1989 PLP 733 (PLC)

Date of hearing: 16th March, 1989. This appeal is against the order passed by learned Labour Court No.VI at Hyderabad on 17‑2‑1988.

2. I have heard Mr.Ch.Rashid Ahmed, Advocate for the appellants and Mr.Syed Fasahat Hussain Rizvi, counsel for the respondent.

3. The facts of the case in brief are that the respondent was employed as Lower Division Clerk‑cum‑Typist by the appellants on 19‑4‑1987 on the terms and condition that he will pass the requisite test of typing within two months. He was removed from service on 7‑9‑1987. After serving grievance notice upon the appellant the respondent filed grievance application before the learned Labour Court which was allowed by the impugned order. The appellant resisted the application on the ground that respondent was not a workman and, therefore, neither the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 was applicable nor the Labour Court had any jurisdiction. What is contended is that he was removed on account of the fact that he failed to pass typing test in spite of several chances being given to him. The first question that requires consideration is whether the appellant was workman or civil servant as defined in Civil Servants Act, 1973. Under the Civil Servants Act, 1973 the definition of Civil Servant does not include the workman as defined in the Factories Act, 1934 and workman defined in the Workmen's Compensation Act, 1923.

4. The 'worker' as defined under section 2(h) of the Factories Act reads as 0under:‑ "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."

5. It may be pertinent to also reproduce the definition of workman as defined in section 2(n) of the Workmen's Compensation Act, 1923. The relevant portion reads as under:‑ "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."

6. The learned counsel for the appellant has relied upon the cases reported in P L D 1981 S C 172, 1982 P L C 984 and 1982 P L C Labour

855. In all these cases the railway employees were working either in the Head Office or Administrative Office or Sub‑Divisional Office when the alleged misconduct was committed by them and as such it was held that they were not workmen but were Civil Servants and as such the Labour Court did not have jurisdiction. Admittedly the respondent was appointed as Lower Division Clerk‑cum‑Typist. Appointment order shows that he was posted in the C&W Shop, Hyderabad, which is Carriage Wagon Workshop. Mr.Syed Fasahat Hussain Rizvi, learned counsel for the respondent submitted that the appellant was not working in any administrative district or sub‑divisional office of the Railways and, therefore, he would not be excluded from the definition of workman as defined under the Workmen's Compensation Act. It is further submitted by him that the C&W Shop is a factory defined in section 2(j) of the Factories Act as the repairing work of wagons is carried on there. It is also submitted that the statement of the respondent in his affidavit‑in‑evidence that he was working in C&W shop Hyderabad has gone unchallenged and that there is no evidence to show that he was working in any room or place where no manufacturing process is carried on. Therefore, he would not be excluded from the definition of workman as defined in section 2(h) of the Factories Act as reproduced above. It is submitted that the cases relied upon by the appellant are distinguishable from the instant case.

7. It is contended by Mr. Ch. Rashid Ahmed for the appellants that even if it is accepted that the respondent is a workman still the appellant is an establishment wholly and solely run by the Federal Government, which has statutory Rules of Service and as such by virtue of proviso to subsection (4) of section 1 of the Standing Orders Ordinance 1968 the said Ordinance would not he applicable in the case of the present respondent. He further contended that even in cases where employees do not fall within the definition of Civil Servant as defined in Civil Servants Act the Railway has framed Railway Servants (Efficiency &, Discipline) Rules, 1975 in exercise of powers conferred under Article 241 of t he Constitution. These rules are applicable to every person to whom Pakistan Railways Establishment Code applies except a person who is a Civil Servant within the meaning of Civil Servants Act. Admittedly under these rules on certain grounds certain penalties which are enumerated therein could be imposed. These rules and grounds include inefficiency and also penalties which could be imposed for inefficiency: These rules also contain the procedure of enquiry Admittedly no enquiry was held under these rules against the respondent but his services were terminated only on the ground that his appointment was on ad hoc basis and he failed to pass the test. It is submitted by Mr. Seed Fasahat Hussain Rizvi that even under these rules the appellant had right that he could be removed from service on the ground of inefficiency only after due enquiry which right the respondent could enforce under section 25‑A of I.R.O., which provides that the worker may bring his grievance to the Labour Court in respect of any right guaranteed or secured to him by or under any law. It is submitted that the words "any law" are wide enough to include Statutory Rules of 1975.

8. It is submitted that as the respondent is not a civil servant as defined in the Civil Servants Act, 1973 but he falls within the definition of worker as defined in the Factories Act and the Workmen's Compensation Act and also as defined in the Standing Orders Ordinance, the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 would be applicable and he would be deemed to be permanent worker after having put in three months service but if, however, it is held that Standing Orders Ordinance was not applicable because of Statutory Rules of 1975 then he has got right to be dealt with before removal from service in accordance with the Statutory Rules of 1975 which procedure has not been followed and in either case the termination of his service was illegal.

9. The Civil Servants Act is applicable to the Civil Servants only. As pointed out above the respondent being a worker as defined in the Factories Act and the Workmen's Compensation Act would not be a civil servant and, therefore, Civil Servants Act would not be applicable to him. He would be governed by the A Railways Code and the aforesaid Efficiency and Discipline Rules, 1975 These rules being Statutory Rules the Standing Orders Ordinance would not be applicable. It is admitted by Ch.Rashid Ahmed that word 'ad hoc is not defined or used in the Railway Code but word probationer is used and that during this period of probation, if the work of employees is not found satisfactory he could be removed from service. In the instant case the respondent was not appointed on probation but was appointed on ad hoc basis with the condition that he would pass typing test within two months. He continued to be in service beyond the period of two months but no order in writing was passed for extension of this period of two months to enable him to pass the typing test. The respondent in his affidavit‑in‑evidence stated that no typing test was held. The Written Statement filed by the appellant is not verified on oath and the person who signed the written statement has not been examined, therefore, the contents of this written statement cannot be considered as evidence. The respondent has examined Rafiullah, Clerk who admitted to cross‑examination that no typing test was held.

10. The contention of the appellant that the respondent was removed because he failed to pass typing test is not borne out from the record. The contention of the respondent that he was not dealt with before his removal from service under the Efficiency and Discipline Rules, 1975 is an admitted fact. In view of the circumstances though the Standing Orders are not applicable to the case of the respondent still his right under the Statutory Rules or the Railway Code could be enforced by him through the Labour Court which has got jurisdiction. As his removal from service was not in accordance with the said Code or Efficiency & Discipline Rules the order of his termination of service is not sustainable and was rightly set aside by the learned Labour Court. The appeal is, accordingly, dismissed. A.E./1425/Lb.S Appeal dismissed.