' SHAFIUR RAHMAN, J.---Leave to appeal was granted to examine whether the appellants, eight in number, stand excluded from the definition of `Civil Servant' and whether the wrong fixation of their pay amounts to deduction of pay to entitle them to the compensation available under the Workmen's Compensation Act, in the case of deduction of wages.
2. The brief facts giving rise to these appeals are that a number of Head Clerks posted at the Railways Headquarters in. The' Operating Branch felt aggrieved by the fixation of their pay in the National Pay Scales when they were introduced in 1972. Their case was that their 'pay' and 'special pay' had to be merged and then fixed in the National Pay Scales and thereafter they should have been allowed a 'special pay' as admissible to them. The Railways administration on the other hand, took their 'substantive pay' and refixed it in National Pay Scales and thereafter allowed the 'special pay' as admissible to them. In all, there were fifteen persons so affected who took up their grievance. By two separate petitions under section 15(2) of the Payment of Wages Act, they approached the Authority under Payment of Wages Act, for redress. An objection to the jurisdiction of the Authority was taken. It was dealt with on the ground that the question of proper fixation of the pay was not within the purview of section 15 of the Payment of Wages Act and unless the pay was fixed, no claim could be made. After referring to various decisions, the Authority came to the conclusion that 'refused wages' and delayed wages' etc. Widen the scope of the jurisdiction.
Notwithstanding the omission to fix the pay, the question as to whether the wages have been deducted or refused or not, could be gone into by the Authority. After examining the various aspects of the case it held that each of the fifteen aggrieved persons before it had been refused wages to the extent of Rs,1,780 for the period 1-3-1972 to 31-12-1975. The respondent was directed to pay compensation equal to five times of the illegal deduction to each of the. Aggrieved.
3. An appeal was preferred to the Labour Court. The question of jurisdiction was gone into but this time from a different angle. It was contended that the appellants were 'civil servants' governed by the Civil Servants Act and the provisions of the Payment of Wages Act and Workmen's Compensation Act did not apply to them. The Labour Court upheld this objection holding that the appellants were not included in the Second Schedule of the Workmen's Compensation Act, nor were they employed upon' a railway as required by subsection (4) of section 1 of the Payment of Wages Act, to make its provisions applicable to them. The concluding portion of the judgment of the Labour Court reads as hereunder:-- "So in view of what has been discussed above I find that claims of the civil servants for deducted or delayed payment of Wages could not be entertained by the Authority under the Payment of Wages Act as terms and conditions of service of civil servants are governed by the. Civil Servants Act.
There is no need to discuss the merits of the claims of the respondents. Simply their claims could lie as they are civil servants and for that reason order of the Authority under the Payment of Wages Act is not maintainable. It is hereby set aside and appeals are accepted."
4. A Constitution petition was thereupon filed by the appellants. The High Court upheld the objection to the jurisdiction by holding as hereunder:-- "The petitioners are civil servants under the Civil Servants Act as defined by the Act itself. The Civil Servants Act makes only an exception in favour of persons who are covered by the definition of a workman under the Workmen's Compensation Act, 1923. The present petitioners however, are not covered by the definition of Workmen's Compensation, as is evident from section 2(n) (i) of the Workmen's Compensation Act. The petitioners are working as Head Clerks in the Office of the Financial Advisor or the Operating Branch of the Railway Headquarters and therefore, are not employees of the Railways of a category which will be called workman under the Workmen's Compensation Act.
' The learned counsel for the petitioners relies on the provisions of the section 1(4) of the Payment of Wages Act and claims that all the employees of the Railways are to be governed by the Payment of Wages Act. I am afraid, I am unable to share this view inasmuch as the provision referred to applies to persons employed by a Railway. Administration who are working upon a Railway. The expression 'upon a railway' as against working in a factory as referred to in the rest of the section is significant. Persons working upon the railway has a 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 those who arc working in the Heaquarters Office. This view also finds support from section 2(n)(i) of the Workmen's Compensation Act which also removes this category of office workers from the definition of workmen. Quite obviously therefore, the purpose of Payment of Wages. Act is to protect the workers in a factory and the workers of the railways who are working upon the rail track or matters connected with it and not the civil servants generally or the civil servants in the railway administration who are not covered by the definition of workman under the Workmen's Compensation Act. The learned counsel for the respondents has produced before me a copy of judgment in Civil Revision No,676 of 1978 and my opinion finds support from the judgment of my learned brother Mr. Aftab Hussain, J."
5. Mr. Hussain Ahmad Naqvi, Advocate, the learned counsel for the appellants contended that in view of the decision given by this Court in Mufti Mushtaq Ahmad v. The Federation of Pakistan PLD 1981 SC 172 the exact nature of the duties performed by the appellants have to -be taken note of before deciding whether they were civil servants or not. He has read out the list of their duties in order to show that they were actually performing the duties of recording, controlling and supervising the movement of vehicles and wagons and were posted in the Operating Branch of the Headquarters Office of the Railways. On that view of the matter it is contended that the appellants fell in the category of 'workmen' as provided for in clause (i) of Schedule II of. Workmen's Compensation Act. 'Reference has also been made to subsection (4) of section 1 of the Payment of Wages Act in order to contend that the appellants qualified as being Railways servants and engaged upon the Railways. According to the learned counsel for the appellants, the appellants qualify as 'workmen' on the plain reading of definition of 'workman' contained in clause (n) of section 2 of Workmen's Compensation Act without reference to its Schedule. The learned counsel has also referred to the decision in Assistant Works Manager (B), Pakistan Railways v. Authority under Payment of Wages Act and 2 others 1983 PLC 822, to contend that 'upon any railway' is not restricted to the railway track and that it refers to other employees of the administration also.
6. Ch. Fazle Hussain, Advocate, the learned counsel for the respondent, on the other hand, has contended that neither the Payment of Wages Act nor the Workmen's Compensation Act, is applicable to the appellants because they are 'civil servants' and stand excluded altogether either from the purview of Authority and the Labour Court. It has also been contended that where the very fixation of the Wages is -in dispute, there cannot arise a question of `deduction of wages' and as such on the facts of the case also the authority under the Payment of Wages Act, had no jurisdiction. In this connection the learned counsel has referred to the cases of Khushi Muhammad v. Divisional Superintendent, Pakistan Railways, Lahore 1985 PLC 621, Nasiruddin Qureshi and ethers v. Sindh Labour Court, Karachi and others 1987 PLC 633 and T.I.P. Ltd., Karachi v. First Sindh Labour Court and others 1987 SCMR 403. It has been further contended that 'Wages' in the Payment of Wages Act has a limited and restricted meaning and cannot be extended to apply to regular salaried employees of the Government. For this reliance has been placed on an Indian decision reported as K.V.V. Sarma, Manager, Gemni Studios Madras's case AIR 1953 Mad.
269.
7. Article 212 of the Constitution provides for the establishment of Administrative Courts or Tribunals to exercise exclusive jurisdiction, inter alia, in respect of matters relating to the terms and conditions of persons who are, or have been in the service of Pakistan including disciplinary matters. Civil Servants Act came to be enacted in September, 1973 and it defined civil servants as hereunder:-- " '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 a 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VII, of 1923)."
6. The appellants definitely are persons who held civil posts in connection with the affairs of the Federation. They can claim exclusion only on the basis of their being classified as workman under the Factories Act or the Workmen's Compensation Act, 1923. It is admitted before us and we also find that the definition of 'workman' in Factories Act is not applicable to the appellants, and no reference to it need be made. The relevant portion of the definition of workman contained in clause
(n) of section 2 of the Workmen's Compensation Act is reproduced as hereunder:- " '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.
(ii) ....................................
Clause (i) and clause (xii) of Schedule II referred to in the definition just reproduced have been referred during the course of arguments and are being reproduced hereunder:-- "Schedule II ' See section 2(1)(a)
' List of persons who, subject to the provisions of section 2(1)(n) are included in the definition of workmen.
' The following persons are workmen within the meaning of section 2(1)(n) and subject to the provisions of that section, that is to say, any person who is---
(i) employed, otherwise than on a railway, in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity; or
(ii) employed upon a railway as defined in clause (4) of section 3, and subsection (1) of section 148 of the Railways Act, 1890 (IX of 1890), either directly or through a sub-contractor, by a person fulfilling a contract with the railway administration."
9. The learned counsel for the appellant has heavily relied on the case of Muhammad Akram Butt and 2 others v. Islamic Republic of Pakistan through Secretary, Ministry of Communication, Islamabad and another PLD 1978 Kar. 90 to contend that all railway servants irrespective of their functions, posting and duties, are to be treated as 'workmen' and not as 'civil servants'. The reference to the decided case is not inappropriate but in that case it has been assumed that the categories of railway servants who were before the Court, all were 'workmen', on the strength of definition contained in section 2(n) of Workmen's Compensation Act. Their duties, their posting and their functions were not at all examined though as pointed out by the learned counsel for the appellants himself on the basis of decision in Mufti Mushtaq Ahmad v. The Federation of Pakistan PLD 1981 SC 172 such exercise should have been undertaken.
10. Similarly, the learned counsel for the appellants has contended that the Junior Welfare Officers posted in the Railways Headquarters were treated as 'workmen' in the decision in the case of Muhammad Ali v. Chairman, Pakistan Railways PLD 1982 Kar.
205. These decisions have been cited by the learned counsel for the appellants to give an extended meaning to what is provided in clause (n) of section 2 of the Workmen's Compensation Act. The definition of 'workman' in sub-clause (i) of clause (9) of the Workmen's Compensation Act is in two parts. The opening part has the effect of making all the railway servants 'workmen' but the next qualification attaching takes a fairly large category of railway servants out of the category of 'workmen' that is those 'not permanently employed in any administrative, district or sub-divisional office of a railway.' In the case before us, it is not disputed that the appellants are posted in the administrative office at the Headquarters. This part of the definition has nothing to do with their capacity, duties or functions. It concerns only the posting. Such is the scheme of the definition because the duties, and the functions even in the administrative office, district office or sub- divisional office of the railways, have been taken care of by Schedule II. Therefore, on the strength of the first portion the appellants would not fall in the definition of 'workmen' because they are posted in the administrative office of the Railways and do not fall in the Schedule either.
11. Clause (i) of the Schedule which has for the first time been pressed before us, treats those employed 'on a railway in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity' to be workmen. The claim of the appellants is that as they are maintaining a record of movement of vehicles, therefore, they fall within this definition of 'workman'. The expression 'operation' or `maintenance' being used disjunctively but in company here leaves no manner of doubt that the intention was not to include in the category those persons who are making entries in the registers or keeping the record of movement of the vehicles, its operation or maintenance and doing nothing physically with regard to these duties.
12. Claue (xii) of Schedule II limits and confines itself to employment by a person fulfilling a contract with the railway administration and not directly the employees of the railway administration as such.
13. The appellants not falling in the category of 'worker' or 'workman' as defined in the Factories Act or the Workmen's Compensation Act, they would be civil servants and therefore, on the strength of the Constitutional provisions referred to excluded from the jurisdiction of other Courts. The fixation of pay in a particular scale or grade and the entitlement to pay is certainly a matter relating to the terms and conditions of service and on that view of the matter it will not be within the purview of the authority under the Payment of Wages Act, to determin it in respect of civil servants.
14. Subsection (4) of section 1 of the Payment of Wages Act makes no difference to the legal position in respect of the appellants even if they were to be treated within its ambit because the Civil Servants Act being of a latter date under a Constitutional scheme excluding the jurisdiction of other Authorities except the designated one, will take over this provision. Besides, we also approve the restricted meaning given to 'upon any railway' and that question in any case, does not directly arise in view of the legal provisions referred to.
15. Hence, no merit is found in the appeal which is hereby dismissed with no order as to costs.