1994 PLP 253 (PLC)

(b)??????? "civil servant" means a person who is a member of a civil service of the Province or holds a civil post in connection with the affairs of the Province, but does not include:‑‑ (i)???????? a person who is on deputation to the Province from the Federation or any other Province or authority; or (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) or the Workmen's Compensation Act, 1923 (VIII of 1923); 8.???????? "Worker" has been defined in the Factories Act, 1934 as under:‑‑ (h)??????? "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;"

9. Under the Workmen's Compensation Act, a "workman" has been defined as under:‑‑ (n)??????? "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, or (ii)??????? employed on monthly wages not exceeding one thousand five hundred 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 expressed 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.

10. Ostensibly the respondents could not be involved in any manufacturing process. It was not so urged by the respondent, nor conceivably be so urged. There is also nothing to show that they fall within the category as to be found in the definition of a workman under the Workmen's Compensation Act. It was never attempted at any stage. And if they do not fall within the pale of workers/workmen class, then disputes regarding the terms and conditions of employment are to be adjudicated by the Sindh Service Tribunal as envisaged in Article 212 of the Constitution. This was the view taken in Government of Balochistan Live Stock Department v. Live Stock Employees Union Government of Balochistan 1993 P L C page 13.

11. Mr. Mazhar Ali B. Chohan appearing for the appellant had referred to a few citations but as there is a judgment of the Supreme Court which is on all fours with the issues involved here, I will refer only that, namely Faqeer Muhammad v. Director National Savings Multan Region 1992 P L C page 163.

12. In the precedent case Abdus Salam Shakoor, J. since retired, after examining a string of cases had observed "that this appeal is liable to succeed on the short ground that the appellant was a Chowkidar in an attached department and by no stretch of imagination could be said to be a person employed in the administration of the State, in terms of section 1(3)(b) of the Industrial Relations Ordinance".

13. Muhammad Afzal Zullah, C.J. since retired, did not agree that the department of the Government concerned in this case was not concerned in the administration of the State. He observed that he "undoubtedly is employed is the said department as a Chowkidar likely any time to guard/protect Government money".

14. There being a difference of opinion the matter was referred to a referee judge.

15. Saad Saood Jan, J. though finding that the appellant being a Chowkidar could hardly be described as a person employed in the administration of the State observed that it was not end of the matter. I will reproduce His Lordship's observations: "Now, the said Ordinance, as the first proviso to section 1(4) thereof states, does not apply to establishment carried on by or under the authority of the Federal or any Provincial Government where statutory rules of service, conduct or discipline are applicable to the workmen employed therein. In this case, as is very clear from his letter of appointment, the appellant was to be governed by the rules applicable to Government servants. Thus, paragraph 1(7) of the letter stated: He will be subject to such laws, rules, orders and instructions as the Government may issue from time to time: It need hardly be pointed out that the rules of service, conduct and discipline framed by the Government are relatable to section 25, Civil Servants Act, and are as such statutory in nature. There is yet another aspect of the matter. As an employee of the Federal Government he held a civil post in connection with the affairs of the Federation. Thus, he was a civil servant within the definition of the term as given in the Civil Servants Act, 1973. Under section 3(2), Services Tribunals Act, 1973, the Federal Services Tribunal has the exclusive jurisdiction in respect of matters relating to the terms and conditions of a civil servant. On account of the bar contained in Article 212(2) of the Constitution, the Labour Courts were not competent to entertain the appellant's petition:' In the light of these observations, the impugned orders will be unsustainable. I will, therefore, set aside the orders and allow the appeals. H.B.T./2263/Lb.S ?????????????????????????????????????????????????????????????????????????????? Appeals allowed.