1. ' This petition challenges the order of the Presiding Officer, Labour Court No, VI, at Hyderabad passed in appeal No, 15 of 1978 filed under section 17 of the Payment of Wages Act, 1936, (hereinafter called the Act). It is the case of the petitioner that he was serving as an Upper Division Clerk in the Loco Shed, Kotri in Pakistan Railways and in addition to his duties as such he had also been acting as computer-operator since June, 1959 under the Foreman, Loco Shed, Kotri, It was his case that for performing the additional duties as computer-operator he was entitled to special pay in terms of letter No, F-65/PAL/15-11, dated 3rd June, 1966 at the rate of Rs, 15 per month which had been sanctioned by the 'Government of Pakistan, Finance Department under their No, F.D. (S.R.-I1)
2. 533 of 1966, dated 3rd June, 1966. The respondent No, I accorded sanction for special pay at the rate of Rs, 15 per month from 1st March, 1972 onwards under his letter No, 561-E/52/P 4 dated 29th December, 1973. However, the case of arrears of special pay for the period from June, 1959 to 28th February, 1972 was referred by respondent No, 1 to the Vice-Chairman, Pakistan Railways, Lahore, for according requisite sanction. No such sanction was forthcoming and, therefore, the petitioner filed application under section 15 of the Act before the Authority on 24th June, 1976 claiming the aforesaid arrears of special pay. The application of the petitioner was allowed by the Authority and respondents were directed to deposit Rs, 1960 as awarded to him. The respondents, however, preferred an appeal against the aforesaid order of the Authority under the Act in the Court of respondent No, 3 at Hyderabad. Respondent No, 3 set aside the order of the Authority holding that the claim of the petitioner was time barred, and it is against the aforesaid impugned order that he has filed the instant petition.
3. ' I have heard Mr. Syed Muhammad Iqbal the petitioner in person and Mr. Abdul Mateen Khan, Advocate for respondent No, I. At the very outset the preliminary objection was taken by Mr. Abdul Mateen Khan, the learned counsel for respondent No, 1 stating that the petitioner being an Upper Division Clerk is a civil servant and his remedy lay before the Services Tribunal and not before the Authority under the Act. He relied upon the unreported decision of the Lahore High Court in Writ Petition No, 472 of 1978, dated 4th December, 1979 in which petitioners 15 in number who were working in the Railways as Head treks etc. Had grievance relating to the calculation of their salaries for the purpose of the revised pay scale. The petitioners had applied to the Authority under the Act and the aforesaid Authority held that deductions were illegal and that the petitioners were entitled to receive their salary. The Railway Authorities appealed against the decision before the Punjab Labour Court No, II, Lahore and that Court came to the conclusion that petitioners were Svil servants and were governed by the provisions of the Civil Servants Act, and any claim for deduction or delayed payment of wages could not be entertained by the Authority under the Act.
4. The Writ Petition was then moved to challenge the order of the Labour Court, and it was contended on behalf of the petitioners that under the provisions of section 1 4) of the Act the claims of the employees of the. Railways are governed by the Act. The aforesaid contention however was not accepted, and it was held that the provisions referred to applied to persons employed by the Railway, Administration who were working upon -Railway, and persons working upon the Railway had reference to persons who are working in connection with the movement of the railways or, in any case, associated with the track, but certainly not to those who were working in the Headquarter's am It was further held that the aforesaid view was supported by section 2(n) (i) of the Workmen's compensation Act which removed the category of office workers from the definition of 'workman'. It was consequently held that the petitioners were civil servants, and subject to the Civil Servants Act, and therefore could only seek remedy from the Services Tribunal which has an exclusive jurisdiction in such matters. The learned counsel for respondent No I had, also referred to the decision of a Full Bench of the Supreme Court in Mufti Mushtaq Ahmed v. The Federation of Pakistan (1). It was observed in that decision that for determining of the question whether any person falls within the category of `workman' or `civil servant', occupation or duties of such person, at the relevant time, had to be consul. It was un-eiftervet at section 2(2) of the Services Tribunal Ordinance of 1973 defines the term `civil servant' with reference to its definition as contained in section 2(b) of the Civil Servants Act which does not include inter alia a person who is a workman as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923. {{FOOT NOTE}}
(1) PLD 1981 SC 172 {{FOOT NOTE}} ' It was further observed that "according to section 3(7) of the Railways Act, 1890, the appellant was a railway servant as this term is defined as meaning 'any person employed by Railway Administration in connection with the service of a railway, according to section 2(1) (a) of the Workmen's Compensation Act, this term includes a railway servant as defined in section 3 of the Railways Act, 1890, who is not permanently employed in any Administration, District or Sub- Divisional Office of a Railway and is not employed in any such capacity as is specified in Schedule 2".
5. The matter concerning the question whether a person Was a civil servant or a workman had to be determined from the duties which he was performing at the time ; whether the same were primarily of a clerical nature or not, and the fact that the appellant was concerned in the preparation of passes and P.T.O's. Of the members of the Railway Staff and their families shows that he was performing duties primarily of a clerical nature in the office of the Station Master and, therefore, he did not fall within the definition of 'workman'. In view of the authoritative decision of the Supreme Court on the point it is apparent that looking to the nature of the duties of Upper Division Clerk and the duty of operating a computer in an office, the petitioner is not a workman and is a civil servant.
6. ' In view of the finding that the petitioner was not a workman award by the Authority under the Payment of Wages Act is illegal, void and inoperative. Mr. Abdul Matin Khan, the learned counsel for respondent No, 1, has relied upon the decision of the Supreme Court in All Muhammad v. Hussain Bux and others (I) to support his argument that since the award by the Authority was in excess of jurisdiction and thus void, failure of party affected to go in appeal against such order within prescribed time does not preclude such party from challenging its legality in the High Court, since such void order does not require to be set aside formally. The petition which is misconceived, is, therefore, dismissed, but since the interpretation of the law was involved, no order is being passed with regard to costs. {{FOOT NOTE}}
(1) PLD 1976 SC 37 {{FOOT NOTE}}