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(a) Railways Act (XI of 1890)‑‑

‑‑‑Ss. 2(v) & 3(6)‑‑Factories Act (XXV of 1934), S.33‑A [Rr.1,5 & 6 framed thereunder]‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑Payment of Wages Act (VI of 1936), S.15‑‑Person appointed as Canteen Manager by Chairman Divisional Superintendent Pakistan Railways Office Canteen with certain terms and conditions of his employment, held, would be a railway employee and entitled to all sorts of amenities available to Railway servants under law and the Rules framed thereunder‑‑Labour Court and Authority under Payment of Wages Act has jurisdiction to decide upon the dispute between such employee and the Railway about the payment of wages.

S.L. Kapoor v. Emperor A I R 1937 Lah. 547 and Mst. Nazir Begum etc. v. Province of West Pakistan etc. P L D 1966 (W.P.) Lah. 195 rel.

(b) Payment of Wages Act (VI of 1936)‑‑

‑‑S.15‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑ Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Orders passed by Labour Court and the Authority under Payment of Wages Act, wherein, jurisdiction vested in them was declined on wrongful assumption of fact that Canteen Manager was not a Railway employee being untenable in law was set aside by High Court as without lawful authority and of no legal effect, in exercise of its constitutional jurisdiction.

Abdul Aziz Qureshi for Petitioner.

Agha Taj Muhammad for Respondents.

Date of hearing: 9th May, 1987.

The petitioner, Syed Ashraf Ali Shah, Canteen Manager, has moved this petition under Article 9 of the Provisional Constitution Order, 1981, against the respondents challenging the orders of the Workmen's Compensation Commissioner and Authority under Payment of Wages Act for Pakistan Railways, dated 4‑5‑1981 and the order, dated 8‑6‑1982, passed by the Presiding Officer, Punjab Labour Court No.2, Lahore, holding that the petitioner has no locus standi to file an application under section 15(2) of the Payment of Wages Act, 1936, and that they had got no jurisdiction to entertain the application and to give decision thereon.

2. The petitioner was appointed as a Canteen Manager by the Chairman Divisional Superintendent Office Canteen, Pakistan Railway, Lahore, vide his order, dated 17‑4‑1972 (Annexure 'A') at the monthly pay of Rs.175. At the time of his appointment, the petitioner was also required to deposit a sum of Rs.200 as security with two sureties in the name of Chairman Divisional Superintendent Office Canteen, Lahore, in their saving bank account of Postal Department. The appointment letter further bound down the petitioner to comply with .the Canteen Rules and Regulations issued by the Railway Administration and those issued thereafter. The pay scale of the petitioner was later revised from Rs.175 to Rs.230 and ultimately the pay was further increased to Rs.374 per month. The petitioner continued receiving his pay upto November 1973, and thereafter, the Railway Administration refused to pay him his salary. The petitioner feeling aggrieved of this act of the Railway, Department sent a grievance notice to the Chairman Canteen Committee, but no action was taken thereon. Finally the petitioner moved a grievance petition under section 25‑A of the Industrial Relations Ordinance, 1969, before the Punjab Labour Court No.2, Lahore, for the recovery of his wages. The learned Labour Court vide its decision, dated 5‑11‑1979, disposed of the application of the petitioner with the observations that the services of the petitioner shall not be terminated except in accordance with law and that the petitioner may file an application for the recovery of his wages before the competent Authority under the Payment of Wages Act. On the basis of the aforesaid decision the petitioner moved the Authority under the Payment of Wages Act 1936, wherein preliminary objection of jurisdiction was taken which was turned down by the Authority vide its order, dated 21‑6‑1980 (Annexure 'C') and it was held that the Authority had jurisdiction in the matter and it was further observed that the respondent‑Railway cannot be permitted to take contradictory pleas before the Punjab Labour Court and the Authority under the Payment of Wages Act. However, subsequently vide Annexure 'D', the order, dated 4‑5‑1981, passed by the same Authority held that the Court possessed no jurisdiction to entertain the matter regarding the payment of wages due to the petitioner from the Railway Administration The petitioner feeling aggrieved of this decision, went in appeal before the Punjab Labour Court No.2, Lahore, which appeal was dismissed vide its order, dated 8‑6‑1982 (Annexure 'E').

3. This Constitutional petition was admitted to regular hearing by my Lord Mr. Justice S.S. Jan relying upon S.L. Kapoor v. Emperor AIR 1937.Lah.547.

4. It is contended by learned counsel for the petitioner that the respondents are not competent to take contradictory pleas at different times to their convenience. He states that the petitioner was employed by the Railway Administration and as such, for all practical purposes the petitioner being Manager of the Canteen of the Railway, was Railway servant. It is next contended that the appointing authority of the petitioner was Divisional Superintendent of Railway and that the appointment letter (Annexure 'A') will show beyond and doubt that the petitioner is the employee of the Railway Administration. This being so, the learned Workmen's Compensation Commissioner as well as the Presiding Officer, Punjab Labour Court No.2, Lahore, have failed to perform their lawful duties as they were required by law to do so. The learned counsel for the Railways has submitted that the petitioner was not the servant of the Railway Department. It is contended that the Rules governing the management of canteens in the North Western Railways were the Rules framed privately and he further submitted that the canteen being run by the petitioner is a private concern and as such, he could not be termed as an employee of the Railways. It is next contended that the Divisional Superintendent Railways was competent to appoint the petitioner as Canteen Manager as well as the members of the staff in his private capacity. So far as the appointment letter (Annexure 'A') is concerned, the learned counsel stated that the Divisional Superintendent Railways had signed the appointment letter in his private capacity. Learned counsel also placed reliance on section "v) and section 3(6) of the Railways Act, 1890 to contend that the petitioner does not fall in the category of an employee of the Railway Administration.

5. I have considered the arguments of the learned counsel for the parties very carefully. The parties have also submitted their arguments in writing which have been perused by me thoroughly. I do agree with the learned counsel for the petitioner that the petitioner is an employee of the Railway Administration. It is crystal clear from Annexure 'A' the order, dated 17‑4‑1972 passed by the Chairman, D.S. Office Canteen, P.W.R. Lahore, to show that the petitioner was appointed as Canteen Manager with certain terms and conditions of his employment. The petitioner, therefore, is an employee of the Railway Administration for all practical purposes. The learned Presiding Officer, Punjab Labour Court No.2 has given a wrong and wholly unwarranted decision vide his order, dated 8‑6‑1982. The appointment letter of the petitioner has not at all been considered correctly. If the learned Presiding officer had applied his judicial mind to the facts and circumstances of the instant case and that if he had considered the appointment letter of the petitioner properly, he would not have passed the impugned order as he did vide his order, dated 8‑6‑1982. The nature of the work being done by the petitioner as Manager of the Canteen is such, which will decidedly come within the purview of the definition clause of Railway Administration contained in section 3(6) of the Railways Act, 1890. The definition of "Railway Administration" under section 3(6) of the Railways Act, 1890, is as follows:‑

"'Railway Administration' or 'administration' in the case of the railway administered by the Government or a State, means the manager of the railway and includes the Government or the State, and in the case of a railway administered by a railway company, means the railway company."

The definition clause clearly covers the case of the petitioner as a part and parcel of the Railway Administration. The Railway Administration means the Manager of the Railway and the same expression includes the Government or the State and in the case of a Railway administered by a Railway Company, means a Railway Company. It is abundantly clear that the Manager of the Railway also includes the Divisional Superintendent of Railway who has passed the appointment order vide Annexure 'A'. The Divisional Superintendent Railway is a very important functionary in the Railway Administration as defined in section 3(6) of the Railways Act, 1890. The learned counsel for the respondents has conceded that the petitioner was appointed as Canteen Manager by the D.S. Railways but at the same time he stated that the said appointment was in his private capacity. I fail to understand that how the learned counsel for the respondent can state that the creation of Canteen Committee for providing services to the employees of the Railways could be termed as a private affair. The Administration of the Canteen Committee was headed by the D.S. of Railways. All the affairs of the Canteen Committee were supervised, checked and looked after by the D.S. and the salaries of the Canteen Manager as well as the members of the staff were to be paid from the funds of the Canteen Committee which is managed under the supervision of the Divisional Superintendent. It is, therefore, clear that the creation of the Canteen Committee is' the result of an act by the Divisional Superintendent Railways who is in turn a very important functionary of the Railway Administration.) Furthermore, the Rules were framed under section 33‑A of the Factories Act, 1947, which Rules were again framed by the functionary of the) Railway Administration. The very preamble of the Rules shows that there was a need of organization which may assist in providing food of nutritive value prepared under hygienic conditions for the employees of the Railways. The object of the creation of the canteen was to provide better food, tea and light refreshment on comparatively cheaper rates to the servants of the Railways. Rule 1 of the aforesaid Rules disclosed about the constitution of the Canteen Committee. According to this rule there shall be a Chairman alongwith Vice‑Chairman and Honorary Secretary. According to the rule, the Divisional Superintendent has been authorised to appoint two more persons as members. Rule 5 states that the Divisional Superintendent or an officer of the equivalent rank in his capacity as an administrative head, shall have the power to overrule any decision of the Managing Committee. Rule 6 says that the minutes of the meeting of the Managing Committee shall be approved by the Divisional Superintendent. The narration of the above said rules will show that the Canteen Committee or the Manager of the Canteen Committee are to work under the direct control and supervision of the Divisional Superintendent of Railways. Therefore, in my considered view, the petitioner is an employee of the Railway Administration in view of his functions as enumerated under the Rules framed by the Railway Administration. Therefore, the case of the petitioner comes directly under the test laid down in the definition clause of Railway Administration as stated earlier. The petitioner is serving as Canteen Manager in connection with the service of the Railways Administration as defined' in section 3(7) of the Railways Act, 1890. There is a direct ruling on the subject which is the case of S.L. Kapoor v. Emperor A I R 1937 Lah. 547. This is the first authority on the subject in which it was held that the persons who have contracted with the Railways to perform service of providing meals for travellers on its behalf are 'railway servants.' This Indian authority was referred to in a latter judgment of this Court in the case Mst. Nazir Begum etc. v. Province of West Pakistan etc. P L D 1966 (W.P.) Lah. 195. It was held in this authority that the expression 'in connection with the service by a railway' is of very wide import indeed, and includes besides whole‑time employees belonging to the established services under the Railways, all persons even if employed casually, if they are engaged in any activity in connection with service by the Railway. It was further held that now the Railway does not merely carry the passengers or goods, it inter alia, provides all sorts of comforts and amenities to the passengers and any arrangement to provide such amenities would be included in the abovementioned expression. Respectfully following the law laid down in the aforesaid D.B. authority of this Court, I proceed to hold that the petitioner is a Railway servant and is thereby entitled to all sorts of amenities available to such Railway servants under the provisions of law and the Rules framed thereunder. Further, the conduct of the management of the Railways in the instant case was also objectionable as relied upon by the learned counsel for the petitioner, inasmuch as the learned counsel for the Railways to begin with conceded that the Court had the jurisdiction to decide upon the dispute in hand but later on took a turn by saying that the said Court had no jurisdiction at all. I find that the learned Presiding Officer, Punjab Labour Court No.2, Lahore, failed to exercise jurisdiction vested in it by law in not deciding the controversy before him.

6. Resultantly I declare the impugned order, dated 8‑6‑1982, passed by the Presiding Officer, Punjab Labour Court No.2, Lahore, as well as the order, dated 4‑5‑1981, passed by the Workmen's Compensation Commissioner and Authority under the Payment of Wages Act for Pakistan n Railways, without lawful authority and of no legal effect. With the result, the case of the petitioner shall be deemed to be pending in law and I direct accordingly that the officer competent will dispose of the case within one week in the light of the above observations. The petition is accepted with costs.

A.A. /A‑91/L

Petition accepted.

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