' The petitioners through this Constitutional petition have prayed that the recommendation by the Railway Administration made through letter dated 22-11-1985 and Notification dated 7-9-1987 be - &dared as illegal without authority. The Writ Petitions Nos.5855, 4528, 4413, 4346 and 4335 of 1987 are being heard alongwith this writ petition.
2. Since all these Constitutional petitions raised identical questions of law and facts, therefore, are being decided through this single judgment.
3. The relevant facts are that the petitioners in all these writ petitions are serving in different Workshops as Sub-Engineer, Chargeman, Assistant Foreman, Foreman Grade-I and Foreman Grade-II. They are officials in Grades-11 to 16. The Railway Administration introduced payment per piece in order to ensure maximum workshop efficiency with minimum expenditures but the supervisory staff was not entitled to piece work profits. It was in the, year 1978 when the supervisory staff was also adjudged to be entitled to benefits of piece work. It was subsequently decided that instead of 'consolidated piece work profits' admissible to the supervisory staff, they should be allowed 'consolidated allowance'. The decision of Railway is dated 21-1-1983 and the same was implemented through Notification dated 18-9-1984. This came into force with effect from first of July, 1983. Accordingly to para.2 of this notification 'consolidated piece work profits' admissible to the categories of the petitioners was changed into 'consolidated allowance' and with this modification the allowance remained payable till 12-111985 when the impugned notification was issued.
4. The petitioners have impugned this notification and decision of the Railway Administration furnishing basis of this notification through these Constitutional petitions. The same were admitted to regular hearing and notices were issued to the respondents, who have entered appearance through Asif Jan, the Deputy Attorney-General and Mr.Fazal Hussain, Advocate.
5. Mian Dilawar Mahmood, Advocate for the petitioners, in Writ Petitions 4493-A and 5855 of 1987, in support of the petitions has argued that once the piece work profits were allowed to the petitioners vide notification dated 24-12-1978, the same could not be taken back. It is added that respondents have lost right to repent. In this behalf reliance is placed on the cases reported as Shahbaz v. The Crown PLD 1956 FC 46; Dr. Mahboob Rabbani v. Government of West Pakistan PLD 1963 Lah. 53; Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Government of Punjab and another v. Muhammad Amin 1981 SCMR 675; M.Sarwar v. U.B.L.
1986 PLC (C.S.) 847;PLD 1985 A J & K 17 and 1987 PLC (C.S.)
21. The argument in nutshell is that once the notification was acted upon and a vested right was created in favour of petitioners, thereafter, the same could not be recinded or cancelled. Moreso when the petitioners have to perform same duties and working hours also remaining exactly same.
6. Mr. Hamid Khan, Advocate in Writ Petitions Nos.4413 and 4528 of 1987 while adopting the arguments of Mian Dilawar Mahmood added that the Railways Administrations took the decision on 21-1-1983 to allow the petitioners `consolidated allowance' and thereafter notification dated 18- 9-1984 giving effect to this decision was issued. It is added that Railway Servants are not civil servants.
7. Mr.S.A. Latif, Advocate in writ petition No,4335 of 1987 further added that his clients are serving in loco-shed, where the repair work is done and they were being paid consolidated overtime since 1927 in view of the nature of their duties and after issuance of notification dated 18-94984 they started getting 'consolidated allowance'. It is added that their salary is ordinary rate of pay as provided in section 47 of Factory Act. It is submitted that Railway employees are of three categories namely (i) Workmen, (ii) Civil Servants; and (iii) Workers, who are not covered by the definition of 'Civil Servants' and 'workers'. The present petitioners are workers.
8. On the other hand, Mr. Fazal Hussain, Advocate raised following preliminary objections:-
(I) Firstly, that the petitioners cannot maintain joint petitions. Each petitioner should have filed a separate petition. In this behalf he has referred to sub-rule 10(3) of Chapter 4-J, Volume V of the High Court Rules and Orders. It is added that if more than one petitioner is allowed to agitate the matter in one and the same petition then it creates complications and it become difficult to sort out their individual claims;
(II) Secondly, that the petitioners are civil servants and even some of their colleagues filed petitions before the Federal Services Tribunal, which has exclusive jurisdiction to deal with the matter and the jurisdiction of this Court is barred in view of Article 212 of the Constitution of Islamic Republic of Pakistan. The learned counsel has further referred to Part-II of Fourth Schedule to the Constitution.
In this behalf he has referred to PLD 1985 SC 82; PLD 1980 SC 20; 1984 SCMR 1178; 1985 SCMR 774 and 1986 SCMR 68 and ' It is submitted that the petitioners are all working in BPS-11 to 16, therefore, not workmen. It is added that they are supervisory staff. In this behalf reference is made to part 4 of Notification dated 12-11- 1985 appended as an Annexure 'D' and to opening part of Notification dated 15-11-1983 appended as Annexure 'A' where they have been treated as `employer'. In this behalf reliance is placed on the cases reported as 1982 PLC 592 and 1979 CLC 88.
(III) Thirdly, that since impugned notifications have been issued by Finance Department, therefore, it was a necessary party.
9. On merits, it was submitted that the allowances claimed by the petitioners through this Constitutional petition were not protected under any law. It is added that the piece work profit was only incentive to workers and not part of pay. The next submission is that the petitioners are estopped by their own conduct to claim piece work profit after having accepted the modification brought by notification dated 18-9-1984. The next argument is that the petitioners are either 'civil servants' in that case, they should agitate their grievance before the Federal Service Tribunal or they are 'workmen' in that case they should agitate their grievance before the Labour Court. In any case writ petition is not proper remedy. The arguments are summed up with the submission that neither the principle of 'locus penitence' is attracted in the present case nor the cases relied by their learned counsel are relevant.
10. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the relevant provisions of Constitution as well as law and precedent cases. The main question for determination is that what is exact status of the petitioners? In order to answer this question it is worthwhile to refer to the Constitutional provisions and then to the provisions of statutes referred to by the learned counsel for the parties. It is relevant to mention, before proceeding any further that prior to the promulgation of present Constitution the terms and conditions of civil servants were part of the Constitutional instruments right from introduction of Government of India Act, 1935.
11. It was for the first time in 1973 that it was decided to regulate the terms and conditions of the Civil Servants through a statute and to set up an Administrative or Service Tribunal to adjudicate the matters in respect of the terms and conditions of Civil Servants. And to achieve this object Articles 212 and 240 were introduced in the present Constitution. This was followed by promulgation of Civil Servants 1973 to regulate the appointment and provides for terms and conditions of the persons in service of Pakistan. Simultaneously Service Tribunal Act, 1973 was introduced. The result was that jurisdiction of all Courts excluding this Court in respect of the terms and conditions of service of the Civil Servants was excluded.
12. The relevant constitutional provisions are contained in Articles 212, 240, 241, 260(1) and part II of Fourth Schedule to the Constitution. The first in the series comes Article 212. The same reads as under:- "212: Administrative Courts and Tribunals:--(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act (provide for the establishment of) one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) Matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan, including disciplinary matters;
(b) Matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) Matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction make anv order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends (and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal (other than an appeal pending before the Supreme Court,) shall abate on such establishment): ' Provided that the provisions of this clause shall not apply to any Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, (Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.
3. An appeal to the Supreme Court from a judgment decree, order or sentence of an Administrative Court, or Tribunal shall lie only if the Supreme Court, being satisfied that the case involve a substantial question of law of public importance, grants leave to appeal."
13. It is clear from the text of the Article that one or more Administrative Courts or Tribunals were to be established by Federal Government to deal with the matters relating to the terms and conditions of the 'persons in service of Pakistan'. Similarly Provinces were also to establish Administrative Courts or Tribunals for their employees. It is also clear from sub-Articles 1 and 2 that these Tribunals, in respect of terms and conditions of the persons in service of Pakistan or Provinces including disciplinary matters, were to have exclusive jurisdiction and no other Court was to take cognizance of such matters to which the jurisdiction of such Tribunal extended. Then comes Article 240, which reads as under:- "240. Appointments to service of Pakistan and conditions of service.-- Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined--
(a) In the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of (Majlis-e-Shoora (Parliament); and
(b) In the case of the services of a Province and posts in connection with the affiars of a Province, by or under Act of the Provincial Assembly.
Explanation.--In this Article, 'All-Pakistan Service' means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of (Majlis-e-Shoora (Parliament)."
14. According to this Article the terms and conditions of the persons in service of Pakistan were to be determined by or under Act of Parliament while conditions of persons in service of Provinces were to be governed by or under Act of Provincial Assembly. This was the natural consequence of Article 212 because the earlier civil servants were enjoying Constitutional guarantees. The same having been excluded from the purview of the Constitution, the Parliament in pursuance of this Article proceeded to promulgate Civil Servants Act LXXI of 1973. Similarly the provinces also promulgated the Provincial Civil Servants Acts.
' These statutes provided the superstructure while for disciplinary matters and procedure thereof Rules were promulgated at different levels. In this behalf reference can be made to Punjab Civil Servants E & D Rules, 1975 and Government Servants E & D Rules, 1973, Railway Servants E & D Rules 1975 and Punjab Police E & D Rules, 1975.
15. In Article 212 reference was made to 'Service of Pakistan'. The same has been defined in Article 260, which reads as under:- `Service of Pakistan' means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of (Majlis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, (Attorney-General, (Advocate-General), Parliamentary Secretary) or (Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Social Assistant to a Chief Minister, Adviser to a Chief Minister) or member of a House or a Provincial Assembly."
16. It is clear from the above definition that the Parliament in the first instance included all persons connected with the affairs of the Federation in the definition of Service of Pakistan and then proceeded to exclude elected and Constitutional offices from its scope. The definition is exhaustive and covers in its folds all services. The last provision in the series is contained in Part II of Fourth Schedule, which deals with Federal Legislative list and Item No,1 in Part II is Railways. Then comes the statutory provisions and in this behalf the basic provision is Civil Servants Act, 1973. The same has been enacted in terms of Article 240 and for the time being the definition of 'Civil Servant' as given in Section 2(b) is relevant. The same reads as under:- "(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 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1937);"
17. It is clear from the definition of civil servant that it covers in its folds members of all Pakistan Service, Civil Service of Federation and persons holding posts in connection with affairs of Federation. The definition is even more exhaustive than the definition of Civil Service and only the employees specified in clauses I to III are excluded from the definition of civil servant. The first two clauses namely I and II are not relevant in the present case. The last clause is relevant and relied by the learned counsel for the petitioners. According to this provision the person, who is 'worker' or 'workman' as defined in the Factories Act 1934 or in Workmen's Compensation Act are excluded from definition of civil servant. Therefore, in order to find out whether the petitioners are excluded from the category of the civil servant on the force of this exception or not, reference has to be made to said Acts. The definition of 'worker' as given in section 2(h) of the Factories Act reads as under:- "'Worker' means a person employed (directly or through an agency) whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on."
' Mr. S.A. Latif learned counsel in one of the petitions argued that according to the definition of worker as given in Factories Act, all persons employed therei are workers. The definition becomes crystal clear if reference is made to the preamble, which reads as under:- "An Act to consolidate and amend the law regulating Labour in Factories. Whereas it is expedient to consolidate and amend the law regulating Labour in Factories, it is hereby enacted as follows:--"
It is, therefor; clear that the petitioners are not worker as defined in the Factories Act.
18. Now coming to the Workmen's Compensation Act, 1923. The 'workman' has been defined in section 2(n), which reads as under:- "(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 five hundred) 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 naval, military or air forces; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them.
(2) The exercise and performance of the powers and duties of a local authority or of any department (acting on behalf of the (Government) shall, for the purposes of this Act, unless a contrary intention appears, be deemed to be the trade or business of such authority or department.
(3) The (Provincial) Government, after giving, by notification in the (official Gazette) not less than three months' notice of (its) intention so to do, may, by a like notification, add to Schedule II any class of persons employed in any occupation, which (it) is satisfied is a hazardous occupation and the provisions of this Act shall thereupon apply (within the Province) to such classes of persons: ' Provided that in making such addition the (Provincial Government) may direct that the provisions of this Act shall apply to such classes of persons in respect of specified injuries only.)"
' While the employer has been defined in section II(e) of the same Act and the same reads as under:- "(e) 'employer' includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him;"
When the definitions of 'employer' and 'workman' are read together then the inescapable conclusion is that the petitioners are not covered by the definition of workman. The petitioners all belong to supervisory staff and deemed to be within the category of employer in accordance with the Notification dated 15-111983, therefore, they are not workmen. It is, therefore, held that the petitioners are neither 'worker' nor 'workmen'. They are fairly and squarely covered by the definition of civil servant. In this behalf reference can be made to the cases of Pakistan through Secretary to the Government of Pakistan, Ministry of Rahway and Communication v. Muhammad A. Hayat PLD 1962 SC 28; Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs PLD 1970 SC 415 and Muhammad Akram Butt and 2 others v. Islamic Republic of Pakistan through Secretary, Ministry of Communications, Islamabad and another PLD 1978 Karachi 90.
19. The Railway is admittedly a Department of Federal Government,' G therefore, employees of Pakistan Railway are covered by persons in the service of I Pakistan. I am fortified in my view by the judgment of Hon'ble Supreme Court in the case of Chairman of Pakistan Railways Board, Lahore v.
Muhammad All 1987 SCMR 638. The relevant portion of the judgment reads as under:- "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."
' The petitioners are clearly covered by the definition of civil servant. I also get moral support from the judgment of Division Bench, of Karachi High Court in Constitutional petition No, 1191 of 1987 titled A.H. Qamar and 127 others v. Federation of Pakistan and 3 others decided on 5-4-1988 wherein the petitioners raised the same question of entitlement before Karachi High Court and their writ petition was dismissed. The operative portion of the judgment reads as under:-- "All these reliefs pertain to the terms and conditions of servant and matter lies to the Service Tribunal under section 4 of the Service Tribunals Act, 1973."
' It, therefore, follows that they can agitate their grievance in respect of terms and conditions of their service before Federal Services Tribunal, which has exclusive jurisdiction in the matter. The learned counsel for the respondent has rightly referred to the case of Ch. Nazar Muhammad and another v. Government of Punjab and 38 others 1986 SCMR 68; Aish Muhammad and 68 others v.
Pakistan and 75 others 1985 SCMR 774; The Collector, Central Excise and Land Customs and others v. Aslam Ali Shah PLD 1985 SC 82; PLD 1980 SC 20 and 1984 SCMR 1178. Since the petitioners have been pursuing their remedy H in wrong forum, therefore, they will be entitled to invoke the provision of section 14 of the Limitation Act.
20. It is, however, certified as required under clause (f) Article 185(2) of the Constitution of Islamic Republic of Pakistan that these petitions involved a substantial question of law as to the interpretation of the Constitution. The petitioners, if like, may appeal to the Hon'ble Supreme Court.
21. The result is that these petitions are dismissed as incompetent. However, there is no order as to costs as a difficult legal question of first impression was involved.