1995 PLP 667 (PLC)

In view of the above-referred different laws applicable to the case of petitioner Driver, his case is distinguishable from that of Chowkidar of Federal Government (PLD 1992 SC 127) and as such the ratio decidendi of para 6 thereof is not applicable to the petitioner in this case and his case is covered by para. 5 of that judgment. He, therefore, is not taken out of the pale of the class of `workman and worker'.

5. I have given my anxious consideration to the arguments of the learned counsel for the petitioner as well as the learned Assistant Advocate‑General, Mr. Masud Ahmad Riaz, amicus curiae and gone through the record, the precedent cases, relevant provisions of law, rules and instructions. I may mention at the very outset that every `Government servant' is not a `civil servant'. It is worthwhile to refer here to the definition of `civil servant' as given in the Civil Servants Act, 1974 (hereinafter to be referred as the Act of 1974). The `civil servant' has been defined in section 2(b) of the Act of 1974 as under:‑ "`civil servant' means a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province, butt does not include‑‑ (i) a person who is on deputation to the Province from the Federation or any other Province or 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 a `worker' or `workman' as defined in the Factories Act, 1934 (XXV of 1934) and the Workmen's Compensation Act, 1923 (VIII of 1923)." It is clear from the above definition that the `worker' or `workman' as defined in the Factories Act, 1934 and Workmen's Compensation Act, 1923 are excluded from the category of `civil servant'. Now to find out the status of the petitioner we have to refer to the definitions of the `worker' and `workman' as' given in the Factories Act, 1934 (hereinafter to be referred as Act of 1934) and Workmen's Compensation Act, 1923 (hereinafter to be referred as Act of 1923). The `worker' is defined in section 2(h) of the Act of 1934. The same reads as under:‑ "`Worker means a person employed directly or through an agency whether for wages or not, in any manufacturing process, or in clearing 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. It is not relevant. The petitioner obviously is not covered by this definition while the definition of workman is contained in section 2(1)(n) of the Workmen's Compensation Act, 1923 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 11, or (ii) employed on monthly wages not exceeding three thousand 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 express 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 dependents or any of them." The Schedule II gives a detailed list of persons, who are covered by the definition of `workman'. The relevant portion of the same reads as under:‑ The following persons are workmen within the meaning of section 2(1)(n) and subject to the provisions of that section, that is to say, any person who is‑‑‑ (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; or It is clear from the above definition as given in the Schedule II to the Workmens' Compensation Act, 1923 that Driver is covered by the definition of `workman'. I am fortified in my view by the judgment in the case of Baqa Muhammad (supra) while in the case of Shahid Riaz (supra) it was held‑‑ . Firstly, that he was excluded from the definition of `civil servant', therefore, the Punjab Service Tribunal rightly dismissed his appeal; and Secondly, that the office of the Deputy Commissioner is neither industrial establishment nor factory, therefore, the petitioner could not maintain the grievance petition.

6. Mr. Masood Riaz Ahmad, Advocate rightly referred to the case of Faqir Muhammad (supra). It is clear from section 1(3) that the I.R.O. does not extend to all `workmen' or `workers'. It specifically excludes certain categories of employees from its purview, and one of such categories is the persons employed in administration of State'. In this background it was held by the Supreme Court that Chowkidar of an attached Department of the Government of Pakistan was not employed in the administration of the State and as such the bar as contained in section 1(3)(b) will not be applicable. Therefore, it can safely be concluded that Driver not being connected with the administration of State is a `workman' within the meaning of the term used in the I.R.O.,1969.

7. So far as the first point decided in Shahid Riaz's case is concerned, the same view is confirmed but as far as the second part noted above is concerned I must confess that' it was not a correct view. I need not justify it. It is clear from the definition of `civil servant' as given in the Act of 1974 that by fiction persons in the Government service have been treated as "workers". Therefore, the question whether the office of the Deputy Commissioner is an industrial establishment or factory would not matter. The process of conferring status just by assumption is not rare. In this behalf we can refer to section 17(1‑B) of ' the WAPDA Act whereby the employees of WAPDA have been treated `civil servants' for‑the purpose of Federal Service Tribunal. This is not all. The definition of `workman' as given in the Act of 1923 is comprehensive enough to have in its fold persons in Government service. On the other hand, in subsection (2) the Government Offices have been deemed again by fiction trade or business concerns; while in clause (3) the Provincial Government is authorised to add to Schedule II any class of persons employed in any occupation. It is clear from the above that to start with what is material for determination of status of an employee is his occupation and not who is his employer, this rule is of course subject to provisions of relevant statute.

8. Mr. Masood Ahmad Riaz, Advocate rightly argued that a `driver' can maintain grievance petition before the Labour Court. In this behalf he referred to the case of Andrew John where a number of persons employed as Fitters, Electricians, `Drivers', Sweepers etc. were denied certain payments by the PWD Sindh. They filed grievance petitions while the Department filed a Constitutional petition objecting to the maintainability of grievance petition and appeal in the Labour Forum. The Sindh High Court relying on earlier decisions in the cases reported as Sindh Road Transport Corporation and 2 others v. Staff Union and 2 others (1976 PLC 361) and Employees' Union v. Executive Engineer (1972 PLC 285) dismissed the petition and it was held that grievance petitions and appeals were rightly entertained and adjudicated upon by the Labour Court and Labour Appellate Tribunal. In this behalf reference can also be made to the, cases reported as The Federated State School Teachers' Association of Australia v. The State of Victoria (1928‑29) 41 CLR 569) and The Management of Municipal Committee v. General Secretary Union (1968 PLC 270). The same was the view in the cases of Secretary, Irrigation Department v. Workers and Staff Union, Excavator Division, Faisalabad (1980 PLC 916), Employees' Union v. Executive Engineer (supra) and Lahore Improvement Trust (Housing Wing) Employees' Union v. Registrar of Trade Unions (supra). In the last mentioned case besides others `Road Roller Drivers' were party.

9. The Punjab Civil Servants Pay Revision Rules, 1977 govern all the Government servants whether they are covered by the definition of `civil servant' or not. The distinction is to be maintained between the 'Government servant' and `civil servant'. The another reason to deviate from the earlier view is that one category is left without remedy before Service Tribunal and the Labour Court: This would be the second reason to modify because the law presumes that where there is wrong there is remedy.

10. The unfortunate aspect is that the petitioner allegedly moved the Punjab Service Tribunal and his appeal was not entertained. Thereafter, he filed a grievance petition, which was dismissed by the Labour Court. The petitioner did not assail this order through an appeal before the Punjab Labour Appellate Tribunal, which consistently held the view that a driver can maintain a grievance petition. It is, thereafter that he Proceeded to file the Present Constitutional petition against the orders of respondents Nos. 2 and

3. This way the petition against the orders dated 13‑8‑1992 and 3‑12‑1992 was filed on 8‑5‑1994. Therefore, it suffers from gross laches because in service matters delay of more than six months would normally be sufficient to disentitle the relief in the Constitutional jurisdiction. I am conscious of the fact that the petitioner move the Labour Court but that application, too, was dismissed vide order dated 17‑2‑1993. Even thereafter, the petitioner took more than a year to move this petition. Therefore, he is disentitled to the relief. In this behalf reference can be made to the cases reported as Chairman, District Screening Committee v. Sharif Ahmed Hashmi (PLD 1976 SC 258); Lahore Central Cooperative Bank Ltd. v. Saif Ullah Shah (PLD 1959 SC (Pak.) . 210) and Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad and 3 others v. Dr. Mrs. Khalida Razi (1995 SCMR 698).

11. Now coming to the merits. The argument was that after the acquittal from the criminal case there was no basis to proceed against the petitioner departmentally. A perusal of the inquiry file shows that the criminal trial and the inquiry proceedings were going on side by side. Therefore, there is no merit in the argument that departmental proceedings were not initiated according to the procedure notified by the Government itself.

12. The learned counsel then argued that the petitioner was not allowed by the Inquiry Officer to cross‑examine the witnesses but the file revealed that he was duly given an opportunity and he did cross‑examine at least one witness i.e. Mr. Nasir Javed Basra, A.C. Bhalwal. This falsifies his plea that the Inquiry Officer did not provide him fair opportunity to defend. Even otherwise the presumption is that the proceedings conducted were in accordance with the minutes recorded. This way, the petitioner was provided fair opportunity and requirements of natural justice were fully met with before he was dismissed from service.

13. The upshot of the above discussion is that there is no merit in this writ petition. The same is dismissed. There is no order as to costs. AA./M‑2174/L Petition dismissed.