DECISION This is an appeal from the order of Labour Court No. V, Karachi, whereby the petitioner was reinstated in service with full back benefits. It has arisen in the following circumstances.
2. The petitioner was appointed as an Assistant Way Inspector on 3-9-1960 and after qualifying in the course was promoted as Permanent Way Inspector Grade-I in 1968. In 1974 he was promoted as Permanent Way Inspector Grade-II.
3. On 22-3-1986 he was issued a charge-sheet by the Divisional Superintendent, Pakistan Railways, Karachi which reads as under:-- "(1)While holding the additional charge of PWI/LND, you entrusted the work of engaging labour against the work for raising embankment at Bin Qasim to Mr. Muhammad Aslam AWI/MYP instead of Mr. Sharafat Ali, the Sectional AWI with mala fide intention which is apparent from the fact that the Engagement Register for this temporary labour was prepared neither by you nor by Muhammad Aslam, AWI/MYP. You, thus violated para. 13(g) of Way and Works Manual.
(2)The attendance sheet of the temporary labour so, engaged was not properly mustered and scrutinized by you during year routine inspections with impunity resulting in double, triple and quadruple payments to one and the same person as pointed out by the Finger Print Inspector, an extract of which is enclosed. You thus violated paras. 1.3(g)(R) and 1.5(b)(1) of Way and Works Manual.
(3)You did not personally witness the payment of this temporary labour and entrusted the same to Mr. Muhammad Aslam, AWI/MYP with a motive thereby causing double triple and quadruple payments mentioned in the preceding para. This shows gross negligence on your part thus you violated para. 1693 of General Code, Volume I, para. 47 of Cash and Pay Office Manual and para. 1.3 of Way and Works Manual.
(4)The said wrong payment, as established were made during payment to the labour resulting in financial loss to the administration. You, however, prepared/caused to prepare forged documents.
This act on your part tantamounts to fraud/forgery or abetment thereof which is a serious offence.
The previous charge-sheet of even number dated 22-2-1986 on the subject stands cancelled.
(Sd.)
(AUTHORISED OFFICER), D.S., PAKISTAN RAILWAYS, KARACHI."
4. It is alleged that the papers of the earlier enquiry had been misplaced and it took time to lay hold on them. It was after a lapse of well nigh 3 years that a second-charge-sheet was issued and on the basis of the report of the Committee he came to be removed from service on 21-7-1990.
5. He had filed a departmental appeal on 6-8-1990 and as there was no reply a reminder followed.
Then came the grievance notice dated 23-10-1990, and the grievance petition before the Labour Court.
6. The petition came to be resisted by the respondent. It was alleged that the petitioner was a civil servant and since he had also filed a departmental appeal he was estopped from seeking remedy from the Labour Court. The other grounds regarding non-supply of papers during the enquiry came to be denied. According to it even the classified documents were shown to him. The petitioner had himself avoided to partake in the proceedings at a later stage with the result that a public notice had been issued in the Daily Dawn.
7. The petitioner examined himself, Yaqoob Ali Zardari, Divisional Executive Engineer and Intizar Ahmed appeared on behalf of the respondent.
8. The Labour Court for the reasons given by it allowed the petition culminating in this appeal.
9. The contention in regard to the want of territorial jurisdiction was repelled by the Labour Court, but was not agitated here. That will take me straight to the question whether the respondent was a workman?
10. In Muhammad Akbar Butt and others v. Islamic Republic of Pakistan through Secretary, Ministry of Communication, Islamabad and others PLD 1978 Kar. 90, it was held that all Railway servants irrespective of their functions, postings and duties, were to be treated as workmen and not as civil servants. However, in Mufti Mushtaq Ahmed v. The Federation of Pakistan PLD 1981 Supreme Court 172, it was observed that the status of the Railway servants was to be determined by examining the nature of their duties.
11. In Akber Ali and others v. Senior Administrative Officer, Pakistan Railways and another 1992 SCM R 1341, after an exhaustive examination of the case-law, it was found that Railway employees not falling in the category of "worker" or "workman" as defined in the Factories Act or the Workmen's Compensation Act would be civil servants; and as a corollary, as envisaged by Article 212 of the Constitution of Pakistan their cases would be outside the purview of the Labour Court.
12. In Muhammad Aslam v. Divisional Engineer, Pak. Railway 1993 SCM R 1017 the appellant had been serving in Pakistan Railways as I.O.R. In Grade-12. He had gone in appeal before the Supreme. Court against a decision of the Federal Service Tribunal. Suffice it to say that the appeal came to be dismissed but on merit.
13. The respondent does not fall in any of the two categories i.e. The Factories Act or Schedule II of the Workmen's Compensation Act, and therefore, ht; is a civil servant. He was serving in Grade-16 as a P.W.I, and in my humble opinion the challenge to the jurisdiction of the Labour Court must prevail. As a civil servant, his remedy lay elsewhere.
14. Before parting with the case, I might as well add that even if it be assumed. That the respondent was not a civil servant, looking to the nature of his duties, he would not be a workman entitled to seek remedy under section 25-A of the I.R.O. The duties of a permanent Way Inspector as to be found in the Pakistan Railways Way and Works Manual, 1969 are as follows:-- "(a)Inspection and maintenance of track in a satisfactory and safe condition, for traffic, (b)Efficient execution of all works incidental to track maintenance, such as repairs to banks, bridges and structures affecting or pertaining to track except those items which are entrusted to works staff.
(c)Accountal and periodical verification of stores, tools and plant in his charge.
(d)Maintenance of land boundaries between stations.
(e)Welfare and effective maintenance of discipline amongst the labour and other staff placed under him.
(f)Accurate preparation of service books, master cards and status change reports, leave accounts, settlement and compensation papers and medical examination of all staff under him, as detailed in Chapter 39.
(g)Effective checking, accurate and timely preparation of attendance registers and attendance reports of the staff under him.
(h)Witnessing payment to staff and their correct identification."
15.In the result I will set aside the impugned order and allow the appeal.