' G. M. KOUREJO, J.-The brief facts leading up to the filing of this Constitutional Petition are that the petitioner Muhammad Arshad son of Muhammad Ishaq was initially appointed in the North- Western Railway (now known as Pakistan Railways) on 1st July, 1949. He was promoted ultimately to the post of Section Controller in the year 1970. He was finally selected as Deputy Chief Controller, Pakistan Railways, at Sukkur with effect from 2nd May, 1977 in which post he was serving till he was compulsorily retired by respondent No, 1 vide Notice No, E-19/0-Pt.-II dated 7th February, 1980, in exercise of his powers conferred on him by clause (ii) of section 13 of the Civil Servants Act, 1973, ordering that the petitioner on having completed 25 years' service qualifying for pension or other retirement benefits shall retire from service with immediate effect or with effect from the date of expiry of the leave preparatory to retirement admissible to him provided such leave is applied for by him within 15 days from the date of the Notice and the same is granted to him. The petitioner immediately applied for 366 days leave due to him mentioning specifically in his application for leave that the same is being applied without prejudice to any other remedy through appropriate forum. Since no other immediate and efficacious remedy was available to the petitioner, he came in this petition for a declaration that the impugned 'notice of requirement was void ab initio and without lawful authority and to withdraw the same and allow him to resume duty by counting the entire period from 7th February 1980 onwards as duty.
2. The contention raised on behalf of the petitioner by his learned counsel Mr. Manzoor Ali Khan is two-fold ; firstly, that the petitioner is not a civil servant within the meaning of section 2 (1) (b) of the Civil Servants Act, 1973 and that he is a workman within the purview of section 2 (1) (n) of the Workmen's Compensation Act, 1923 and therefore the impugned order passed against him under section 13 (ii) of the Civil Servants Act, 1973 was without lawful authority and secondly, the respondent No, 1 not being his appointing authority could not legally pass the impugned order resulting in his compulsory retirement.
' On the other hand Mr. Abdul Matin appearing on behalf of the respondents has challenged both the contentions raised on behalf of the petitioner alleging that the petitioner was not a workman within the meaning of section 2 (1) (n) of the Workmen's Compensation Act, 1923, and that he being Civil Servant within the meaning of the Civil Servants Act, 1973, the impugned action taken against him under section 13 (ii) of the Civil Servants Act, 1973 was not without lawful authority. He has also contended that the petitioner being a 14 Grade employee of the Pakistan Railways could legally be retired by respondent No, 1 being his appointing authority. It seems that in view of the plea raised by the learned counsel for the petitioner has not pressed his second contention. With regard to the first contention Mr. Abdul Matin in support of his submissions has placed reliance on the case of Secretary of the State v. Mst. Geeta and others (1) the case of Muzaffar Abbas Naqvi v. Islamic Republic of Pakistan (2), and lastly on the case of Mufti Mushtaq Ahmad v. Federation of Pakistan (3).
3. In order to determine the point involved as to whether the petitioner is a Civil Servant within the meaning of Civil Servants Act, 1973 or he is a workman within the meaning of Workmen's Compensation Act, 1923, it would be helpful to refer to the two definitions of "Civil Servant" and "Workman" as defined in the two Acts. Section 2 (1) (b) of the Civil Servants Act, 1973 defines the Civil Servants as under :- Section 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- {{FOOT NOTE}}
(1) AIR 1938 Nag. 91 (2) 1980 PLC 904 PLD 1981 SC 172 (ii)
(iii) {{FOOT NOTE}}
(iv) a person who is "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923) ; It would be cleat-that a workman within the meaning of Workmen's Compensation Act, 1923 is not a civil servant as defined in Civil Servants' Act, 1923.
' Section 2 (1) (n) of the Workmen's Compensation Act, 1923, defines "workman" as follows :- ' Section 2 (1) (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 II, or
(ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule 11.
It would be clear that a railway servant permanently employed in any administrative district or sub-divisional office of the railway is not a "workman" within the meaning of this section.
4. Mr. Manzoor Ali Khan, the learned counsel for the petitioner, has urged that the petitioner as Deputy Chief Controller is performing the duties in connection with the controlling of the movements of trains and only for the reason that he is posted in sub-divisional office at Sukkur for the purpose, he cannot be considered to be a civil servant within the meaning of Civil Servants Act, 1973. There is no dispute that the petitioner has not been performing any outdoor duties. The case- law relied on by Mr. Abdul Matin in support of his contention makes it clear that the petitioner cannot be regarded as a workman as undisputedly he at no time performed outdoor duties. The above-mentioned authorities relied on behalf of the respondent by Mr. Abdul Matin relate to the cases of Railway employees and servants. The cases involved therein also arise in similar circumstances as in the instant case, the main point involved for the decision of the cases having been as to whether the railway servant could be regarded as civil servant or the workman in the facts and circumstances of that particular case. In AIR. 1938 Nag. 91, it was observed as under :- "It is not denied that Imam, the deceased peon: had in the course of his employment, to do outdoor work of going round on his bicycle to deliver the office post. He was a servant who was not continuously or habitually working in the office and therefore, he fell within the ambit of the definition of workman in section 2 (1) (to, Workmen's Compensation Act, 1923. His duties resembled those of workman specified in Schedule II (xiii) of that "Act.''
' In 1980 PLC 904, it was observed as under:- "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 us 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 outdoor 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 PLD 1981 SC 172, it was observed as under :- "The cases referred to by the learned counsel for the appellant 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 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 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 allegations against him relate, had to be looked into.
' From the documents, placed on the record, we find that the charges served upon the appellant on 23rd February, 1965 related to irregularities in the preparation of passes and P.T.Os. For 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, he 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."
These authorities, therefore are clearly In favour of the view that the nature of the duties being performed at the relevant time as being outdoor duties or in the office would be a relevant factor for consider- section to determine as to whether the employee is a workman or a civil servant. In case he is permanently employed in any administrative district or sub-divisional office of the railway he is not a workman. In the instant case the petitioner at no time; even at the time the impugned action was taken against him on the basis of the allegations detrimental to his service was performing any outdoor duties. On the admitted facts of the case he was working even at the relevant time as Deputy Chief controller of the sub-division at Sukkur and that in that he was doing the job of controlling the movements. He, therefore, cannot be regarded as a workman, within the meaning of the Workmen's Compensation Act, 1923, and that being so, he is clearly a civil servant within the meaning of Civil Servants Act, 1973 and the impugned' action taken against him under section 13 (ii) of the Civil Servants Act, 1973 cannot be regarded as illegal and without lawful authority.
6. We, therefore, find no merit in this petition and we dismiss it. However, the parties shall bear their own costs.