1985 PLP 529 (PLC)

AJMAL MIAN, J.‑‑ The petitioner has impugned the order, dated 22‑9‑1980 passed by respondent No.1, i.e. the Sind Labour Appellate Tribunal at Karachi in Appeal No. HYD‑515/80, setting aside the order, dated 25‑5‑1980 passed by the learned Presiding Officer, Labour Court No. V I at Hyderabad Sind.

2. The brief facts leading to the filing of the, above petition are that the petitioner was working as the wireman under Electric Inspector of the Government of Sind, Hyderabad and was posted under supervision of Electric Sub‑Inspector, Badin. The petitioner was served with a show‑cause notice, dated 12‑8‑1979 which was replied to by him by his explanation, dated 15‑8‑1979 refuting the allegations contained in the above show‑cause notice and requesting the department to furnish the details. However, in response to another. departments letter, dated 19‑8‑1979 the petitioner submitted another reply on 22‑8‑1979. After that the petitioner received order, dated 9‑10‑1979 terminating his services without any enquiry. The petitioner filed an appeal before the department but thereafter on 17‑12‑1979 filed an application in the Labour Court No. VI, Hyderabad under section 25‑A of the I.R.O. which was allowed by the aforesaid order, dated 25‑5‑1980 with back benefits. The Electric Inspector to the Government of Sind being aggrieved by the above order filed the aforesaid appeal, which was allowed by the above impugned order, dated 22‑9‑1980 on the ground that the petitioner was not covered by the definition of worker and workman given in the I.R.O. and in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance). The petitioner being aggrieved by the‑ above order has filed the present petition. 3. (a) In support of the above petition Mr. Muhammad Ahmad Saeed, learned counsel for the petitioner has urged that since the petitioner was not a civil servant, the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the said Rules), were not applicable to the petitioner and, therefore, the petitioner falls within the definition of the worker given in section 2(i) of the Ordinance. (b) On the other hand Mr. Syed Ahmad Farooqui, learned counsel for respondent No.2 has contended that the petitioner is governed by the statutory rules and, therefore, he does not fall within the ambit of the definition of workman given in the above subsection (i) of section 2 of the Ordinance.

4. Before dealing with the above contentions of the learned counsel for the parties, it may be pertinent to observe that clause (b) of section 2 of the Sind Civil Servants Act, 1973 defines Civil Servant, which reads as follows: --‑ "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 Faderation 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)." It may be observed that under the above quoted definition of 'civil servant' inter alia a person who is a worker or workman as defined in the Factories Act, 1934 or in the Workmen's Compensation Act, 1923 has been excluded from being a civil servant. In this regard it may be pertinent to reproduce rule 1 of the Rules which reads as follows: "

1. Short title, commencement and application.‑‑ (1) These rules may be called the Sind Civil Servants (Efficiency and Discipline) Rules, 1973. (2) They shall come into force at once and shall apply to all civil servants wherever they may be: Provided that the civil servants of such category or grade as may be specified by the Chief Minister shall be excluded from purview of these rules." It is evident from the above‑quoted rule that the rules are applicable only to civil servants and not to the Government Employees who are not civil servants but fall within the definition of the worker or workman given in that Factories Act, 1934 or the Workmen's Compensation Act, ‑ 1923. In this view of the matter, if we were to hold that the petitioner is a worker or workman within the ambit of the definition given in the above two Acts, the rules were not applicable to the petitioner. It is, therefore, necessary to examine the definition of the worker/workman given in the above two Acts subsection (h) of section 2 of the Factories Act defines worker as follows: "(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." A plain reading of the above clause indicates that a person employed directly or through an agency whether for wages or not, in any manufacturing process, or in cleaning any part of 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, is a worker but a person solely employed for a clerical job has been excluded from this definition. It may also be partinent to point out that clause (g) of section 2 of the above Act defines "manufacturing process" as inter alia means any process for generating, transforming or transmitting power. It is, therefore, evident that the petitioner being a wireman in the electric department is covered by the definition of the worker as his work falls within the definition of the manufacturing process given in the above clause (g) of the Act. We are, therefore, of the view that the rules were not applicable to him and, therefore, the proviso 1 to clause (c) of para. 4 of section 1 of the Ordinance namely, that the provisions of the Ordinance shall not be applicable to Industrial and Commercial Establishment carried on by or under the authority of Federal Government or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein is not attracted to, with the result that the provisions of the Ordinance could have been pressed into service as the petitioner falls within the definition of workman given in clause (i) of section 2 of the Ordinance.

5. We, therefore, allow the petition and declare the impugned order as being without and of legal effect. The case is remanded back to the learned Sind Labour Appellate Tribunal with the direction to decide the appeal afresh.

6. Before parting with the above discussion, it may be observed that Mr. Farooqui has contended that no valid grievance notice was served by the petitioner. It will suffice to observe that it will be open to the respondent‑department, as well as to the petitioner to raise the above plea or other legal pleas, which may be available to the parties before the learned Sind Labour Appellate Tribunal. The petition stands disposed of in the above terms with no order' as to costs. M. B. A. Petition disposed of accordingly.