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Appeal No. HYD-394 of 1982, heard on 26th October, 1982.

Industrial Relations Ordinance (XXIII of 1969)---

---Ss. 2 (xxviii) & 25-A-Railway employee-Head Clerk perfor ming clerical duties-Wages not exceeding Rs. 800 p. m.. Workman for purposes of Industrial Relations Ordinance, 1969-Entitled to grievance petition against order directing deduction from pension and gratuity -Alleged to have caused loss to Employees Co-operative Store - Such alleged loss being not to Government but to members of Co operative Store could not form basis for deduction from pension or gratuity-Order passed for deduction from gratuity or pension in circumstances, held, contrary to law hence not sustainable C. S. R. 351-A and General Conditions Governing Pension, r. 2308.

A. T. Mahmood for Appellant.

Date of hearing: 26th O-tober, 1982,

This appeal is directed against the decision of the learned VIth Labour Court, given on 29th August, 1982, allowing the grievance petition of the respondent employee, challenging the order whereby an amount of Rs. 21,266.86 has been ordered to be recovered from his pension and gratuity, being the amount of losses caused by him to the Railway Emp loyees' Co-operative Stores, Kotri.

2. The respondent was admittedly employed as Head Clerk in the Pakistan Railways. It appears that he was on leave preparatory to retirement which was to expire on 30th June, 1982. He was also working as Secretary to the Pakistan Railway Employees' Co-operative Stores, Kotri. It appears that there were allegations against the respondent of misappropriation of the funds of the co-operative store. According to him in about April, he was informed by Mr. Aftab, Welfare Officer, Co-operative Stores, that there was some shortage in the store on account of which a sum of Rs. 21,266.86 was to be recovered from the pension and gratuity of the respondent.

3. The respondent challenged the action of recovery of the aforesaid amount of alleged shortage from his pension and gratuity through a grievance petition filed before the learned VIth Labour Court. The appellants, in their reply statement, admitted that the President of the Pakistan Railway Employees' Co-operative Store, Kotri, had ordered that an amount of Rs. 21,266.86 which was found short in the accounts of the said store. be recovered from the respondent and a letter, dated 13th August, 1981, in this behalf had been issued. It was also contended in the reply statement that the grievance petition of the respondent was not maintainable as the 1. R. O. was not applicable to the respondent who was a Head Clerk.

4. The learned Labour Court has held that the respondent was a work man for the purposes of the Labour laws and hence his grievance petition was maintainable. It has further held that it was a guaranteed right of the respondent to receive his pension and gratuity and that the President of the Co-operative Store was not entitled to order the recovery of the monies due to the store from the pension and gratuity of the respondent.

5. The provisions of the Industrial Relations Ordinance are specifically ma a applicable to workmen in the Railways. Workman" has been defined in the I. R. O., to include any person not falling within the definition of employer, who is employed in an establishment or an industry on hire or reward, other than persons employed in a managerial or administrative capacity or persons employed in a supervisory capacity who are drawing wages exceeding Rs. 800 per month or performing functions mainly of managerial nature. It is not shown that the respondent was drawing wages exceeding Rs. 800 and was performing managerial functions. He was a mere Head Clerk and was performing clerical duties. 1 am, therefore of the opinion that the respondent is a workman for the purpose of the I. R. 0. and he was entitled to file a grievance petition under section 25-A, ing deductions from his pension and I. R. O.. against the order direct gratuity.

6. It next falls to be considered whether the President of the Co-opera tive Store was empowered to pass the older directing deductions from the pension and gratuity payable to the respondent. Mr. A. T. Mahmood, the learned counsel for the appellant, relied upon the provisions of Rule 2308 (C, S. R. 351-A) in the General Conditions Governing Pension. The said rule, excluding the proviso which is not material for the purposes of this appeal, reads as follows :-

"Recoveries from pension.-The Governor-General reserves to himself the right to order the recovery from the pension of an officer, who entered service on or after the 23rd February, 1939, of any amount on account of losses found in judicial or departmental proceedings to have been caused to Government by the negligence or fraud of such officer during his service."

7. A bare persual of the above rule makes it clear that recoveries from the pension and gratuity of Government servants can only be made or ordered in the case of loss caused to Government and that further such recoveries are to be made after it has been established in judicial or departmental proceedings that a loss to Government revenue has been caused by the persons from whose pension and gratuity the recoveries are to be ordered. There is, however. nothing to indicate that the respondent had caused any loss to the Government. The Co-operative Store to which the respondent is alleged to have caused losses in admittedly not a Government Store and its assets and liabilities are not the assets and liabilities of the Government. It is clear from the reply statement of the appellants that this Co-operative Stores is owned by the members of the Co-operative Society and that any loss which might have been caused to the Co-operative Store is loss to the members thereof and not to the Government. It was on this account that the members of the Co-operative Society and the Co-operative Store had comp lained against the respondent. Since the order of the President of the Cooperative Store, who incidentally is a Railway officer directing the recovery of the losses caused to the Co-operative Store, from the pension and gratuity admissible to the respondent, is clearly contrary to the provisions of law, the said order cannot be sustained. I would accordingly concur in the view taken by the learned Labour Court and dismiss the appeal in limine. The appellant and the members of the Co-operative Store, if so advised can proceed against the respondent under the provisions of the Co-operative Societies Act.

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