This is a petition under Article 194 of the Constitution filed by the Assistant Personnel Officer (Workshop), Pakistan Railway, and the Divisional Superintendent, Workshops, Pakistan Railways, impugning the order dated 11-12-1974 passed by the Labour Court IV, Hyderabad, whereby the order of Junior Labour Court II, Hyderabad, dismissing the application under section 25-A of the Industrial Relations Ordinance, 1959 (hereinafter called the I, R. O.) filed by Gul Hakim, respondent No.1, was set aside and respondent No.1 was ordered to be re-instated in service with continuity.
2. The admitted material facts giving rise to this petition are: Respondent No.1 was employed with Pakistan Railways in its Carriage and Workshop, Hyderabad, Sind, as Watchman and was removed from service with effect from 2-12-72 for misconduct, after an eleborate enquiry. Against his removal, respondent No.1 filed a departmental appeal which was dismissed.
3. Aggrieved by his removal from the service, respondent No.1 moved an application under section 25-A of the I. R. O. In the Junior Labour Court II, Hyderabad, which was dismissed by the Court by its order dated 16th February 1973. Therefore, respondent No.1 filed an appeal under section 36-D of the I. R. O. With respondent No. 2, which was allowed by the impugned order.
4. In support of this petition, the only contention raised by Mr. Usman Ghani Rashid, the learned Assistant Advocate-General for Sind, is that the Junior Labour Court and for that matter respondent No. 2 had no jurisdiction to entertain and adjudicate upon the dispute raised by respondent No.1 inasmuch as respondent No.1 based his claim upon the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance) and proviso to subsection (2) of section 1, thereof clearly excludes the case of respondent No.1 from the purview of the Ordinance.
5. Mr. G. M. Qureshi, the learned Advocate for respondent No.1 raised an objection that since the question of jurisdiction was not raised before the Junior Labour Court, the Assistant A.-G. May not be allowed to raise it in the High Court. It is true that the Junior Labour Court did not deal with this contention because the same was not specifically raised Wore it in the written statement or objections filed by the petitioners. However, the same was raised and dealt with by respondent No. 2 in the impugned order in the following manner, though decided against the petitioners :- "Before the introduction of I. R. O., 1969, according to the old definition of "workman" given under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, only those hands doing skilled unskilled manual or clerical work, come within the definition of "workman"
Therefore, under the old definition chowkidars, watchmen, and members of the security staff' did not come within the definition of workman. But with the introduction of I. R. O. This definition stands enlarged. The present position is that if a person does not fall within the definition of employer he is a workman. 1, therefore, hold that appellant was a, workman. Though according to the- schedule given in 1. R. O., 1969, regarding the public utility service, the members of watch and ward staff are included in the same, but that does not mean that they are not workmen. The only embargo against the public utility service is regarding the strike or lockout as given under section 33 of I. R.
O., 1969, the plain reading of section 1 subsection (3) of I. R. O. Shows chat it is also applicable to those who are employed as workmen by Railways. It has been argued that Railway is a Central Government, therefore the employment under the Board can be said to be employment in the Central Government. Thus it cannot be said that Railways workers are employed in the administration of State. I, therefore, find that this Court had jurisdiction to try the matter."
6. Moreover, the question has also been raised in the petition. Respondent No.1 has had sufficient notice of it. Therefore, the objection of Mr. Qureshi is liable to be overruled and it is hereby overruled.
7. The learned Advocate for respondent No.1 in reply to the contention of the learned Assistant A.-G.
Relied upon the provisions of subsection (3) of section 1 of the I. R. O. And argued that the workmen employed in the Railway are specifically excluded from the purview of the provision of this subsection. Therefore, the application under section 25-A of the I. R. O. Preferred by respondent No, 1 was maintainable. In order to appreciate the contention of the learned Advocates for the parties, it will be useful and convenient to reproduce the provisions of section 1(3) of the I. R. O.: ----
(i) ------. Commencement.
(ii) ------.
(i.e) It shall not apply to any person employed in the police or any of the Defence Services of Pakistan and any services or installations connected with or incidental to the Armed Forces of Pakistan including an ordnance factory maintained by the Central Government or to any person employed in the administration of the Stale other than those employed as workmen by the Railways, (underlining* is mine) Posts & Telegraph Telephone Department."
The application made by respondent No.1 was under the provisions of section 25-A of the I. R. O.
Under these provisions a worker could bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the the being in force to the notice of his employer in writing, either himself or through his Shop Steward or Trade Union within three months of the day on which cause of such grievance arose and on his failure to redress the same it was open to him to take the dispute to the Junior Labour Court.
8. However, it is not the case of respondent No.1 that his grievance was in respect of a right guaranteed or secured to him by or under any award or settlement for the the being in force. His case is that his rights were guaranteed under Standing Orders Ordinance and in this connection he has referred to Standing Orders lit and 15 and stated that the provisions thereof were not observed.
But section 1, subsection (4) of the Standing Orders Ordinance excludes the workmen employed in the Railways from the purview of the provisions of Standing Orders Ordinance. It is provided therein "1(4) It applies to---- (a)
(b)
(c)
Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Central or any Provincial Government, where the statutory rules of service, conduct or discipline are applicable to the workman employed therein."
It is not disputed before me by the learned counsel for respondent No.1 that Railways is an industrial establishment. Even otherwise, section 2(f) of the Standing Orders Ordinance gives the following definition of 'Industrial Establishment: --- "2(f) 'Industrial Establishment' means: ---- (i)
(ii)
(i.e) a railway as defined in clause (4) of section 3 of the Railways Act, 1890 (IX of 1890); or (iv)
(v)
It is not denied that the 'railway' is carried on under the authority of the Central Government (now Federal Government). The only other require--ment which is to be seen is whether there are any statutory rules of service, conduct or discipline which have been made applicable to the workmen employed in the Railways. It was contended by Mr. G. M. Qureshi that there were no such rules.
However, the learned Assistant Advocate-General has relied upon the Government Servants (Efficiency and Discipline) Rules, 1960, which have been incorporated mutatis mutandis in the Railway Employees' (Efficiency and Discipline) Rules, 1961.
Confronted with the Rules, the learned Advocate for respondent No.1 fairly admitted that he was not aware of the existence of the same and also admitted that they are applicable to his client.
9. Since the application of respondent No.1 under section 25-A of the I. R. O. Was based on the infringement of the rights guaranteed under Standing Orders 1 4 and 15 and since the provisions of section 1(4) of the Standing Orders Ordinance, excluded respondent No.1 from purview thereof,' so long as the Railway Employees (Efficiency and Discipline) Rules, 1962 remain applicable to him, his application was misconceived and the Junior Labour Court and for that matter respondent No. 2 had no jurisdiction to entertain the same and to grant the relief claimed therein.
10. In the result, I declare that the order of respondent No. 2 dated 11-12-1974 was passed without lawful authority and the same is hereby declared to be of no legal effect. The petitioners are also awarded costs of the petition.