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Appeal No. SUK‑632 of 1981, heard on 6th April, 1982.

(a) Industrial Relations Ordinance (XXIH of 1969)‑--

‑‑ S. 2 (xxviii) and 25‑A read with Civil Servants Act (LXXI of 1973), S. 2 (iii)=Railway servant‑‑Whether a workman for purposes of Workmen's Compensation Act, 1923 ‑Determining factor‑Nature of duties on which employed at time to which allegations relate And not at time when penalty imposed‑Railway servant not performing any clerical duties but performing outdoor duties of Assistant Station Master at relevant time‑A workman for purposes of Workmen's Compensation Act, 1923 and Labour Laws‑‑.Entitled to grievance petition against order of penalty imposed under Railway Servants (Efficiency and Discipline) Rules, 1975‑Neither grounds of action stated in notices imposing penalties nor reasonable opportunity of show cause given ‑Penalty order, in circumstances, held, not sustain able ‑Railway Servants (Efficiency and Discipline) Rules; 1975, r. 5 (2):

Mufti Mustaq v. Federation of Pakistan P L D 1981 S C 172 rel.

(b) Industrial Relations Ordinance (XXIII of 1969)‑--

‑‑‑ S. 25‑A‑Grievance petition ‑Effect of retirement of petitioner from service during pendency of petition ‑Railway servant aggrieved of penalties of withholding of increments and recovery of debts from pay‑Retired on superannuation age daring pendency of grievance petition‑‑Contention that grievance petition abated on his retirement, in circumstances, rejected and petition, held, did not cease to be maintainable by retirement.

Pakistan Railways v. Junior Labour Court V. 1979 P L C 320 dis tinguished.

Shabbir Ahmad Awan for Appellants.

M. A. Hakeem for Respondent.

Date of hearing : 6th April, 1982.

This appeal is directed against the decision of the learned V1Ith Labour Court, given on 31st October, 1981, allowing the grievance petition filed by the respondent Railway servant challenging the imposition on him of certain punishments vide notices, dated 2.6th June, 1978,.and 8th April, 1.979, respectively. By the first notice, the penalty of withholding of increment for one year permanently from the date it falls due, affecting future incre ments, was imposed on the respondent together with debit of Rs. 1,744 which amount was to be recovered from his pay. By the notice, dated 8^th April, 1979, again 2 penalties were imposed upon the respondent. The first being the withholding of his next increment for one year without affecting his future increments and the second being the debit of an amount of Rs. 1,148 to be recovered from his pay. ‑

2. The admitted facts of the case are that on. or about 25th October, 1974, a consignment of 3 cartons of cigarettes, and another consignment of 1 carton of cigarettes were stolen from the parcel godown at Tharo Shah Railway Sta tion, which godown is stated to have been in the charge of the respondent, who then was posted as Assistant Station Master, Tharo Shah. It is, however, not clear whether the theft took place while the respondent was on actual duty or on intermittent duty as claimed by him. It. appears that 3 different enquiries were conducted into this theft. The first by the Claims Inspector, whose report is dated 30th January, 1975, the second by the Sub‑inspector, Watch & Wards, whose report is dated 11th June, 1976, and the third by the Station House Officer, Railway Police, Sukrand, whose report is dated 13th July, 1976. On the basis of these reports, without any further enquiries being made in this behalf, the Assistant Personnel Officer, Sukkar, imposed on the respondent the various penalties stated in the 2 notices, dated 26th June, 1978, and 8th April, 1979. The respondent preferred departmental appeals against both the notices imposing penalties on him. Both the appeals, however, were rejected. The appeal against the penalties imposed by the notice, dated 8th April, 1979, was rejected by the Divisional Superintendent, by his order dated 8th March, 1979, which order appears to have been communicated to the respondent on 11th August, 1979, as appears from the letter, dated 11th August, 1979, from the Station Master, Khairpur under whom the respon dent was then working. The second appeal of the respondent in respect of the imposition of penalties under the notice, dated 26th .Tune, 1978, was rejected by the Divisional Superintendent by his order, dated 28th August, 1979, but it is not clear whether this decision was communi cated to the respondent, and if so on what date. The appellant submitted a common grievance notice, dated 12th November, 1979, upon the Divisional Superintendent, in respect of his grievances arising from the 2 notices imposing penalties on him. This grievance notice was served upon the Divisional Superintendent on 14th November, 1979, as, appears from the postal A/D receipt. As the respondent did not receive any reply from the authorities,' nor his grievances were redressed, he filed a grievance petition before the learned Labour Court on 19th December, 1979. By its order, dated 3rd November; 1980, the learned Labour Court, dismissed the grievance petition of the respondent on the short ground that it concerned 2 separate grievances and there was no provision in section 25‑A, I. R. O. ; for compel ling 2 grievances in one grievance petition. On appeal this Tribunal, vide its order, dated 12th April, 1981, set aside the decision of the learned Labour Court and remanded the case to it for decision on merits. On remand, the learned Labour Court has passed the impugned decision.

3. I have heard Mr. Shabbir Ahmad Awan, the learned counsel for the Railway administration, and Mr. M. A. Hakeem, who appeared for the respondent. Mr. Awan has assailed the impugned decision of the learned Labour Court on the following grounds :‑

(i) That the grievance petition of the respondent was not maintainable as he was a civil servant and not a workman either for the pur poses of the Industrial Relations Ordinance or the Standing Orders ;

(ii) that as the respondent has been retired from the railway's service during the pendency of his grievance petition before the learned Labour Court, the grievance petition should be deemed to have abated and is no longer maintainable ;

(iii) that the grievance petition of the respondent is further not main tainable in respect of the punishment imposed upon .the respon dent by the notice, dated 26th June, 1978, since the grievance notice was served by the respondent on the Railway administration after the expiry of 3 months from the date on which he was communi cated the decision that his departmental appeal had been rejected ; and

(iv) that the learned Labour Court has fallen in error and failed to consider that under the Railway Servants (Efficiency & Discipline) Rules, 1975, the holding of an enquiry before the imposition of the penalty is not compulsory and can be dispensed with.

4. It was submitted by Mr. Shabbir Ahmad Awan that at the time when the various penalties 9 were imposed, the respondent workman was pored as enquiry clerk and hence was not a workman. In support of his con tention, he has relied upon the decision of the Supreme Court reported as Mufti Mushtaq v. Federation of Pakistan (P L D 1981 S C 172.) and the 2 decisions of this Tribunal in the cases of Pakistan Railway v. Akhlaq Ahmad and the Divisional Superintendent, Pakistan Railwavs v. Naseem Siddique, decided on 24th March 1982. In the case of Mufti Mushtaq Ahmad it was held by their Lordships of the Supreme Court that a Ticket Collector who was posted to work as a Correspondence Clerk in the office of the Station Master, Gujrat, having a part of his duties to prepare Passes and the P. T. Os. for the railway staff was a civil servant. The view taken by their Lordships was that for the purposes of determining whether a railway servant was a workman for the purposes of the Workmen's Compensation Act or a Civil Servant the nature of duties on which he was employed at the time to which the allegations against him relate, had to be looked into and considered. It is not disputed that at the time when the respondent is alleged to have committed misconduct for which he was awarded the penalties stated in the notices, dated 26th June, 1978 and 8th April, 1979, he was posted and was working as Assistant Station Master. Since the duties of the respondent at the time to which the allegations relate have to be considered, and not at the time when the penal ties were imposed on him and as it is clear that at the relevant time the respondent was not performing any clerical duties but was performing the outdoor duties of Assistant Station Master, he was, therefore, a workman for the purposes of the Workmen's Compensation .Act and the Labour Laws. A Moreover, this contention was not raised before the learned Labour Court. I would, therefore, repel the same.

5. Coming to the second contention raised by Mr. Shabbir Ahmad Awan, it is an admitted position that the respondent retired from the service of the Railway in June, 1981, while the proceedings on his grievance petition were pending before the learned Labour Court. Mr. Shabbir Ahmad Awan has relied upon a decision of our High Court in the case of Pakistan Railways v. Junior Labour Court V (1979 P L C 320) in support of his proposition that the grievance petition of the respondent ceased to be maintainable and should be deemed to have abated when he retired from service. The facts of that case, however, wholly different from those in the present petition. A perusal of the judgment in the reported case, which was given by me white I was a sitting Judge of the High Court, indicates that the grievance petition was filed by a person long after he had ceased to b,. in the service of his employer. He was not even in the service of the employer when he gave the requisite notice to the employer. It was, therefore, held that such a person could neither give a valid notice to his employer as in fact he had no employer, nor he can file a valid petition. In the instant case, admittedly, the respondent was in the service of the Pakistan Railways not only when he served the grievance notice on the Railways but for a long period thereafter up to June, 1981, when the proceed ings before the learned Labour Court were pending on remand by this Tribunal. Furthermore, the prayer of the respondent was not for re‑instatement in service or for promotion or any other benefit which could only be given to a parson who was still in employment. His grievance was mainly against the 2 debits as also against the with holding of increments during the period that he was in the service of the Railways. I am, therefore, of the opinion that this contention B of Mr. Shabbir Ahmad Awan also fails and that the grievance petition of the respondent did not cease to be maintainable by his retirement in June, 1981.

6. I will now proceed to consider the contention that the grievance notice given by the respondent in respect of the notice of imposition of penalties, dated 8th April, 1979, was barred by limitation and, therefore, the grievance petition to that extent is not maintainable. As pointed out in the earlier part of this judgment, the appeal against imposition of the penalties, vide n‑Lice, dated 8th April, 1979, was decided by the Divisional Superintendent by his order, dated 8th March, 1979. This order was communicated to the respondent on 11th August, 1979, as appears from the report of the Station Master, Khairpur, of the same date. The grievance notice should; therefore, have been served upon the railway administration within 3 months on 11th August, 1979. However; the grievance notice is dated 12th November, 1979, and was actually served upon the Divisional Superintendent on 14th November, 1979, beyond the period of 3 months from communication to the respondent of the rejection of his appeal. As such, the grievance notice in respect of the imposition of the penalties, vide the notice, dated 8th April, 1979, is. invalid and hence the grievance petition to the extent of this grievance is not maintainable.

7. It was finally argued by Mr. Shabbir Ahmad Awan that even if it he held that the respondent was not a Civil Servant, but a workman, he is to be governed by the Railway Servants (Efficiency and Discipline) Rules, 1975, and according to rule 5 (2) of the said rules, the holding of a depart mental enquiry before imposing a penalty can be dispensed with by the authorized officer. The said rule reads as follows ‑ If the authorized Officer decides that it is not necessary to have an enquiry conducted through the enquiry officer or enquiry committee, he shall (a) by order in. writing inform the accused of the action proposed to be taken in regard to him and the grounds of the action ; and (b) give him a reasonable opportunity of showing cause against that action ; provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity."

8. A bare perusal of the sub‑rule indicates that though the authorized officer is empowered to dispense with an enquiry, he has not only to state, in his order imposing the penalty upon the accused official, the grounds o the action taken by him, but further give a reasonable opportunity to the accused official of showing cause against that action. In the instant case, the notices imposing penalties do not state the grounds of the action taken. Furthermore, no reasonable opportunity was given to the respondent for showing cause against that action taken. There has thus been a double violation of the above sub‑rule. It is indeed a matter of some regret to fin a Personal Officer, who should be well versed with such rules, so unmindful of the requisite provisions entitling him to dispense with a departmental enquiry. As such even if the aforesaid Efficiency & Discipline Rules were applicable to the respondent, the orders imposing the: penalties without complying with the requirements of the law are invalid.

9. For the reasons discussed by me above, I would allow the appeal to the extent of the imposition of penalties, vide notice, dated 8th April, 19 i9, since the grievance notice in respect of those penalties was time‑barred, while the appeal in respect of the notice, dated 26th June, 1978, is rejected.

Appeal rejected

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