' JUSTICE (RETD.) SHEIKH AHMAD FAROOQ (CHAIRMAN).--- Through this consolidated judgment, we intend to decide the aforementioned two Review Petitions bearing Nos.2 and 3/2015 in Appeal No,99(L)CS/ 2012 and Review Petition No,5/2015 in Appeal No,199(L)CS/ 2010 as well as M.P.No,66- A/2013 filed under Order VII, Rule 11, C.P.C. For rejection of Appeal No,56(L)CS/2011, as the status of the Railway employees is involved in all the aforesaid petitions.
2. Before proceeding further, it would be advantageous to give brief background of the aforementioned petitions.
3 Review Petitions Nos.2 and 3/2015 in Appeal No,99(L)CS/2012: ' Jawad Ahmad Khan, who was a Prosecuting Inspector in Pakistan Railway Police filed Appeal No,99(L)CS/2()12 in this Tribunal wherein he prayed for passing a direction to the respondents for payment of TA/DA, actual conveyance charges, 20% Special Pay and enhancement of the Prosecution Allowance on the analogy of. Prosecutors working in the HA. Respondents Nos.2 and 3 i,e, Divisional Superintendent and Divisional Accounts Officer, Pakistan Railways, Rawalpindi in the said appeal raised a preliminary objection that the appellant/Jawad Ahmad Khan is not a civil servant as his terms and conditions of service are governed through Pakistan Railway Police Act, 1977. A Bench of this Tribunal comprising of two learned Members/Kazi Afaq Hossain and Syed Nasir Ali Shah after hearing the learned counsel for the parties on the aforementioned preliminary objection, decided that the appellant/Jawad Ahmad Khan is a civil servant vide order dated 12-12- 2014. However, the main appeal of Jawad Ahmad Khan bearing No,99(L)CS/2012 is still pending adjudication in this Tribunal. However, one Khalid Farooque Tipu,, who claimed to be 'directly or indirectly aggrieved filed 'a Review Petition under Section 4A of the Service Tribunals (Amendment)
Act, 2014 against the order dated 12-12-2014, primarily, on the ground that the employees of.
Pakistan Railway Police as well as other Railway servants .Are not civil servants and as such outside the ambit of section 2(1)(b) of the Civil Servants Act, 1973.
4. Another Review Petition bearing No,3/2015 was also filed on behalf of Pakistan Railways through Miss Humaira Latif Ch., Advocate for reviewing the order dated 12-12-2014 on the plea that the declaration of the Prosecuting Inspectors of Pakistan Railways as civil servant is against the law.
5. Jawad Ahmad Khan, who had filed Appeal No,99(L)CS/2012 and declared to be a civil servant vide order sought to be reviewed dated 12-12-2014 controverted the averments of both the abovementioned Review Petitions by maintaining that he is a civil servant. He also challenged the locus standi of Khalid Farooque Tipu, who was neither a party in Appeal No,99(L)CS/2012 nor an aggrieved person and as such, not competent to file Review Petition under section 4-A of the Service Tribunals (Amendment) Act, 2014. He also pointed out that Review Petition No,3/2015 purportedly moved by Pakistan Railways through Miss Humaira Latif Ch., Advocate is a replica of the Review Petition filed by Khalid Farooque Tipu. He claimed that even after his promotion as Prosecuting Deputy Superintendent, he is being governed by Pakistan Railway Police. Act, 1977 and Pakistan. Railway Police Rules, 1980 and is a civil servant as defined in section 2(1)(b) of the Civil Servants Act, 1973. He also referred to the Notification issued by the Government of Pakistan, Ministry of Railways (Railway Board) dated 15-10-2009 whereby Railway Police, amongst others, is to be dealt with under the Civil Servants Act, 1973 falling within the category of subordinate office in the light of Rule 2(w) of Rules of Business, 1973.
6. Review Petition No,05/2015 in Appeal No,199(L)CS/2010: ' Shams-ud-Din, an employee of Railways, who is respondent No,3 in this Review Petition, was departmentally proceeded against and a penalty of dismissal from service was imposed upon him. Claiming to be a civil servant and thus amenable to the jurisdiction of this Tribunal, the aforesaid Shams-ud-Din filed Service Appeal No,222(L)CS/2002 before this Tribunal. Vide judgment dated 24-9-2009, the appeal was accepted and Shams-ud-Din was ordered to be reinstated in service. However, the respondents in the said appeal were directed to initiate against Shams-ud- Din and hold the de novo departmental proceedings against him. It was directed that question of back benefits shall depend upon the result of de novo departmental proceedings. Thereafter, departmental proceedings were accordingly initiated against Shams-ud-Din and consequently the intervening period from 20-9-2001 to 17-10-2001 was treated as leave with full pay and the period from 18-10-2001 to 20-10-2009 was treated as leave without pay. Not contented with the aforesaid order, Shams-ud-Din filed a second Appeal No,199(L)CS/2010 before this Tribunal in which he prayed that the period from 20-9-2001 to 20-10-2009 be treated as "spent on duty." The appeal was resisted by the respondents. Jurisdiction of this Tribunal was questioned by maintaining that Shams-ud-Din was not a civil servant. However, vide judgment dated 27-1-2015 this Tribunal by repelling the contention of the respondent-Railways, decided that Shams-ud-Din was a civil servant and as such his appeal was accepted.
7. Thereafter, one Khalid Farooque Tipu, who is a private respondent in Appeal No,56(L)CS/2011 which is pending adjudication below this Tribunal, filed the instant Review Petition against the order dated 27-1-2015 on the plea that Shams-ud-Din was not a civil servant and as such, the appeal was not maintainable before this Tribunal. The review petitioner/Khalid Farooque Tipu inter alia contended that Railway is a big business concern and as such, comes in the definition of Industrial and Commercial Establishment, has its own statutory rules and the terms and conditions of service of its employees are duly protected under Articles 241, 260 and 268 of the Constitution. He maintained that all the non-gazetted Railway servants, who are governed by Pakistan Railways Establishment Code, Volumes I And II and rules made thereunder, are not civil servants and as such, cannot knock the door of this Tribunal for the redressal of their grievances. The review petitioner/Khalid Farooque Tipu thus prayed for the setting aside of the aforesaid order dated 27-1- 2015.
8. This review petition was resisted by Shams-ud-Din/respondent by maintaining that the review petitioner has no locus standi to file the review petition, being not a party to the aforesaid appeal. It was also submitted that this Tribunal has rightly held the respondent/Shams-ud-Din to be a civil servant. It was further contended that the review petitioner is not aggrieved person and necessary ingredients of review are not available in this case. The respondent/Shams-ud-Din, further contended that judgment dated 27-1-2015 is appealable and not revisable as neither there is any error or mistake apparent on the face of record nor any new or important matter or evidence has been put forward by the review petitioner.
9. M.P.No,66-A/2013 in Appeal No,56(L)CS/2011: ' In Appeal No,56(L)CS/2011, filed by Ghulam Jaffar, private respondents Nos.3 to 7 and 10, have moved the instant M.P.No,66-A/2013 under Order VII, Rule 11, C.P.C. For rejection of the said appeal.
The petitioners claimed that non-gazetted Railway servants whether they are workers or workmen fall under the definition of The Factories Act, 1934 (Act No, XXV of 1934) and The Workmen's Compensation Act, 1923 (Act No, VIII of 1923) respectively and the employees, whose terms and conditions of service are governed by Pakistan Railways Establishment Code, Volumes-I and II and rules made thereunder, are not civil servants. They have prayed that Appeal bearing No,56(L)CS/2011 filed by Ghulam Jaffar may be rejected as he is not a civil servant and this Tribunal lacks jurisdiction to entertain and adjudicate the appeal filed by him.
10. In all the aforementioned Review Petitions as well as in the application under Order VII, Rule 11, C.P.C., the pivotal question requiring adjudication is that as to whether the Railway employees are civil servants or not. Keeping in view the significance of the matter, impact of the likely judgment and to solve the Gordian knot regarding the status of Railway employees, a Special Bench comprising of the Chairman and three learned Members of this Tribunal was constituted.
11. First of all, we would like to decide the Review Petitions Nos.2 and 5/2015 which have been filed by Khalid Farooque Tipu. In this context, at, the outset, we would like to observe that Khalid Farooque Tipu was neither a party in the Appeal bearing No,199(L)CS/ 2010, which was filed by Shams-ud-Din and finally decided vide judgment dated 27-1-2015 nor was impleaded as respondent in the Appeal No,99(L)CS/2012 filed by Jawad Ahmad Khan, which is still pending adjudication and only through an interim order dated 12-12-2014, the said Jawad Ahmad Khan has been declared to be a civil servant. The locus standi and the competence of Khalid Farooque Tipu to file Review Petitions is to be decided on the touchstone of the criteria laid down in section 4A of the Service Tribunals (Amendment) Act, 2014, which is being reproduced hereunder for ready reference:--- "4A. Review.---(1) A Tribunal shall have the power to review its final order on a review petition filed by an aggrieved party within thirty days of the order on the following grounds, namely:----
(i) discovery of new and important matter or evidence which after exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him at the time when the order was passed;
(ii) on account of some mistake or error apparent on the face of record; or
(iii) for any other sufficient cause.
(2) The Tribunal shall decide the review petition within thirty days;
(3) The Tribunal may confirm; set aside,- vary or modify the judgment or order under review."
12. A bare perusal of the aforementioned Section 4-A of the Act ibid would reveal that only an aggrieved party could file a Review Petition within 30-days of the passing of a final order. No doubt, Khalid Farooque Tipu has filed his review petitions against the orders dated 12-12-2014 and 27-1- 2015 within the period of 30-days, as permissible under section 4-A of the Act ibid. But there is no denial of the fact that he was not a party in the aforesaid two appeals wherein the orders sought to be reviewed have been passed. Even otherwise, order dated 12-12-2014 passed in Appeal No,99(L)CS/2012 is not a final order, rather, an interim order and not liable to be reviewed under section 4-A of the Act ibid. Khalid Farooque Tipu also cannot be considered to be an aggrieved party as the aforesaid judgments are judgments in personam and were delivered after considering the status of the appellants of those appeals as well as the peculiar attending facts of the case.
The apprehension of the review petitioner/Khalid Farooque Tipu that the impact of the aforesaid two judgments dated 12-12-2014 and 27-1-2015 would trickle down or spill over the other cases, particularly, to the Appeal No,56(L)CS/2011, wherein he has filed an application under Order VII, Rule 11, C.P.C., is totally misconceived. Consequently, we are of the considered view that Review Petitions No,2/2015 and No,5/2015 filed by Khalid Farooque Tipu against the interim order dated 12-12-2014 and final judgment dated 27-1-2015 passed in Appeal No,99(L)CS/ 2012 and Appeal No,199(L)CS/2010 respectively are not maintainable.
13. Similarly, Review Petition No,3/2015, which has been filed through Miss Humaira Latif Ch. Advocate by the Divisional Superintendent Pakistan Railways and Divisional Accounts Officer Pakistan Railways/who are respondents Nos.2 and 3 in the Appeal of Jawad Ahmad Khan bearing No,99(L)CS/2012, is also not maintainable as the order dated 12-12-2014, which is sought to be reviewed, is an interim order and not a final order in the abovementioned appeal, which is still pending adjudication. No review petition under section 4-A of the Service Tribunals (Amendments)
Act, 2014, could be filed against an interim order.
14. Nevertheless, the issue raised in the above three Review Petitions i,e, status of Railway employees as civil servants or otherwise is also subject matter of an application filed under Order VII, Rule 11, C.P.C. In Appeal No,56(L)CS/2011 and the same is being discussed and decided in the subsequent paras of this judgment.
15. In this backdrop, we asked Mr. Riaz Ahmad Tahir, learned Advocate, who had filed M.P.No,66- A/2013 under Order VII, Rule 11, C.P.C., to start his arguments on the point in issue. He submitted that the non-gazetted Railway servants whether they are workers or workmen falling under the definition of The Factories Act, 1934 (Act No, XXV of 1934) and The Workmen's Compensation Act, 1923 (Act No, VIII of 1923) respectively and other Railway servants whose terms and conditions of service are embodied in the Pakistan Railways Establishment Code Volume-I and II as well as Railway Servants (Efficiency and Discipline) Rules, 1973 do not fall within the definition of civil servants as mentioned in section 2(1)(b) of the Civil Servants Act, 1973. He contended that non- gazetted Railway servants have their own statutory rules and as such, this Tribunal lacks jurisdiction to entertain and adjudicate any appeal filed by them in respect of their terms and conditions. Mr. Riaz Ahmad Tahir, learned Advocate was candid enough to present before us the galaxy of judgments in support of his arguments and contra. He maintained that Railway employees are governed by Pakistan Railways Establishment Code Volume-I and II which derives its validity from Article 241 of the Constitution. He claimed that there are three types of non- gazetted Railway servants namely (i) those who come within the definition of 'worker' as defined under section 2(h) of The Factories Act, 1934; (ii) those who come under the definition of 'workman' as defined under section 2(h)(i) of The Workmen's Compensation Act, 1923; and (iii) Ministerial Staff in the Headquarters' Office or Regional Offices of Pakistan Railways. Learned counsel has thus contended that such employees are governed by Pakistan Railway Establishment Code - Volume-I and II and rules made thereunder and as such, are not civil servants. To fortify his contention learned counsel has relied upon following case-law:---
(i) Pakistan Railways through its General Manager and others v. Samiullah and others (1999 SCMR 2554)
(ii) Chairman, Pakistan Railways and others v. Arif Hussain and others (2008 PLC (C. S.) 240).
(iii) Executive Council, Allama lqbal Open University, Islamabad through Chairman and another v.
M. Tufail Hashmi (2010 SCMR 1484).
(iv) Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195)
(v) Pakistan Defence Officer's Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707)
16. Miss Humaira Latif Ch. Advocate, who had filed Review Petition No,3/2015 in Appeal No,99(L)CS/2012, which is undoubtedly a replica of Review Petition No,2/2015 moved by Khalid Farooque Tipu, literally adopted the arguments advanced by Mr. Riaz Ahmad Tahir, learned Advocate. Surprisingly, she has also filed a conceding reply to the application filed by Mr. Riaz Ahmad Tahir, learned Advocate under Order VII, Rule 11, C.P.C. This is too much a coincidence and indicates much more than meets the eye. We refrain from passing any observation in this regard and leave it to the Pakistan Railways, whose case she was defending, to probe into the matter, if they so desire, particularly in view of the fact that the Director General, (Legal Affairs) Pakistan Railways did not support the stance taken by Miss Humaira Latif Ch., Advocate during the proceedings of the matter in hand.
17. Mian Mahmood Hussain, learned ASC/amicus curiae in his arguments, submitted that Article 99(3) of Constitution of Islamic Republic of Pakistan empowers the Federal Government to make rules for the allocation and transaction of its business. Pakistan Railways has been described as a Division of the Government of Pakistan at S.No,26 of Schedule-II of Rules of Business, 1973. He submitted that Pakistan Railways and all its servants are performing functions in connection with the affairs of the Federation and as such, they fall in the definition of Service of Pakistan as enshrined in Article 260 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard, he referred to 2 of the Civil Servants Act, which includes a person, who is a 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, including any such post connected with defence but excludes the person on deputation or employed on contract, work charged basis or who is paid from contingencies and similarly, the worker and workman as defined in the Factories Act and Workmen's Compensation Act. Similarly, the Railway servant has been defined in section 3(7) of the Railways Act, which means any person employed by a Railway administration with the service of a Railway company.
That Railway Servants (E&D) Rules, 1975 deal with the Railway servants. Section 3 envisages two classes of Railway employees and the said Rules are applicable to every person, to whom Pakistan Railway Establishment Code applies, except a person, who is a civil servant within the meaning of Civil Servants Act, 1973. The learned counsel has drawn our attention to section 2(n)(i) of Workmen's Compensation Act, which provides that a Railway servant as defined in section 3 of the Railways Act, 1890, not permanently employed in any administrative, District or Sub-Divisional Office of a Railway and not employed in any such capacity as is specified in Schedule II, can also be considered as a workman. The learned counsel further submitted that a Railway servant may also be a worker, provided he is engaged in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process, but does not include any person solely employed in any clerical capacity in any room, where no manufacturing process is being carried out. The learned counsel has added that under Article 241 of the Constitution of Pakistan, all the existing laws were protected. The Railway employees, who are not workers or workmen, have to be the civil servants, as they are in the service of the Federation. The learned counsel also quoted the examples of members of Pakistan Rangers and Frontier Constabulary, who have been treated as the civil servants. Reliance is placed on 2004 SCMR 1397. In support of his arguments, the learned counsel has placed reliance on 2003 PLC 118, PLD 1981 SC 172, 1993 SCMR 2385 and 2003 PLC (C.S.) 1335. He elaborated that all the Railway employees, who are working in the offices and administration, regardless of their status as gazetted or otherwise, are civil servants. Conversely, the railway servants working in the carriage factories, loco-sheds etc. Are either the workers or the workmen.
18. Mian Jaffar Hussain, Advocate, the other learned amicus curiae was in complete harmony with Mian Mahmood Hussain, Advocate and adopted his arguments. He added that Notification of 1992, issued by G.M. Railways and referred to by the learned counsel for the review petitioner, could not supersede Articles 240, 241 and 260 of the Constitution. He placed reliance on judgment reported as PLD 1985 SC 159 and 1997 PLC (C.S.) 533 Karachi to embellish his arguments.
19. Mian Aslam Gurdaspuri, learned counsel for the respondents Nos.1 and 2 (Railways) in Appeal No,56(L)CS/2011 and Mr. Tahir Pervaiz, Director General (Legal Affairs) of Pakistan Railways also articulated their arguments by submitting that Railway Servants E&D Rules, 1975 visualize dichotomy of the officials, one to whom, these Rules apply and the others are the civil servants within the meaning of section 2 of Civil Servants Act, who are immune from the mischief of the said Rules of 1975 and to be dealt with by E&D Rules, 1973 being the civil servants. They both further stated that the purpose of the Notification of the Ministry of Defence was to scuttle the chance of any trade unionism by the Railway servants by exempting them from the application of Industrial Relations Ordinance. It is worth consideration that D.G. (Legal Affairs) Pakistan Railways was, of course, the official spokesman in the Court for his department and he was in agreement with the views of learned amicus curiae. We would like to reproduce hereunder relevant portion of the written comments submitted by the Director General (Legal Affairs) Pakistan Railways, Lahore:--- .... All Railway employees who did not fall under the definition of the worker or workman as defined in the Factories Act, 1934 and the Workmen's Compensation Act, 1923 were amenable to the jurisdiction of Federal Service Tribunal where their terms and conditions of service were involved.
This view point was supported by numerous authorities presented before the Honourable Tribunal."
20. We have heard marathon arguments of learned counsel for the parties, learned Amicae Curiae and Mr. Tahir Pervaiz, learned Director General (Legal Affairs), Pakistan Railways for three consecutive days in a row and perused the available record. We have also carefully perused the case-law with the able assistance of the learned counsel for the parties and two Amicae Curiae namely M/s. Mian Mahmood Hussain and Mian Jaffar Hussain, learned Advocates of Supreme Court of Pakistan.
21. Prior to dilating upon and determining the status of Railway employees, which has been raised by the learned Advocate/Riaz Ahmad Tahir, in his application under Order VII, Rule 11, C.P.C. Filed in Appeal No,56(L)CS/2011, we may mention here that Order VII, C Rule 11, C.P.C. Relates to the rejection of plaint in civil suits and not to appeals and as such, the instant petition under the aforesaid provision of law, is not competent. Notwithstanding the wrong provision of law under which this application has been moved, we are not inclined to dismiss this application summarily as an important question regarding the status of Railway employees vis-a-vis civil servant has been raised therein, which should be decided on merits.
22. Learned counsel Mr. Riaz Ahmad Tahir, during the course of his arguments relied upon the following judgments, which are being discussed hereunder, in order to determine their applicability to the facts of the instant case:--- ' In Pakistan Railways through its General Manager and others v. Samiullah and others (1999 SCMR 2554), the dispute was with regard to fixation of quota by the General Manager, Pakistan Railways regarding promotion of Head Ticket Collectors to the post of Group Inspectors of Special Ticket Examiner. The Hon'ble Supreme Court of Pakistan while hearing the appeal of Pakistan Railways set aside the judgment of Lahore High Court, dated 10-1-1996 passed in Writ Petition No,13251/1994 and laid down that since respondents are workers or workmen as defined in the Workmen's Compensation Act, 1923 and as such, they are excluded from the definition of the civil servants in the light of clause (b) of sub-clause (1) of section 2 of the Civil Servants Act, 1973. In the case of Chairman, Pakistan Railways and others v. Arif Hussain and others (2008 PLC (C.S.) 240), the lis in hand was the regularization of service of temporary labours, who were working against permanent post and it was declared that the employees of Railway Department are governed by their own statutory rules. In this case, the judgment passed by the Federal Service Tribunal on 3-6-2006 was upheld. In the case of Executive Council, Allama lqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi (2010 SCMR 1484), it was declared that except the employees, whose services are governed by the statutory rules, others do not fall within the definition of civil servants. It was also held that only those employees could approach Service Tribunal and fall within the definition of civil servant, holding post in connection with the affairs of the Federation - many categories of employees including contractual one, if they were aggrieved by any adverse action, Service Tribunal was not the appropriate forum for redressal of their grievances - Employees of non-statutory corporation should not approach Service Tribunal for redressal of their grievances as they are not enjoying the protection of statutory rules, therefore, Service Tribunal had no jurisdiction to adjudicate upon such matters and they would be governed by the principle of 'Master and Servant'. Even, in the case of Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195), the status of Railway employees vis- a-vis civil servant was not in issue. Nevertheless, the object of Civil Servants Act, 1973 as well as Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and Civil Servants (Efficiency and Discipline) Rules, 1973 were interpreted in the light of the Constitution, in addition to highlighting the principles governing tenure, posting and transfer of civil servants. Similarly, the Hon'ble Supreme Court of Pakistan in a judgment reported as Pakistan Defence Officer's Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707) declared that constitutional petitions are amenable before a High Court on the ground that the statutory bodies in questions were "persons" within the meaning of Article 199(5) of the Constitution. However, it is pertinent to mention here that action against the respondents in the appeals, which were decided through judgment reported as 2013 SCMR 1707, was taken under the provisions of the Removal from Service (Special Powers)
Ordinance, 2000, which now stands repealed. Lastly, the learned counsel for the petitioner/Riaz Ahmad Tahir relied upon two unreported judgments passed by the Lahore High Court in Writ Petition No,26675/2013 etc. Muhammad Lutfullah etc. v. Federation of Pakistan, and Writ Petition No,17552/2014 : Zar Ahad Khan v. Pakistan Railways etc., respectively, wherein it was observed as under:- "Admittedly, the petitioners are governed by their own statutory rules as enshrined in Pakistan Railways Establishment Code, Volume 1 and 2 and General Manager of Pakistan Railways has full powers to make rules with regards to the non-gazetted railways servants under his control." and as such the petitions were found competent.
23.. It is significant to mention here that in the aforesaid judgments of Lahore High Court, the status of Railway employees did not specifically figure and no authoritative verdict was pronounced regarding the Railway employees as a whole as not having the status of civil servant or that the jurisdiction of the Federal Service Tribunal stand ousted regarding the terms and conditions of Railway employees. Even otherwise, the Director General (Legal Affairs) Pakistan Railways/Mr. Tahir Pervaiz has informed us that Railway Department has filed CPLA against the aforesaid two judgments of Lahore High Court in the Hon'ble Supreme Court of Pakistan, which are still pending adjudication. Even otherwise, in order to determine the jurisdiction of the Federal Service Tribunal, the only relevant factor is, that as to whether the appellant approaching the Service Tribunal is a civil servant or not as defined in section 2(1)(b) of the Civil Servants Act, 1973 read with section 2-A of the Service Tribunals Act, 1973. The mere existence of statutory rules cannot be made a ground for ousting the jurisdiction of this Tribunal, as the same even could be framed in respect of civil servants. We are afraid that the judgments of the Superior Courts relied upon by the learned counsel for the petitioner/Riaz Ahmad Tahir, Advocate, do not advance his point of view.
Nevertheless, it would certainly help us in adjudicating controversy involved herein in a judicious manner.
24. Notwithstanding the above, the Superior Courts on myriad occasions have determined the status of the Railway employees vis-a-vis their status as a civil servant. In this context, a survey of the case-law is not only imperative but would also be of tremendous guidance for us in arriving at a just conclusion. In the case of Mufti Mushtaq Ahmed v. The Federation of Pakistan (PLD 1981 SC 172) it was held that for determination of question whether a person falls within the category of 'workman' or 'civil servant', occupation or duties of such persons at the relevant time will be considered for such purpose. In this case, the appellant was appointed as Ticket Collector in Railways but at the relevant time, he was performing the duties of a clerical nature in the office of Station Master. It was thus held that the appellant did not fall within the definition of 'workman' at the relevant time and as such, Service Tribunal possessed the jurisdiction to deal with the cases. In the case of Mehboob Khan and 307 others v. Government of Pakistan through Secretary, Ministry of Railways, Islamabad and 7 others (1993 SCMR 2385) it was held that employees falling within the definition of 'workman' as provided under The Factories Act, 1934 (Act No, XXV of 1934) and The Workmen's Compensation Act, 1923 (Act No, VIII of 1923) fall outside the Civil Servants Act, 1973 and cannot be treated as 'civil servants' for the purposed of Service Tribunals Act, 1973. Similarly, in the case of Akbar Ali and others v. Senior Administrative Officer, Pakistan Railways and another (1992 SCMR 1341) it was held that employees who are posted in the Administrative Offices of Railways could not fall within the definition of 'workman'. In the case of Sharif Hussain v. Punjab Labour Appellate Tribunal, Lahore and 4 others [2003 PLC (C.S.) 1335] it was held that provisions of section 2-A of the Service Tribunals Act, 1973 are not applicable to Federal Government employees, but are applicable only to those employees who are in the service under any authority, corporation, body or organization established by or under a Federal law or which is under or controlled by the Federal Government or where Federal Government has a controlling share or interest in any such authority or corporation etc. In the case of Chief Mechanical Engineer Locomotive Factory, Risalpur and 2 others v. Chairman, Labour Appellate Tribunal N.-W.F.-P, Peshawar and another (2003 PLC 118), it was specifically held that Pakistan Railways is a Department of Federal Government and as such, its employees hold posts in connection with the affairs of Federation. It was clarified that Pakistan Railways is not an authority, corporation, body or organization within the meaning of section 2A of the Service Tribunals Act, 1973 and as such, its employees will either be civil servants within the meaning of section 2(1)(b) of Civil Servants Act, 1973 or fall within the exceptions under section 2(1)
(b)(iii) of the Act ibid. It is worth consideration that the judgment reported as 2003 PLC 118 has been upheld by the Hon'ble Supreme Court of Pakistan in Civil Petitions Nos.1331 to 1334 of 2002, dated 23-11-2004.
25. In order to understand and appreciate the ratio decidendi of the aforementioned judgments of the Superior Courts, it has become necessary to examine the relevant provisions of the Constitution, Railways Act, 1890, Civil Servants Act, 1973 and other Laws/Rules relevant to Railway employees. For convenience, the same are being reproduced herein below:- Article 212(1)(a)--Matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters; Article 240. Appointment to Service of Pakistan and Conditions of Service.--- Subject to the Constitution, the appointments to and the conditions of service of persons in the Service of Pakistan shall be determined:
(a) in the Services of the Federation, posts in connection with the affairs of the Federation and All- Pakistan Services, by or under the Act of [Majlis-e-Shoora (Parliament)]; and
(b) in the case of the Services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly.
Article 241. Existing Rules, etc., to continue.--- Until the appropriate Legislature makes a Law under Article-240, all Rules and Orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government, or, as the case may be, the Provincial Government.
Railways Act, 1890 3(7)---"Railway Servant means any person employed by a Railway Administration in connection with the service o Railway."
The Civil Servants Act, 1973 2(1)(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-charged basis, or who is paid from contingencies; or
(iii) a person who is "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VII of 1923)."
Railway Servants (Efficiency and Discipline) Rules, 1975 1(3)---"They shall apply to every person to whom the Pakistan, Railways Establishment Code applies except a person who is a civil servant within the meaning of the Civil Servants Act, 1973 (LXXI of 1973). "
26. It would also be appropriate to reproduce definition of "Worker" or "Workman" as defined in The Factories Act, 1934 (Act No, XXV of 1934) and The Workmen's Compensation Act, 1923 (Act No, VIII of 1923):-- The Factories Act, 1934 (Act No, XXV of 1934)
"(h) "Worker" means a person employed, (directly or through an agency) whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any, other kind to work whatsoever, incidental to or connected with the subject of the manufacturing process but does not include any person solely, employed in a clerical capacity in any room or place where no manufacturing process is being carried on; "
The Workmen's ,Compensation Act, 1923 (Act No, VIII of 1923)
"(n) "workman" means any person (other than a person whose employment is of a casual nature and who is employed otherwise 20151' Khalid Farooq Tipu v. Secretary, Ministry of Finance (Justice (Retd.) Shaikh Ahmad Farooq, Chairman) than for the purpose of the employer's trade or business) who is--
(a) a railway servant as defined in section 3 of the Railways Act, 1890 (IX of 1890) not permanently employed in any administrative, district or sub-divisional office;
27. It was decided for the first time in 1973 to regularise the terms and conditions of the civil servants through a statute and to set-up Administrative or Service Tribunals to adjudicate the matters in respect of the terms and conditions of civil servants and to achieve this object Articles 212 and 240 were introduced in the Constitution of 1973, which was followed by promulgation of Civil Servants Act, 1973, and simultaneously Service Tribunals Act, 1973 was introduced. Civil Servants Act, 1973 was enacted by the Parliament in pursuance of Article 240 of the Constitution of the Islamic Republic of Pakistan, 1973, whereas the Railway Servants (Efficiency and Discipline)
Rules, 1975 were made by the Federal Government while exercising the powers conferred by Article 241 of the Constitution of the Islamic Republic of Pakistan, 1973. In this context, we would like to highlight that any rules and orders, which were in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government, as the case may be, the Provincial Government until, appropriate legislature makes a law under Article 240. In the light of the above constitutional provisions since Civil Servants Act, 1973 has been made by the Parliament under Article 240 of the Constitution and as such, the Railway Servants (Efficiency and Discipline) Rules, 1975, which have been framed under Article 241 of the Constitution, could not change the definition of civil servant. Therefore, the provisions of Pakistan Railway Establishment Code, Volume-I&II, have to be read conjunctively with the definition of civil servant as embodied in the Civil Servants Act, 1973.
28. It appears that the Railways' authorities were cognizant of the fact that all Railway employees are not civil servants and those employees who fall within the definition of 'worker' and 'workman' under The Factories Act, 1934 (Act No, XXV of 1934) .And The Workmen's Compensation Act, 1923 (Act No, VIII of 1923) are not civil servants. As such, on different occasions, Railways' authorities have attempted to remove this anomaly. In this regard Railway authorities issued two Notifications on 19-6-1992 and 18-10-1993 whereby some employees of the Railways, who were otherwise 'workers '/' workmen' were exempted from the operation of the Industrial Relations Ordinance, 1969. Besides this, vide Notifications dated 11-2-2009 and 15-10-2009, it was provided that Railway Division/Engineering Units (Civil, Mechanical and Electrical), Police, Hospitals, Schools, Accounts, I.T., Vigilance, Federal. Inspectors; Walton Academy, Stores etc. Are to be dealt with under the Civil Servants Act and that the aforesaid offices have the status of subordinate offices of Ministry of Railways under Rule XX of the Rules of Business, 1973. In section 1(3) of the Railway Servants (Efficiency and Discipline) Rules, 1975, it was specifically mentioned that these rules shall apply to every person to whom the Pakistan Railway Establishment Code applies except a person who is a civil servant within the meaning of Civil Servants Act, 1973,
29. We also cannot ignore the fact that during the last around two decades the scope and leeway of 'civil servant' has undergone major changes. First of all, section 2-A was added in the Service Tribunals Act, 1973 on 10-6-1997 which brought in its wake a deluge of employees who were conferred the status of 'civil servants'. Then came the Removal from Service (Special Powers)
Ordinance, 2000 which was promulgated on 27-5-2000 and was repealed on 6-3-2010. This too extended and enlarged the scope of 'civil servant' By virtue of section 11 of this Ordinance the same had overriding effect. Relevance of statutory rules also added to the confusion. As a cumulative effect of all this the definition of civil servant stood befogged and obscured. It is for this reason that judgments of the honourable Superior Courts of the aforesaid period were rendered in the context and background of the aforesaid laws. Section 2-A of the Service Tribunals Act, 1973 ibid, having been deleted and Removal from Service (Special Powers) Ordinance, 2000 having been repealed, the dust appears to have been considerably settled. So the controversy will have to be resolved in the emerging scenario.
30. Thus foregoing threadbare discussion on the subject in issue and he ratio decidendi of the judgments of the Superior Courts, mentioned in the preceding paras, leads us to the following inescapable conclusion:---
(i) That Pakistan Railways being a part of the Federal Government, having been incorporated at S.No,1 of Part-II of Federal Legislative List in 4th Schedule, [Article 70(4)] of the Constitution of Pakistan, 1973, is a Division of the Federal Government mentioned at S.No,26 of Schedule-II of the Rules of Business, 1973, which have been framed in accordance with clause (3) of Article 99 of the Constitution. The employees of Railways are holding posts in connection with the affairs of the Federation and, as such, they will either be civil servants within the meaning of section 2(1)(b) of the Civil Servants Act, 1973 or fall within the exception thereto, including section 2(1)(b)(iii).
(Reliance on 2003 PLC 118).
(ii) That Pakistan Railways under the Rules of Business, 1973, is part of Railway Division of the Federal Government and, as such, cannot be considered as an Authority, Corporation, Body, Establishment or Organization and construed as a statutory body. (Reliance on judgment of Hon'ble Supreme Court of Pakistan, dated 23-11-2004, delivered in Civil Petitions Nos.1331 to 1334 of 2002);
(iii) That Pakistan Railways have two categories of employees, one those who are civil servants and subject to the Civil Servants (Efficiency and Discipline) Rules, 1973 and the other to whom Pakistan Railway Establishment Code applies, except a person, who is a civil servant within the meaning of Civil Servants Act, 1973. For the latter employees, Federal Government has in exercise of powers conferred upon it by Article 241 of the Constitution of the Islamic Republic of Pakistan, 1973 made Railway Servants (Efficiency. And Discipline) Rules, 1975. (Reliance on 2003 PLC 118 and judgment of Hon'ble Supreme Court of Pakistan, dated 23-11-2004, delivered in Civil Petitions Nos.1331 to 1334 of 2002);
(iv) Those Railway servants, who stand within the definition of "worker" or "workman" as respectively defined in the Factories Act, 1934 and Workmen's Compensation Act, 1923 and those to whom Railway Servants (E&D), 1975 apply are not civil servants and, as such, they can approach Labour Courts or National Industrial Relations Commission for violation of their terms and conditions of service, or in appropriate cases, could approach the High Courts under Article 199 of the Constitution of Islamic Republic of Pakistan. (Reliance on PLD 1981 SC 172 and 1992 SCMR 1341);
(v) Employees falling in the definition of 'workmen' as provided in the Factories Act, 1934 or Workmen's Compensation Act, 1923, would fall outside the purview of Civil Servants Act, 1973 and could not be treated as civil servants for the purposes of Service Tribunals Act, 1973. The effect of notifications dated 12-11-1992 is that such employees of Railways would not be treated as workmen for the purpose of Industrial Relations Ordinance. Nevertheless, being workers under the Factories Act, 1923 and The Workmen's Compensation Act; 1923, they enjoy statutory protection enforceable through constitutional petition. (Reliance on 1993 SCMR 2385).
(vi) Notwithstanding the terms and conditions of service, the employees of Railway Police are also civil servants, as they are performing functions in connection with the affairs of the Federation and amenable to the exclusive jurisdiction of the Federal Service Tribunal under Articles 212, 240 and 241 of the Constitution of the Islamic Republic of Pakistan, 1973. (Reliance 1998 SCMR 1081 and 1998 SCMR 1087 and 2004 SCMR 1397);
(vii) Those Railway employees, who fall within the definition of civil servants, as contained under section 2(1)(b) of the Civil Servants Act, 1973 and section 2 of the Service Tribunals Act, 1973, cannot invoke the constitutional jurisdiction of High Court under Article 199 merely because their terms and conditions of service are regulated by Railways Establishment Code or any Statutory Rules or Subordinate Legislation, as held by the Hon'ble Supreme Court of Pakistan in judgment dated 5-1- 2015 passed in Civil Review Petition No,193 of 2013 etc. In Constitutional Petition No,71 of 2011, as well as Judgment reported as 2015 SCMR 253.
31. Having determined the status of various employees of Pakistan Railways in the preceding para, we now advert to the specific case i,e, Appeal No,56(L)CS/2011 filed by Ghulam Jaffar, wherein Mr. Riaz Ahmad Tahir, Advocate, has moved an application under Order VII, Rule 11, C.P.C., on behalf of respondents Nos.3 to 7 and 10. In this regard, we would like to observe that said Ghulam Jaffar does not fall within the definition of worker or workman, as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923. Ghulam Jaffar appellant is working as a Commercial Inspector in the Pakistan Railways Headquarters, Lahore and he has challenged the seniority list dated 6-10- 2010 through an Appeal under section 4 of the Service Tribunals Act, 1973. It is pertinent to mention here that the seniority list of the Commercial Inspectors, was prepared in terms of Rules 603 and 611 of Personnel Manual, Volume-I and the Civil Servants (Seniority) Rules, 1993. The contention of the learned counsel, who has filed an application under Order VII, Rule 11, C.P.C. In the aforementioned appeal that the terms and conditions of Railway servants have its own codified statutory rules and as such, this Tribunal has no jurisdiction, is misconceived. The Railway servants, who are civil servants, cannot invoke the constitutional jurisdiction of the High Court under Article 199 of the Constitution, notwithstanding that their terms and conditions of service have statutory characteristics. In this regard, we would like to refer to the judgment of the Hon'ble Supreme Court of Pakistan reported as National Assembly Secretariat through Secretary v. Manzoor Ahmed and others (2015. SCMR 253), wherein it has been held that a civil servant cannot approach the High Court, in respect of the violation of statutory rules relating to his terms and conditions of service, in view of the bar created under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973.
In view of the above, the application filed by respondents Nos.3 to 1 and 10 under Order VII Rule 11 CPC for rejection of appeal filed by Ghulam Jaffar bearing No,56(L)CS/2011, is not only incompetent, but also devoid of any merit.
32. The upshot of the above discussion and observations is that the Review Petitions Nos.2 and 3/2015 in Appeal No,99(L)CS/2012 and Review Petition No,5/2015 in Appeal No,199(L)CS/2010 are not maintainable and the same are accordingly dismissed. Similarly, M.P.No,66-A/2013 filed under Order VII, Rule 11, C.P.C. For rejection of the service appeal bearing No,56(L)CS/2011 is also dismissed being bereft of any merit.
33. In the end we express our appreciation and commendations to the learned counsel for the parties and particularly Amicus Curiae who in their suave and pedantic style ably assisted this Tribunal in reaching a just conclusion.
34. Parties be informed accordingly.