JUDGMENT MALIK MUHAMMAD QAYYUM, J.- Sheikh Abdul Rauf, respondent No.1 was working as an Upper Division Clerk in the employment of the petitioner, when on 21st of January, 1986, he filed a complaint under section 15 read with section 53 of the Industrial Relations Ordinance, 1969, before the National Industrial Relations Commission, respondent No.2, alleging that the petitioner had committed unfair labour practice by ordering his transfer allegedly on account of his trade union activities.
2. The complaint was defended, inter alia, on the plea that respondent No.1 was not a "workman" but was a civil servant, and as such the National Industrial Relations Commission had no jurisdiction in the matter. The objection regarding maintainability of the petition was repelled by a single Member of the National Industrial Relations Commission on 9th of February, 1987, Aggrieved by that order, the petitioner filed an appeal before the Full Bench of the Commission, which, however, was dismissed, as being not maintainable on 8th of December, 1987. The order dated 9th of February, 1987 of the single Member and the subsequent order of 8th December, 1987 of the Full Bench of the Commission have been assailed in this petition.
3. Mr. Fazal-i-Hussain, the learned counsel for the petitioner, in support of this petition has relied upon Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, to contend that as respondent No.1 was a civil servant in the employment of the petitioner, the only competent forum where any dispute regarding terms and conditions of his service could be agitated was the Service Tribunal constituted under the Services Tribunal Act, 1973, and the National Industrial Relations Commission had no jurisdiction to entertain the complaint. Reliance has been placed by the learned counsel upon a judgment of the Supreme Court of Pakistan in Mufti Mushtaq Ahmad vs. The Federation of Pakistan (PLD 1981 S.C. 172) and Faqir Muhammad vs The Director of National Savings. Multan Region. Multan (PLD 1992 S.C. 127) also an unreported decision of the Supreme Court in Civil Appeal No.578 of 1980 titled as Akbar Ali and others vs. The Senior Administrative Officer. Pakistan Railways and another, decided on 6th of February, 1989.
4. Mr. Muhammad Ahmad Hassan, the learned counsel representing respondent No.1 on the other hand, has however, maintained that respondent No.1 was a workman and not a civil servant, as the workman have been specifically excluded from the definition of civil servant as appearing in the Civil Servants Act, 1973. It was also objected that this petition was not maintainable as it was directed against an interim order.
5. Having heard the leamed counsel for the parties, there appears to be great deal of force in the contention raised by the leamed counsel for the petitioner. No doubt under Article 212 of the Islamic Republic of Pakistan, 1973, a dispute regarding terms and conditions of a civil servant can be agitated only before the Services Tribunal constituted under the Services Tribunal Act, 1973 and no other forum.
6. The only question however, which emerges for determination from the respective contentions of the panties is as to whether respondent No.1 is a civil servant. The argument of respondent No.1 that he is not a civil servant is based upon the exclusion of a workman from definition of civil servant as given in section 2(b) (iii) of the Civil Servants Act, 1973. As would appear from the definition itself the exclusion is of a limited nature and is confined only to those employees of the Railway who are workers or workmen within the meaning of Factories Act, 1934 and Workmen's Compensation Act, 1923 and not all employees.
7. Unfortunately the impugned order of the Single Member based upon misreading of law. On this aspect of the matter it was observed without any basis that:- "All the Clerks employed are workmen as defined in the Industrial Relations Ordinance."
This observation not only suffers from miscomprehension of true legal position but also runs counter to law declared by the Supreme Court of Pakistan in case of Mufti Mushtaq Ahmad vs. The Federation of Pakistan (PLP 1981 S.C. 172).
8. In any case the question involed stands conclusively determined by the Supreme Court of Pakistan in case of Akbar Ali and others vs. The Senior Administrative Officer, Pakistan Railways and another (Civil Appeal No,578/8G decided on 6th February, 1989) wherein it was observed that the Clerks working in an administrative office of Pakistan Railways are civil servants and not workmen either under the Factories Act, 1934 or under the Workmen's Compensation Act, 1923. This education of law is fully applicable as according to the case of respondent No.1 himself he was employed as Upper Division Clerk in the Saw Dust Depot outside Carriage and Wagon Shops, Pakistan Railways Mughalpura. The observations of the Supreme Court in other case relied upon by the learned counsel lor the petitioner namely Faqir Mohammad vs. The Director of National Savings, Multan Region, Multan (PLD 1992 S.C. 127) are also instructive.
9. From the above it is evident that the jurisdiction of respondent No.2 to try the complaint filed before it was barred by the Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973.
10. As regards the objection of the learned counsel for the respondent that the petition is directed against an interim order and it is not maintainable, suffice it to say that the petitioner had challenged very assumption of jurisdiction by respondent No.2, which, on the face of the record, appears to be lacking. Consequently, the objection raised by the learned counsel for the respondent cannot be given any weight.
For reasons aforesaid, this petition is allowed and the order dated 9.2.1987 passed by the National Industrial Relations Commission is declared to be without lawful authority and of no legal effect.
No order as to costs.