of Hon'ble Supreme Court in the case of Chairman of Pakistan Railways Board, Lahore v. Muhammad Ali 1987 S C M R

638. The relevant portion of the judgment pads as under:- "The respondent was definitely in the service of Pakistan being an employee of the Pakistan Railways that being the function connected with the affairs of the Federation. Hence, the bar of Article 13 of the Provisional Constitution Order would be fully attracted and the proceedings had abated in the High Court as the impugned decision of the High Court was subsequent to the promulgation of the Provisional Constitution Order. This appeal is accordingly allowed, the judgment of the High Court is set aside and the proceedings in the High Court are declared to have abated." The petitioners are clearly covered by the definition of civil servant. I also get moral support from the judgment of Division Bench, of Karachi High Court in Constitutional petition No. 1191 of 1987 titled A.H. Qamar and 127 others v. Federation of Pakistan and 3 others decided on 5-4-1988 wherein the petitioners raised the same question of entitlement before Karachi High Court and their writ petition was dismissed. The operative portion of the judgment reads as under:-- All these reliefs pertain to the terms and conditions of servant and matter lies to the Service Tribunal under section 4 of the Service Tribunals Act, 1973. It, therefore, follows that they can agitate their grievance m respect of terms and conditions of their service before Federal Services Tribunal, which has exclusive jurisdiction in the matter. The learned counsel for the respondent has rightly referred to the case of Ch. Nazar Muhammad and another v. Government of Punjab and 38 others 1986 S C M R 68; Aish Muhammad and 68 others v. Pakistan and 75 others 1985 S C M R 774; The Collector, Central Excise and Land Customs and others v. Adam Ali Shah P L D 1985 S C 82; P L D 1980 S C 20 and 1984 S C M R 1178. Since the petitioners have been pursuing their remedy in wrong forum, therefore, they will be entitled to invoke the provision of section 14 of the Limitation Act.

20. It is, however, certified as required under clause (f) Article 185(2) of the Constitution of Islamic Republic of Pakistan that these petitions involved a substantial question of law as to the interpretation of the Constitution. The petitioners, if like, may appeal to the Hon'ble Supreme Court.

21. The result is that these petitions are dismissed as incompetent. However, there is no order as to costs as a difficult legal question of first impression was involved. AA./M-2381/L Petitions dismissed.