' This appeal by the Railway administration is directed against the decision of the learned Vth Labour Court, given on 29th July, 1981 allowing the grievance petition of the respondent, Mrs. Nasim Sadiq, against her dismissal from service and directing the Railway administration to re-instate her in service with full back benefits and further ordering that She be posted in the Grade of Matron.
2, The facts which have led to the filing of this appeal, shortly stated, are that the respondent, Mrs. Nasim Sadiq, was appointed as a Staff Nurse in the Pakistan Railways on 14th March, 1953. She appears to have initially worked at Lahore from where she was transferred to the Railway Hassan Hospital, Karachi, on 19th February, 1965. She worked in Railway Hassan Hospital as nurse until 25th October, 1973 when she was allowed to officiate as Matron. It appears that this was a local arrangement but the arrangement was approved by the Headquarters office at Lahore and the approval was communicated to the respondent, vide letter of the Divisional Personal Officer, Karachi, dated 12th August, 1974. The respondent claimed pay in the Grade of Matron but as this was not allowed to her, she made several representations and even complaints to the authorities which appear to have been unfruitful. By the order, dated 8th April, 1977 the Chief Administrative Officer (Personnel) at the Headquarters Office of the Pakistan Railways transferred Mrs. C. Issacs as Matron in the Pakistan Railway Hassan Hospital, Karachi,terminating the local arrangement. The Divisional Officer, Karachi, by his letter, dated 20th April, 1977 pointed on! That the respondent had been officiating as matron in the Hassan Hospital since 15th October, 1973 and that her failure to attend the selection of matron held in the Headquarters Office at Lahore on 15th November, 1975 (which probably was the cause of her being overlooked for permanent appointment as matron) was due to late receipt of the intimation requiring her attendance. It was, therefore, suggested that she may be a supplementary selection which the respondent would be willing to attend. It appears that a supplementary selection was held, as suggested by the Karachi Divisional, and the respondent was duly selected therein and promoted on regular basis as Matron at the Railway Hassan, Hospital, Karachi, vide the Headquarters office letter, dated 2nd March, 1978.
3. According to the respondent her troubles commenced when Dr. N. H. Khan took over as Medical Superintendent of the Hassan Hospital, Karachi. The differences between the 2 resulted in criminal cases but the same were compromised. However, according to the respondent, Dr. Khan was bent upon harassing her and driving her out of the service. It appears that a show-cause notice dated 5th/12th. April, 1979 was served upon the respondent on 14th April, 1979. Three acts of misconduct on the part of the respondent were alleged in the said show-casue notice, the first being that she had misbehaved with the doctors and others and was constantly creating disturbances in the hospital which affected the smooth working in the hospital. Second, that she had not been, taking proper care in the maintenance of the attendance register of the staff which was found not to have been marked for ten days when the attendance register was checked on 21st January, 1979 and when the Medical Superintendent directed the withdrawal of the attendance register from her, she refused to hand over the register to the person nominated to maintain the same, and the third, that she had adopted rude and outrageous behaviour towards the Medical Superintendent at the time of representing her case before the Hospital Vising Committee. This charge sheet/show cause notice was issued by the Medical Superintendent himself in his capacity as the competent authority under the Government Servants (Efficiency and Discipline) Rules, 1973. The respondent submitted a lengthy reply, dated 22n] April, 1979 to the show-cause notice but as her reply was not found satisfactory, the penalty of removal from service with immediate effect was imposed on her, vide order dated 5th May, 1979, This order was issued under the signature of the Divisional Personnel Officer. The respondent submitted departmental appeal through proper channel on o' about 28th May, 1979 with a copy to the Chief Medical Officer, Lahore. Unfortunately, the decision in appeal took an unconscionably long time, despite repeated representations made by the respondent, and was ultimately decided on 12th June, 1980 after she bad served a grievance notice on the Railway on 27th April, 1930. After the dismissal of her appeal the respondent served a second grievance notice, dated 2nd July, 1980 upon the Railway but as she obtained no redress she Bled a grievance petition under section 25-A, I. R. O., on 3rd August, 1980.
4. The learned Labour Court repelled the contention that the respondent's employment was governed by the Pakistan Essential Services (Maintenance) Act, and further held that even if Labour Courts are entitled to adjudicate in respect of her grievance, and for this view he relied upon the majority decision of the Full Bench of the Karachi High Court in the case of Pakistan Burmah Shell Ltd. v. Central Labour Commissioner (1). The. Learned Labour Court also repelled the contention that the respondent was not a workman for the purposes of the Labour Laws and held that although she was working as a Matron, she used to attend to the patients in the Operation Theatre and also deal with the maternity eases herself and accordingly is deemed to be a workman both for the purposes of the I. R.
0. As well as the Standing Orders. The learned Labour Court repelled the contention made on behalf of the Railway administration that the grievance petition of the respondent was time-barred on the ground that the grievance notice was served by her on the Railway administration within three months of the rejection of her appeal and the grievance petition was filed by her within 2 /2 months from the service of the grievance notice upon the Railway administration. On merits; the learned Labour Court took the view that as no enquiry was held against the respondent in respect of the charges levelled against her, there was a violation of the provisions of the Standing Orders and that further she appears to have been victimized by Dr. Khan. On these grounds the learned Labour Court set aside the orders of termination of services of the respondent and not only directed that she be re-instated in service with full back benefits but further that she be posted as and fixed in the Grade of Matron as already indicated.
5. I have heard Mr. S. M. A. Alavi, the learned counsel for the Railway administration, and Mr. Muhammad Ahmad, Advocate who appeared for the respondent.
6. Mr. Alavi has assailed the impugned decision of the learned Labour. Court on the following grounds (0 That the grievance petition of the respondent was not maintain-(1) PLD 1982 Kar. 33 able as she was not governed by the Standing Orders but by the Civil Servants (Efficiency and Discipline) Rules :
(ii) that the grievance petition of the respondent was further not maintainable as it was time- barred ;
(iii) that the doctors, nurses and other staff in the Railways hospitals are governed by the Pakistan Essential Services (Maintenance) Act, 1952, and hence they are not entitled to approach the Labour Courts against dismissal from or termination of services ; and
(iv) that the Standing Orders are further not applicable to Railway hospital as they are neither commercial nor industrial establishments for the purposes of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
7. In respect of his first contention, it was submitted by Mr. Alavi that the respondent, who was employed as a Matron in the Hassan Hospital, was a civil servant for the purposes of the Civil Servants Act, 1973, and not a "workman" either for the purposes of the Workmen's Compensation Act or the Standing Orders. It may be stated here that the definition of "civil servant" in the Civil Servants Act, 1973, excludes persons, though employed by the Federal Government who are "workmen" for the purposes either of the Workmen's Compensation Act, 1923 or the Factories Act, 1934. The respondent admittedly is not a workman for the purpose of the Factories Act. According to the Workmen's Compensation Act, section 2(n), Railway servants as defined in section 3 of the Railways Act, 1890, are to be deemed to be workmen for the purposes of the said Act unless they are permanently employed in any administrative, district or sub-divisional office of the railway. It was strongly contended by Mr. Alavi that apart from the fact that the respondent was employed in a hospital, which is a part of the Divisional office or at least attached to the Divisional office of the Railways, she was not employed to do any outdoor work. In support of his contention that the Hasan Hospital is a part of and is attached to the Divisional Office, Mr. Alavi relied upon the evidence of the Divisional Medical Officer, Dr. Abdul Salam, who was examined by this Tribunal. He has testified that he is Incharge of the Railway hospitals and dispensaries in the Karachi Railway Division except the Pakistan Railway Hassan Hospital at Karachi. There is however, no evidence in support of Mr. Alavi's contention that the Railway Hassan Hospital is an administrative, District or Divisional office or is f attached to or part of the 'Railway Divisional Office, Karachi'. The mere fact that it is not under the Railway Divisional Medical Officer but under the Medical Superintendent cannot by itself lead to or suggest such an inference. Moreover, it is a hospital and not an office, whether administrative, District or Divisional. Mr. Alavi also relied upon the decision of their Lordships of the Supreme Court in the case of Mufti M4shiaq Ahmad v. Federation of Pakistan (1) in support of his contention that the respondent was not a civil servant for the purposes of the Workmen's Compensation Act by reason of the natnre of duties which she was required to perform.
In the reported case, the question which fell to be considered by their Lordships of the Supreme Court was whether a ticket collector who was posted to work as correspondence clerk in the office of the Station Master, Gujrat, having part of his duties to prepare passes and P. T. O's for the railway staff, was a civil servant entitled to file an {{FOOT NOTE}}
(1) PLD 1981 SC 172 {{FOOT NOTE}} ' appeal before the Services Tribunal or a workman as defined in the Workmen's Compensation Act, 1923. Relying on the judgment of the Rangoon High Court in the case of Bombay Burmah Trading Corporation v. Ma E Nun (1) their Lordships held that the ticket collector who was deputed to work as correspondence clerk was a Government Servant and gave the following reasons in support of their view :- "The cases referred to by the learned counsel for the appellants do, indeed, support his submission that for the purpose of determining the question whether the person concerned is a workman or not within the definition of that term, the occu ation of the person at the relevant time mast be considered . The Rangoon case is directly relevant in the sense that the person concerned was employed as an Elephant Rider, but at the time of his death he was employed as a mere messenger and not as an Elephant Rider, and it was held that he had ceased to be a workman and his dependents were not entitled to any compensation. It seems to us, therefore, that for the purpose of determining whether the appellant has to be regarded as a workman or a civil servant, the nature of the duties on which he was employed at the time to which the .Al legations against him relate, had to be looked into."
8. Mr. Muhammad Ahmad, the learned counsel for the respondent, on the other hand, strongly contended that the respondent was a workman for the purposes of the Workmen's Compensation Act, 'as she was a railway servant as defined in the Railways Act, 1890. He further submitted that as she was employed in a hospital and was required to personally attend to certain types of cases, she could neither be deemed to be employed in an administrative, District or Divisional Office, nor could it be said that she was required to perform supervisory duties. In support of his contention, the learned counsel relied upon the decision of a Divisional Bench of the Karachi High Court in the case of Muhammad All v. Chairman, Pakistan Railwys (2). In that case, the question which fell to be considered their Lordships of the Division Bench was a junior personnel welfare officer in the railways organization performing duties inter alia of attending to Labour Courts, was a workman for the purposes of the workmen's Compensation Act, 1923, or a Civil Servant ? After reviewing the various authorities on the subject, including the decision of the Supreme Court in the case of Mufti Mushraq Ahmad, their Lordships came to the conclusion that the essential requirement for a Railway servant to be a workman for the purposes of the Workmen's Compensation Act, 1923, was the performance of outdoor duties. In the instant case, however, the respondent was not required to perform any outdoor duties but she had to perform duties in a hospital which was controlled by a Medical Superintendent. As such, I am inclined to the view that she is not a workman for the purposes of the Workmen's Compensation Act, but falls within the definition of civil servant for the purposes of the Civil Servants Act, 1973. The Railway administration also appears to have treated her as a civil servant and dealt with he under the Civil Servants (Efficiency and Discipline) Rules, 1973, framed under the Civil Servants Act, and not under the Railways (Efficiency and Discipline)
Rules, 1975, which arc applicable to all railway servants who are not civil servants for the purposes of the Civil Servants Act, 1973. {{FOOT NOTE}}
(1) AIR 1937 Rang. 45 (2) PLD 1982 Kar. 205 {{FOOT NOTE}}
9. As regards the second contention of Mr. Alavi that the grievance petition of the respondent is time-barred, I find no substance in the same. Admittedly, the order terminating the services of the respondent was passed on 5th May, 1979. However, in accordance with the rules applicable to her, she filed a departmental appeal through proper channel on 26th May, 1979 well within time. It was unfortunately the Railway administration which took more than a year to decide her appeal. It was ultimately decided on 12th June, 1980. Within a month of the decision of her departmental appeal she grievance notice on the Railway administration on 2nd July, 1980 and thereafter, on 3rd August, 1980 she filed her grievance petition before the learned Labour Court. No doubt, she had served an earlier grievance notice on the Railway administration on 27th April, 1980 but that grievance notice was served by her before the decision on her appeal and after she had made a number of representations to the authorities for the early decision of her appeal. That grievance notice, therefore, was in respect of her termination of services on the basis of the order, dated 5th May, 1979 issued under the signature of the Divisional Personnel Officer. The rejection of her departmental appeal gave the respondent a fresh cause of action and she was entitled to serve a separate grievance notice on the Railway administration on the dismissal of her appeal which is precisely what she has done.
10. Mr. Alavi also raised objection to the maintainability of the respondent's grievance petition on the ground that her employment was governed by the Pakistan Essential Services (Maintenance)
Act, 1952, (hereinafter referred to as the said Act), and her only remedy was to initiate prosecution under section 7 of that Act and not to file a grievance petition under the labour laws. The provisions of the said Act apply to every employment under the Central Government and in case of such emplo ees the issuance of a periodic notification is not Accessary as in the case of other employment or class of employment, which the Central Government consider to be essential. It was sought to be argued by the learned counsel for the respondent that the respondent was a Railway servant and as the Railway administration was being run by a Railway) Board is an organization which is directly working Board, she cannot be deemed to be in employment of the Central force. The Railway Government. The submission of Mr. Muhammad Ahmad is with outing under the Central Government and is a part and parcel of the Central Government though it has certain statutory powers and functions. The Railway budget is a part of the Federal budget and under the Rules of Business of the Federal Government, the Ministry of Railways deals with the secretariat and governmental functions of the Railways. I am therefore, inclined to the view that Railway servants are in the employment of the Central Government for the purposes of the said Act. However, the question whether persons whose employment is governed by the said Act are entitled or disentitled from approaching the Labour Courts against the termination of or dismissal from service appears to be still unsettled and not free from doubts. No doubt, the majority decision of the full branch of Karachi High Court in the case of Pakistan Burmah Shell Ltd. v. Central Labour Commissioner (1) has taken the view that the application of the said Act to a person does not disentitle such person from approaching the Labour Courts for redress {{FOOT NOTE}}
(1) PLD 1982 Kar. 205 {{FOOT NOTE}} ' against illegal termination of services or dismissal from service, but the Supreme Court in the case of Karachi Electric Supply Corporation Ltd. v. N. I. R. C. (I) has observed that the Pakistan Essential Services (Maintenance) Act, 1952, and the Rules of 1962, framed thereunder, are self-contained and override the provisions of other enactments and that if the respondents before their Lordships felt aggrieved either by their termination of services or dismissal, they should have taken steps to institute the proceedings as provided by section 7 of the Act and in that event it will be open to the Court to determine whether the discharge, termination of services or dismissal was according to the terms and conditions of service or was without lawful excuse, I may humbly point out that there appears to be nothing in the judgment of their Lordships of the Supreme Court to indicate that persons whose employment is governed by the provisions of the said Act can or are entitled to approach the Labour Courts against their dismissal from service or termination of services.
However, the aforesaid decision of their Lordships of the Supreme Court was considered by a Division Bench of the Karachi High Court in the case of Aqil Ahmad Ansari v. P.I.A.C. Being C. P. No, D- 215/78, decided on 23rd February, 1982. In that case, their Lordships of the High Court have held that the appellant workman, whose employment was admittedly governed by the provisions of the said Act, was entitled to approach the Labour Courts against the service of a charge sheet for remaining absent without leave. Apart from the fact that the issue before their Lordships of the High Court did not relate to termination of services or dismissal from service, the matter appears to have been decided at least partly on account of the learned counsel for the P. I. A. C, (respondent) conceding the position that the Labour Court retained in the matter in the absence of any other forum being provided in addition to penal action under the said-Act. In these circumstances, I do not consider it necessary to decide this issue, especially in view of my findings on the other issues raised by the learned counsel for the parties.
11. It finally falls to be considered whether the Hassan Hospital, Karachi, where the respondent was admittedly employed at the time of termination of her services, is a commercial or industrial establishment, and the respondent was entitled to file a grievance petition against the termination of services under clause (3) of Standing Order 12 read with section 25-A, I. R. 0, It is not disputed that the Railway Hassan Hospital is not an industrial establishment. However, it was contended by Mr. Muhammad Ahmad, the learned counsel for the respondent, that it is a commercial establishment for the purpose of the Standing Orders as private patients are admitted to and treated in the hospital on payment of the prescribed charges. Paragraph 38 of Chapter II, instituted Medical Attendance, in the N. W. Railway Medical Manual, 1952, as revised, provides that "all railway and their families shall be entitled to gratuitous medical attendance when seeking it at the Railway hospital or dispensary, as outdoor patients, and also, to the extent of accommodation available, as indoor patients. "It will thus appear that the Railway hospitals are primarily meant to provide free treatment to the Railway servants and their families, and also to the persons who may be involved in accidents either while travelling on railway trains or while they are on Railway premises as testified by the Divisional Medical Superintendent, Karachi. Mr. Muhammad Ahmad, however, relied {{FOOT NOTE}}
(1) PLD 1982 SC 125 {{FOOT NOTE}} ' upon paragraph 63-A of the above Chapter containing rules for the attendance on members of the Public. These rules provide for the admission for treatment at the Railway hospitals of private persons and the charging of fee from them, except in case of victims of Railway accident. The fees chargeable from these private patients, the scale whereof is to be prescribed by the General Manager of the Railway, are to be shared in the proportion of 1/3 and 2/3 between the Railway administration and the Medical Officer rendering the service respectively. It has been explained by Dr. Abdul Salam, the Divisional Medical Officer that the fees received from private patients by the Railway hospital would constitute about 5% of the expenditure on the Railway hospitals and that such fees just suffice for the expenditure incurred by the Railway hospitals on the private patients, while the rest of the expenditure for the running of the hospitals and the treatment of the patients is borne by the Government. It would thus appear that the Railway hospitals and dispensaries are not commercial establishments and are not being run for the profit of any person or organization. In the case of Medical Educational Uplift Fund of Association of Seventh Day Adventists of Pakistan v.
Vth Sind Labour Court (1) a learned single Judge of the Karachi High Court, relying upon the decision of my learned predecessor in the case of Youngmen's Christian Association Karachi (2) and the unreported decisions of Punjab Labour Appellate Tribunal in the case of United Christian Hospital, Lahore v. United Christian Hospital Employees' Union, decided on 19th June, 1976 held that a hospital run on no profit basis does not fall within the scope of either a commercial or an industrial establishment under section 2 (p) and (h) of Ordinance VI of 1968 and that the employees of the Seventh Day Adventists Hospital are not workmen for the purposes of the Standing Orders, although fees may be from persons taking treatment in the hospital, since the organization running the hospital was a non-profit organization and the income received from running the hospital was to be applied for meeting the expenditures of the hospital and the surplus, if any, was to be used for a charitable object. In the instant case also, although the Hassan Hospital is not a charitable hospital and is not running for charitable purposes, but it is being run mainly for Railway employees and their dependents, who are treated free, and it is not being run for the profit of any person or organization.
12. For the reasons discussed by me above, I am of the view that the grievance petition of the respondent is not maintainable. I would accordingly allow the appeal and set aside the decision of the learned Labour Court. {{FOOT NOTE}}
(1) PLD 1978 Kar. 539 (2) 1975 PLC 222 {{FOOT NOTE}}