1991 PLP 530 (PLC(CS))

2. The facts of the case, in brief, are that the appellant was admittedly appointed as Upper Division Clerk in Pakistan Railways at the relevant time and had been working as Sectional Pay Master. On 7-3-1983 he was served with a charge-sheet alleging therein that he had committed misappropriation of an amount of Rs.2,25,869.25 of Railway Cash in connivance with Messrs Abdul Ghafoor and Muhammad Hanif Khan. After domestic enquiry, which was jointly held against the appellant and others, he was compulsorily retired from service vide order, dated 10-10-1985. He preferred Departmental Appeal on 21-10-1985 but did not receive reply. Consequently after service of grievance notice he filed grievance petition which was resisted by the respondents mainly on the ground that the appellant was not a workman and charges were proved against him in the domestic enquiry.

3. I have heard Mr. M.L. Shahani, learned counsel for the appellant and Mr. Shabbir Ahmad Awan, learned Advocate for the respondents.

4. The main point that requires consideration is as to whether the appellant was a workman or a civil servant.

5. It is not disputed that the appellant is a `Railway Servant'. A `Civil Servant' is defined in section 2(b) of the Civil Servants Act, 1973 which inter alia excludes a person who is a worker or workman as defined under the Factories Act, 1934 or Workmen's Compensation Act, 1923. In the instant case it is contended by the appellant that he is workman as defined in Workmen's compensation Act. 1923. A workman is defined in the said Act under section 2(n), as under:-- "(a) `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.

7. It is not disputed that the appellant was appointed in the Office of Divisional Pay Maser. This office is an Administrative Office which disburses pay to the Railway employees in the Division. The appellant as `Sectional Pay Master' had to go from station to station to disburse the pay of the Railway employees. However, his permanent posting was an the Office of Divisional Pay Master which is an Administrative Office. The question that requires consideration is as to whether because of his duties which required him to go from station to station for the purpose of disbursement of pay he could be considered to have been permanently posted in the Administrative Office. This question was considered by their Lordships of the Supreme Court in Civil Appeal No. 578 of 1980 in the case of Akbar Ali and others v. Senior Administrative Officer, Pakistan Railways. It was, therein, observed that `definition of workman in sub-clause (i) as reproduced above, had nothing to do with capacity or duties or functions of Railway servant. It concerned only the posting because the functions even in administrative office, district office or, sub-divisional office of the Railway had been taken care of by Schedule II. In view of this observation of their Lordships the fact that the appellant was posted in administrative office would exclude him from the definition of a `workman' under sub-clause

8. As regards his duties which are covered under sub-clause (ii) as produced above, clauses (i) and (ii) of Schedule would be relevant which are reproduced as under:-- (i) employed.. otherwise than on a Railway, in connection with the operation or maintenance of a lift or a vehicle propolled by steam or other mechanical power or by electricity; or

(ii) employed upon a Railway as defined in clause (4) of section 3, and subsection (1) of section 148 of the Railways Act, 1890 (IX of 1890), either directly or through a sub-contractor, by a person fulfilling a contract with the railway administration."

9. The phrase `upon a Railway' was considered by their Lordships in the aforesaid civil appeal and it was observed that persons working upon a railway has reference to persons who are working in connection with the movement of Railway or in any case associated with the track but certainly not those who are working in the Headquarter Office. Thus, it would be seen that even under clause (ii) of the above definition the appellant cannot be considered to be a `workman'. It may be pointed out that co-accused with the appellant namely Abdul Ghafoor had moved the Federal Service Tribunal in Appeal No. 8(k) of 1986 and appeal was decided by the Service Tribunal as if the appellant was a `civil servant' and not a `workman'.

10. Considering all the facts and law discussed above I am of the pinion that the appellant is not a workman but a civil servant and his remedy, if any, lies by way of appeal to the Federal Servants Tribunal. The appeal is, accordingly dismissed. M.Y.H./1557/Lb.S Appeal dismissed.