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Writ Petition No. 4449 of 1979, heard on 25th October, 1982.

Industrial dispute‑--

--‑‑ Pay‑Payment must be made for work done‑Junior Booking Clerk of Pakistan Railway in grade 5 required to work as Reserva tion Clerk in grade 8 and performing duties as such for 8 years-- Claim for payment of salary in grade 8, held, rightly accepted by Labour Court and Laboure Appellate Tribunal‑Contention that no vacancy or post of Reservation Clerk stood sanctioned -Repelled‑Held: Failure in paper formality by ordering creation of post being no fault of aggrieved clerks and such plea could not be raised because such clerks were in fact required to work as Reservation Clerks‑Further plea that such clerks were not workers but civil servants and as such matter was not within jurisdiction-Determination of such point needing evidence regarding nature of service‑Plea not reaised either before Labour Court or Labour Appellate Tribunal ‑Interference in writ jurisdiction in circumstances, refused‑Writ jurisdiction‑Constitution of Pakistan (1973), Art. 199 and Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38.

Mufti Mushtaq Ahmad v, The Federation of Pakistan P L D 1981 S C 172 ; P L D 1970 S C 292 : P L D 1974 S C 100 ; Shahzar Khan v. Sind Labour Court No. 4, Karachi 1977 S C M R 103 ; Postmaster General and another v. Muhammad Hashim P L D 1978 S C61 and Islamic Republic of Pakistan v. Kazi Abdul Karim, Deputy Accountant ere. 1979 SCMR219ref.

Nemo for Respondents Nos. 1 and 2.

Ch. Nazir Hussain for Respondents Nos. 3 and 4.

Date of hearing : 25th October, 1982.

Respondents Nos. 3 and 4 held the post of Junior Booking Clerks in the Pakistan Railways in National Pay Scale No. 5. From 2nd January, 1975. they have been working as Reservation Clerks. The post of Reservation Clerk is a selection post and carries National Pay Scale No. 8. The respondents, in due course, filed an application under section 25‑A of the Industrial Relations Ordinance, 1969 before the Labour Court that they be given the pay scale of Reservation Clerks and confirmed as such. The application was dismissed by the Punjab Labour Court No. 9, Multan. They filed an appeal and the learned appellate Tribunal after referring to an Award under demand 41 that if an employee has worked on a selection post continuously for one year against a substantive post he should be treated as confirmed, found that the respondents were entitled to the relief. The plea of limitation was rejected. The learned appellate Tribunal directed that the respondents be confirmed as Reservation Clerks and be given National Pay Scale No. 8. This is vide order dated 29th April, 1979. This has been challenged by the petitioner through the afore‑titled Constitutional petition filed on 19th August, 1979.

2. Learned counsel for the petitioner has contended firstly that the Award relied upon by the learned appellate Tribunal was not produced before it and therefore, could not have formed the basis of the decision. It is secondly contended that the Award expired by efflux of time as it was only for one year w. e. f. 13th January, 1966. Thirdly that under demand 41 of clause (ii) on which reliance has been placed by the learned Tribunal, it comes at the end that "with regard to an employee working on the selection post or higher post on promotion, it was stated by the respondents in the written arguments that he became eligible for confirma tion after one year's service on the selection higher post subject to the following conditions

(a) He is selected for the post by a duly constituted Selection Board.

(b) His senior on the approved penal has been confirmed or a vacancy was reserved for him.

(c) His work during the period he has officiated in the post is satisfactory.

(d) The post against which he is working is a permanent one and no one holds a lien against it.

(e) He stands for confirmation on promotion in turn."

The demand was accepted with the addition that lien of the permanent incumbents should be suspended in accordance with the rule 2008' of the Establishment Code Vol. It. The precise contention of the learned counsel for the petitioner is that if an employee is working on a selection post confirmation is to follow, if he is selected by a Selecting Board, his Seniors have been confirmed, his work has been satisfactory. the post on which he is working is permanent and that he stands for confirmation in the queue. The submission of the learned counsel for the petition is that none of these conditions have been fulfilled by the respondents. Learned counsel has referred to a decision in F. A. O. No. 145/66, dated 26th July, 1974.

3. Learned counsel for the petitioner next submitted that the respondents being Reservation Clerks were not 'workers' within the meaning of the term under Industrial Relations Ordinance, 1969 but were civil servants covered by Civil Servants Act, 1973 and, therefore, the learned Labour Appellate Tribunal had no jurisdiction in the matter. He relies on Mufti Mushtaq Ahmad v. The Federation of Pakistan (P L D 1981 S C 172). Lastly, the learned counsel submitted that the petitions of the respondents were barred by time and the learned appellate Tribunal fell in error in holding to the contrary because the cause of action accrued to the respondents after assumption of office as Reservation Clerks on 2nd January, 1975 and the petition under section 25‑A of the Industrial Relations Ordinance, 1969 was filed on 22nd June, 1977.

4. Learned counsel appearing for the contesting respondents Nos. 3 and 4 has submitted that the Award was a public document having been notified in the official Gazette. There was no question of its formal production. The Award was before the learned lower appellate Tribunal and was perused and argued about without demur. Therefore, the contention on the point is an afterthought. It is secondly submitted that the Award was though for one year. but remains in operation by virtue of section 14 of Industrial Dispute Ordinance, 1959 as laid down in P L D 1970 S C 292. It is then submitted that the paragraph relied upon by the learned counsel for the petitioner quoted above does not apply to the facts of the case of the answering respondents as that related to persons who were promoted to selection or higher posts. In the present case, the respondents were directly required to work as Reservation Clerks which duty they have been performing, for the last seven years by now.

5. As regards the contention that the answering respondents ‑were not workmen and therefore, not entitled to relief under the Industrial Relations Ordinance, the learned counsel for the respondents has submitted firstly that the case relied upon by the learned counsel for the petitioner proceeds on the basis that the person who was a correspondence clerk in an office had himself pleaded that he was a civil servant. No doubt, he was not so held by the Labour Courts when he so pleaded but before the Supreme Court, without opposition, his plea was accepted. However, it was made clear in that case that it all depended on the nature of the service of the person concerned as to whether he was worker or not. In the case in hand, learned counsel for the respondents submitted that it was taken for granted by both the parties that the respondents were workers because no challenge was made to their status as such by the petitioner before the Labour Courts nor had it led any evidence in this behalf It is therefore, not open to the petitioner to raise this plea in the Constitutional jurisdiction. Further the learned counsel submitted that definition of workmen in the Industrial Relations Ordinance in section 2 (xxvii) is:

"Worker" and "workman" means any person not falling within the definition of employer who is employed ....................in an establishment or industry for hire or reward ..................... " and the exclusion is only of any person‑‑

(a) who is employed mainly, in a managerial or administrative capacity,

(b) who, being employed in 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."

It is submitted that it is undisputed that the answering respondents do not fall in the category of the excluded persons in the aforesaid two clauses. Therefore, they are covered by the main provisions of workers. He has also referred to the definition of civil servant as given in Civil Servants Act, 1973 wherein it is laid down that‑

"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‑

(iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensa tion Act, 1923 (VIII of 1923).

It is submitted that from the category of civil servant, a person who is a workman as defined in the Workmen's Compensation Act is expressly excluded. A workmen is defined in the Workmen's Compensation Act, 1923 as follows : "Section 2 (t) (n) : 'Workman' means any person who is a railway servant as defined in section 3 of the Railways Act, not perma nently employed in any Administrative, District of Sub‑Divisional or any such capacity as specified in Schedule A". The contention of the learned counsel for the answering respondents is that the respondents are not permanently employed in any administrative District or Sub‑divisional office and being Railway servants are covered by the definition of workers its given in Workmen' Compensation Act, 1927 and thus stand excluded froth the definition of a civil servant as given in the Civil Servants Act, 1973. He has placed reliance on P L D 1974 S C 100. He further submitted that the answering respondents are workmen as defined in the Industrial Relations Ordinance being employed in the industry because Railway servants are included in the terms of industrial employee by the Railways itself, as stated in Pakistan Railway Establishment Code Volume I page 284 under clause 1 Part B. He has also referred to Shahzar Khan v. Sind Labour Court No. 4, Karachi (1977 S C M R 103) for the proposition that all industrial employees are workers. Learned counsel has finally submitted that the answering respondents having been appointed to work as Reservation Clerks, they are entitled to the Pay Scale thereof. He has placed reliance on Postmaster‑General and another v. Muhammad Hashim (P L D 1978 S C 61) and Islamic Republic of Pakistan v. Kazi Abdul Karim, Deputy Accountant etc. (1979 S C M R 289). At the end, the learned counsel submitted that the plea taken by the petitioner in this case that there being no substantive post of reserva tion clerk and that the answering respondents were not promoted to those posts and therefore, they were not entitled to relief had been taken in other cases as well and repelled by Labour Courts and the efforts of the petitioner to get those decisions set, aside failed when their writ petition No. 3016/78 was dismissed.

6. In a reply to the learned counsel for the petitioner submitted that the petition mentioned above was dismissed on technical ground.

7. From the facts stated in the earlier part of this order it will appear and is undisputed that the respondents have been working as Reservation Clerks since 2nd January, 1975 and that post carries National Pay Scale No. 8. The contention of the petitioner that no such posts existed has been repelled by the learned Labour Appellate Tribunal with the observation that if that be so how the respondents have been asked to work there and they continue to do so since 1975. The observation is quite apt. It is not disputed even today that the respondents are working as Reservation Clerks. Whether the posts were created on paper is besides the point. The fact of the matter is that the petitioner has been asking and getting the job from the respondents on the posts of Reservation Clerks. If it had no posts; it could not have asked the respondents to work there. If some paper formality was not fulfilled by ordering the creation of the posts, it was not the fault of the respondents. They were not to act as superior officer authorised to create posts. It i an old norm that for the work done, payment must be made. A worker is required to be paid in Islam, his wages before his sweat dries up. It is unreasonable and unjust that' a person may be asked to do a job but be not paid therefore and simply told that since you were recruited for lower job carrying less pay you should continue to receive the same pay even though you may be required to and you do the job of higher level or responsibility and' that too with complete satisfaction of the persons concerned for no less than 8 years. Therefore, the petition has no merit whatsoever. The contentions raised by the learned counsel for the peti tioner though specious have nonetheless no force. The award was a public document and had been referred to by the learned appellate Tribunal without any objection. It continues by operation of law. The plea that the respondents were not workers was not taken at the relevant time. The plea was obviously such that it required evidence if that was to established. The evidence, of course, was never led in that behalf. From the ,definition of the workmen as given in the relevant law I.e. Industrial Relations Ordinance as mentioned above it would appear that the respondents were workers and taken as such by the petitioner and that is why no question was raised in that behalf at the relevant time nor at the appeal stage. The contention raised by the learned 'counsel for the petitioner is his own contribution. The statutory provisions referred to earlier cover the case of the respondents. In view of what has been stated above, there is no merit or force in this petition and the same is, 4cordingly, dismissed with costs.

Petition dismissed.

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