1997 PLP (C (PLC(CS))

(b) all lines of rails, sidings or branches worked over for the purposes of, or in connection with, a railway; (c) all stations, offices, warehouses, wharves, workshops, manufactories, fixed plant and machinery and other works constructed for the purpose of, or in connection with, a railway; and (d) all ferries, ships, boats and rafts which are used on inland waters for the purposes of the traffic of a railway and belong to or are hired or worked by the authority administering the railway." (7) "railway servant" means any person employed by a railway administration in connection with the service of a railway. The definition of 'workman' as given in the Workmen's Compensation Act, 1923 is as follows: "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 Railway 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. Schedule It referred to just above in respect of workman is as follows: (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.

6. Mr. M.A. Rashid learned counsel for the petitioner contended that both the respondents Nos. 1 and 2 erred by holding that educational institution does not fall within the definition of industry. Learned counsel also submitted that findings of both these respondents that the petitioner is not a workman is contrary to the settled law. In support of his contentions, he relied upon the case reported as K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others PLD 1976 Lah. 1097 relevant observation at page 1113, para. 52, which is as follows: "

52. The upshot of the entire discussion is that the use of the expressions, 'Business, Trade, Manufacture, Calling, Service, Employment or Occupation' in the definition of Industrial Relations Ordinance is not in its ordinary dictionary meaning but in its popular and conventional meaning. In the context of industrial and labour laws, these expressions apply to any enterprise which is organised and is systematic depending substantially if not entirely, on the cooperation between labour and capital, and having as its object production, distribution and consumption of wealth, or the production or provision of material services. The enterprise as a whole has to be looked at to find out its raison d'etre, and any part of it which is incidental, ancillary or any adjunct cannot determine the character of the whole. "

7. Learned counsel also relied upon the case reported as Mrs. Naseem Siddique v. Sindh Labour Appellate Tribunal and others 1984 PLC 1679 to contend that in this reported case a Staff Nurse, employed in Railway Hospital, was held to be a worker irrespective of fact whether her duties included or not performance of any outdoor duties. Learned counsel argued that on the principle laid down in the aforesaid case the petitioner, as a teacher, was also a worker under section 2(1)(n)(i) of Workmen's Compensation Act, 1923.

8. As against above, Mr. Mahboob Ellahi Malik learned counsel for the respondent cited: (i) Mufti Mushtaq Ahmed v. The Federation of Pakistan PLD 1981 SC 1720. . (ii) Faqir Muhammad v. The Director of National Savings, Multan Region, Multan PLD 1992 SC 127. (iii) Aftab Alam Khan v. The General Manager (Personnel), Pakistan Railways Headquarters, Lahore and others 1995 PLC 638. to contend that the petitioner is a civil servant, under section 2(b) of the Civil Servants Act, 1973 and that the dispute being in respect of terms and conditions of service the same could only be adjudicated upon by the Service Tribunal and not the respondents Nos. 1and 2.

9. In. the case of Faqir Muhammad cited earlier he was appointed as a Chowkidar by the Director, National Savings, Multan. After he was removed from service, he had filed a petition under section 25‑A of the Industrial Relations Ordinance, 1969 before a Labour Court, which was allowed. This order was challenged before Labour Appellate Tribunal and the appeal was dismissed. Later on Constitutional petition was filed and it was allowed by a learned Single Judge with an observation that, as Chowkidar, the duty of the appellant was that of security and safety which did not fall within the category of workman. Thereafter, the matter was taken before the Hon'ble Supreme Court, where the majority view of Muhammad Afzal Zullah and Saad Saood Jan, JJ. was that the appellant being subject to laws, rules, orders, and instructions as the Government may issue from time to time and this being statutory in nature he belonged to the category of employees to whom Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 did not extend. Consequently, it was held that he could not take advantage of Standing Order 12(3) to challenge his removal from service before the Labour Court. Thus, he was taken as a civil servant within the definition of terms as given in the Civil Servants Act, 1973.

10. The only point to be considered in this matter is whether the petitioner is a worker within the definition of the Workmen's Compensation Act and whether subsection (4) of section 1 of the Act is attracted in this matter or not. It is not disputed nor it could be disputed that the petitioner, as a teacher, was serving in a school, which is not a factory nor anything was brought on record to substantiate the contention that said school was being run on commercial basis. Therefore, the controversy is narrowed down to the point if the petitioner is a person employed upon any railway, within the meaning of subsection (4) of section 1 of the Act. The scope of expression "upon a railway" was examined by the Honourable Supreme Court in Civil Appeal No. 578 of 1980 and it was observed that this had a reference to persons who were working in connection with the movement of the railway or in any case associated with the track, but certainly not those who were working in the headquarter office. The petitioner being a teacher was not in any way connected with the movement of railway nor in any case associated with the track, nor was employed in connection with the operation or maintenance of a lift or a vehicle etc. Ex facie, subsection (4) of section I of the Act and the definition of workman as given in Workmen's Compensation Act are not attracted in this matter, and it being so she could not be treated as a worker for the purpose of labour laws. In fact she is civil servant within the scope of provisions of the Civil Servants Act, 1973.

11. In view of the dictum laid down in the case of Faqir Muhammad referred to earlier, it is evident that the petitioner is a civil servant. In the case of Aftab Alam Khan referred to above the Labour Appellate Tribunal, Sindh, relying upon the principle laid down in Faqir Muhammad's case, held that a School Teacher of the Railway is a civil servant under section 2(b) of i the Civil Servants Act, 1973.

12. Under the circumstances, the Federal Service Tribunal has exclusive jurisdiction in respect of the matters relating to terms and conditions of the civil servant, therefore, due to bar contained in Article 212(2) of the Constitution, the respondents 1 and 2 were not competent to entertain the application of the petitioner and her application was rightly dismissed by said respondents. In consequence, I do not find any merits in this petition and the same is dismissed. A.A./S‑59/K Petition dismissed.