This Constitutional Petition, by the Pakistan Railways through its Divisional Superintendent at Karachi, assails the legality of the order of the 1Vth Labour Court, Hyderabad, dated 3-2-1976, whereby it dismissed the petitioner's appeal and upheld the decision of the Vth Junior Labour Court, Hyderabad, dated 5-9-1975, directing that pro forma promotion be given to respondent No. 3 to the post of Railway Guard, Grade II, with effect from 1961 till his retirement, along with the benefits, emoluments and advantages resulting from such promotion.
2. The pertinent facts, necessary for the disposal of this Petition, are that respondent No. 3, who was appointed as Yard Foreman in India, on 6-8-1936, opted to serve in Pakistan Railways in the year 1947. It appears that in the year 1959, when he was working as Yard Foreman Grade-I, it was proposed to promote him to the post of Yard Foreman Grade-II, but as the promotion would have involved his being shifted from Kotri, where he was then serving, to Karachi, and as he was anxious to be posted at Hyderabad or Kotri, be declined the promotion. Subsequently, however, in the year 1961, respondent No. 3 was made to work as Guard, Grade-II on a purely local arrangement basis.
Since he did not pass the necessary test and undergo the required training for promotion to Grade-II, he was not formally promoted to the said grade till 20-6-1972, when, by reason of his age, he was exempted from undergoing the prescribed training. The respondent 3 ultimately retired from service from 8-8-1973, but he continued to represent to the petitioner and the authorities against the injustice done to him for not being promoted in due time to Grade 11 with the consequent loss to him of emoluments and other privileges. Having been finally informed by the petitioner, vide its letter dated 23-10-1974, that his claim had been rejected and could not be considered, respondent No. 3 filed a complaint against the petitioner, under section 25-A of the Industrial Relations Ordinance on 12-11-1974, claiming pro forma promotion with effect from 1959 along with back benefits. As already stated, his claim was substantially allowed by the Junior Labour Court and the appeal filed by the petitioner was dismissed by the Labour Court:
3. In my view, the petition can be disposed of on the basic question whether respondent No. 3 was a workman for the purposes of the Industrial Relations Ordinance and whether he was entitled to file a complaint under section 25-A, Industrial Relations Ordinance. Under the latter section, only a worker, or a shop-steward or a Trade Union, of which such worker is a member, can take a matter to a Junior Labour Court and pray for its decision. In the instant case, admittedly the proceedings before the Labour Court were not instituted by a Trade Union or a shop-steward but by the respondent No. 3 himself. It has, therefore, to be seen whether he was a workman at the time that he instituted the proceedings before the Junior Labour Court. As already stated, respondent No. 3 had retired from the service of the petitioner long before he had instituted the proceeding; in the Labour Court. The question that thus falls for consideration is whether a retired worker is a worker for the purposes of the Industrial Relations Ordinance, specially in regard to the institution of proceedings under section 25-A thereof. The expressions "worker" and "workman" have thus been defined in section 2 (xviii) of the Industrial Relations Ordinance : "(xviii) 'worker' and 'workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purposes of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, Jay-off, or removal has led to that dispute but does not include any person-----
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, ether because of the nature of duties attached to the office or icy reason of the powers vested in him, functions mainly of managerial nature."
4. A perusal of the above definition makes it clear that the essential characteristics of a worker or workman are that he should be employed in an establishment or industry. No doubt, the definition includes, in relation to an industrial dispute, a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from an employment in connection with or as a consequence of the dispute or alternatively the dispute is in consequence of such discharge, etc. But in the instant case, admittedly there was no industrial dispute, nor was respondent No. 3 discharged, retrenched, laid off or otherwise removed from employment. He was retired on attaining the age of superannuation, which is a normal feature in all Government, semi- Government and numerous other organizations and establishments. Such retrenchment cannot be equated with dismissal, discharge, removal, retrenchment or laying off as contemplated in the definition of the expression "workman". Admittedly, respondent No. 3 was not employed in the establishment of the petitioner at the time that either he gave notice of his complaint under section 25-A, Industrial Relations Ordinance to the petitioner or instituted the proceedings in the Junior Labour Court. It may be noted that the definition of "worker" uses the expression "is employed" which means that he must be employed in the establishment at the relevant time. If the intention of the Legislature bad been to include past workers also within the definition of "workman", it would have made such intention clear by the use of appropriate words, which are totally missing in the instant case. It may be pointed out that in the Service Tribunals Act, 1973, the expression "civil servant" has been defined to mean not only a person who is a civil servant but also a person who has been a civil servant. No such extension of the definition of workman is contained in the Industrial Relation Ordinance. Since respondent No. 3 had retired from the service of the' petitioner long before he initiated the grievance proceedings against the petitioner, such proceedings have no legal basis and the orders passed by the two Labour Courts are without jurisdiction.
5. It is a matter of regret that though this issue was raised before the Labour Courts, it was not considered by them and it was assumed that respondent No. 3 was a workman for the purposes of the Industrial Relations Ordinance.
6. Certain other grounds have also been raised in the petition challeng--ing the validity of the impugned orders of the Labour Courts, but I find it unnecessary to deal with the same, in view of my finding on the above issue.
7. For the reasons stated by me above, I would allow the petition with costs.