AJMAL MIAN, J.-The petitioner has sought the following reliefs in the above petition : "(a) It may be declared that the order of retirement made by the respondent against the petitioner as contained in notice in Annexure 'F' dated 30-1-1980 is illegal, without jurisdiction, without lawful authority and. Void ab initio and that the petitioner continues to be in the service of Pakistan Railway entitled to all the benefits.
(b) Cost of the petition.
(c) Any further relief or reliefs which this Honourable Court deem fir, and proper."
2. The brief facts leading to the filing of the above petition are that the petitioner was appointed as a Clerk in the then North Western Railways on 9-8-1940. Thereafter, he was promoted as a Head Clerk in the year, 1954, as an Office Superintendent in the year 1966, and as an Assistant Junior Personnel Officer on 9-6-1972. The respondent through his notice dated 30-1-1980 in exercise of the alleged powers conferred by clause (2) of section 13 of the Civil Servants Act, 1973 purported to retire the petitioner in the public interest on the ground that the petitioner had completed 25 years service. The petitioner being aggrieved by the above retirement order has filed the present petition.
3. (a) In support of the above petition Mr. Arif Hussain, learned counsel for the petitioner has contended that the petitioner is not covered by the definition of 'a Civil Servant' given in section 2(b) of the Civil Servants Act, and, therefore, could not have been retired under section 13(ii) of the Civil Servants Act, 1973. On the other hand, it has been contended by A. I. Chundrigar, learned counsel for the respondent, that since the primary duties of the petitioner were to be performed in the office, he is covered by the definition of a Civil Servant. Mr. Arif Hussain in support of his above contention has referred to the case of Secretary of State v. Mst. Geeta (1), the case of Muzaffar Abbas v. Islamic Republic of Pakistan (2) and the case of Munshi Mushtaq v. Federation of Pakistan
(3) (.Sic).
(b) In order to appreciate the respective contentions of the learned counsel for the parties, it may be pertinent to refer to the definition of a Civil Servant given in section 2(b) of the Civil Servants Act, which reads as follows : "Section 2------------------------------.
(1),AIR 1938 Nag. 91(2) 1980 PLC 904
(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 a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923)".
(c) It may be noticed that the above definition expressly excludes from its ambit the persons specified in sub-clauses (1), (ii) and (iii). It may further be noticed that under sub-clause (iii), a person, who is a worker or workman as defined in Factories Act, 1934 (XXV) and in the Workmen's Compensation Act 1923 (Act VIII of 1923) is excluded from the purview of a Civil Servant. It has been urged by Mr. Arif Hussain, the learned counsel for the petitioner, that the petitioner falls within the definition of `Workman' as defined in the Workmen Compensation's Act, 1923. In this regard, it may be pertinent to refer to section 2(n) of the Workmen's Compensation Act, which defines a workman as follows;- "Section 2(n).-'Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is;-
(i) 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 of a railway and not employed in any such capacity as is specified in Schedule 11, or
(ii) employed, on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II.
Whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing ; but does not include any person working in the capacity of a member of the armed forces of Pakistan ; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them."
(d) It may be mentioned that under the above definition a person is a workman if he is not permanently employed in any administrative, district or sub-divisional office and the person mentioned in Schedule II drawing salary more than Rs. 1000 p. m. Therefore, the main question which is required to be considered, is as to whether the petitioner has been permanently employed in any administrative district or sub-divisional office of Railways. It has been urged by Mr. Arif Hussain that petitioner's main duties were outdoor duties, whereas it has been urged by Mr. A. I.
Chundrigar, the learned counsel for the respondent, that the main duties of the petitioner were to be performed in the office. Mr. Arif Hussain has referred to para. 5 of the petition, which reads as follows : "That while the petitioner was posted at Multan as Assistant Personnel Officer with effect from 29- 5-1977 he was given over the charge of J. W. O. (Labour) to deal with Labours (Labour Cases), and to attend to Courts in connection with Labour Cases, under Payment of Wages Act etc."
The above averment has been admitted by the respondent in para. 5 of the counter affidavit. The learned counsel for the parties have also referred to the annexure annexed to the rejoinder, which is a circular issued by the Chief Officer (Admn.) & Budget in November 1976 to all concerns Sukkur Division, defining the duties of a Junior Welfare Officer (Labour). It may be advantageous to reproduce the same which read as follows : "Consequent upon the posting of Junior Welfare Officers (L) on divisions, the following duties are assigned to them:
(1) They will ensure implementation of the various labour laws, viz., Payment of Wages Act, Hours of Employment Regulations by carrying out frequent inspection.
(2) In the Divisional Office, they will also deal with all cases relating to the above subjects.
(3) They will ensure implementation of the Industrial Relations Ordinance, 1969 (amended upto date) and will supervise the work relating to cases in Labour Courts and National Industrial Relations Commission. They will attend important cases in Labour Courts and N. I. R. C.
(4) They will ensure proper maintenance of Industrial peace by keeping close liaison with the Collective Bargaining Agents and will organise/ conduct periodical. Meetings with C. B. As. As and when necessary.
(5) They will supervise the work relating to Benevolent Fund, Group Insurance and Staff benefit Fund and ensure speedy payments of the outstanding dues in their cases.
(6) They will maintain contacts with staff' working on line and attend to their complaints.
(7) They will ensure timely submission of periodical labour situation reports.
(8) They will deal with schools on the division."
From para. 5 of the petition as well as from the aforesaid quoted annexure, it is evident that the petitioner used to attend outdoor duties and that his duties were not confined either in the district office or in the sub-divisional office of the Railways.
4. (a) Reverting to AIR 1938 Nag. 91, it may be observed that the facts of the above case were that one Inam was employed in the G. I. P. Railway as a peon attached to the Railway Hospital, Nagpur, and his duty was- to distribute the office dak (post). While he was riding the cycle in the course of his employment, he collided with another cyclist and sustained grave injuries resulting into his death. The widow made a claim for compensation under the, Workmen's Compensation Act, 1923, which was accepted by the Commissioner. The Secretary of State Government of India being aggrieved by the above order of the Commissioner under Workmen's Compensation Act filed an appeal before the High Court of Nagpur. A learned Single Judge, while dismissing the appeal construed the phrase "not permanently employed in any office of Railway" as servants who are required to perform their duties continuously or habitually in the office i.e. To say in-door but occasionally have to do outdoor work in the course of their employment. It was held that because of the nature of the duties of the deceased, he was a workman within the purview of section 2(n) (f) of the Workmen's Compensation Act, 1923.
(b) With reference to the case reported in PLD 1979 Lah. 375, it may be stated that in the above case the petitioner was working as draughts-man. The petitioner was aggrieved by a departmental order challenged the same through a suit. Upon the enforcement of the Service Tribunal Act, 1973 it was held by the learned Civil Judge that the suit stood abated. The above order was upheld in appeal by an Additional District Judge. The petitioner being aggrieved by the two orders filed a revision petition in the Lahore High Court. Aftab Hussain, J. While considering the question, as to whether the petitioner was a workman within the meaning of Workmen's Compensation Act or a Civil Servants within the purview of the Civil Servants Act, 1973 made following observation : "7. In the present case it is not denied that the petitioners have been permanently employed in the Engineering Department Railways Headquarters Empress Road, Lahore. The word 'permanent' does not mean as the learned counsel would have me believe as relating to the employment of the employees as distinguished from temporary employment, but only means permanently employed for the office as distinguished from the discharge of out-door duties. In these circumstances a person who is permanently employed in any administrative district or sub-divisional office of a Railway is not a workman. The petitioners cannot, therefore, be considered to be workmen."
In the above case it was held that the petitioner was a Civil Servant as he was permanently employed in the Engineering Department of Railways Headquarter and was not to discharge any outdoor duties.
(c) Referring to PLD 1981 SC 172, it may be observed that the petitioner in the above case was an employee of Railways though was appointed as Ticket Collector in Railways, but at the relevant time was performing duties primarily of clerical nature in the office of the Station Master. It was urged by the petitioner before the Supreme Court that he was a workman as he was appointed as Ticket Collector in Railways, the Supreme Court while rejecting the above contention observed that at the time when he was served with the impugned order, he was not acting in the capacity of a Ticket Collector but in the capacity of one performing clerical duties and, therefore, the petitioner did not fall within the definition of workman. In the course of the discussion the Hon'ble Supreme Court also pointed out distinction between indoor and outdoor duties and made the following observation : "From the documents placed on the record, we find that the charges served upon the appellant on 23-2-related to irregularities in the preparation of passes and P. T. Os. Or members of the railway staff and their families, and not to any outdoor duties performed by him as a Ticket Collector. In other words, duties which he was performing at that time were primarily of a clerical nature in the office of the Station Master, Gujrat. Such being the case, be did not fall within the definition of a workman at that time. The Tribunal was, therefore. Clearly in error in holding that the appeal filed by the appellant was not competent on this ground."
(d) I may also refer to the case of Muhammad Akram Butt v. Islamic Republic of Pakistan PLD 1978 Kar. 90, in which it was held by Division Bench that Schedule II to the Workmen Compensation Act, 1923 read with section 2(n) (i) cannot be read in a manner as to limit the import of the definition of `workman'.
5. In the instant case as the duties of the petitioner as a Junior Welfare Officer (Labour) were inter alia to attend labour disputes including the attendance of the Courts, we are inclined to hold that the petitioner is a workman within the purview of section 2(n) of the Workmen's Compensation Act.
In this view of the matter the impugned order of retirement under section 13 of the Civil Servants Act cannot be sustained as the petitioner not being a Civil Servant. We, therefore, declare the same as without lawful authority. W further declare that the petitioner shall be deemed to have continued in the service of the Respondent. However, in the circumstances of the case, there will be no order as to costs.