The appellant while serving as Assistant Electrical Examiner (BPS-4) was compulsorily retired from service by the Divisional Personnel Officer Peshawar vide his order, dated 16-1-2002. After serving Grievance notice filed petition before the learned Presiding A Officer Labour Court Mardan, but the same was dismissed being not maintainable vide judgment/order dated 4-5-2004. Being not contented with the said judgment/order he has filed the appeal in hand.
2. Mr. Waqar Ahmad Seth, Advocate the learned Counsel representing the appellant argued that the appellant in fact falls in the category of "workman" and being not "civil servant" or in service of Pakistan, the provisions of Removal from Service (Special Powers) Ordinance, 2000 (hereinafter called as the Ordinance) were not applicable to him.
3. It was also argued that the Ordinance was only applicable to two categories, one the Civil Servants and the other to Corporation employees. The appellant being workman does not fall in either of the two categories and this position was, made clear in Said Wahab and others v. Chief Mechanical Engineer Locomotive Factory Risalpur (2000 PLC (L) 322) and (2003 PLC (L) 118).
4. It was further argued that since the appellant was a workman, therefore, the Presiding Officer of the Labour Court had the jurisdictionto entertain and decide his petition, but the learned Court below has failed to exercise jurisdiction vested in it.
5. On the other hand Mr. Hasham Raza, Advocate the learned counsel representing the respondents argued that the appellant was in the service of Pakistan and even if he is presumed to be a "workman", after insertion of section 2-A in the Federal Service Tribunal Act, 1973 and after the promulgation of the Ordinance under which he was proceeded, the only remedy available to him was to have exhausted the Departmental remedy and then file appeal before the Service Tribunal, which was not done, therefore, his petition was rightly dismissed. Reliance in this regard was placed on Ijaz Ahmad Waraich v. President UBL (2003 SCMR 1264) and Zakirullah and others v.
Chairman WAPDA (2000 SCMR 826), M.D. Sui Northern Gas (Company v. Ghulam Abbas (PLD 2003 SC 724), Muhammad Yousaf v. Pakistan Railways (2003 PLC (C.S) 344) and G.M. National Bank of Pakistan and others v. Abdul Aziz and others (2002 PLC (C.S.) 18).
6. I have heard the arguments of the learned for the parties and perused the available record.
7. Civil -Servant has been defined in section 2 (b) of the Civil Servants Act, 1973, It may be advantageous to reproduce the same hereunder:--
(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-charge basis, or who is paid from contingencies; or
(iii) a person who is "worker" or "workmen" as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)."
8. The perusal of the aforequoted definition means that a person who is member of an All-Pakistan Service or a civil service of the Federation, who holds a post in connection with the affairs of Federation including any such post connected with defence is a civil servant, but those persons who are on deputation to the Federal Government from any Province or other Authority or who are employed on contract or on work charge basis or who are paid from contingencies or all thosepersons who are workers or workmen as defined in Factory Act, 1934 or workmen's Compensation Act, 1923 are excluded from defmition of a civil servant.
9. Pakistan Railways have two categories of employees. Those who are civil servants and subject to Efficiency and Discipline Rules 1973 and the other category are those to whom Pakistan Railways Establishment Code applies except a.Person who is a civil servant within the meaning of Civil Servants Act, 1973 the distinction between the two categories was beautifully drawn in case reported as Divisional Accounts Officer, Pakistan Railways and another v. Fariduddin UDC Divisional Accounts Officer, Pakistan Railways, Quetta and 2 others (PLD 1985 Quetta 234) in which it was held:-- "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 (XIII of 1923)."
10. The distinction between the two categories was further clarified by the august Supreme Court of Pakistan in Akbar Ali and others v. Senior Administrative Officer Pakistan' Railways and another (1992 SCMR 1341) in which it was held:-- "The definition of 'workman' in sub-clause (i) of clause (9) of the Workmen's Compensation Act is in two parts. The opening part has the effect of making all the railway servants 'workmen' but the next qualification attaching takes a fairly large category of railway servants out of the category of 'workmen' that is those 'not permanently employed in any administrative, District or sub-divisional office of a railway'. In the case before us, it is not disputed that the appellants are posted in the administrative office at the Hea4quarters. This part of the defmition has nothing to do with their capacity, duties or functions. It concerns only the post. Such is the .Scheme of the definition because the duties, and the functions even in the administrative, District office or sub-divisional office of the railways, have been taken care of by Schedule II. Therefore, on the strength of the first portion the appellants would not fall in the definition of 'workmen' because they are posted in the administrative office of the Railways and do not fall in the Schedule either"
11. In Divisional Superintendent, Pakistan Railways, Lahore and 3 others v. Pervez Akhtar (1995 PLC 574) it was held:- "A civil servant could not be deemed to have been employed upon Railway.---Only those employees can be said to have been employed upon Railway who actually travel with trains such as ticket collector, guards, drivers, firemen etc."
12. The perusal of the above quoted judgments shows that the appellant being Assistant Electrical Examiner of the Trains would fall under the category of 'workmen'.
13. The only question which needs determination in this appeal is as to whether the learned Presiding Officer of the Labour Court had the jurisdiction to entertain the petition filed by the appellant or not. Answer to this question is in negative. No doubt this Court while seized of a matter as Labour Appellate Tribunal in Said Wahab and others v. The Chief Mechanical Engineer, Locomotive Factory, Risalpur and others (2000 PLC 322) held that provisions of section 2-A, Service Tribunals Act, 1973 would not apply to Railways employees, who fell in the definition of workmen and the same view was taken by this Court in the same case while deciding writ petition reported as (2003 PLC (Labour) 118), but the august Supreme Court in Zaheerulah and 13 others v. Chairman WAPDA, Lahore and others (2000 SCMR 826) took up the view that after insertion of section 2-A in Service Tribunals Act, 1973 all the employees working on contract or on work-charge basis and temporary employees were civil servants for limited purpose to approach the Service Tribunal for redressal of their grievance.
14. Thereafter Hon'ble Supreme Court of Pakistan in G.M. National Bank of Pakistan and others v.
Abdul Aziz (2002 PLC (C.S.) 18) went to the extent that if the petition, appeal or writ petition before the High Court was pending relating to the employees before induction of section 2-A in the Service Tribunals Act, shall abate_ under section 6 of the Service Tribunals Act as the aggrieved party could approach the Service Tribunal without any discrimination, where the parties were civil servant or employer. It was further held in this case that if matter was decided by Labour Court appeal was pending before the Labour Appellate Tribunal by insertion of section 2-A in the Service Tribunals Act, 1973, the appeal before the Labour Appellate Tribunal had abated and the matter was taken to Service Tribunal, which alone had the exclusive jurisdiction could examine the grievance of such person.
15. Similar view. Was taken .n Syed Aftab Ahmad and others v. KESE and others (1999 SCMR 197), wherein it was held that undersection 2-A of the . Service Tribunals Act all employees could go to Service Tribunal relating to matters of terms and conditions of service.
16. In Malik Mumtaz Ahad and others v. Federal Service Tribunal and others (2000 SCMR 832) the august Supreme Court of Pakistan held that section 2-A was applicable with retrospective effect.
17. In Ejaz Ahmad Waraich v. President of U.B.L. And others, (2003 SCMR 1264) it was held:-- "Section 2-A which was inserted' in the Service Tribunals Act, 1973, by its own force, created a class pf Government servants by fiction, for the purpose of allowing them to avail remedy of appeal before the Service Tribunal. Section 2-A while providing that the service under any Authority, corporation, Body or Organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is declared to be the service of Pakistan and every person holding a post under such Corporation or Organization shall be deemed to be a civil servant for the purpose of Service Tribunals Act, does not make any differentiation between the employees working in such organization either as regular employees or contract employees or workmen. Such were covered by the provisions of section 2-A for the purposes of availing remedy before the Service Tribunal.
The fact that they were employed in the Organization/Corporation on contract basis, could not disentitle them to the remedy of appeal which became available to them on account of incorporation of section 2-A in the Service Tribunals Act, 1973."
18. The aforequoted judgments of august Supreme Court of Pakistan make it clear that those employees who would fall under the definition of workmen were also to approach the Federal Service Tribunal for redressal of their grievance. The appellant being one of those should have approached the said forum, which he failed to approach.
19. The admitted position in this case is that the appellant under bona fide belief approached the Labour Court for redressal of his grievance, it was the duty of the Labour Court to have decided the question of jurisdiction first, which it failed to decide. Had the question of jurisdiction been taken first and the learned trial Court was of the view that it has no jurisdiction to entertain the petition, then the petition would have been returned -for filing the same before the proper forum. Instead the case was kept pending for sufficient long period andeventually without touching the merits of the case was decided on the IE basis of jurisdiction alone.
I, therefore, allow the appeal, set aside the impugned judgment and order and send the case back to the learned Labour Court for returning the same to the appellant for filing it before the appropriate F forum with no order as to costs. If the appellant approaches the Federal Service Tribunal, the learned Members of the Tribunal while dealing with the matter of limitation would keep in mind the above quoted judgments of the august Supreme Court of Pakistan in a very recent judgment given in case of Muhammad Hanif Bukhari and others v. President National Bank of Pakistan Head Office Karachi and others 2004 PLC (C.S.) 1014 in which it has been held that decision of cases on merits always to be encouraged instead of non-suiting the litigants for technical reason including limitation.