1. SHAFIUR RAHMANJ.--Leave to appeal was granted to the Chairman, Pakistan Railway Board, to examine whether the respondent Muhammad A.I was a civil servant as defined in section 2(b) and whether action against him could be taken under section 13(ii) of the Civil Servants Act (hereinafter referred to as the Act).
2. This appeal came up for hearing in the absence of the respondent after notice had issued to him and was accepted by an ex-parte decision against him on 1-4-1986. It was allowed ex parte on the ground that, the respondent was a civil servant and Article 13 of the Provisional', Constitution Order, 1981 barred the challenge to the order of retirements passed under section 13(ii) of the Civil Servants Act.
3. The respondent thereafter moved an application seeking review of our order on the ground that notice to him was received by him so late as to make it impossible for him to attend the proceedings on the1st of April, 1986. He was able with due diligence to reach the Court on the 2nd of April, 1986 and learnt that the matter had already been disposed of. He immediately moved an application explaining the background of his absence and the justification of the cause shown by him. We have heard the respondent with regard to the service of the notice on him and his inability to appear on the date the appeal was taken up and decided. We consider the explanation sufficient and good and on review recall the ex parte disposal of appeal by our order, dated 1-4- 1986.
4. The order impugned by the respondent by instituting a constitutional petition was passed on 30th of January, 1980 and was expressed in the following words:-- NOTICE No. E-31/13/79 HQ.--In exercise of powers conferred by clause (ii) of section 13 of the Civil Servants Act, 1973 the undersigned hereby orders in public interest that Mr. Muhammad A.I J.W.0. / Labour Sukkur, a Grade 16 Officer of the Personnel Department of Pakistan Railways who has completed years of 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 this Notice and the same is granted to him.
5. (Gulzar Ahmed), Chairman Railway Board."
6. The respondent had joined the Railways as Clerk on 9-8-1940 and on the date impugned order was passed, he was a Grade-16 Officer designated as Junior Welfare Officer, Labour Sukkur. He challenged this order on the ground that he was not a civil servant as he stood excluded from the definition of 'civil servant' as given in section 2(b) of the Act by clause (iii) being a worker or workman as defined in Workmen's Compensation Act. The provision of section 13 (ii) of the Act was not available to the Competent Authority for passing the impugned order against him. The learned Judge in the High Court examined in great depth the implications of the definition of workman provided in clause (n) section 2 of the Workmen's Compensation Act and on examining the duties of the respondent with which he was entrusted at the relevant time, it was held that he was not a civil servant and the power which was invoked against him was not available to the Competent Authority. Hence, the constitutional petition was allowed and the order of retirement impugned was declared to be without lawful authority and of no legal effect.
7. Mr. Shahudul Haq, Advocate, the learned counsel for the appellant, has insisted that the nature of the duties of the respondent as well as the place and the office of his posting all made him a civil servant and excluded from the definition of the workman as contained in clause (n) of section 2 of the Workmen's Compensation Act. In the alternative, he has taken up the plea that even otherwise and this provision conferring a power on the Competent Authority in terms contained in section 13(ii) of the Act was also incorporated in the Pakistan Railway Establishment Code Volume II in para. 2046 in identical terms and the application thereof was not confined to civil servants as such but it was made applicable to all Railway's servants. According to the learned counsel, this power was available to the Competent Authority against the respondent and a misdescription of the law when the power L itself suffered from no limitations in nature or content, could not vitiate the order.
8. The learned counsel has relied on the decision in the case of J.M. Effendi v. Pakistan Railway Board 1981 PLC (C.S.) 568 to establish that a constitutional petition on the subject was nevertheless barred under Article 13 of the Provisional Constitution Order. He has also filed a copy of the judgment of this Court in Civil Appeal No. K-30 of 1981 (Pakistan v. M. Y. Bhatti) to sustain the abatement of the proceedings under Article 13(1) of the Provisional Constitution Order, 1981.
9. The respondent appeared in person and his main contention was that he did not fall within the definition of civil servant' as given in the Act and, therefore, the specific order that was invoked and was under challenge was rightly declared to be not available to the Competent. As regards the amendment made in the Railway Establishment Code and a similar power conferred on the Competent Authority, the respondent contended that it was not pleaded in the High Court, was not examined at any stage and was not invoked by the competent authority. It was only during the pendency of the appeal that a reference to it was made specifically. He has also taken us through his service record to point out that the action taken was on extraneous grounds and was mala fide.
10. After examining the case on the legal plane, we find that an identical power was enjoyed by the Competent Authority under the Pakistan Railways Establishment Code as was conferred by section 13(ii) of the Act. The category affected by the Establishment Code was of Railway servants as defined in the Code. The respondent even if a workman for the purposes of section 2 clause (n) of Workmen's Compensation Act, was nevertheless a Railway servant and, therefore, amenable to the jurisdiction of the Competent Authority. The power being identical misdescription in referring to the law under which the power was exercised was inconsequential to the effect thereof.
11. The provisions of Article 13(1) of the Provisional Constitution Order barred these proceedings because the category dealt with by that provision comprises persons in the service of Pakistan retired from service under the orders of the Competent Authority after completing 25 years of service qualifying for pension and all other retirement benefits. There is no reason and justification for controlling the meaning of 'civil servant' in the title or opening words of that Article by reference to the Civil Servants Act. The category for whom this provision was enacted has been made explicit by use of the expression "in the service of Pakistan". The respondent was definitely in the service of Pakistan being an employee of the Pakistan Railways that being the function connected with the affairs of the Federation. Hence, the bar of Article 13 of the Provisional Constitution Order would be fully attracted and the proceedings had abated in the High Court as the impugned decision of the High Court was subsequent to the promulgation of the Provisional Constitution Order. This appeal is accordingly allowed, the judgment of the High Court is set aside and the proceedings in the High Court are declared to have abated. No order as to costs.