1994 PLP 602 (PLC)

D.S., PAKISTAN RAILWAYS, KARACHI."

4. It is alleged that the papers of the earlier enquiry had been misplaced and it took time to lay hold on them. It was after a lapse of well nigh 3 years that a second‑charge‑sheet was issued and on the basis of the report of the Committee he came to be removed from service on 21‑7‑1990.

5. He had filed a departmental appeal on 6‑8‑1990 and as there was no reply a reminder followed. Then came the grievance notice dated 23‑10‑1990, and the grievance petition before the Labour Court.

6. The petition came to be resisted by the respondent. It was alleged that the petitioner was a civil servant and since he had also filed a departmental appeal he was estopped from seeking remedy from the Labour Court. The other grounds regarding non‑supply of papers during the enquiry came to be denied. According to it even the classified documents were shown to him. The petitioner had himself avoided to partake in the proceedings at a later stage with the result that a public notice had been issued in the Daily Dawn.

7. The petitioner examined himself, Yaqoob Ali Zardari, Divisional Executive Engineer and Intizar Ahmed appeared on behalf of the respondent.

8. The Labour Court for the reasons given by it allowed the petition culminating in this appeal.

9. The contention in regard to the want of territorial jurisdiction was repelled by the Labour Court, but was not agitated here. That will take me straight to the question whether the respondent was a workman?

10. In Muhammad Akbar Butt and others v. Islamic Republic of Pakistan through Secretary, Ministry of Communication, Islamabad and others PLD 1978 Kar. 90, it was held that all Railway servants irrespective of their functions, postings and duties, were to be treated as workmen and not as civil servants. However, in Mufti Mushtaq Ahmed v. The Federation of Pakistan PLD 1981 Supreme Court 172, it was observed that the status of the Railway servants was to be determined by examining the nature of their duties.

11. In Akber Ali and others v. Senior Administrative Officer, Pakistan Railways and another 1992 SCMR 1341, after an exhaustive examination of the case‑law, it was found that Railway employees not falling in the category of "worker" or "workman" as defined in the Factories Act or the Workmen's Compensation Act would be civil servants; and as a corollary, as envisaged by Article 212 of the Constitution of Pakistan their cases would be outside the purview of the Labour Court.

12. In Muhammad Aslam v. Divisional Engineer, Pak. Railway 1993 SCMR 1017 the appellant had been serving in Pakistan Railways as I.O.R. in Grade‑

12. He had gone in appeal before the Supreme. Court against a decision of the Federal Service Tribunal. Suffice it to say that the appeal came to be dismissed but on merit.

13. The respondent does not fall in any of the two categories i.e. the Factories Act or Schedule II of the Workmen's Compensation Act, and therefore, ht; is a civil servant. He was serving in Grade‑16 as a P.W.I, and in my humble opinion the challenge to the jurisdiction of the Labour Court must prevail. As a civil servant, his remedy lay elsewhere.

14. Before parting with the case, I might as well add that even if it be assumed. that the respondent was not a civil servant, looking to the nature of his duties, he would not be a workman entitled to seek remedy under section 25‑A of the I.R.O. The duties of a permanent Way Inspector as to be found in the Pakistan Railways Way and Works Manual, 1969 are as follows:‑‑ "(a) Inspection and maintenance of track in a satisfactory and safe condition, for traffic, (b) Efficient execution of all works incidental to track maintenance, such as repairs to banks, bridges and structures affecting or pertaining to track except those items which are entrusted to works staff. (c) Accountal and periodical verification of stores, tools and plant in his charge. (d) Maintenance of land boundaries between stations. (e) Welfare and effective maintenance of discipline amongst the labour and other staff placed under him. (f) Accurate preparation of service books, master cards and status change reports, leave accounts, settlement and compensation papers and medical examination of all staff under him, as detailed in Chapter 39. (g) Effective checking, accurate and timely preparation of attendance registers and attendance reports of the staff under him. (h) Witnessing payment to staff and their correct identification."

15. In the result I will set aside the impugned order and allow the appeal. H.B.T./2303/Lb.S Appeal allowed.