1. ' NADEEM AZHAR SIDDIQI, J.--- The petitioner has challenged the order, dated 30-4-2005 passed by the Appellate Authority under the Payment of Wages Act, 1936 on an appeal filed by Pakistan Railways. The facts necessary for disposal of this petition are that the petitioner was employee of Pakistan Railways and was retired from service on 3-10-2003 on account of superannuation. Earlier he was compulsorily retired on 27-4-2001 which was challenged by way of appeal before Federal Service Tribunal which was allowed and the petitioner was reinstated, however, by virtue of age of the petitioner stood retired w.e.f, 3-10-2003 and the intervening period from 28-4-2001 to 3-10-2003 was treated as leave with full pay as per leave rules. The accounts department refused to make payment and revised payment of 890 days as under:--- ' 120 days full pay. 770 days half pay.
2. ' The petitioner claims that a sum of Rs,1,30,687 was deducted and 180 days on account of encashment for not availing leave preparatory to retirement was refused. The petitioner claims a total amount of Rs,2,07,382. The petitioner filed application under the Payment of Wages Act, 1936 which was allowed by order dated 28-2-2005. The respondents challenged the said order before the Appellate Authority who allowed the appeal and set aside the order passed by the Authority.
3. ' The learned counsel for the petitioner has submitted that order of the Appellate Authority is illegal and without lawful authority and has been passed in ignorance of section 1(4) of Payment of Wages Act, 1936. He submits that the petitioner has rightly approached the Authority under the Payment of Wages Act, 1936 for the payment which was either deducted or refused.
4. ' Mr. Mehboob Malik the learned counsel for the respondents Nos.2 to 5 has submitted that the employees of Pakistan Railways are deemed to be civil servant and the remedy lies with the Federal Shariat Tribunal and the Appellate Court has rightly passed the order.
5. ' Mr. A.R. Farooque Pirzada the learned D.A.-G. Adopted the submissions of Mr. Mehboob Malik and additionally submits that the authority cannot enquire to determine as to what the wages ought to be. He submits that from the proceedings it appears that the right to recover the wages and its quantum is disputed and the authority cannot resolve such disputed question.
6. ' Mr. Nizamuddin Baloch, Advocate has submitted that the Railway is not performing the function of Federal Government and the employees cannot be treated as civil servant and only the persons who were directly employed by the Federal and Provincial Governments are civil servant. He relied upon the observations of Honourable Supreme Court in its recent pronouncement. Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602.
7. ' I have heard the learned counsel for the parties and perused the record made available before me.
8. ' The learned Appellate Authority has decided the appeal on the point of jurisdiction. The Appellate Authority has held that the order passed by the Authority is without jurisdiction as the respondent No,6 had no authority to entertain the case of civil servants. The findings of the learned Appellate Court appear to be in ignorance of subsection (4) of section 1 of the Act of 1936 which reads as under:-- "(4) It applies (xxxxx) to the payment of wages to persons employed in any factory (industrial establishment or commercial establishment) and to persons employed otherwise than in a factory (industrial) establishment or commercial establishment) upon any railway by a railway administration or either directly or through a sub-contractor, by a person fulfilling a contract with a railway administration."
9. ' The Railway administration has been defined in definition clause as under:--- "(v) Railway administration has the meaning assigned to it in clause (6) of section 3 of Railways Act, 1890 (IX of 1890)."
10. ' The above provision gives the right to the employee of Railways to agitate the matter before the Authority under the Payment of Wages Act. However, after insertion of 2-A in the Services Tribunals Act, 1973 the employees of the Railways were treated as civil servant for the limited purpose of availing the forum of appeal.
11. ' In the recent pronouncement of Muhammad Mobeen-us-Salam the Honourable Supreme Court has held that:--- "From perusal of the definition of 'civil servant' in section 2(1)(b) of the CSA, 1973, it emerges that in order to attain the status of a 'civil servant' it is necessary that the person should be member of 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. There may be some employees who fall within the definition of 'civil servant' for the purpose of STA, 1973 but do not enjoy the status of All Pakistan Service or of a civil service of the Federation. Both these expressions are not synonymous."
12. ' The Honourable Supreme Court has further held as under:--- "A worker or a workman as defined in Factories Act, 1934 or the Workmen's Compensation Act, 1923, notwithstanding the fact that the controlling share in the industry vests in the Federal Government shall not be treated as civil servant. Similarly, persons on contract, even though discharging their functions in connection with the affairs of the Federation and likewise, as well as the deputationists from the Provinces to the Federal Government have not been granted protection of CSA, 1973, therefore, they were excluded from the definition of 'civil servant' and as per terms and conditions of the person of later category, laid down in CSA, 1973 they shall not be entitled to approach the Service Tribunal, established under Article 212 of the Constitution."
13. ' The Honourable Supreme Court has further held as follows:--- "S. 2-A---Constitution of Pakistan (1973), Arts.240 & 260---Civil servant---Service of Pakistan--- Employees of statutory Corporations whose terms and conditions of Service are regulated by statutory rules, would fall within domain of S.2-A, Service Tribunals Act, 1973, whereas the Government controlled Corporations which have got no statutory backing nor any statutory rules governing the terms and conditions of service of their employees, they would not fall within the mischief of S.2-A of Service Tribunals Act, 1973."
14. From the above cited judgment it is clear that the petitioner is not covered by the definition of civil servant and cannot approach the Service Tribunal. Furthermore the Appellate Court while passing the impugned judgment has not considered the provisions of Payment of Wages Act, 1936 and the order has been passed in ignorance of law. In constitutional jurisdiction the High Court can interfere if it is shown that the order is without lawful authority and has been passed in contravention of law. Since the order was passed without considering the provisions of Payment of Wages Act, 1936 the same is set aside. The case is remanded to the Appellate Authority for deciding the same afresh after hearing parties and after considering the relevant provisions of the Payment of Wages Act, 1936 and recent pronouncement of the judgment of the Honourable Supreme Court in the case of Muhammad Mobeen-usIslam v. Federation of Pakistan PLD 2006 SC 602.
15. ' The petition is allowed. The parties to bear their own cost.