1984 PLP 1679 (PLC)

The above show‑cause notice/charge‑sheet was issued by the Medical Superintendent himself in his capacity as the competent authority under the Government Servants (Efficiency and Discipline) Rules, 1973. The peti tioner submitted a detailed reply, dated 22nd April, 1979 but as her reply was not found satisfactory her services were terminated with immediate effect vide order, dated 5th May, 1979. The petitioner submitted a depart mental appeal through proper channel on 28th May, 1979 but the decision in the appeal took a very long time despite the repeated representations made by the petitioner. The departmental appeal was ultimately decided on 12th June, 1980 after the petitioner had served a grievance notice on the Railways on 27th April, 1980. After the dismissal of the appeal, the peti tioner served a second grievance notice, dated 2nd July, 1980 upon the Railways but as she obtained no redress she filed .a grievance petition under section 25‑A of the Industrial Relations Ordinance, 1969 on 3rd August, 1980 before the Labour Court. The Vth Sind Labour Court by order, dated 29th July, 1981 allowed the petition under section 25‑A of the I.R.O., 19.69 filed by the petitioner and a direction was given that the petitioner be re‑instated in service with full back benefits and it was further directed that she be posted as and fixed in the grade of Matron. In reaching the conclusion that the petitioner had made out a case for grant of her petition under section 25‑A, the Labour Court found as follows:

(i) The petitioner's employment was not governed by Pakistan Essen tial Services (Maintenance) Act, 1952 and that even if it was governed by the provisions of the 1952 Act, the' Labour Courts were entitled to adjudicate in respect of her grievance. For this view, reliance was placed upon the majority decision of the Full Bench of this Court in the case of Pakistan Burmah Shell Limited v. Central Labour Commissioner P L D 1982 Kar. 33: (ii) the petitioner was a workman both for the purposes of the I. R. O., 1969 as well as the Standing Orders ; (iii) the objection of the Railways that the grievance petition was time -barred was rejected on the ground that the grievance notice was served by the petitioner on the Railways within three months of the rejection of her appeal ; (iv) on merits the Labour Court found that as no enquiry was held against the petitioner in respect of the charges levelled against her, there was a violation of the provisions of the Standing Orders and that the petitioner appeared to have been victimized by the Medical Superintendent. Against the order, dated 29th July, 1981 of the Labour Court, Pakistan Railways filed an appeal before the learned Sind Labour Appellate Tribunal. By the impugned order, dated 24th March, 1982 the learned Appellate Tribunal allowed the appeal holding that the grievance petition of the petitioner was not maintainable. The learned Sind Labour Appellate Tribunal held that the petitioner was not a "workman" for purposes of the Workmen's Compensation Act but fell within the definition of a "civil servant" for the purposes of the Civil Servants Act, 1973. It was further found that Railway Hassan Hospital was not being run for the profit of any person or organization and was thus not a commercial establishment. It was held that the petitioner was not entitled to file a grievance petition against the termination of her services under clause (3) of Standing Order 12 read with section 25‑A of the Industrial Relations Ordinance, 1969. In view of the findings on the above two issues, it was not considered necessary by the learned Sind Labour Appellate Tribunal to decide the objection raised on behalf of Pakistan Railways that the grievance petition of the petitioner was not maintain able on the ground that her employment was governed by the Pakistan Essential Services (Maintenance) Act, 1952 and that her only remedy was to initiate prosecution under section 7 of the 1952 Act and not a grievance petition under the Labour Laws. As observed earlier, the appeal filed by Pakistan Railways was allowed by the Tribunal holding petitioner's grievance petition to be not maintainable. The petitioner has filed this Constitutional Petition assailing the order, dated 24th March, 1982 of the Sind Labour Appellate Tribunal. We have heard at length the arguments of Mr. Muhammad Ahmed, learned counsel for the petitioner, and Mr. Abdul Matin, learned counsel for respondent No.

2. Pakistan Railways.

2. It was first contended by Mr. Muhammad Ahmed, learned counsel for the petitioner, that the finding of the learned Labour Appellate Tribunal that the petitioner was not a "workman" but was a "civil servant" is no correct and the further finding of the learned Appellate Tribunal that the petitioner was not entitled to file a grievance petition under the Industrial Relations Ordinance, 1969, also cannot be sustained. If the petitioner was a "civil servant" within the meaning of the term "employee" under the Civil Servants Act, 1973, the petitioner would not have been entitled to maintain an application under section 25‑A of the Industrial Relations Ordinance, 1969. The definition of the term "civil servant" given section 2(b) of the Civil Servants Act, 1973, does not include inter alia person who is worker or workman as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923. Admittedly the definition of "worker" in section 2 (h) of Factories Act, 1934 is not relevant to the petitioner's case. The question, therefore, is whether the petitioner fell within the definition of 'workman as contained in section 2 (1) (n) of the Workmen's Compensation Act, 1923. It may be observed here that there is no dispute between the parties on the point that the petitioner was a railway servant. Section 2 (1) (n) of the Workmen's Compensation Act, 1923, defines the word "workman" as follows: "(n) 'workman,' means any person (other than a person whose em ployment is of a casual nature and 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 rupees, in any such capacity as is specified in Schedule II, .) It was contended by both the learned counsel that the relevant provision is sub‑clause (i) of section 2(1) (n) and not sub‑clause (if). According tt) the learned counsel for the petitioner, the petitioner was not a permanent employee working in any administrative, district or sub-divisional office of Pakistan Railways and as such she was a "workman" The first point which arises for consideration is whether Railway Hassan Hospital, where the petitioner was at the relevant time working, was an administrative, district ‑ or sub‑divisional office of Pakistan Railways. According to Mr. A. Matin, learned counsel for Pakistan Railways, every office and establishment including a hospital of Pakistan Railways is a part of the administrative, district or sub‑divisional office of Pakistan Railways. The learned Appellate Tribunal had observed that no evidence was available on record that Railway Hassan Hospital was an administra tive, district or sub‑divisional office of Pakistan Railways, It cannot be denied that Railway Hassan Hospital is being run by Pakistan Railways as a hospital and we see no reason to differ with the finding of the learned Appellate Tribunal that Railway Hassan Hospital is a hospital and not an office, whether administrative, district or sub‑divisional, office of Pakistan Railways. In fact it is a hospital of Pakistan Railways. We therefore, agree with the learned Appellate Tribunal that the petitioner B was not working at the relevant time in a hospital of Pakistan Railways and was not working or employed in any administrative, district or sub -divisional office of Pakistan Railways. However, the learned Appellate Tribunal came to the conclusion that the petitioner was not a "workman" as the petitioner was not required to perform any outdoor duties but she had to perform duties in the hospital. It was, therefore, held that the petitioner was not a "workman" for the purposes of the Women's. Compensation Act, 1923, but fell within the definition of "Civil Servant" for the purposes of Civil Servants Act, 1973. Reliance was placed by the learned Appellate Tribunal on a reported decision of the Supreme Court of Pakistan in the case of Mushtaq Ahmed v. Federation of Pakistan P L D 1981 S C

172. In that case the question before the Supreme Court was whether a ticket collector, who was posted to work as a correspondence clerk in the office of Station Master, Gujrat, having part of his duties to prepare passes and P.T.Cs. for Railway staff was a "civil servant" being entitled to file an appeal before the Services Tribunal or was a "workman" as defined under the provisions of Workmen's Compensation Act, 1923. It was held by the Supreme Court that the ticket collector in that case, who had been deputed to work as a correspondence clerk, was a Government servant. It, was observed by the Supreme Court that for the purpose of determining whether the appellant before the Supreme Court was to be regarded as a "workman" or a "civil servant" the nature of his duties on which he was employed at the time to which the allegations against him relate had to be looked into. Learned counsel for the petitioner relied upon the case of Muhammad Ali v. Chairman of Pakistan Railways (P L D 1982 Kar. 205). In that case the point before the Division Bench of this Court was whether the petitioner, who was a Junior Personnel Welfare Officer in the Pakistan Railways perform ing duties which included attendance of Labour Courts was a "workman" for the purposes of Workmen's Compensation Act, 1923, or a civil servant. The Division Bench came to the conclusion that the essential requirement for a railway servant to be a "workman" for the purpose of Workmen's Compensation Act, 1923, was the performance of outdoor duties and in the facts of that case it was decided that the petitioner was a ,,workman" and not a "civil servant." In all humility we may observe that for the purpose of determined in whether a railway servant is a workman" as defined by section 2(1)(n) (i) of Workmen's Compensation Act, 1923, the fact whether the dude of such railway servant include the performance of outdoor duties relevant in such cases where the railway servant is employed in a administrative, district or sub‑divisional office of Pakistan Railways. If the railway servant is not employed in any administrative, district or sub‑divisional office of Pakistan Railways, the fact that his duties do not include performance of outdoor duties would not by itself take the railway servant out of the definition of the word "workman" in the Workmen's Compensation Act, 1923. As already observed, we are of the view that Railway Hassan Hospital is not an administrative, district or sub‑divisional office of Pakistan Railways and as such the fact that the petitioner's duties while being employed in the Railway Hassan Hospital did not include performance of outdoor duties does not mean that the cannot be considered as a "workman" under the Workmen's Compensation Act, 1923. The words "permanently employed" used in the definition of sub‑clause in the Workmen's Compensation Act, 1923, in our view, mean that the railway servant is required to perform his duties primarily in the office. If a railway servant though employed in an administrative, district or sub‑division, is also required to perform outdoor duties, he would not be treated as a person "permanently employed" in an administrative, district or sub‑divisional office of the Pakistan Railways. The words "per manently employed" used in section 1 (1) (7) (i) of Workmen's Com pensation Act, 1923, do not, in our view, refer to the status of the employee as a permanent employee or temporary employee but refer to the fact that he is required to perform his duties in the office and not required to perform outdoor duties. However, as we have already observed, the distinction between duties inside the office and outdoor duties become relevant only when the railway employee is employed in an administrative, district or sub‑divisional office of the Pakistan Railways. In our view therefore, the judgment of the Supreme Court in the case reported in P L D 1981 S C 1972 is distinguishable and the ratio in that case is not applicable to the facts of the instant case where the petitioner has been correctly found to be working in a hospital and not in any administrative, district or sub-divisional office of the Railways. We, therefore, are of the view that the petitioner was a "workman" within the definition of that word in sec tion 2(1) (n) of Workman's Compensation Act, 1923 and not a "civil servant" under section 2(a) of the Civil Servants Act, 1973.

3. The next question that requires consideration in this petition is whether in view of the amendment in subsection (2) of section 1 o the Industrial Relations Ordinance No. XXIII of 1969 by the Industrial Relations (Second Amendment) Ordinance No. LI of 1979 whereby sub clause (f) was added, in the said subsection, the petition under sec tion 25‑A of the I. R. O., 1969 filed by the petitioner was maintainable. The amendment came on 20th‑ September, 1979 and its effect is that the Industrial Relations Ordinance, 1969 became inapplicable to any person employed "by an establishment for the treatment or care of sick an infirm, destitute or mentally unfit persons". The following three contentions were raised by Mr. Muhammad Ahmed" learned counsel for the petitioner, in support of his argument that this amendment did not debar the petitioner from filing an application under section 25‑A of the Industrial Relations Ordinance, 1969: ‑ (i) the petitioner was not an employee of establishment maintained "1, for the treatment or care of sick or infirm persons but was a railway servant.; (ii) although she was working in Railway Hassan Hospital, she was not employed by the Railway Hassan Hospital but she was employed by Pakistan Railways ; and (iii) the cause of action had already accrued to the petitioner on 5th May, 1979 when her services were terminated much before the amendment came on 20th September, 1979 and as such all remedies available to her at the time the cause of action had accrued could be resorted to by the petitioner. In so far as the first contention is concerned, it may be observed that the petitioner's own case was that she was not working in any Railway office of Pakistan Railways but she was working in Railway Hassan Hospital. We have also taken this view earlier in this judgment and accordingly we find no force in this contention. As regards the second contention, is was submitted by the learned counsel for the petitioner that the word "by" has been used in sec tion 1(2) (f ) of I. R. O., 1969, as compared to the word "in" in sub -clauses (a) and (b) of subsection (2). The precise contention was that this change in terminology expresses the intention of the Legislature that Industrial Relations Ordinance, 1969, did not apply to any person employed in the Police, etc., or in the administration of the State, whereas in so far as hospitals are concerned, the intention was that the employer must be an organisation, who was only maintaining a hospital. According to the learned counsel if the words "in an establishment maintained for the treat ment or care of sick and infirm persons" had been used instead of "by an establishment"' in sub‑clause (f), the petitioner might have been covered by the exception but Pakistan Railways, according to the learned counsel, is not an establishment maintained for the treatment or care of sick and infirm persons. We find no substance in this contention also. No doubt the petitioner is a railway servant but the fact remains that she was a nurse/ E matron and she was working in a separate establishment that is Railway Hassan Hospital and therefore, she is to be considered as a person employee by an establishment maintained for the, treatment or care of sick and infirm. As regards the third leg of this argument it is submitted by the Mr. Muhammad Ahmed that the termination order is, dated 5th May, 1979 and although the application under section 25‑A of I. R. O. had been filed by the petitioner in August, 1980 that is much after the amendment which came into force on 20th September, 1979 the remedies available to the petitioner on 5th May, 1979 when her services were terminated, remained available to her and she could competently file an application under section 25‑A of the I. R. O., 1969. A right might have been acquired by the petitioner to challenge her termination of service by the Pakistan Railways but before any proceedings could be initiated by the petitioner, the law had been amended and Industrial Relations Ordinance became inapplicable to a person employed by a hospital. Only the forum which could be approached by the petitioner for redress of her grievance w changed inasmuch as in view of the Amendment of 1979 the petitioner could approach the forums under the provisions of I. R. O., 1969, but the amendment did not deprive her from approaching other forums which she could approach under the law for redress of her grievances The argument that as her termination had taken place on 5th May, 1979, she could still approach the forum under the

1. R. O., 1969 even after the amendment of 20th September, 1979 cannot be accepted. There might have been some force in the argument of the learned counsel for the petitioner if the petitioner had already filed a petition under section 25‑A of the I. R. O., 1969 before the Amendment of 20th September, 1979. On the basis of the view that we have taken, we find that the application of th petitioner under section 25‑A of the I. R. Q., 1969 was not competent.,

4. It is not necessary to decide the question about non‑maintain ability of the petition filed by the petitioner before the Labour Court under section 25‑A of I.R.O. 1969, in view of the provisions of Pakistan Essential Services (Maintenance) Act, 1952. No finding has been given by the learned First Appellate Authority on this question and we also consider that in view of our decision on the earlier questions, it is no necessary to decide this question.

5. As a result, Constitutional Petition No. D‑312/82 is dismissed, but with no order as to costs. We may, however, observe that the peti tioner is free to resort to such remedy or remedies as may be available to her under the law for redress of her grievance. A. E. Petition dismissed.