1993 PLP 29 (PLC)

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of an application under section 25‑A of the Industrial Relations Ordinance, 1969 filed by respondents 3 to 56 who are working as clerks in the employment of Pakistan Railways, the petitioner herein, which was allowed by the Labour Court vide its judgment dated 9‑9‑1985. The appeal of the petitioner against the aforesaid judgment was dismissed on 4th May, 1986 whereupon this petition was filed.

2. Respondents Nos.3 to 56 filed a joint application under section 25‑A of the Industrial Relations Ordinance, 1969 against the petitioner in which they challenged the order passed by the Works Manager, Signal Shops, Pakistan Railways, bifurcating the seniority list of the clerks employed in the said Shop into two groups and directing that a separate list be maintained for each category.

3. This application was defended by the petitioner inter alia on the plea that as respondents Nos.3 to 56 were not workmen, the Labour Court had no jurisdiction to try the application. Unfortunately, although the' Labour Court noted this objection it gave no decision thereon and proceeded to accept the application on 9th September, 1985.

4. Learned counsel for the petitioner, in support of this petition, has contended that jurisdiction of the Labour Court to try the application filed by respondents Nos.3 to 56 was barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 as the said respondents were civil servants. Learned counsel for contesting respondents has however argued that these respondents were workmen within the meaning of Workmen's Compensation Act, 1923 and they cannot therefore be considered to be civil servants.

5. It cannot be disputed that by virtue of Article 212 of the Constitution of Islamic Republic of Pakistan, the exclusive jurisdiction to adjudicate upon any dispute relating to terms and conditions of civil servants vests in the Service Tribunal constituted under the Service Tribunals Act, 1973. The controversy between the parties however is as to whether respondents Nos. 3 to 56 can be considered to be civil servants.

6. Section 2(b) (ii) of Civil Servants Act, 1973 defines a civil servants 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; (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).

7. Learned counsel for respondents has attempted to argue that the Railways employees do not hold any civil post in connection with the affairs of the Federation but, on the other hand, are employees of Railways Board. This contention is highly misconceived. Apart altogether from the fact that Railways is one of the departments of the Government and is controlled by the Ministry of Railways which is headed by a Federal Minister, Railways is one of the subjects falling under Part II of the Federal Legislative List and is a Federal subject under the Constitution.

8. It was next argued by the learned counsel for respondents Nos.3 and 4 that as the respondents are workmen within the meaning of section 2(n)(i) of the Workmen's Compensation Act, 1923, they were not civil servants in view of sub‑clause (iii) of clause (b) of section 2 of the Civil Servants Act, 1973 which provides that workmen as defined by Factories Act, 1934 or Workmen's Compensation Act. 1923 are excluded from the definition of "civil servant". It is conceded by the learned counsel that Factories Act, 1934 has no application in the present case. He has therefore relied on section 2(n)(i) of the Workmen's Compensation Act, 1923.

9. This provision came up for interpretation before the Supreme Court of Pakistan in two cases first of which is reported as Mufti Mushtaq Ahmad v. Federation of Pakistan (PLD 1981 SC 172) and the second is the unreported decision of the Supreme Court in Akbar Ali and others v. The Senior Administrative Officer, Pakistan Railways and another (Civil Appeal No.578/80). In the second case, the contention that all Railway servants were workmen was repelled and it was held that categories of civil servants who were employed in any administrative district of Sub‑Divisional Office of Railways were not workmen. Similarly, the provisions of Schedule II of the Workmen's Compensation Act, 1923 were also considered and commented upon.

10. From the above, it is evident that persons employed by Pakistan Railways are not per se excluded from the definition of "civil servants". It is only when it is shown that they are not to be employed in any administrative, district or sub‑divisional office and are not employed in any of the capacities as specified in Schedule II 'that they can claim to be workmen.

11. Unfortunately, Labour Court, despite having noticed the jurisdictional objection raised before it, failed to record any finding on this vital aspect of the matter. This failure on the part of respondent No. 1 has rendered its decision to be without lawful authority and of no legal effect. In these circumstances, there is no option but to remand the case to the Labour Court for decision afresh particularly on the question as to whether, in the fight of the tests laid down by the Supreme Court of Pakistan, respondents Nos. 3 to 56 can be considered to be workmen as defined in section 2(n)(i) of Workmen's Compensation Act, 1923. As a result of what has been stated above, this petition is allowed and the impugned judgment of the Labour Court is declared to be without lawful authority and of no legal effect with the result that the application filed by respondents Nos. 3 to 56 shall be deemed to be pending before the Labour Court which shall decide it afresh keeping in view She observations made above. There shall be no order as to costs. H.B.T./P‑31/L Case remanded.