' The appellant, who was employed as a Head Sorter in S. R. O., Hyderbad of the Postal Department, and is said to have been drawing pay in a lower selection grade, was retired from service with effect from 10th April, 1980, upon completion of 25 years service vide order, dated 10th April, 1981, issued by the Post Master General Southern Circle. The appellant challenged the orders of his retirement by way of a grievance petition filed before the learned VIth Labour Court which has dismissed his grievance petition on the ground that the appellant is not a workman and hence his grievance petition was not maintainable. In coming to this decision, the learned Labour Court has relied upon 2 circumstances. The first being that the appellant was a Head Sorter and was drawing pay in the lower selection grade, and secondly, the Gazette Notification, dated 3rd January, 1972, issued by the Director General, Postal Department, and published at page 28 of the Gazette of Pakistan, dated 21st January 1972, to the effect that all employees of the Postal Department in higher and lower selection grades shall be deemed to fall within the category of the employer. The appellant has now come up in appeal to this Tribunal against the said decision.
2. The Civil Servants Act, 1973, and the Rules framed thereunder, Including rules relating to retirement, conduct and discipline are applicable to all persons holding posts in connection with the affairs of the Government, excepting such persons who are specifically excluded from the definition of "Civil Servants" as contained in clause (b) section 2 of the said Act.
3. It was not disputed by Mr. Aftab Sheikh, the learned counsel for the appellant that the appellant was holding a civil post in connection with the affairs of the Federation. His contention, however, was that the appellant came within one of the exception to the definition of Civil Servants as contained in the aforesaid Act and, therefore, can be deemed to be a workman. The learned counsel relied upon sub-clause (3) of clause (b) of section 2 of the Act and submitted that the appellant fall within the definition of workman as contained in the workmen's Compensation Act, 1923. The learned counsel relied upon the provisions of section 2(1) (n) of the Workmen's Compensation Act read with Item (xxiii) of Schedule II of the said Act. The said Item reads as follows :- "(xiii) employed as an inspector, mail guard, sorter or van peon in the Railway Mail Service, or employed in any occupation ordinarily involving out door work in the Posts and Telegraphs Department ; or"
4. The learned counsel for the appellants contended that a Head Sorter comes within the definition of a sorter, and, therefore, should be deemed to be a workman for the purposes of not only the Workmen's Compensation Act, 1923, but also of the Standing Orders and the Industrial Relations Ordinance. The learned counsel sought support for his contention from clause (b) of sub- paragraph (1) and clause (b) of subparagraph (ii) of paragraph 2 of Appendix C-A of the Report on the Revision of Time Tests in the Post Office. The said 2 paragraphs read as follows :- "(I)(b) Where the number of sorters justified is 7 but not more than 9 one sorter should be given out side the time-test for supervisory work and this will be the head sorter of the set.
(IWO Where the total number of sorters employed in a travelling section 6 or more than 6 but not more than 8 a full sorter should be given in addition to the time-test and this man will be the head sorter of the section."
9. The above provisions should be read in the light of the opening sentence of paragraph 2 which reads; "For supervisory work the following principles should be observed". This sentence together with a reference to supervisory work in clause (b) of sub-paragraph (II) clearly indicates that the Head Sorter is required to perform supervisory duties. In any case, I would agree with the view taken by the learned Labour Court that a Head Sorter drawing pay in the lowers selection grade, despite the fact that selection grades may now have been abolished, would not be deemed to be an ordinary sorter and, therefore, cannot be considered to be a workman either for the purposes of the Workmen's Compensation Act or the Civil Servants Act. The result is that, in my opinion, the appellant would be governed by the Civil Servants Act 1973, and his retirement cannot be questioned before a Labour Court or the Tribunal.
6. For the reasons discussed by me above, I find no merit in this appeal and dismiss the same in limine, Appeal dismissed.
1981 PLC 896 [Lahore High Court] 13efore Gul Muhammad Khan, J SAFDAR ALI MK versus WATER AND POWER DEVELOPMENT AUTHORITY AND 2 OTHERS Writ Petition NO, 11754/S of 1980, decided On 17th March, 1981.
Constitution of Pakistan (1973)- -- Art. 199/212-Petitioner employee of WAPDA transferred on deputation to a Company-Company informed by WAPDA that deputationist would not be repatriated without its prior approval but Company relieving petitioner despite his representation and WAPDA refusing to entertain arrival report-Held : Petitioner still being employee of WAPDA has a right to serve WAPDA and could not be prevented from joining service-Refusal on part of WAPDA to let petitioner join it. Held, without lawful authority and of no legal effect-No cause of action, held further, existed for petitioner to approach Labour Tribunal instead of High Court whose jurisdiction not barred in view of Art.
212. [pp. 897, 898p1, B & C Munawar Ahmad Javed for Petitioner.
Mansoor Hussain Bokhari for Respondents Nos, 1 and 3.
Sair Ali for Respondent No, 2.
Date of hearing : 17th March, 1981.
' This order shall also dispose of Writ Petitions Nos, 419-S-81, 11709-S- 80, 9454-S-80, 9455-S-80, 10109-S-80, 11708-S-80, 11710-S-80, 177-S-81, 178-S-81, I79-S-81, 237-S-81,385-S-8I,407-S-81,12178-S- 80,11973-S-80, 11981-S-80, 11960-S-80,11959-S-80, 11958-S-80, 1957-S-80,11956-S- 11955-S-80,11954- S-80,11953-S-80, 11952-S-80, 11951-S-80, 11950-S-80, 11949-S-80 and 11948-S-80, which involve the same questions of law and facts.
2. The petitioner was employed as Assistant Engineer by WAPDA in Scarp-I in 1980. In September, i972, he was transferred to the Machinery Pool Organisation, another department of respondent No.
1. On 31st August, 1974, a private limited Company under the name of Mechanized Construction of Pakistan Limited (respondent No, 2) was floated in the public sector and it took over all the assets, liabilities of the Machinery Pool Organisation. The services of the officers of the Machinery Pool Organization were also transferred to it.
3. Vide letter dated 4th September, 1975, WAPDA explained the teams and conditions of its employees on deputation with Mechanised Construction of Pakistan Limited to state that they were governed by the WAPDA Efficiency and Discipline Rules. A copy of that letter is said to have been endorsed to the Director (Complaints and Investigation) under it, with the direction that he should continue dealing with the enquiry cases of WAPDA employees on deputation with the respondent No, 2.
4. On 18th April, 1977, the respondent No. 1 took a decision to terminate the lien of the petitioner and other employees who were on deputation with respondent No,
2. It was communicated to respondent No, 2 vide its letter dated 3rd May, 1977. The petitioner and other affected employees agitated the matter with the result that the Secretary, Ministry of Water and Power agreed to allow the deputationists who 'opted for WAPDA service to retain their lien. The petitioner is said to have done that. The respondent No. 1, also, decided that those who had opted for WAPDA would continue to serve respondent No, 2 as deputationists. It further informed the respondent No, 2 as well as the respondent No, 3 that deputationists would not be repatriated to WAPDA without the prior approval of respondent 1. The matters like pensions employee provident fund, group insurance etc. Were also to be governed by WAPDA Rules. The same position is said to have been confirmed by the Ministry of Law vide advice dated 29th April, 1980.
5. On 25th November, 1980, Mechanized Construction of Pakistan Limited relieved the petitioner in pursuance to its order dated 22nd November, 1980. Likewise the other petitioners were also relieved.
The petitioner represented against it and stated that respondent No, 2 should not relieve him till such time a decision is made by respondent No. 1. However despite a representation, the petitioner was relieved as said above. Consequently, he submitted his arrival report to respondent No. 1 on 27th November, 1980 but the same was not entertained. The petitioner sent his arrival report by a registered post. He then filed the present writ petition.
6. It is contended by the learned counsel that as the petitioner is a WAPDA employee and as the same stands admitted by WAPDA on the basis of Annex. 'F' dated 11th July, 1970, he has a right to join it after being repatriated by the respondent No. 1 The learned counsel for 4 WAPDA, however, submitted that as the petitioner could not be repatriated without the consent of the respondent No, I, it is the respondent No, 2 who 'should be directed to take the petitioner and other employees back. He further pleaded that as the petitioner has a right to go to the Service Tribunal, the jurisdiction of this Court is barred in view of Article 212 of the Constitution.
7. None of the contentions of the learned counsel for the respondent No, I has any force. Admittedly, the petitioner was and remains to be an employee of the respondent No. 1. He would have been obliged to serve the respondent No, 2 if the respondent No, 2 was willing to let him, do so. However as the respondent is not willing to retain the services o the petitioner, he could not impose himself on him. The dispute, if any, will thus be between the respondent Nos, 1 and 2, and till such time it I resolved, the petitioner is entitled to join the respondent No, I. The denial on his part to do so is, therefore, unlawful.
8. Further, as the petitioner still continues to be an employee of the respondent No. 1 and as no action other than the above has been taken against him, he had no cause of action to approach, and move the Tribunal. Undoubtedly, he is still an employee of WAPDA and has, therefore, a right to serve it, The WAPDA thus could not prevent him from joining and serving it.
In view of the above, the refusal on the part of WAPDA respondent No. 1, to let the petitioner join it, is without lawful authority and of no legal effect. The WAPDA is, therefore directed to entertain his arrival report as submitted on 27th November, 1980 and treat him as its employee. The respondent shall pay the costs also,