' In this appeal the decision, dated 30th January, 1982 passed by the learned Presiding Officer, Punjab Labour Court No, 2, Lahore, has been challenged, whereby the grievance petition of the appellants was dismissed.
2. The facts are that the appellants were A. C. C. Supervisors and on account of the fact that the posts held by them were abolished, they were offered alternate posts which they did not accept, therefore, they were vide order, dated 21st August, 1980, discharged from service. The case of the appellants is that the abolition of the posts of A. C. C. Supervisors is without jurisdiction. Written statement was filed on behalf of the respondents, in which it was contended that the appellants were not workmen being supervisors getting pay of more than Rs, 800 per mensem. The learned lower Court has held that the abolition of the posts was without jurisdiction but dismissed the grievance petition of the appellants on the ground that they being supervisors getting pay of more than Rs, 800 per mensem, did not fall within the definition of workman. On behalf of the Railway cross-objections have been filed challenging the finding of the lower Court to the effect that the abolition of the posts of A. C. C. Supervisors was without jurisdiction. The appeal as well as the cross-objections are being disposed of through this single judgment.
3. So far as this question is concerned whether the appellants are workmen or not, it is necessary to consider what are the actual duties which were being performed by the appellants as A. C. C.
Supervisors. Admittedly, there are A. C. C. Attendants and A. C. C. Supervisors and both are deputed to work on Air-conditioned coaches. According to the respondents, the A. C. C. Attendants attend the passengers travelling in the A. C. Coaches as well as to remove the defects of the A. C. Plant and the duties of the A.C.C. Supervisors is only to supervise the work of the A. C. C. Attendants, whereas the case of the appellants is that the defects in the A. C. Plants are removed by the appellants in the capacity of A. C. C. Supervisors and that it is not within their duties to supervise the work of the A. C. C. Attendants. They also say that the work on the A. C. Plants being highly technical, the said duty cannot be discharged by the A. C. C. Attendants and is performed by the A.
C. C. Supervisors, only. This cannot be denied that the A. C. C. Attendants are given training in refrigeration before they are deputed to work on A. C. Coaches. If the duty of the A. C. C. Attendants is only to serve the passengers travelling in the A. C. Coaches, then no necessity of giving them training in the refrigeration side arises. A. C. C. Attendants are electrical examiners and no other employee except electrical examiner can be deputed as A. C. C. Attendant. The fundamental course of the A. C. C. Attendant is of electrical or assistant electrical examiner and when they are deputed on A. C. Coaches, they are called A. C. C. Attendants. Qualification of A. C. C. Attendants are given in Exh. P. 1 and those of A. C. C. Supervisors alongwith their duties are given in Exh. P.
2. Since the A. C. C. Attendants are qualified electrical examiners, the object of deputing them upon the A. C. Coaches is not with a view to only attend the passengers, but they being technical hands, are expected to remove defects. So far as the removing of defects of the A. C. Plants is concerned, they cannot be removed while the train is stationary. The A. C. C. Attendants or the supervisors can only make adjustment to increase the air-conditioning capacity to the extent it is possible. Usually the adjustment is made to increase the speed of the motors circulating gas in the unit. In A. C.
(alterate current) motors adjustment is possible to increase the speed by adjusting the voltage, because in alternate current voltage can by means of proper transforming be increased but in D.
C. Voltage can be decreased but cannot be increased. In A. C. Coaches D.C. Generators are installed underneath the coaches which are propelled by being coupled through a belt with the special wheels fitted on the exits of the running wheels of the coaches, The generators produce D.C.
Voltage with which the batteries are charged and the motors which circulate the gas are propelled. If any defect occurs in the generators it can be removed only in the workshop, or in the yard when the coaches are out of use, but such a defect cannot be removed while the train is on route. Even the commotator of the generator cannot be cleaned with a piece of cleaner, because it is possible when the armature of the generator can be moved, but while the train is at stationary the generator is not moving. If the defect is serious one, it cannot be removed. Like wise, if any defect occurs in the A. C. Plants, it is difficult to remove it while the train is ruling because the unit is to be disconnected and if it is done then the cooling system completely stops, and the passengers would raise hue and cry. So far as the position taken by the respondent is concerned that the duties of the A. C. C. Supervisors is to supervise the work of the A. C. C. Attendants, there is no such thing given in Exh. P. 2, which contains the duties of the supervisors. Besides this document no other document has been pointed out by the learned counsel for the parties relating to the duties of the A. C. C. Supervisors, usually the trouble arises when the train is not running. When the train is standing, the generator is not producing electrical energy, with the result that the A. C. Plant is propelled by the battery. If the battery is not fully charged or if otherwise is defective, it would not supply the required voltage, with the result that the motor fitted in the plant would not properly function. If the voltage cansiderably decreases then the motor of the plant is cut off from the battery and thus completely stops. If the circuit breaker which disconnects the motor of the plant from the battery goes out of order, the motor is in danger of being burnt, if the battery is down and proper voltage is not being supplied to the motor. This happens, because due to insufficient voltage the motor would not move but since due to the defective circuit breaker, the motor will not be disconnected from the battery, and the voltage would go on passing through the motor causing damage to it. When the supervisors themselves cannot remove the defect, no question arises that they supervise the work of the A. C. C. Attendant to remove the defect. The A.C.C.
Attendants have their own sphere of duties the supervisors have their own line of duty. It is possible that if the ring is coming from a particular compartment and the A. C. C. Attendant is not attending the passenger for some reasons, the A. C. C. Supervisor who is sitting idle may go and attend the passenger, but it would not amount to supervising the work of the A. C. C. Attendant, when this kind of duty is not maintained in Exh. P.
2. As a matter of fact there is absolutely no necessity of retaining the posts of A. C. C. Supervisors.
The A. C. C. Attendants, who are given same kind of training in refrigeration before they are deputed on the A. C. Coaches, they can perform the duties of the supervisors and also attend the passengers. This appears to be the reason that the posts of A. C. C. Supervisors were abolished. Of course if removing of defects had been possible in the running trains it could be said that since the designation of the appellants was A. C. C, supervisor, it was their duty to supervise the work of A. C.
C. Attendants, whose duty was to remove the defects. The result is that the duties of the A. C. C.
Attendants are only to attend the passengers and to move the controls of the plants to make adjustment to the extent it is possible and there are no duties for the A. C. C. Supervisors to perform, except that they may perform the same duties which are being performed by the A. C. C.
Attendants. Simply because the designation of the appellants was A. C. C. Supervisor is not sufficient to oust them from the definition of workman. Oral evidence produced by the appellants, therefore, is correct that they did not in any manner supervise the work of the A. C. C. Attendants.
But this piece of evidence is not correct that they removed the defects. As I have mentioned above, the defects cannot be removed either by the A.C.C. Supervisors or by the A. C. C. Attendants while the train is running. I, therefore, come to the conclusion that the learned trial Judge has wrongly held that the appellants are not covered by the definition of workman. They had no supervisory duties, therefore, they do not come within exception (b) of section 2 (xxviii) of the Industrial Relations Ordinance, 1969. I, therefore, hold that they are workmen.
4. The other point is whether the abolition of the posts of A. C. C. Supervisors was ordered by the competent authority. Admittedly the posts had been abolished by the Vice-Chairman of the Railway Previously the General Manager as delegate of the hoard was competent to create and abolish posts. The post of the General Manager was abolished and was substituted by the post of Vice-Chairman. The learned counsel for the appellants have attached to their written arguments an attested copy of the letter issued by the Vice-Chairman dated 16th September, 1963, which shows that as per paragraph 6 of Article 3 of the President's Order No, 33 of 1962 (transfer of Railways Order, 1962) all powers exercised by the General Manager were delegated to the Vice- Chairman with effect from 1st June, 1963. But this letter does not show as to who delegated the powers to the Vice-Chairman. The authority who delegated the powers to the General Manager was competent to delegate the powers to the substitute of the General Manager i. e. Vice- Chairman. But since the copy of the order by which powers were delegated to the Vice-Chairman has not been brought on the record, it is unknown who had delegated the powers and whether the said authority was competent or not. The document referred to above is the certified copy of the letter issued by Vice-Chairman and since obviously the Vice-Chairman is not competent to delegate the powers to himself, this document does not in any manner show that the powers were delegated by the competent authority. Clause 6 of Article 3 of the President's Order No, 33 of 1962 states that the Board of the Province of West Pakistan may delegate to the Vice-Chairman of the Board such powers of the Board as it may deem fit. It is clear from paragraph 6 that only the Board is competent to delegate the powers. Since no order passed by the Board has been brought on the record, whereby the Vice-Chairman may have delegated the powers which previously were being exercised by the General Manager, it cannot be said that the posts of the A. C. C. Supervisors had been abolished by the competent authority. If as yet the Board has not delegated such cowers itself. The learned counsel for the appellants made reference to paragraph 2503 of Chapter 25 section 1 on the point of the abolition of the posts This paragraph does not say anything about the authority who is competent to abolish the posts, but deals with the remedy of the employee whose posts are abolished. So this rule is not relevant to the point. To corn by this difficulty the learned counsel for the appellants has made reference to paragraph 123 of the Pakistan Railways Establishment Code Volume I. It reads as under :- "The number and character of non-gazetted posts of Pakistan Railways may be determined by the General Manager, subject to the conditions prescribed in their schedule of powers in appendix to the Pakistan Railways General Code."
The learned counsel from this paragraph concludes that since the General Manager was competent to determine the number of posts, he was competent to increase or decrease the number and thus could abolish the posts. I cannot agree with him. Determination of number of post does not include creation or abolition. An authority may determine the number of posts required by it for smooth running of the establishment but it does not mean that he can create or abolish the posts. He may place his requirement before a competent authority to ask for the abolition or the creation of posts according to his requirement and it would be upto the authority competent to create or abolish a post to pass order that respect. Without much success the learned counsel has laboured to make reference to section 21 of the General Clauses Act of 1897.
First section 21 of the General Clauses Act applies where any Central Ac or Regulation has empowered to issue a notification, Order, Rule o bye-laws, such a power may be presumed to mean to add to, to very or rescind a notification, Order or Rule, so issued. In the present case no Central Act has empowered the General Manager or the Vice Chairman to fix the number of posts and even if it be said that section 2 applies then it would only authorise to vary the number of posts one determined but would not authorise to create or abolish the post This argument of the learned counsel is also devoid of force that one under Procedural Order 3, dated 24th July, 1978 the Chairman could act as Chief Executive Officer as well as Member Establishment, in the capacity of Chief Executive Officer and Member Establishment, was full competent to order the abolition of the posts of A. C. C. Supervisors. The learned counsel is aware of paragarph 6 which is next to paragraph 5 of the President's Order No, 33 of 1962. Paragraph 6 authorises the Board of the Province of West Pakistan to delegate to the Vice-Chairman of the Board such powers of the Board as it may deem fit. When there is a clear provision that the powers can be delegated by the Board, it cannot be said that without delegation of power the Chairman in the capacity of Chief Executive Officer became competent to abolish any post. Again the case of the appellate is that the posts were abolished by the Vice-Chairman, but the argument of the learned counsel now is that the Chairman in the capacity of Chief Executive Officer was competent to order the abolition of the posts. The learned counsel has said that after the abolition of the post of the General Manager, in order to fill up the gap, organization order No, 320 of 1963 was issued under paragraph 6 of Article 3 of the Presidents' Order No, 33 of 1962 and the powers exercised by the General Manager were delegated to the Vice-Chairman of the Pakistan Railways.
' I have already tackled this point above and have said that the copy of letter of the Vice- Chairman, dated 16th September, 1963 in the shape organization. Order No, 320 does not show who delegated the powers the General Manager to the Vice-Chairman. Instead of producing certified copy of the order of the Vice-Chairman, the original or ratified copy of the notification made by the Board, whereby the Board alleged to have delegated the powers to the Vice-Chairman, should aver been brought on the record. If in reality the posts of A. C. C. Supervisors are no longer required and if the Board has not yet delegated Bose powers to the Vice-Chairman, which were being exercised by General Manager, the said powers can be now delegated in legal inner instead of making a wrong attempt to get incorrect orders from Courts.
5. As a result of the observations made above, I hold that the darned trial Judge rightly observed that the delegation of powers proudly enjoyed by the General Manager were not proved to have been legated to the Vice-Chairman by the competent authority. The posts ere, therefore, illegally abolished and would be deemed to be existing. Accordingly, accept the appeal of the appellants and dismiss the cross-ejections and direct the re-instatement of the appellants in service on the of A. C. C. Supervisors with back benefits, but they will not be entice to mileage allowance, if they had not been during this period deputed A. C. C. Supervisors on the A. C. Coaches.