1984 PLP (C (PLC(CS))

ABDUR RASHID (MEMBER).‑‑‑The appellant, who was a Skilled Mechanic Vehicles, working in the gearbox section of the 501 Central Workshop, E. M. E. was charge‑sheeted on 17th December, 1980 on the allegation that : "he, at 1200 hours on 17th December, 1980, was found in posses sion of 130 grams (of) charas during working hours in the workshop with the intention to sell it in the workshop." (Caught by Admn. Officer)

2. An enquiry was conducted into the incident in the presence and hearing of the appellant. The Inquiry Officer recommended action against the appellant for illegal possession of charas.

3. A show‑cause notice was served on the appellant on 27th December, 1980 to explain his conduct within 15 days with regard to the charge as to why he should not be dismissed from service. The appellant, in his reply, dated 31st December, 1980, pleaded guilty but sought forgiveness.

4. The appellant was dismissed from service vide 501 Workshop Letter No. 23207, dated 12th February, 1981, but the dismissal order was given with effect from 25th January, 1981 (A. N.). Also, vide Letter No. 21204, dated 12th December, 1981, the appellant was handed over to the Police along with 130 grams of charas for "further action in the matter under the law".

5. The trial Megistrate acquitted the appellant vide his judgment, dated 29th December, 1981. On 10th January, 1982, the appellant address ed a letter to the Commandant 501 Central Workshop wherein, apart from enclosing a copy of judgment of the Court ordering his acquittal, he pleaded re‑instatement on the ground that he had been falsely implicated in the case of charas haul. The plea of the appellant was rejected vide 501 Workshop Letter No. 22003, dated 10th February, 1982. Thereafter the present appeal was filed before the Federal Service Tribunal on 23rd February, 1982. The appeal was admitted for regular hearing on 30th March, 1982 and is being disposed of by this order.

6. When the case came up for hearing on 30th November, 1983, the learned counsel for the appellant expressed the desire that he be allowed more time to establish before us that the appellant was a civil servant and was, thus, not excluded like a worker or a workman from coming before the Federal Service Tribunal. The learned State counsel also supported the plea. Both sides were, therefore, allowed time to come up with arguments so as to assist the Tribunal to lay down the law for future.

7. Since the question of Tribunal's jurisdiction with regard to the determination of appellant's right as well as those of others like him for redressal before us was involved, the case was heard, again, on 8th February, 1984 by the Tribunal consisting of a larger Bench of three members to decide the important issue of our jurisdiction in the present and the like cases in future.

8. The learned counsel for the appellant opened his argument with reference to Chapter I, Factories Act, 1934 section 2 wherein "worker" has been defined 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 place where no manufacturing pro cess is being carried on."

9. He then went on to read the definition of the "workman" as given in Chapter 1, section 2 (1) (n) of Workmen's Compensation Act, 1923 which is reproduced : "(n) "workman" means any person (other than a person whose employment is of a causal nature and who is employed other wise 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. " The list of persons, who are subject to the provisions of section 2 (1) (n) and have been included in the definition of workmen are to be seen in Schedule 11 to the Workmen's Compensation Act, 1923. The said Schedule II did not cover the category to which the appellant belonged because the Workmen's Compensation Act, 1923 did not apply like the Factories Act, 1934 and as such he was excluded there from. Arguing further, the learned counsel stated that 501 Workshop did not come within the definition of the factory. Also, being a defence installation no one from Social Security or Labour Department could go there. It was for all practical purposes a Government installation. The departmental representative Mr. Roy (Labour Officer) stated at the bar that the Workmen's Compensation Act, 1923, and the Factories Act, 1934, were very much applicable to 501 Central Workshop which employed a large civilian work force. However, the said Acts were applied through the Special Pakistan Army Orders. It was also brought to our notice that compensations, where necessary, have been paid to the workmen. The implication of this statement of the departmental representative seems to be that the Workmen's Compensation Act and the Factories Act were not applicable initially to 501 Central Workshop but their application was extended to the said 501 Workshop by the Special Pakistan Army Order. Be that as it may, in view of our conclusion that follows the question of applicability of these laws to 501 Central Workshop does not remain much relevant.

10. The learned counsel for the appellant thereafter urged that since the advent of the I. R. O. 1969, the administration of justice in respect of the service grievances of those, who come within the definition of workers/ workmen, has been articulated in a way as to provide speedy and cheap justice through the Labour Courts. Section 1 (3) of the I. R. O., 1969, however, lays down :‑ "It shall not apply to any person employed in the police or any of the Defence Services of Pakistan and any services or installations connected with or incidental to the Armed Forces of Pakistan inclu ding an Ordnance factory maintained by the Federal Government or to any person employed in the administration of the State other than those employed as workmen by the Railways, Posts, Telegraph and Telephone Department." The implication of this exclusion of the workers/workmen employed in the Defence Services of Pakistan is obviously to debar them from seeking remedy from the Labour Courts in respect of their service grievances. In other words, the workers and workmen of the Defence Services of Pakistan by virtue of their service with the Defence Services, are at a disadvantage in relation to their counterparts i.e. workers or workmen non‑Defence Services. This discrimination or disadvantage must be removed so that the workers/workmen of the Defence Services, who are primarily civil servants, are also allowed to seek justice from the Federal Service Tribunal, argued the learned counsel.

11. Opposing the proposition, the learned counsel for the respon dent‑department mainly emphasised that a number of the appeals of the workers/workmen of the category of the appellant had always been dis missed by this Tribunal for want of jurisdiction. Their remedy lies with the civil Courts as always. The learned counsel, perhaps, lost sight of the fact that it was in view of the previous decisions referred to by the learned counsel that a larger Bench was constituted to reconsider the question of jurisdiction in such cases. At any rate, those decisions have no binding force. The contention, therefore, is without any force. After all as observed by Lord MacMillan "The criterion of judgment must adjust and adapt itself to the changing circumstances of life." Again to quote Denning L. J. "What is the argument on the other side ? Only this that no case has been found in which it has been done before. The argument does not appeal to me in the least. If we never do anything which has not been done before we shall never get anywhere. The law will stand while the rest of the world goes on, and that would be bad, for both." Packer v. Packer (C A (1953) 2 A E R 12)

12. We have given our anxious thoughts to the submissions made before us and also carefully considered the various provisions of relevant laws. The simple proposition that emerges is that I. R. O., 1969 does not apply to the workers/workmen employed in the Defence Services but the I. R. O. ibid applies to the said categories of persons who are not employed in the Defence Services. Those employed in the Defence Services vis‑a‑vis their colleagues in non‑Defence Services were, thus, at a disadvantage in that the latter can approach the Labour Courts but the former cannot. The position remained so till promulgation of the Service Tribunal Ordinance, 1973 (later on converted into an Act of Parliament) which provided an appellate forum for adjudication of matters relating to the terms and conditions of persons who are or have been civil servants within the mean ing of Civil Servants Act, 1973. Clause (b) of section 2 (1) of the Civil Servants Act, 1973, defines "civil servant" as under :‑ "(b) "civil servant" means a person who is a member of an All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include‑ (i) ... ... ... ... ... (ii) ... ... ... ... ... (iii) a person who is a "worker" or "workmen" as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Com pensation Act, 1923 (VIII of 1923)." It is to be seen that sub‑clause (iii) above is an exception clause. The main function of such an exception clause is either to create an exception in respect of certain matters which would otherwise fall within the section, or to qualify or restrict the operation of the main part of the section. According to Crawford :‑ "The appropriate and natural office of the exception is to exempt something from the scope of the general words of a statute, which would otherwise be within the scope and meaning of such general words. Consequently, the existence of an exception in a statute clarifies the intent that the statute should apply in all cases not excepted. Unlike that of the proviso, however, it is apparent that the position of the exception in the statute, is unimportant. But the exception is also subject to the rule of strict construction, that is, any doubt will be resolved in favour of general provision and against the exception, and anyone claiming to be relieved from the statute's operation must establish that he comes within the exception. Indeed, the liberal construction of a word would, in many instances, seem to require that the exception, by which the operation of the statute is limited or abridged, should receive a restricted meaning." Another well‑established rule of interpretation of statute is that an exception clause can only operate to deal with a case which, but for its existence, would have fallen within the ambit of main section to which the exception is provided. The principle underlying this is that the main section covers a particular field and the proviso takes out or carves out from that a particular situation and, therefore, to that extent only modi fies the main provision of the section.

13. It is to be noted that the category of persons to which the appel lant belongs, by virtue of their holding civil posts connected with defence, are covered by the main definition of the civil servant but persons who are 'workers' or `workmen' as defined in the Factories Act, 1934, or the Workmen's Compensation Act, 1923, are excepted from the definition. Borrowing wisdom from the above‑stated principles of interpretation and keeping in view the provisions and effect of the relevant legislative enact ments, we are of the considered view that the basic idea of the exception clause was to except workers or workmen from the definition of the civil servants only for the purposes of the Factories Act, 1934, or the Workmen's Compensation Act, 1923, as the case may be, and for all other intents and purposes they are covered by the definition of civil servant. In takings this view we are also fortified by the following rule about the construction and effect of exception offered by corpus juris secundum :‑ '`Exceptions, as a general rule, should be strictly, but reasonably, construed ; they extend only so far as their language fairly warrants, and all doubts should be resolved in favour of the general rule rather than the exception. Where a general rule is established by statute with exceptions, the Court will not curtail the former nor add to the latter by implication, and it is a general rule that an express exception excludes all others, although it is always proper in deter mining the applicability of this rule, to inquire whether, in the particular case, it accords with reason and justice."

14. We, further, find that the police who are also excluded from the application of I. R. O., 1969, just like the workers/workmen employed in any of the Defence Services of Pakistan, have the Provincial Service Tribunals at the provincial level. At the Federal level, they file their appeals before the Federal Service Tribunal. The Police have, therefore, been adequately taken care of in the administration of service grievances. The WAPDA employees, despite being workers or workmen, can also be cited as an example who have all been declared civil servants vide section 17 (1‑B) of the WAPDA Act, 1958, and are subject to our jurisdiction in service matters. If the Police and the WAPDA have been adequately provided for as mentioned, we see no reason why the persons of the category of workers or workmen of the Defence Services should remain the victim of deprivation and be prevented from coming to the Federal Service Tribunal for speedy justice. The suggestion that, workers/workmen hold ing civil posts connected with defence may seek their remedy in service matter before the civil Courts did not at all impress us because firstly the civil Courts have only a limited jurisdiction in such matters and secondly the procedure followed in civil suits is too cumbersome and time consuming. Therefore, the remedy before the civil Courts cannot be equated with the remedy before the Service Tribunals and Labour Courts. As rightly observed by Maxwell:‑ "In determining either the general object of the Legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. "An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available." When to apply words literally would "defect the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violene to the words" and so achieve that obvious intention and produce a rational construction." (The Interpretation of Statutes)

15. In view of the foregoing, we are led to an irresistible conclusion that the workers and workmen holding civil posts connected with defence are covered by the definition of civil servant for the purposes of the Service Tribunals Act and are excepted from such definition only for the purposes of the Factories Act, 1934, and the Workmen's Compensation Act, 1923. We accordingly hold that the present appeal before us is maintainable.

16. Having assumed jurisdiction, in the instant case, we find that the appellant had himself admitted in writing that he was involved in the offence. After he had been acquitted by the trial Magistrate on technical grounds and not on merits, the Appellant became so bold as to concoct a story of having been falsely implicated which is, of course, baseless. We have carefully gone through the proceedings. We are satisfied that the disciplinary action has been taken strictly in accordance with the law. The appellant was given a reasonable opportunity of defence and it was only, thereafter, that he was punished with dismissal. We find, however, that the dismissal order, dated 12th February, 1981 has been given retrospective effect, w. e. f. 25th January, 1981 (A.N.). Since retrospective passage of such orders is against the law, we modify the date of dismissal to be 12th F February, 1981. Any dues between 25th January, 1981 and 11th February, 1981, which may accrue to the appellant, would be paid to him.

17. We do feel that the ends of justice would be adequately met if the extreme penalty of dismissal were modified to that of removal. We order accordingly and dismiss the appeal.

18. No order as to costs. The security deposit would be refunded to the appellant.. A. O. RAZIUR RAHMAN (MEMBER).‑I agree wholeheartedly with the observation of my learned colleagues (side paragraph 14, above) that, "if tire Police and the WAPDA have been adequately provided for, as mentioned, we see no reason why the persons of the category of workers or workmen of the Defence Services should remain the victim of depriva tion and be prevented from coming to the Federal Service Tribunal for speedy justice". All the same, I am unable to persuade myself to accept the proposition that, as a corollary to the above, we can take the place of the Legislature and decide that workers and workmen of the Defence Services shall, be treated as "civil servants" for the purpose of the Service Tribunals Act, 1973.

20. The Service Tribunals Act, 1973 provides for the establishment of Administrative Tribunals to deal with appeals by "civil servants" from orders passed by departmental authorities in respect of any of the terms and conditions of their service. The term "civil servant", as per definition given in the Civil Servants Act, 1973 excludes a "worker" or "workman", as defined in the Factories Act, 1934 and the Workmen's Compensation Act, 1923. Therefore, anybody who does not come within the definition of "civil servants" is, ipso facto, excluded from claiming the benefit of the provisions of the Service Tribunals Act, 1973.

21. In this connection, I have given serious thought to the view expressed by my learned colleagues that "the workers and workmen holding civil posts connected with defence are covered by the definition of civil servant for the purpose of the Service Tribunals Act and are excepted from such definition only for the purpose of the Factories Act, 1934 and the Workmen's Compensation Act, 1923." I must confess, in spite of my best efforts, I have beer, unable to find any cogent reasons for bolding that the definition of "civil servant", given in the Civil Servants Act, 1973, excludes the persons mentioned only for the purpose of the Factories Act and the Workmen's Compensation Act. On the contrary, in my humble opinion they are excluded from the definition of "civil servant", for the purpose of the Civil Servants Act, and the Service Tribunals Act, as is unmistakably clear from the words used : "21(b) `Civil servant' means a person who holds a civil post in connection with the affairs of the federation, including any such post connected with defence, but does not include ...... (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)." The plain meaning of these words is that a "worker" or "workman" is not a civil servant" under the Civil Servants Act and, consequently, also not one for the purpose of the Service Tribunals Act. To put any other meaning to these simple words would be doing great violence to the English language.

22. There can be no manner of doubt that the intention of the Legislature, in excluding workers or workmen from the definition of civil servants, was not to make out a case for the application of the Factories Act and the Workmen's Compensation Act to workers, or even two exclude civil servants from the operation of these two acts, but clearly and unmistakably to keep out workers and workmen, as defined in the to acts, from the category of civil servants and thus to deprive them of the benefits or liabilities accruing to civil servants under the Civil Servants Act and the Service Tribunals Act.

23. Had the intention been other than as stated above, it would not have been necessary to add subsection (I7) (I‑B) to the WAPDA Act, 1958, whereby every person holding a post under the Authority is deemed to be a civil servant for the purpose of the Service Tribunals Act, 1973. For similar reasons, civilian employees in the defence establishments could be declared to be civil servants, for the purpose of Service Tribunals Act. But, so long as this is not done by specific legislation, we cannot, on the analogy of the WAPDA employees, treat such persons to be civil servants and entertain appeals by them under the Service Tribunals Act.

24. As for the Police, their identity as civil servants has never been in doubt, nor has it ever been challenged. The effect of their being excluded from the application of I. R. O., 1969, does not effect the above argument one way or the other. Even if they had not been excluded from the application of I. R. O., 1969, by virtue of their being civil servants, the facility provided by the Service Tribunals Act was still available to them.

25. Meanwhile, it is pertinent to note that so far as the employees of the category to which the appellant belongs are concerned, the jurisdiction of the civil Courts is available to them, as clearly laid down in section 9 of the Civil Procedure Code and such persons are not left without remedy. It is another matter that the remedy cannot be as easily resorted to, as in the case of other persons employed in connection with the affairs of the Federation. If, for good and adequate reasons, there exists a case for making the remedy more easily available, the law on the subject will need to be amended, But, until that is done, such cases will have to be treated as outside the jurisdiction of the Federal Service Tribunal.

26. In the light of the above, I am unable to endorse the view that we can, in the present situation, assume jurisdiction in the matter, in spite of the clear provision of the law to the contrary. Consequently, without going into the merits of the instant case, I would dismiss the appeal on the ground of absence of jurisdiction. ORDER OF THE TRIBUNAL The order passed by Brig. Abdur Rashid and Mr. Muhammad Irshad Khan, Members, shall be the order of the Tribunal under section 3‑A (2) (a) of the Service Tribunals Act, 1973 according to opinion of the majority. A. E. Orders accordingly.