FAZAL KARIM, J. This petition under Article 199 of the Constitution by Mst. Nargis Nazar, a retired Lady Special Ticket Examiner in the Pakistan Railways has arisen in the following circumstances.
2. The petitioner retired from service on 10.3.1987. According to her, on that date she had 27 years 11 months and 15 days "record of continuous service to her credit". Her gross pension and gratuity were calculated according to the period of her actual service viz. 28 years on the basic pay of Rs.
2058.50. On that basis, his amount of pension was estimated to be Rs.1344.56 per mensem. The office of the Divisional Superintendent, Pakistan Railways, Multan, the only respondent herein, at the time of the payment of the dues to her "discounted one year service of the petitioner although the personal branch of the respondent Railways correctly recorded 28 years service of the petitioner."
Thus her pension was determined to be Rs.1296.48 instead of Rs.1344.56 and her gratuity was calculated to i.e Rs.1,20,346.00 instead of Rs.1,24,803.60. A sum of Rs.5620.97 was deducted from her dues on account of a period of 7 months 21 days, which period, it was said, had been availed of by the petitioner as leave on full pay. It is the respondent's case, that she was not entitled to that leave.
3. The petitioner's case is that she had availed of the period of 7 months 21 days as leave on full average pay after the leave had been duly sanctioned by the competent authority. Even if the leave was not so due, the competent authority had, according to the petitioner, written-OF the sum of Rs.5620.97 and this sum was, therefore, wrongly deducted from her dues. In so acting, it is maintained, the respondent had acted contrary to law and against the principles of natural justice.
4. The respondent has taken a preliminary objection, namely, that the petitioner was a worker and was governed by the Payment of Wages Act, 1936, and she should therefore, have invoked the jurisdiction of the Authority under that Act. As regards the facts, it has been stated that the petitioner had completed 27 years 11 months 15 days of service "but as a result of checking and auditing her leave account, it was revealed that she availed of seven months 21 days excess L.F.P./HAP 'leave with. Full pay/half average pay). After deduction of the excess leave, her length of qualifying service remains to be 27 years 2 months and 22 days i. e. Accountable for 27 years for pensionary benefits." It is the respondent's case that "gross pension and gratuity" amount is calculated on the basis of qualifying service and not on the basis of length of service and that the "amount calculated on this count has been paid accordingly." It is admitted that a sum of Rs.5620.97 was deducted from the petitioner's dues" which was written OF purely on humanitarian ground on the request of the petitioner and approval of the competent authority."
5. The preliminary objection can be immediately disposed of. It was held in Divisional Accounts Officer. Pakistan Railways and Another V. Perid-ud-Din U.D.C. Divisional Accounts Officer. Pakistan Railways. Quetta and 2 others (PLD 1985 Quetta 234) and I respectfully adopt the view that a Special Ticket Examiner is a worker within the meaning of the Workmen's Compensation Act, 1923 and not a civil servant within the meaning of Civil Servants Act, 1973. In Abdus Salam Khan V.
Pakistan Railways through Divisional Superintendent. Lahore (1984 P.L.C 572) and also in this Court's judgment in Abdul Majid Vs. Garrison Engineer. East. Rawalpindi and others (1985 P.L.C. (C.S.) 1953) it was held that persons who are no longer in service are not covered by the definition of "workman".
Thus, the petitioner was not a civil servant and after her retirement from service, she cannot be regarded as "workman" either.
6. It is common ground between the parties that the competent authority, namely, the General Manager had "written OF' the sum of Rs.5620.97. In so doing, the General Manager had proceeded on the basis that the qualifying service at the petitioner's credit was 27 years and not 28 years. It is not disputed that the General Manager was competent to make that order and it follows that he it was who could recall it, provided there was power in him to do so. As a matter of fact, he has not recalled it. The Divisional Superintendent, who is an officer lower in rank to the General Manager and his office could not, therefore, validly withhold the payment of that sum to the petitioner, for the amount having been validly "written OF, this "writing OF remained unaffected by the finding that the qualifying service was 27 years and not 28 years.
7. As to the amount of pension, there is no dispute that it had to be determined on the basis of qualifying service and not on the basis of the total length of service. It appears, however, that before the decision that the petitioner had availed of leave on full average pay for a period of 7 months 21 days without entitlement, the competent authority had not afforded a hearing to the petitioner. This was necessary because it is nobody's case that the petitioner had remained absent from duty without the permission of the competent authority. The truth of the matter is that she had proceeded on leave after the competent authority had sanctioned her leave application. She has, therefore, a right to show that the leave was due to her under the rules, and in any case she would not have availed of it if she had not been allowed to do so.
8. For these reasons, I would accept the writ petition and declare that the refusal o- the respondent to pay the sum of Rs.5620.97 to the petitioner is without lawful authority and of no legal effect, that the petitioner is entitled to receive this sum and that the order fixing the amount of pension at Rs.1296.48 on the basis of the petitioner's qualifying service for the purposes of pension and gratuity was 27 years and not 28 years is without lawful authority and of no legal effect because the petitioner was not afforded a hearing before that order was made. The result of this latter declaration will be that the competent authority will determine the amount of pension and gratuity afresh after affording hearing to the petitioner. The parties are left to bear their own costs.