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Constitutional Petition No. 60 of 1985, decided on 21st October, 1985.

‑‑‑S. 2(b)‑‑Factories Act (XXV of 1934, S. 2(a)‑‑Workmen's Compensation Act (VIII of 1923), S. .2(n)‑‑Civil servant‑‑Meaning and scope‑‑Member of Provincial Civil Service or a person holding post in connection with affairs of province, held, was 'civil servant' Person deputed to province either from Federation or other province or authority, or person employed on contract basis or paid from contingency fund, and worker/workman as defined in Factories Act, 1934 or in Workmen's Compensation Act, 1923, held, were excluded from definition of "civil servant".

‑‑‑S. 2(b)‑‑Exclusion from Act‑‑Fact expressly excluded from enactment, held, could not be re‑introduced either by framing rule or by issuing notification‑‑Rule repugnant to main provision of Act or notification in conflict with such provision would be void to extent of repugnancy/ icon sentiency‑‑[Interpretation of Statutes].

Hirjina Salt and Chemicals (Pak.) Ltd., Karachi v. The Union Council, Gharo and another P L D 1972 Kar. 145; Haji Hashmatullah and 9 others v. Karachi Municipal Corporation and 3 others P L D 1971 Kar. 514 and The United Industrial Bank Limited v. Mohan Bashi Saha and another P L D 1959 S C (Pak.) 296 rd.

‑‑‑Art. 9‑‑Industrial Relations Ordinance (XXIII of 1969), Ss. 2(xxviii) & 25‑A‑‑Grievance petition against dismissal‑‑Labour Appellate Tribunal declaring employee to be civil servant and not workman/worker‑‑Workman having been excluded by definition of civil servant by Act IX of 1974, held, could not be included within ambit of such definition by subsequent gated legislation‑‑Order of Labour Appellate Tribunal bringing workman within definition of 'civil servant' being based on misconception of law, was declared to be without lawful authority and of no legal effect‑‑Case remanded 'to Tribunal with direction to provide opportunity to parties to lead evidence whether petitioner was covered by definition of "workman" as given in Factories Act, 1834 or Workmen's Compensation Act, 1923‑‑Case falling within definition of workman would result in maintaining order of Labour Court reinstating employee

Iftikhar Mohammad for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Amirul Mulk Mengal, A.‑G. for Respondents Nos. 3 to 5.

Date of hearing: 21st October, 1985.

This petition is directed against the order, dated 4th June, 1985 passed by the learned Labour Appellate Tribunal Baluchistan, Quetta in Labour Appeal No. 4 of 1985. The brief facts leading to the filing of the above petition are that the petitioner joined as a Fitter in respondent No. 4's Department in 1971 At the relevant time, he was working as a Mechanic on a machine in respondents Nos. 4 and 5 Workshop as averred in the petition. On 2nd April, 1983, a show‑cause notice was served upon the petitioner, alleging therein, that he had committed misconduct. After that, the petitioner's services were terminated with effect from 22nd June, 1983 without holding any inquiry as per averment in the petition under rule 3(b) of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1981. The petitioner after serving a grievance notice filed an Application (No. 71 of 1983) under section 25‑A of the Industrial Relations Ordinance, 1969 in the First Labour Court Baluchistan at Quetta. The petitioner examined himself in support of the application, but the aforesaid respondents Nos. 4 and 5 did not examine any witness. However, it was urged by them that the petitioner was a civil servant in terms of the Baluchistan Civil Servants Act, 1974 (hereinafter referred to as the 'Act') and, therefore, the above application was not competent. However, the learned Labour Court by its order, dated 31st December, 1984 held that the petitioner was a workman and not a civil servant. It was further held that since the procedure laid down in the West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968 (herein after referred to as the 'Ordinance') specially 15 thereof, was not complied with the termination was illegal. Reinstatement was ordered subject to the right of the aforesaid respondents to hold fresh inquiry under the aforesaid Ordinance. Both the parties filed appeals i.e. the appeal filed by the respondents Nos. 3 to 5 was numbered as Labour Appeal No. 4 of 1985 and the appeal filed by the petitioner was numbered as Labour Appeal No,. 10 of 1985, which were disposed of by the above impugned order, in which, it was held that the petitioner was a civil servant and that he was not engaged in any manufacturing process. The petitioner being aggrieved by the above order, has filed the present petition.

2. In support of the above petition, Mr. Iftikhar Muhammad, learned counsel for the petitioner has vehemently urged that the petitioner is not covered by the definition of civil servant given in clause (b) of section 2 of the Act.

On the other hand, Mr. Amirul Mulk Mengal, learned Advocate- General appearing for the respondents Nos. 3 to 5 has vehemently contended that since the statutory rules have been framed for governing the service matters of ' the employees of the above respondents Department, proviso (1) of clause to subsection (4) of section 1 of the Ordinance expressly excludes the application of the Ordinance. He has also submitted that even otherwise in view of the Notification, dated 4th August, 1977, the petitioner is deemed to be a civil servant.

3. In order to appreciate the respective contentions of the learned counsel for the parties, it may be pertinent to reproduce herein below clause (b) of section 2 of the Act, which reads as follows:‑‑

"(b) "CIVIL SERVANT" means a person who is a member of a civil service o the province of Baluchistan or who holds a civil post in connection with the affairs of the Province, but does not include‑

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

(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 'worker' or workman' as defined in the Factories Act. 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)."

A plain reading of the definition of civil servant given in the above clause indicates that a person who is a member of a civil service of the Province of Baluchistan or who holds a civil post in connection with the affairs of the Province, is a civil servant but the following categories of persons have been expressly excluded from the above definition:‑‑

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

(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 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act. 1923 (VIII of 1923).

4. If the petitioner is covered by the definition of the worker or workman as defined in the Factories Act, 1934 (XXV of 1934) or in the Workmen's Compensation Act, 1923 (VIII of 1923), he is excluded from the ambit of the above definition of civil servant. Learned Advocate- General has referred to the rules framed under section 25 of the Act gazetted under SOR(2)42/S&GAD‑79, dated 26th June, 1982 regulating recruitment to the Baluchistan Agriculture Department, Engineering Subordinate (Grades 2 to 15) Service and prescribing conditions of service for the persons appointed thereto. It has been, therefore, urged by him that since the above statutory rules are applicable to the petitioner, proviso (1) of clause (c) to subsection (4) of section 1 of the Ordinance expressly excludes the application of the provisions thereof. He has also referred to the aforesaid Notification, dated 4th August, 1977 issued by the Governor providing that as a result of regularization of all contingent I work‑charged employees of the Machinery Maintenance Department, Baluchistan, the Government of Baluchistan is pleased to declare that the Machinery Maintenance Workshops where‑ever these may be located in the Province of Baluchistan, shall be treated as "Government Department" and all the employees of such department will now be governed by the "Baluchistan Civil Servants Act, 1974".

5. In this regard, it may be pertinent to observe that the Act is applicable to civil servants as defined by clause (b) of section 2 of the Act. It may further be observed that section 25 of the Act empowers the Government or any person authorised by it in this behalf to make such rules as appear to him to be necessary or expedient for carrying out the purposes of the Act. As pointed out hereinabove, the definition expressly excludes the worker or workman covered by the definitions given in the Factories Act 1934 or in the Workmen's Compensation Act, 1923. In our view what has been expressly excluded by the Act cannot be reintroduced either by framing a rule or by issuing a Notifica tion. Any rule repugnant to the main provision of the Act or any Notification in conflict with the main provision of the Act would be void because of repugnancy /inconsistency. Reference may be made to the following cases:‑‑

(i) Hirjina Salt and Chemicals (Pak) Ltd., Karachi v. The Union Council, Gharo and another, reported in P L D 1972 Kar. 145, in which, a D.B. of the erstwhile High Court of Sind and Baluchistan while construing the provisions of Basic Democracies Order, 1959 and the West Pakistan Union Councils Dharat (Fees for Markets) Rules, 1961, observed that the rule cannot prevail upon the provision of a statute by simply providing that the rule shall be deemed to be a part of the statute and in case of any inconsistency between them, the statute must prevail.

(ii) Haji Hashmatullah and 9 others v. Karachi Municipal Corporation and 3 others reported in P L D 1971 Kar. 514. In the above case, a D.B. of the erstwhile High Court of Sind and Baluchistan while construing the provisions of Municipal Administration Ordinance (X of 1960) and West Pakistan Municipal Committees (Property) Rules, 1962, held that the rules which deviate from the statute and confer excessive power, are repugnant to statute and void to that extent.

(iii) The United Industrial Bank Limited v. Mohan Bashi Saha and another reported in P L D 1959 S C (Pak.) 296, in which, it was held that the rules framed under statute cannot defeat clear intention of legislature expressed in statute, and if they are as such, they cannot be relied upon.

6. We are, therefore, of the view that neither the aforesaid rules, nor the Notification has the effect of bringing in the petitioner within the definition of a civil servant, if he is covered by the definition of worker or workman given in the Factories Act, 1934 or in the Workmen's Compensation Act, 1923.

This aspect has not been thoroughly dealt with by the learned Labour Appellate Tribunal. A finding' on this aspect could not have been concluded by the learned Labour Appellate Tribunal in the absence of any evidence produced by the foresaid official respondents Nor. 3 to 5. On the contrary, in his statement before the Labour Court the petitioner had deposed that he was working as Mechanic on a machine in the workshop of the above respondents.

7. We would,' therefore, allow the above petition and declare the impugned order of the learned Labour Appellate Tribunal as being without lawful authority and of no legal effect, but would remand the case to it with the direction to provide opportunity to the parties to lead evidence on the question, whether the petitioner is covered by the definition of worker or workman as given in the Factories Act, 1934 or the Workmen's Compensation Act, 1923 and, in case, the petitioner falls within the definition of either of the above two Acts, the original order of the, learned Labour Court shall be maintained.

These are our reasons in pursuance of our short order of even date.

A.A.

Petition allowed.

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