ORDER Muhammad Daud Khan (Chairman).--For over-charging Muhammad Ashraf by Rs. 1.15 and Makhan by Rs. 2.67, Lehrasab Khan, Booking Clerk, Grade-2 of Pakistan Railways was charged and on admission of facts after due notice was removed from service with effect from 12-11-1970. He took exception to the order, served notice on the government under section 80, C.P. C., thereafter to file a Civil Suit on 4-12*1971. It was withdrawn on the undertaking given by D. P. O. on 13-11-1972 promising re-instatement in service, lt is now contended that the Department has not performed its part of the contract by offering him a lower job (Grade-I) and withholding pay for the period of absence from duty, treating it as leave without pay. The petitioner has filed this appeal to get the redress. C Preliminary objection taken by Railwey Department is as to the nature of employment.
The appellant being a 'workman' his appeal it is urged, is not maintainable. As the objection, challenges the very right of scrutinizing the claim, we of necessity must determine the issue before probing into the cause. It is based on provisions of Civil Servants Act, 1973 which by its section 2(b) gives a specific meaning to the words 'Civil Servant* sub- clause (iii) amongst others, restricts generally understood meaning of the. term. The subsection and relevant clause referred to above run as under:-- 2(b) "Civil Servant'* means a person who is a member of an All-Pakistan Service or of a civil seryice 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-- (0....................................................... '*workman" as defined in the Factories or the Workmen's Compensation Act,(ii)....................................................... (in) a person who is "worker" or Act, 1934 (XXV of 1934), 1923 (VIH of 1923); The Service Tribunal Act, 1973 (Act LXX of 1973) by virtue of subsection 1(3) applies to all Civil Servants wherever they may be referring for its meaning to section 2 of the Civil Servants Act, in the following words:-- S. 2(a) Service Tribunals Act. 1 "Civil Servant means a person who is or has been a Civil Servant within the meaning of Civil Servants Act, 1973." ''Section 3(ii) of Act No. LXX of 1973 confers jurisdiction of the Tribunal to matters relating to terms and conditions of service of Civil Servants. Consequently the Tribunal as constituted under subsection (3) of the Service Tribunal Act has only jurisdiction over Civil Servants as defined in the Civil Servants Act. The terms does not cover "workmen" who have been not only enumerated in Schedule II of the Workmen's Compensation Act but also find mention in section 2(l)(/i) of the same section 2 (ibid) distinguishes it by following restrictive definition: (/i) "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) rupees, in any such capacity as is specified in Schedule, II. From the above narration it is evident that the Tribunal deals with terms and conditions of Civil Servants, which epithet does not include workmen besides others. The question arising for decision, therefore, is whether the appellant is a 'workman* or not.
Admitted facts are: (1) Railway employment. (2)Non-employment in any Administrative, District or Sub-Divisional Office. (3) Non-specification of the job by Schedule II. These conditions are entirely met in the case of present appellant. He is a Railway employee, not permanently posted to any administrative, District or Sub-Divisional Office and his job is not specified in Schedule II. Even it it was so his pay being less than Rs. 1,000 such a specification would be of no advantage. The learned counsel wanted to take refuge under elucidation of the term 'workman* with reference to certain other enactments by certain citations, but a different meaning being given altogether to a Civil Servant and a workman in the two relevant enactments, the analogy drawn will not serve any purpose. Previous interpretation of the term with reference to other enactments, therefore, has no relevance in the context of the Civil Servants Act. The appellant being a Railway employee getting less than 1,000 rupees and not permanently employed as aforesaid is a| workman; excluded from jurisdiction of this Tribunal. He is not a CivilU Servant and cannot seek redress from this forum. The appeal being incom-l petent, is rejected. , Parties to be informed. 1975 PVL C [C.S.T.] 61 ' [Service Tribunal Pakistan] Present: Muhammad Daud Khan, Chairman, G. D. Memon and S. Barkat Ahmad, Members ASLAM MAHMOOD versus PAKISTAN through Chairman, Central Board of Revenue , decided on 7th May 1975. ( a) Service Tribunals Act (LXX of 1973)-- -------- Ss. 4 & 6--Jurisdiction of Tribunal--Departmental orders made after 1-7-1969 only within purview of Tribunal-- Vires of rules or policy framed earlier than 1-7-1969, held, beyond jurisdiction of Tribunal. [p. 62]i4 (b) Service Tribunals Act (LXX of 1973)-- ------ S. 4--Limitation--Cause of action--When arises. In the present case the bona fides of revised rules framed in 1961 and alleged deprivation of certain right consequent thereto was challenged in appeal before the Tribunal. The appellant aggrieved of alleged illegal supersession put in several representations and upon failing to elicit any reply submitted an appeal to the Finance Minister on 31-7-1972. Despite many reminders, no reply had been received thereto up to the date of filing appeal before the Tribunal. Held: The first of the replies received in response to his representations would determine the date of cause of action. It is well known principle of law that no one can create a cause of action in bis own favour. The cause of action prescribed under Service Tribunals Act, 1973 is not a recurring one, with one exception. The cause contemplated is departmental order either original or appellate. The exception is when an appeal has been filed and no reply is received within 90 days, vide section 4(1 ){a). In such cases right of appeal will accrue after expiry of 90 days and appeal shall have to be filed within the period prescribed under section 4(1). In the present case the appeal was hied before the Finance Minister on 31-7-1972. The time expired before 22-8-1974 because 90 days period had already runout when the Tribunal was established allowing 6 months for filing appeal. Thus the original cause of action about framing of revised rules/policy is much earlier in date. Appeal based on such alleged violation due to revision of rules or policy will suffer similarly. The appeal to the Finance Minister even if competent would be time baned by 7 months. It is only the reply to first representation that gives a cause of action and therefore even the confirmation of Rules by the Minister will not create a title unless there has been a change in Rules of 1961 to the detriment of the appellant. [pp. 62, 63]A, BtC & D Order Muhammad Daud Khan (Chairman).--The appellant. Mr. Aslam Mahmood, joined as an Inspector, Central Excise and Land Customs Department on 15th of August 1952. Up to January 1954, promotions to Deputy Superintendent of the Department were processed on seniority-cwm-fitness basis. In the said month, however, rules were changed so that pure selection on merit replaced seniority-cum-fitness. In 1957, rules were reframed in the interest of greater efficiency to create entitlement on the results of Departmental competitive examination.
This recasting of rules was subject-matter of writ petitition, which recognised its merit and approved its implications.
2. In 1961, to be precise, on 22nd February 1961, further change was brought in the rules to ignore the earlier framework. A via media between pure selection and seniority-cum-fitness was worked out. A promotion formula was announced which frustrated the claim of the appellant, who feeling aggrieved put in numerous representations against illegal supercessions. Failure to elicit any reply forced him to file an appeal before the Minister of Finance.
It is dated 31st of July 1972. Despite many reminders, no reply has been received so far. Hence this appeal dated 4th April 1975.
3. The precise questions involved for determination are: (i) Whether the question of promotion falls within the purview of this Tribunal; (ili) When did the cause of action accrue; and (iii) Whether repeated representations culminating in appeal to the Finance Minister dated 31st of July 1972 does not create a cause of action.
4. It has not been agitated before us that the appellant was not considered at all for promotion. The contention is that on account of change in rules, he has been ignored since 1961. As the Rules were framed policy revised much earlier than lst of July 1961, the question of entitlement of Central Board of Revenue to recast its rules policy of promotion is beyondl jurisdiction of this Tribunal. The law being that only Departmental OrdersM made after the above mentioned date can be questioned. | 5. The second point is: when did the cause of action arise. It is admitted that Rules framed on 17th February 1961, caused this deprivation. Thereafter some promotions were made and representations filed. The first of such replies would determine the date of cause of action. It is well known. principle of law that no one can create a cause of action in his own favour./ Under the present enactment (Service Tribunal Act), cause of action has been prescribed. It is not a recurring one, with one exception. The cause contemplated is departmental order either original or appellate.
6. The exception is when an appeal has been filed and yet no reply has been received within 90 days. (Section 4(1 )(a) refers).
In such a case; right will accrue after the expiry of 90 days arid an appeal shall have to be filed within the period prescribed by section 4(1) of Service Tribunals Act. The appeal before the Finance Minister was filed on lst July 1972. The time expired before 22nd of August 1974 because 90 days period had already! run out when the Tribunal was established allowing 6 months for filing an appeal. Thus the original cause of action about change of rules is muchC earlier in date. Appeal based on such violation caused by rules, will suffer similarly. The appeal to Finance Minister even if competent would be time! barred by 7 months. The order with respect to Mr. M. A. Simi fares no better. It being passed in December 1974, the appeal should have been filed by the end of January 1975, at the latest. It being late by 3 months and there being no application for condonation, the appeal cannot be entertained.
7. It is also pointed out that repeated representations are not contemplated by any Service Rules. It is only reply to the first representation that gives a cause of action and therefore even the confirmation of rules byl Minister of Finance will not create a title unless there is a change in thclD Rules of 1961 to the detriment of the appellant. Thus from whatever angle we examine this appeal, the hurdle of time bar cannot be brushed aside.
8. The appeal is, therefore, dismissed.