1985 PLP 1982 (SCMR)

NASIM HASAN SHAH, J.‑‑This judgment will dispose of Civil Appeal No.Q‑47 of 1983 and Civil Appeal No. Q‑48 of 1983 which arise out of a common judgment of the High Court of Baluchistan, Quetta dated 17‑11‑1982. The respondents Syed Zafar Yab Ali and Aziz‑ur‑Rehman, who were in the employment of the appellant and fell with in the category of running staff claimed sums of Rs.1,890 and Rs.1,620 respectively on account of difference in the revision of traveling allowance rates which, according to them, were payable by the Railway administration during April, 1965 to January 1968. The dispute on account of non‑payment of such amount by the Railway administration was taken by the respondent to the Labour Court, Quetta under section 25‑A of the Industrial Relations Ordinance, 1969. The appellants in their written statement filed in the proceedings before the Labour Court pleaded that the application of the respondents was not maintainable under section 25‑A of the Industrial Relations Ordinance; their claim was hopelessly time barred and the Labour Court was not competent to adjudicate upon the claim. The Presiding Officer recorded the evidence of the parties and allowed the claims of the respondents as per his order dated 18‑12‑1980. The appellants filed an appeal against the said order before the Labour Appellate Tribunal which was dismissed on 15‑6‑1981. Thereafter constitutional petitions were brought to challenge the above orders passed by the Labour Court and the Labour Appellate Tribunal before the Baluchistan High Court which were dismissed as per impugned judgment. Hence these appeals by leave of this Court. The main contention raised in these appeals is that the respondents, who were members of the traffic staff, were paid the running allowance as per terms and conditions with regard to payment of dues and other allowances and were regulated by rules 221 and 509 of the Pakistan. Railways Establishment Code Volume

1. The said rules read as under: "Railway servant performing duties directly connected with the charge of moving trains are not entitled to travelling allowance under the rules in this section but to running allowance specially framed by the General Managers." "Running Allowance is an allowance ganted to railway servants of the classes mentioned below, who perform duties directly connected with the charge of moving trains. This allowance is calculated at a rate of 100 miles run with a train carrying passenger traffic or on the basis of each trip of 8 hours performed on such train and is in lieu of every kind of detention and travelling allowance:‑ Drivers Guards Shunters Brakemen Firemen Augwallas The Labour Appellate Tribunal held that the respondents were entitled to earn such travelling allowance alongwith other benefits as were prescribed when they were sent on duty out of their Headquarters in the normal course of duty. But when they worked outside their beats, they were entitled to the travelling allowance at that rate which was prescribed in case of work outside the normal beat. In the instant case they worked outside their beat, in the Iranian territory and were, therefore, entitled to the allowance admissible to the staff visiting this territory on official duty which is considerably higher than the rates allowed within the country. The Tribunal was, therefore, of the view that since the respondents were posted outside their beats off and on and the difference of travelling allowance was claimed by them they were entitled to get the difference of travelling allowance at the higher rate prescribed for visiting this region. Mr. Iftikhar Muhammad, learned counsel for the Railway administration in support of these appeals submitted that the impugned judgment was passed in disregard of the aforecited rules 221 and 5oq of the Pakistan Railways Establishment Code, Volume I and the letters relied upon by the Labour Appellate Tribunal and the learned High Court were not properly appreciated because no advantage could be taken of their contents, especially in the presence of the statutory rules. The last mentioned letters, to which reference has just been made are to the following effect. The basic letter is the Office Memorandum bearing No. P.7(10)‑RII((I)/59), dated 1‑9‑1959 issued on the subject of terms to be allowed to persons proceeding to places outside Pakistan on official business and those posted in Pakistan missions abroad while travelling on duty abroad except on transfer. The terms of this letter were also made applicable to Railway servants vide letter No.39‑E/O II(E.V), dated 1‑10‑1959 from the Deputy Director (Establishment) Railway Board to the General Manager, N.W. Railway, Lahore etc. This letter was couched in the following terms:‑ "In supersession of all previous orders on the subject, a copy of the Ministry of Finance's Office Memorandum No.7(10)‑R.II((I)/59, dated 1‑9‑1959 is sent herewith for information. President is pleased to decide that the orders contained will also apply mutatis mutandis to railway servants proceeding abroad on official business." A controversy arose whether the contents of the letter of the Finance Ministry bearing No. P.7(10)‑RII(II)/59, dated 1‑9‑1959 was also applicable to Railway servants (all categories) going on official business to Mirjawa‑Zahidan section. By letter No.39‑E/O‑XIV (E. Policy), dated 22‑2‑1971 and letter No. E.71‑AL/7‑11, dated 26‑1‑1972 of the Railway Board it was clarified that this was, indeed, so. The contents of the said letters may usefully be reproduced. "Copy of letter No.39‑E/O‑XIV(E. Policy), dated 8‑11‑1971 from the Vice‑Chairman, P.W.R., Lahore to the Secretary Railway Board, Lahore. Subject: Grant of Foreign Exchange to Class III & IV staff and travelling allowance at the Foreign country rates in Iranian' territory to P.W.R. Officers and staff. The Mirjawa‑Zahidan section of P.W. Railways was handed over to the Iranian Govt. on 1‑11‑1969, prior to this the railway officials who used to visit that section were entitled to daily allowance at the usual inland rates. Since Mirjawa‑Zahidan section is now a foreign railway, a point has arisen whether the railway officials who have visited Mirjawa‑Zahidan section on or after 1‑11‑1969 are entitled to the daily allowance admissible in accordance with the terms and conditions laid down in the Ministry of Finance O.M. No.7 (10)‑RII(II)/59, dated 1‑9‑1959, received with Railway Board letter No.F.59.1/8‑III, dated 1‑10‑1959 or would continue to draw T. A. at the normal rates admissible within Pakistan. This office holds the view that the provisions of Ministry of Finance's O.M.No.7(10)III(ii)/59, dated 1‑9‑1959 are applicable to all categories of Railway servants going on official business to Mirjawa‑Zahidan section. The FA & CAO (Financial Advisor & Chief Accounts Officer), Lahore agrees with this and a verbatim copy of his note is enclosed. This may please be confirmed. Sd/‑ (K.M. Arshad) R.P.S. for Vice‑Chairman "The case may be referred to Railway Board seeking their instructions in the matter. We, however, agree with your views that Ministry of Finance O.M. No. 7(10)‑RII‑(II)/59, dated 1‑9‑1959 should be applicable to all' the categories of Railway servants going on official business to Mirjawa‑Zahidan section. This has the approval of Dy.CAO/GB.No.EG/Foreign‑P/29, dated ?‑10‑

71. Sd/ Asstt. Accounts Officers/EG" Copy of letter No.E‑71‑AL/7‑11, dated 26‑1‑1972 of Rly. Board, Lhr to the Vice‑Chairman, P.W.R., Lhr. Subject: Grant of Foreign exchange to Class III & IV staff and T.A. at the foreign country rates in Iranian territory to P.W.R. Officers and Staff. Ref: Your letter No.39‑E10‑XV (E. Policy), dated 8‑11‑1971. The position stated in the second para. of your letter that in the case mentioned in your letter under reply, provision of MOF O.M. No. 7(10)11‑II‑(II)59, dated 1‑9‑1959 are applicable to all categories of Railway servants going on official business on MJA‑ZHN section, as already supported by the FA & CAO LHR, is hereby accepted." The same position was reiterated in the letter issued by the Chief Personnel Officer Headquarters Office, Lahore in his letter No.39.E/O‑VIII(Bills), dated 4‑11‑1978. The terms of the said letter are also reproduced below:‑ "The Chief Personnel Officer, Headquarters Office, Lahore. Subject: Supply: TA Bills of Guards.' Ref: Your letter No.830‑E/2‑VI (PCC), dated 10‑9‑1978. Attention is invited to your letter No. 39‑E/O‑XIV(E. Policy), dated 22‑2‑1972 which provides that conditions laid down in Ministry of Finance O.M. No. 7 (10)‑R‑41_(II)/59, dated 1‑9‑1959 received with Railway Board's letter No. E‑59‑118‑III, dated 1‑10‑1959 are applicable to all the categories of staff going on official business to Mirjawa‑Zahidan section; as such, the staff are entitled to difference of T.A. in this case. Incidentally, it is pointed out that F.A. & C.A.O. vide his letter No. EG/Foreign/F/29/Pt. I, dated 27‑10‑1975 addressed to DAC/Quetta (Copy enclosed) has also accepted that the clarification would take effect from 1‑10‑1959." There can, therefore, no doubt that the Railway servants such f as the respondents were entitled to the benefits mentioned in the Ministry) of Finance OM, dated 1‑9‑1959. The only question, that now survives for consideration, is whether" the terms of the letters reproduced above are contrary to the provisions of the statutory rules 221 and 509 of the Pakistan Railway Establishment Code, Volume I, and, therefore, cannot be given effect to? After a careful perusal of rules 221 and 509 aforesaid and the letters in question we have reached the conclusion that there is no inconsistency between he two. In our view the aforementioned statutory rules deal with a situation which is different from the situation dealt with in the letter of the Finance Ministry as applied to all categories of Railway servants. In this view of the matter, rules 221 and 509 of the Railway Establishment Code do not debar the respondents from obtaining the benefit which the Courts below have found' to be admissible to them. No ground for interference with the judgment of the Courts below therefore, exists. Both these appeals are, accordingly, dismissed but the parties are left to bear their own costs. M.Y.H. Appeals dismissed.