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-- Art. 9-Constitution of Pakistan (1973), Art. 199-Industrial Relations Ordinance (XXIII of 1969), S. 38 (1) & (3-a)-Constitutional jurisdiction, exercise of-Maintainability of constitutional petition--Section 38, Industrial Relations Ordinance does not confer any right upon party to file revision sun motu revisional powers, however, are conferred upon Labour Appellate Tribunal Constitutional petition, is competent against order passed without jurisdiction even if alternate remedy in form of appeal was available- Suo motu revisional power vested in Labour Appellate Tribunal not an alternate adequate remedy available to petitioner to disentitle him to file constitutional petition.

Anjuman-e-Ahmadia Sargodha v. Deputy Commissioner, Sargodha P L D 1966 S C 639 ; Murree Brewery Company Limited v. Pakistan through Secretary to the Government of Pakistan, Works Division P L D 1972 S C 279 and Abdul tiai v. The Administrator, Hyderabad Municipal Corporation, Hyderabad and another P L D 1985 Kar. 319 ref.

Khushal Khan v. Divisional Superintendent, Pakistan Railways, Karachi 1983 P L C 358 and Abdur Rehman v. Haji Mir Ahmad Khan and another P L D 1983 S C 21 distinguished.

(b) Civil Servants Act (LXXI of 1973)--

S-- 2 (4)- Civil servant'-Meaning and scope-Person who is member of All Pakistan Service or of Civil Service of Federation or who holds civil post in connection with affairs of Federation, including any such post connected with defence, held, was a civil servant'-Persons on deputation to Federation from Province or other authority or person employed on contract, or on work-charged basis or who is paid from contingencies as defined in Factories Act, 1934 or Workmen's Compensation Act, 1923 were not civil servants' - Industrial Relations Ordinance (XXIII of 1969), S. 2 (xxviii)

(c) Railways Act (XI of 1890)-

-- S. 3-Workmen's Compensation Act (VIII of 1923) [as amended by Workmen's Compensation (Amendment) Act (XIV of 1973)], Sched. II (i) - Workman', meaning and scope - Words "in a clerical capacity", omitted by Act (XIV of 1973) from Sched. II(i) of Workmen's Compensation Act, 1923-Effect-Person employed in Railway in connection with operation or maintenance of lift or vehicle propelled by steam or other mechanical power or by electricity, held, was workman' whether he was acting in clerical capacity or otherwise-Railway servants permanently employed in administrative, district or sub-divisional office of Railway were expressly excluded from purview of definition of workman' in S. 2(1) (n) of Act (VIII of 1923).-[Words and phrases]. -

Assistant Works Manager (B), Pakistan Railways v. Authority under Payment of Wages Act and Z others 1983 P L C 822 ; Ghulam Mohi-ud-Din v. Chief Settlement Commissioner P L D 1964 S C 829 ; Hafizuddin v. Mian Khadim Hussain P L D 1965 Lah. 439; Sheikh Mahmood Ali v. WAPDA N L R 1980 T D 215 ; Muzaffar Abbas Naqvi and 10 others v. Islamic Republic of Pakistan and 4 others 1979 P L C 355 ; Mufti Mushtaq Ahmed v. The Federation of Pakistan P L D 1981 S C 172 ; Bombay Burmah Trading Corporation v. Ma E Nun A I R 1937 Rang. 45 ; Secretary of State v. Mt. Geeta A I R 1938 Nag. 91 ; Muhammad Aslant v. Federation of Pakistan P L D 1974 Lah. 545 ; Pakistan Western Railway v. Muhammad Usmato P L D 1971 Lah. 27 ; 1983 P L C Lah. 822 ; and Concise Oxford Dictionary (New Edition) ref.

(d) Constitution of, Pakistan 0973)-

-Art. 212--Civil Servants Act (LXXI of 1973), S. 2 (4)-Civil servant-Fixation of pay-Jurisdiction-Fixation of pay of civil servant in violation of terms of service, held, fell within exclusive jurisdiction of Service Tribunal.-[Jurisdiction].

(e) Payment of Wages Act (IV of 1936)-

-- S. 2- Railways Act (XI of 1890), S. 3 (4)-Civil Servants Act (LXXI of 1973), S. 2 (4)-Provisional Constitution Order (I of 1981), Art. 9-Word Railway'-Meaning and scope-For construing provisions of Payment of Wages Act, 1936, definition of word railway' could not be borrowed from Railways Act, 1890-In absence of definition given in Act IV of 1936, word 'railway' had to be construed in ordinary literal meaning-Omission to provide definition of word 'railway' would indicate that definition of word railway' as given in Railways Act, 1890 was not to be imported in Payment of Wages Act, 1936-Ordinary literal meaning of word railway' meant road laid with rails for carts etc , track or set of tracks of iron or steel rails for passage of trains or carriages or trucks drawn by locomotive engine, conveying passengers and goods--Railway employee not working on railway but working in clerical capacity in divisional office, could not maintain application under Payment of Wages Act, 1936-Such employee would be a 'Civil servant' within definition of S. 2 (4) of Civil Servants Act, 1973Such employees being civil servants were not competent to file applications under Payment of Wages Act, 1936-Proper remedy for such employees was to approach Service Tribunal-Impugned orders of authority and Payment of Wages Act, 1936 were declared to be without lawful authority and of no legal effect.-[Words and phrases].

Chambers Twentieth Century Dictionary (revised edition) ref.

( f ) Payment of Wages Act (IV of 1936)-

S. 2-Civil Servants Act (LXXI of 1973), S. 2 (4)-Railways Act (XI of 1890), S. 3 (4)-Provisional Constitution Order (1 of 1981), Art. 9-Workmen's Compensation Act (VIII of 1923), Sched. II (i)-'Special Ticket Examiners'- Special Ticket Examiners' working in connection with operation of railway were covered by Sched. II (i) of Workmen's Compensation Act, 1923-Such employees were excluded from definition of 'Civil servant' given in S. 2 (4), Civil Servants Act, 1973 and therefore were entitled to file applications before 'Authority' under Payment of Wages Act, 1936.

Muhammad Ali v. Chairman, Pakistan Railways P L D 1982 Kar 205 ref.

(g) Fundamental Rules-

-Rule 22-Fixation of pay-Such question having not been dealt with either by Authority or Labour Appellate Tribunal it would, held, be just and proper to remand case to Authority with direction to decide such question with reference to relevant Service Rules.

Muhammad Muquim Ansari for Petitioner.

Mir Aurang Zeb for Respondents.

Dates of hearing : 10th and 17th July, 1985.

AJMAL MIAN, ACTG. C. J.-By this common judgment we intend to dispose of the above 25 Constitutional Petitions as they involve the common points of law. The brief facts leading to the filing of the above petitions are that the private respondents are/were employees of Pakistan Railways and were working at the relevant time in the Divisional Office, Quetta of the Pakistan Railways as Head Clerks and U. D. Cs. (Except the private respondents in Constitutional Petitions Nos. 248 to 257 of 1983; who were working as Special Ticket Examiners) in Grades 7 and 8. In 1972, the Railway Administration decided to allow move-over to the next higher scale to its those employees up to Grade-15, who had attained the maximum pay scale in their pay and had no immediate chance to be promoted on account of want of vacancies. Accordingly, the private respondents were moved over to the next higher grade. It seems that the Railway Board addressed a letter dated 8th July, 1975 to the Chief Officer/A&B Lahore and F. A. & C. A. O. Lahore etc ; forwarding the contents of the Finance Ministry's Office Memo. No. D-438-84/75-2 131) R-1/75 dated .the 18th June, 1975 in which, inter alia, it was pointed out that the relevant provision in the fundamental Rules had in the past been interpreted differently in the matter of fixation of initial pay in the higher scales in the cases of move-over. It may be pertinent to re-produce the relevant portion of the above letter which is quoted in the above Railway Board's letter dated 8th July, 1975 (Annexure 'C' to C. P. No. 226/83) which reads as under;--

"Copy of the above-mentioned O. M.-The relevant provisions in the Fundamental Rules has in the past been interpreted differently in the matter of fixation of initial pay in the higher scales in the cases of the category referred to above. In a number of those cases, the civil servant concerned has been treated as entitled, under F. R. 22 (a) (i), to the stage in the higher scale next above his last pay in the lower scale, while in others, initial pay in the higher scale equal to the last pay in the lower scale has been allowed under F. R. 22 (a) (ii).

It has been decided that in cases of fixation of pay governed by the Fundamental Rules, irrespective of any provision to the contrary in those Rules, where a Civil Servant is not transferred from one post to another but is transferred from a lower to a higher scale initial pay in the higher scale will be fixed at the stage next above the pay admissible in the lower scale as on the eve of the transfer to the higher scale. This decision will come into force with effect from 1-3-1972, and would not apply to cases which had been settled before that date."

2. Upon the receipt of the above letter, the officers concerned fixed the pay of the private respondents in the next higher grade in terms of the above letter. However, the private respondents filed applications in 1981 under section 15 of the Payment of Wages Act, 1936 (hereinafter referred to as the 'Act') before the Authority for the recovery of the amount allegedly illegally deducted by the Railway Administration. The above applications were resisted by the Railway Administration, inter alia, on the ground that the Authority had no jurisdiction as the private respondents were Civil Servants but the Authority on the basis of a decision of the Punjab Labour Court No. 9 Multan, overruled the above objection and allowed the private respondents' claims to the extent mentioned in the orders dated 9th May, 1953. The Railway Administration being aggrieved by the above orders preferred Appeals which were dismissed by two separate orders dated 29th September, 1983 by the Presiding Officer, Labour Court No. 1, Quetta i.e. the respondent No. 3. The petitioners being aggrieved by the above orders have tiled the present writ petitions.

3. In support of the above writ petitions, Mr. Muqim Ansari, who has appeared for the petitioners in C. P. Nos. 226 to 231 of 1983 has urged as follows :

(i) That the private respondents are Civil Servants in terms of clause (b) of section 2 of the Civil Servants Act, 1973 and, therefore, the Authority had no jurisdiction ;

(ii) That the private respondents were not employed 'upon any railway' in terms of subsection (4) of section 1 of the 'Act' and, therefore, the applications before the Authority were not competent; and

(iii) That even otherwise, on merits, the private respondents had no justification for their claim as their pay was fixed in terms of the above-quoted circular of the Finance Department which was in consonance with rule 22 of the Fundamental Rules.

Mr. Shakeel Ahmed, learned counsel appearing for the remaining petitioners had adopted the above arguments of Mr. Muqim Ansari, but had submitted that the private respondents in C. P. Nos. 248 to 257 of 1983 being Special Ticket Examiners were employed upon the railway in terms of sub-section (4) of section 1 of the 'Act'.

4. On the other hand, Mir Aurangzeb Advocate who had appeared for the private respondents contended as under :

(i) That the above petitions are not maintainable as the petitioners had alternate remedy in the form of revision under section 38 (3-a) of the Industrial Relations Ordinance, 1969 ;

(ii) That the private respondents were in fact working at the relevant time upon the railway and that the only requirement in order to press into service the provisions of the 'Act' was that their average monthly wages should have been upto Rs. 1,000 which requirement was fulfilled by the private respondents; and

(iii) That the Railway administration after having paid the wages for 2-3 years purported to re-fix the private respondent's wages/salary in the next higher grade in contravention of the rules.

5. Before taking up the above contentions, it may be pertinent to highlight the nature of the dispute involved in the instant cases. It will suffice to take up the case involved to C. P. No 226 of 1983. In the above petition, the private respondent Azizullah at the relevant time was working as Steno-typist in the Divisional Accounts Office, Pakistan Railways, Quetta. He was moved over to Grade-9. The scales of salary of the above two Grades are as follows :

(i) G-8. 370-16-514-18-640.

(ii) G-9. 390-20-590-22-700.

The Railway administration upon receipt of the above letter of the Railway Board dated 8th July, 1975, fixed the private respondent's salary at Rs. 656 i. e. Rs. 590 of Grade-9 plus three increments at Rs. 22 whereas the private respondent claimed Rs. 678 per month, i.e. Rs. 640 being the maximum pay of Scale of Grade-8 plus two increments at the rate of Rs. 18 and one increment of Rs. 20.

6. Having stated the nature of the dispute involved, it may be appropriate to take up the question of maintainability of the above petitions. In furtherance of his submission as to the maintainability of the petitions, Mir Aurangzeb, Advocate has referred to Section 38 (3-a) of the Industrial Relations Ordinance, 1969, which provides that the Tribunal may on its own motion at any time call for the record of any case or proceedings under the above Ordinance in which the Labour Court within its jurisdiction has passed an order, for the purpose of satisfying itself as to the correctness, legality or propriety of such order, and may pass such order, in relation thereto as it thinks fit. It further provides that no order under the above subsection shall be passed revising or modifying any order adversely affecting any person without giving such person a reasonable opportunity of being heard. It may be pertinent to point out that the Tribunal referred to in the above subsection is the Labour Appellate Tribunal referred to in subsection (1) of section 38. A plain reading of the above subsection indicates that it does not confer any right upon a party to file a revision, but it confers suo moto revisional power upon the Tribunal. It has been consistently held by the Superior Courts that in case an impugned order is without jurisdiction, a writ petition is competent even in a case where alternate remedy is avail-Able in the form of an appeal. In this regard, reference may be made to the following cases :

(i) Anjuman-e-Ahmadia Sargodha v. Deputy Commissioner Sargodha PLD 1966SC639.

(ii) Murree Brewery Company Limited v. Pakistan through Secretary to the Government of Pakistan, Works Division P L D 1972 S C 279 and

(iii) Abdul Hai v. The Administrator, Hyderabad Municipal Corporation, Hyderabad and another P L D 1985 Kar. 319.

We are inclined to hold that suo moto revisional power vested in the Labour Appellate Tribunal under section 38 (3-a) of the Industrial Relations Ordinance, 1969 cannot be held to be an alternate adequate remedy available to the petitioners in order to dis-entitle them to file the above) petitions.

Mir Aurangzeb, Advocate has referred to the following cases in support of his above submission :

(i) Khushal Khan v. Divisional Superintendent, Pakistan Railways, Karachi 1983 P L C 358, in which the Labour Appellate Tribunal, Sind while construing section 38 (3-a) of the Industrial Relations Ordinance, 1969 read with section 17 of the 'Act' held that the revisional jurisdiction of Labour Appellate Tribunal is attracted even to an appellate order of the Labour Court passed under the Payment of Wages Act.

(ii) Abdur Rehman v. Haji Mir Ahmad Khan and another P L D 1983 S C 21. In this case, the Honourable Supreme Court while hearing a petition for leave against a judgment dated 28-1-82 passed by the Sind High Court dismissing the petitioner's Constitutional Petition against an order of the Rent Controller passed under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, held that constitutional jurisdiction of the High Court could be exercised only on proof of non-availability of adequate remedy.

7. The above cases have no application to the instant cases. As ha been held by us hereinabove, that the suo moto revisional jurisdiction vested in the Labour Appellate Tribunal cannot be held to be adequate alternate remedy and, therefore, the above first case has no application. Similarly the above second case cited cannot be pressed into service for the reason that even where alternate remedy provided for is in the form of an appeal,) the Superior Courts have been entertaining Constitutional Petitions in cases where the impugned orders are without jurisdiction.

8. Adverting to the question, whether the private respondents are Civil Servants within the purview of the definition given in clause (b) of section 2 of the Civil Servants Act, 1973 (Act LXXI of 1973), it may be advantageous to re-produce hereinbelow the above clause, which reads as follows :

" (b) 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.

(i) a person who is on deputation to the Federation from any Province or other authority ;

(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).

A perusal of the above-quoted definition indicates that 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 is a civil servant excluding a person who is on deputation to the Federation from any Province or other authority, or a person who is employed on contract, or on work-charged basis or who is paid from contingencies, or a person who is a worker or workman as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923. It is an admitted position that the private respondents are not on deputation to the Federation from any Province or other authority, nor they are employed on contract or on work-charged basis, nor they were paid from contingencies, and, therefore, they have not been excluded from the definition of 'civil servant'. Further question which requires consideration is, whether they are covered by the definition of worker or workman given in the Factories Act, 1934 or the Workmen's Compensation Act, 1923 as to exclude them from the purview' of the above-quoted definition of civil servant. It is, therefore, pertinent to refer to the relevant provisions of the above Acts. Clause (h) of section 2 of the Factories Act defines 'worker' as 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 carried on. Clause (n) of subsection (1) of section 2 of the Workmen's Compensation Act; 1923 provides the definition of the word 'workmen' as means any person (other than a person whose employment is of casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is :

(i) a railway servant as defined in section 3 of the Railways Act, 189 (IX of 1890) not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II.

It may also be pertinent to refer to Schedule II of the above Act, which also specifies the persons falling within the category of workman' within the purview of the aforesaid Act subject to the above clause (n) of subsection (1) of section 2 of the said Act. Clause (i) of the above Schedule includes any person as workman who is employed, otherwise than in a clerical capacity on a railway, in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity. The above words in a clerical capacity were omitted by Act XIV of 1973. It is evident that clause (n) of subsection (1) of section 2 expressly excludes a railway servant permanently employed in any administrative, district or sub-divisional office of a railway and also the person working in the capacity specified in Schedule II i. e.; in a clerical capacity. Since the words 'in a clerical capacity' mentioned in clause (i) of Schedule-II were omitted as pointed out hereinabove by Act, XIV of 1973, the effect of it is that any person who is employed on a railway in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity, is covered by the above clause (i) of Schedule-II, whether he is acting in a clerical capacity or otherwise. However, this omission has not, in any way, affected the express exclusion of a railway servant permanently employed in any administrative, district or sub-divisional office of a railway from the purview of the definition of workman given in the above clause (n) of subsection (1) of section 2 of the aforesaid Act.

The private respondents admittedly, except in the Constitutional Petitions Nos. 218 to 257 of 1983, are working in the district or divisional office of the railway and, therefore, they are excluded from the definition of the workman given in the Workmen's Compensation Act, nor they are covered by the aforesaid definition of the. worker given in the Factories, Act, but the private respondents in the aforesaid Constitutional Petition Nos. 248 to 257 of 1983 are covered by the clause (i) of Schedule-II to the Workmen's Compensation Act being the Special Ticket Examiners working on a railway. This position has been conceded by Mr. Shakeel Ahmad, learned counsel for the petitioners in the above petitions.

9. Since the private respondents in all the petitions except in the above Petitions Nos. 248 to 257 of 1983 are civil servants within the purview of above clause (b) of section 2 of the Civil Servants Act, 1973 and as the question of fixation of their pay in violation of the terms of service, is a question which falls within the exclusive jurisdiction of the Service Tribunal in terms of Article-212 of the Constitution of Islamic Republic of Pakistan, 1973, the 'Authority' had no jurisdiction to entertain the aforesaid private respondent's applications involving the determination of the above question. However, it was urged by Mir Aurangzeb, learned counsel for the private respondents that since the private respondents were covered by clause (4) of the 'Act' and as their salary was not above Rs. 1000 their applications were competent. In furtherance of his above submission, he has referred to the following cases;--

(i) Assistant Works Manager (B), Pakistan Railways v. Authority under Payment of Wages Act and 2 others 1983 P L C 822, in which, a learned Single Judge of the Lahore High Court while construing sections 1 (4) and 3 (4) of the Act, held that the words persons employed (otherwise than in factory) upon any railway by a railway administration' to section 1 (4) are used in contradistinction to persons employed in any factory and that the words upon any railway' are not restricted to railway track, but also cover the other employees of the Railway administration. It was, therefore, held that the application under section 15 of the Act' filed by the respondent No. 3 (who was working as Clerk Grade-II in the Bridge Workshop, Pakistan Railway, Jhelum) was competent. However at the same time, the learned Judge was of the view that the above respondent No. 3 was a civil servant within the purview of clause (b) of section 2 of the Civil Servants Act, 1973 and his remedy was to approach the Federal Service Tribunal, but the writ petition of the railways was dismissed on the ground that the objection as to the maintainability of the application under the 'Act' before the Authority was not raised either before the Authority or even in the memo of writ petition. In this regard, it may be pertinent to re-produce the relevant observation, which reads as follows :

"Since respondent No. 3 does not fall within the definition of worker' or workman' as defined in the Factories Act, XXV of 1934, or the Workmen's Compensation Act (VIII of 1923), he falls within the definition of a civil servant ' Railway employees could have been excluded from the definition of 'civil servant' to the limited extent that they had petty claims as were covered and could be decided by the Payment of Wages Act, which would have obviated so high powered a body as the Service Tribunal wasting its time over such petty disputes, but whatever be the wisdom of the Government, such an exclusion has not been made. In these circumstances respondent No. 3's remedy lay with the Federal Service Tribunal constituted under the Service Tribunals Act, LXX of 1973, which had exclusive jurisdiction to deal with all matters relating to his terms and conditions of service with the Railway. It cannot be denied that the Federal Service Tribunal had started functioning at Islamabad in May, 1974, which fact the Railway Headquarters Office at Lahore was well aware of. The Law Office of the Railway, from where all instructions to defend litigation are issued, is situated in the Headquarters office at Lahore. At no stage the Pakistan Railways took up the objection either before the Authority at Lahore under the Payment of Wages Actor -in appeal before the Punjab Labour Court at Lahore, in the first round of litigation, or before the Authority at Gujrat under the Payment of Wages Act or in appeal before the Punjab Labour Court, Rawalpindi, in the second round of litigation, that these Courts had no jurisdiction. Rather, the Pakistan Railway, by filing the two appeals, expressly conceded the jurisdiction of the Authority appointed under the Payment of Wages Act and the Appellate Court to deal with the case and having permitted the Authority and the Court of Appeal to usurp a jurisdiction which they did not possess, cannot now turn round, to have their decisions quashed. In Ghulam Mohi-ud-Din v. Chief Settlement Commissioner P L D 1964 S C 829 it was held that where a person had stood by and allowed a Tribunal to usurp a jurisdiction, which it did not possess, he could not seek the discretion of the Court in constitutional jurisdiction to have the said order quashed. If further authority is required for this view, Hafizuddin v. Mian Khadiin Hussain P L D 1965 Lah. 439 may be cited with advantage. If I should now quash the impugned orders, respondent No. 3 would be left at the mercy of limitation, which has long expired. The total conduct of the Railway Authorities right from start to finish has been questionable. The present objection as regards jurisdiction was not even raised in the writ petition and was taken for the first time during arguments. No application was filed to amend the writ petition. As stated earlier in para. 9 above, this petition was admitted only to consider a limited legal question, but even if I were to consider myself as not bound by the limitation imposed by the admitting order, I think this is not a fit case in which I would like to exercise my discretion in favour of the petitioner to quash the impugned orders. For the foregoing reasons, there being no merit in this petition, the same is dismissed with costs."

(ii) The Divisional Superintendent, Pakistan Railways, Multan v. Sardar Muhammad and 2 others (1). In the above case, a learned Single Judge of the Lahore High Court dismissed the writ petition filed against the orders passed by the Authority under the Act' and the Punjab Labour Court No, 9, Multan maintaining the above order, on the ground that record did not show that the order of the Authority under the Act' was mala fide, arbitrary, ultra vires or illegal. In the above case, there is no discussion on the question, whether a railway employee is a civil servant or not.

(iii) Sheikh Mehmood Ali v. WAPDA (2) in which, the Authority under the Act' entertained an application under section 15 of the Act' filed by an employee of WAPDA who was employed as Line Superintendent and was promoted as S. D. O. w. e. f. 24-IZ-1964.

10. On the other hand, Mr. Muqim Ansari, learned Counsel for the petitioners has referred to the

following cases :-

(i) Muzaffar.Abbas Naqvi and 10 others v. Islamic Republic of Pakistan and 4 others (3) in which, a learned Single Judge of the Lahore High Court dismissed the revision petition of the petitioner, who was working as draughts-man at the P. W. R. against the order of the Additional District Judge, Lahore maintaining the order of the Civil Judge Lahore to the effect that the petitioner's suit stood abated in view of the provisions of Service Tribunals Act, 1973 upon its enforcement. It was held that in section-2 (n) (i), the words permanently employed' used does not mean relating to employment as distinguished from temporary employment but only means permanently employed for the office as distinguished from discharge of outdoor duties. It was also held that the Service Tribunal had exclusive jurisdiction in the matter as it related to the terms of the employment.

(1) P L D 1983 Lah. 291 (2) N L R 1980 TD 215

(3) 1979 P L C 355

(ii) Mufti Mushtaq Ahmad v. The Federation of Pakistan P L D 1981 S C172. In the above case, the facts were that the appellant was appointed as Ticket Collector in the N. W. R. in 1944 and was posted at Railway Station, Gujrat. In the year, 1951 he was posted as Correspondence Clerk in the office of Station Master, Gujrat. It was part of his duties to prepare Passes and P. T. Os, for the Railway staff. Some irregularities were found in this behalf by the Accounts Department. Consequently, a departmental inquiry was conducted against the appellant and he was removed from service by an order dated 30th August, 1966 passed by the Divisional Commercial Officer. The appellant filed an appeal against the above order which was dismissed on 13th September, 1966 by the Divisional Superintendent, Lahore. After that he filed a second appeal or revision before the Vice-Chairman of the Railway Board, which was also rejected on 14th November, 1969. The appellant had also filed a civil suit on 27th September, 1966 but the same was dismissed and the appeals filed by the appellant in the District and High Courts also failed. He filed petition for special leave which was also dismissed by the Supreme Court on 10th October, 1973. Upon establishment of the Service Tribunal under the Service Tribunals Act, 1973 on 22nd February, 1974, the appellant filed a Service appeal under section 4 of the said Act but the same was dismissed by the Service Tribunal, inter alia, on the ground that the appellant was holding the post of a Ticket Collector in the Pakistan Railways, and, therefore, was not a civil servant, but a workman within the definition of clause 2 (1) (a) of Workmen's Compensation Act. The appellant filed an appeal against the above order in the Supreme Court which was allowed. It may be advantageous to re-produce hereinbelow the observation of the Honourable Supreme Court on the question, whether the appellant was covered by the definition of workman given in the Workmen's Compensation Act, which reads as follows :

"The contention on behalf of the appellant is that the Service Tribunal has based its decision on this point merely on the description of the post held by the appellant, without examining the nature of the duties, which the appellant was performing at the relevant time. He contends that there is authority for the view that for the purpose of determining the status of a person as a workman or otherwise, it is necessary to examine the nature of the duties actually being performed by him, as mere designation of his job may not provide the right answer. Mr. Beg, places reliance on Bombay Burmah Trading Corporation v. Ma E Nun A I R 1937 Rang. 45, Secretary of State v. Mt. Geeta A I R 1938 Nag. 91, Muhammad Aslam v. Federation of Pakistan P L D 1974 Lah. 545 and Pakistan Western Railway v. Muhammad Usman P L D 1971 Lah. 27 in support of the proposition.

The cases referred to by learned counsel for the appellant do indeed, support his submission that for the purpose of determining the question whether the person concerned is a workman or not within the definition of that term, the occupation of the person at the relevant time must be considered. The Rangoon case is directly relevant to the sense that the person concerned was employed as an Elephant Rider, but at the time of his death he was employed as a mere messenger and not as an Elephant Rider, and it was held that he had ceased to be a workman and his dependents were not entitled to any compensation. It seems to us, therefore, that for the purpose of determining whether the appellant has to be regarded as a workman, or a civil servant, the nature of the duties on which he was employed at the time to which the allegations, against him relate. had to be looked into.

From the documents placed on, the record, we find that the charges served upon the appellant on 23-2-1965 related to irregularities in the preparation of passes and P. T. Os. for members of the railway staff and their families, and not to any outdoor duties performed by him as a Ticket Collector. In other words, duties which he was performing at that time were primarily of a clerical nature in the office of the Station Master, Gujrat. Such being the case, he did not fall within the definition of a workmen at that time. The Tribunal was, therefore, clearly in error in holding that the appeal filed by the appellant was not competent on this ground."

11. The above cases cited by Mir Aurangzeb, learned counsel for the private respondents do not support his above contention. In the first case, it was held that the respondent No. 3 was a civil servant though at the same time, it was held that he was covered by subsection (4) of section 1 of the Act' i. e; the Payment of Wages Act. In the second case, there is no discussion on the point in issue.

The cases referred to by Mr. Muqim Ansari, learned counsel for the petitioners have direct bearing on the controversy involved in the present cases. The Honourable Supreme Court in the above case of 1981, held that a person working as a Correspondence Clerk is not a workman within the definition of workman given in section 2 (n) of the Workman's Compensation Act. It may be pointed out that clause (i) of Schedule-II to the Workmen's Compensation Act includes any person who is employed on a railway in connection with the operation or maintenance of lift or a vehicle propelled by steam or other mechanical power or by electricity. In the above clause (i) of Schedule 11, the words 'on a railway have been used, whereas in clause (4) of the Act' the words, upon any railway' have been used. The words 'on' and 'upon' are synonymous and carry same' meaning and, therefore, the above Supreme Court judgment on all fours is applicable to the point in issue. Only those railway employees who work upon any railway could have filed an application under the 'Act' and not the persons working in any clerical capacity in any divisional office of the railway.

We are inclined to hold that for the purpose of construing the; provisions of the 'Act' 1. e. the Payment of Wages Act, we cannot borrow the definition of the word 'railway' given in the Railways Act, but we will have to construe the same in its ordinary literal meaning in the absence of any definition given in the 'Act.. In the above Lahore case reported in 1983 P L C (Lah.) 822, the learned Single Judge has referred to the definition of 'railway' given in sub-clause (4) of section 3 of the Railways Act which reads as follows :

"(4) 'railway' means a railway, or any portion of a railway, for the public carriage of passengers, animals or goods and includes;

(a) all land within the fences or other boundary marks indicating the limits of the land appurtenant to a railway ;

(b) all lines of rails, sidings, or branches worked over for the purpose of, or in connection with, a railway ;

(c) all stations, offices, warehouses, wharves, workshops, manufactories, fixed plant and machinery and other works constructed for the purpose of, or in connection with, a railway; and

(d) all ferries, ships, boats and rafts which are used on inland waters for the purposes of the traffic of a railway and belong to or are hired or worked by the authority administering the railway."

The above definition, no doubt, would include even the offices o the railway, but as we have held hereinabove that this definition cannot be referred to for the purpose of construing subsection (4) of section 1 of the Act' in the absence of any reference in the Act' to the Railway Act, we are fortified in our above view by the fact that in clause (v) o section 2 of the 'Act' the term 'railway administration' has been defined by providing that the Railway administration has the meaning assigned to it in clause (vi) of section 3 of the Railways Act, 1890, but the framers of the Act' did not provide a similar definition of the word 'railway' used in subsection (4) of section l of the Act'. It may be pertinent to mention that the words railway' and railway administration' are used in the above subsection (4) of section 1 of the Act' but in the above section 2 of the 'Act' which provides the definition, the framers of the Act' deliberately omitted to provide the definition of the word 'railway' and only provided the definition of the words railway administration'. The above deliberate omission to provide the definition of the word 'railway' indicates that the framers of the Act' were not inclined to import the definition of the word railway' given in the Railways Act. The ordinary literal meaning given in the Concise Oxford Dictionary (new edition) and Chambers Twentieth Century Dictionary (revised edition) are as follows:

"RAILWAY" road laid with rails for carts etc. track or set of track of iron or steel rails for passage of trains of carriages or trucks drawn by locomotive engine and conveying passengers and goods. Tracks of this kind worked by single company organization and persons required for their working. crack on which wheels run.

"RAILWAY" a track laid with rails for wheels to run on, esp. for locomotives with passengers and goods wagons, a system of such tracks with equipment and organization."

It is evident that the ordinary literal meaning of the word railway' means road laid with rails for carts etc. track or set of tracks of iron or steel rails for passage of trains of carriages or trucks drawn by locomotive engine and conveying passengers and goods. We are, therefore, of the view that a railway employee not working on any railway but working in a clerical capacity in a divisional once cannot maintain an application under the Act' i. e. the Payment of Wages Act as he cannot be said to be working upon any railway, nor he will be covered by clause (i) of the Schedule-11 to the Workmen's Compensation Act and, therefore, will be a evil servant within the definition given in clause (b) of section 2 of the civil Servants Act, 1973.

12. (a) We, therefore, allow the above Constitutional Petition Nos. 226 to 247 of 1983 and declare the impugned orders as being without lawful authority and of no legal effect, as the private respondents being civil servants were not competent to file applications under section 15 of the Act'. ' The proper remedy for them is to approach the Service Tribunal.

(b) As regards, Constitutional Petitions Nos. 248 of 1983 to 257 of 1983, as observed hereinabove, that the learned counsel for the petitioners has conceded that the private respondents in the above petitions are not civil servants and as we are also of the view that they being Special Ticket Examiners are working in connection with the operation of the railway and therefore, were covered by clause (i) of Schedule-II to the Workmen's Compensation Act and hence are excluded from the definition of the civil servant given in clause (b) of section 2 of the Civil Servants Act, 1973. In this view of the matter they were entitled to file their applications before the Authority under the 'Act. In this regard, reference may be made to the case of Muhammad Ali v. Chairman, Pakistan Railways P L D 1982 Kar. 205, in which, a D. B. of the Sind High Court (to which one of us Mr. Justice Ajmal Mian. A. C. J was a party) while dealing with the question whether an Assistant Personnel Officer, whose duties were, inter alia, to deal with Labour cases and to attend Court in connection with labour cases under the Payment of Wages Act, held to be not a civil servant and was covered by the definition of workman given in section 2 (n) of Workmen's Compensation Act, 1923. In the above petition, it was further held that the petitioner's order of retirement was without lawful authority as he was not a civil servant. However, we find that neither the Authority, nor the appellate Labour Court has dealt with the question of fixation of pay in terms of rule 22 of the Fundamental Rules, but merely relied upon the case of Punjab Labour Court at Multrn. In our view, it will be just and proper to remand these cases to the Authority with the direction to decide the above question with reference to the relevant Service Rules. The above cases (Constitutional Petition Nos. 248/83 to .57/83) are, therefore, remanded to the Authority with they above direction with no order as to costs.

Before parting with the above discussion, we may observe that the learned counsel for the private respondents had pointed out to us that some of the private respondents since then had retired. Thereupon M/s. Muqim Ansari and Shakeel Ahmed, Advocates had made a statement before the Court that the Railway administration would not claim refund from its retired employees in the above petitions. The above undertaking is recorded.

A. A. Order accordingly.

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