DECISION ' The respondent who was employed, at the relevant time as a Reservation Clerk in the Upper Reservation Office at Karachi, was removed from service with effect on 11th August, t980 on the charge that she dishonestly got four first class sleeper tickets cancelled and obtained refunds on these tickets amounting Rs, 750, when no refund on these tickets was payable. The action against the respondent was admittedly taken under the Railway Servants (Efficiency and Discipline) Rules, 1975 and was preceded by a preliminary enquiry. The respondent challenged the orders of her removal from service before the learned Vth Labour Court. The Railway Administration, who are appellants herein, resisted the grievance petition filed by the respondent inter ailia on the ground that she was not a workman for the purposes of the I. R.
0. The learned Labour Court has not examined this objection of the appellants but has allowed the grievance petition of the respondent and directed her re-instatement in service with full back benefits on the grounds that neither any charge was communicated to the respondent within one month of her alleged act of misconduct as required under the labour laws, nor was any proper enquiry held against her, as the witnesses who are said to have testified against her do not appear to have been examined in her presence nor she was afforded an opportunity of cross-examination, Aggrieved by this decision the Railway Administration has come up in appeal to this Tribuual.
2. Mr. S. M. A. Alavi, the learned counsel for the Railway Administration, has assailed the impugned decision of the learned Labour Court on the main ground that the respondent was a civil servant and not a workman for the purposes either of the I. R.
0., or the Standing Orders and hence she was not entitled to file or maintain a grievance petition against her removal from service. It has been held by this Tribunal in the case of Johnson & Johnson v. Zubair Ahmed (1), that only such persons who come within the definition of workmen as given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, are entitled to file grievance petitions under clause (3) Of Standing Order 12 read with section 2$-A. I. R.
0., in respect of termination of their employment. It has, therefore, to be seen whether the respondent is a workman for the purposes of the Standing Orders. Mr. Alavi, submitted that inasmuch as the respondent was admittedly employed, at the relevant time, as a Reservation Clerk in the Reservation Office at Karachi and was performing purely clerical duties she does not come within the definition of "workman" either for the purposes of the Workmen's Compensation Act or the Factories Act, 1934. Admittedly the respondent was not employed in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process or any other kind of work, whatsoever, incidental to or connected with the subject of the manufacturing process. As already indicated she was employed in a clerical capacity. She, therefore, clearly does not fall within the definition of "worker" as given in the Factories Act/34. She also does not fall within the definition of "workman" as given in the Workmens' Compensation Act, 1923, because the nature of her duties was clerical and she does not fall in any of the items specified of the Workmen's Compensation Act In the case of Mufti Mushaque Ahme' v.e on (2), 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 PTOs' for the Railway Staff, was a Civil Servant entitled to file an 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 Mun (3), 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 this view :- "The cases referred to by the learned counsel of the appellants, 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 occupation of the person at the relevant time must be considered. The Rangoon case is directly relevant in the sense that the person concerned was employed 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 no entitled to any compensation. It seems to us, therefore, that for the purpose of the 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 allegations against him relate, had to be looked into." {{FOOT NOTE}}
(1) 1980 PLC 622 (2) PLD 1981 SC 172
(3) A 1 R 1937 Rang. 45 {{FOOT NOTE}}
3. Mr. M. Rafi Shafqat, the learned counsel for the respondent, however, argued that as the respondent was admittedly dealt with under the Railway Servants (E & D) Rules, 1975, and as these Rules are applicable only to those railway servants who are not civil servants but workmen, the clear inference is that the Railway Administration itself treated the respondent as a workman and not a civil servant and hence it does not now lie in the mouth of the appellants to claim that she is a civil servant and not a workman. It is true that the Railway Servants (Efficiency and Discipline)
Rules are not applicable to civil servants but the mere fact that those Rules were made applicable to the respondent would not mean that she is a worker and not a civil servant. Furthermore, there is no estoppel against law. If, therefore, the respondent is a civil servant for the purposes of the Civil Servants Act, 1973, he remedy lies before the Civil Service ' Tribunal and not before a Labour Court.
4. On the basis of the decision their Lordships of the Supreme Court in the case of Mufti Mushtaque Ahmad I am of the view that the respondent at the relevant time, was a Civil Servant and not a workman for the B purposes either of the Factories Act or the Workmen's Compensation Act, as she was employed as a Reservation Clerk in the Reservation Office at Karachi. Accordingly, she was not entitled to file or maintain a grievance petition against her removal from service. Her remedy, if any, would be by way of appeal to the Services Tribunal. I would accordingly set aside the decision of the learned Labour Court and would allow the appeal.