1992 PLP 163 (PLC)

MUHAMMAD AFZAL ZULLAH, C J.

Difference of opinion having arisen in the subject appeal, it is referred to Hon. J(4) for hearing the same as a result of difference of opinion. SAAD SAOOD JAN, J: --This appeal by special leave has been referred to me for hearing consequent upon a difference of opinion between the learned Chief Justice and my learned brother Abdul Shakurul Salam, J. The facts giving rise to this appeal are as follows:-

2. Faqir Muhammad, appellant, was appointed as officiating Chowkidar in the National Savings Centre at Chichawatni with effect from 19-3-1974. The appointment was temporary and his services were terminable after notice for a period of not less than fourteen days. He continued to hold the post till 197() when the strength of the establishment at the Centre was renewed and the post of Chowkidar was declared redundant. Consequently, by an order dated 9-5-1979 his services were terminated after giving him notice for a period of fourteen days. He felt aggrieved by the order of termination of his services and filed a petition under section 25-A, Industrial Relations Ordinance before a Labour Court to call in question his retrenchment from service. The petition was resisted by the Director of the Centre, inter alia, on the plea that the appellant was not a civil servant and as such the Labour Court had r o jurisdiction to entertain his petition. The Labour Court rejected the plea are held that the appellant was neither employed in connection with the administration of the State nor was he a civil servant and that it had the competence to entertain the petition. It then went on to hold that the order of termination of his services was unlawful as it did not disclose any supporting reason. Accordingly, it directed his reinstatement in service with back benefit-,. From the order of the Labour Court, the Director filed an appeal before the Punjab Labour Appellate Tribunal but it was dismissed. The Director then filed a Constitution petition in the High Court. A learned Single Judge accepted the petition solely on the ground that the Chowkidar was not a worker or workman within the meaning of the Industrial Relations Ordinance and as such he could not move the Labour Court for the redress of his grievance. From the order of the learned Single Judge the appellant has preferred the present appeal. "

3. The view taken by the High Court that the chowkidar is not a workman within the meaning of clause (xxviii) of section 2, Industrial Relations Ordinance, is not sustainable. The said clause reads as follows: "`Worker' and `workman' mean any person not falling within the definition of employer who is employed (including employment (as a Supervisor or) as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person

(a) who is employed mainly in a managerial or administrative capacity, or (b) who, being employed iii' a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature." At the relevant time the appellant was in the lowest national pay scale and his pay did not exceed Rs.100. Admittedly, he was not an employer nor was he p employed in any managerial or administrative capacity. He thus did fall within the definition of a workman as given in the Ordinance.

4. Now, the Industrial Relations Ordinance does not extend to all workers or workmen. Section 1(3) expressly excludes certain categories of employees from its purview. One of the excluded categories relates to persons E employed "in the administration of the State". It is not disputed that the Central Directorate of National Savings is an attached department of the Ministry of the Finance in the Federal Government. Thus, the persons serving in the Central Directorate are the direct employees of the Federal Government. The learned Chief Justice was of the view that the appellant, serving as he was in one of the regional offices of the Directorate, was a person falling within the excluded category and for that reason he could not invoke the provisions of the Industrial Relations Ordinance to seek relief from the Labour Court. On the other hand, in the opinion of my learned brother, Abdul Shakurul Salam, J., the function performed by the. appellant did not by any stretch of imagination relates to the `administration of State' within the meaning of section 1(3) and as such he could take advantage of the Industrial Relations Ordinance to obtain redress against his retrenchment from service.

5. The proposition upon which the learned Chief Justice and my learned brother differed has already been examined by me in the case of Employees' Old-Age Benefit Institution v. N.I.R.C. (1988 SCMR 765). In this case I was of the view that the expression `the administration of the State' had been used in the Industrial Relations Ordinance in a limited and narrow sense. In this context I stated: "The State has multifarious functions to perform in different fields in discharge of its Constitutional responsibilities, affecting the citizens in almost all walks of life. For this reason it is the largest employer of manpower in the country. If all persons who are concerned with implementing Constitutional responsibilities of the State, are to be treated as employed in the administration of State within the meaning of clause (b) of section 1(3) of the Ordinance it will, as a consequence, effectively put the largest employer in the country beyond the reach of labour laws. This could hardly be the intention behind clause (b). It is to be noticed that certain categories of State employees, for example, those serving in defence forces and police, have been expressly excluded from the ambit of the Ordinance, even though they discharge duties relatable to the Constitutional responsibilities of the State. If clause (b); ibid, was intended to cover all those who were employed in connection with the Constitutional responsibilities of the State it would have been unnecessary to specifically exclude certain categories of State employees by name. quite obviously, the expression `administration of State' has been used in a limited sense in the said clause. In Sindh Road Transport Corporation v. Staff Union 1975 PLC 361 this expression came up for consideration before a Division Bench of the Sindh High Court and the learned Judges took the view: `the expression `administration of the State' is to be interpreted in a limited and narrow sense of the practical management and direction of the executive machinery or the operation of the various organs of the sovereign or the conducting or carrying on of the details of the Government. We see no reason to place a different interpretation on the clause." Following the test laid down in this judgment I am inclined to agree with my learned brother that the appellant, being a Chowkidar in a directorate concerned with mobilizing savings in the country, can hardly be described as a person employed in the administration of the State.

6. But then this is not the end of the matter. There is another aspect which was not brought to the notice of the Bench which heard the appeal but had a material bearing on the fate of the appeal. It is to be noticed that the Labour Court treated his grievance petition as one under Standing Order 12(3), West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and it set aside the order of termination of his services on the sole ground that the said order did not explicitly state the reason why his services were being terminated. 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 G 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. It was not disputed on behalf of the appellant that these rules were applicable to him. That being so, he belonged to a category of employees to whom the Ordinance did not extend. Consequently, he could not take advantage of Standing Order 12(3) to challenge his removal from service before the Labour Court.

7. 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 Service Tribunal has the exclusive jurisdiction in respect of matters relating to the terms and conditions of a civil servant. On account of H the bar contained in Article 212(2) of the Constitution, the Labour Courts were not competent to entertain the appellant's petition. In the circumstances the orders of the Labour Court and the Appellate Tribunal must be held to be without lawful authority and of no legal effect. I would support the judgment of the learned Chief Justice, although on grounds of my own. Accordingly, this appeal is dismissed with no order as to costs. AA./F-230/S.C. Appeal dismissed.