DECISION ' These appeals, similar in nature, are filed by Pakistan Railways against the decision of the Sindh Labour Court No,VII, Sukkur allowing the grievance petitions of the respondent employees of the Railway Department.
2. In Appeal No, SUK-325 of 1991, the respondent working as Signaller Incharge at Railway Station,Sukkur was paid over-time allowance amounting to Rs, 42,571 as sanctioned by the Divisional Superintendent for the years 1986 to 1988. But on Audit objection this amount was ordered to be recovered from the respondent on and from 21-6-1990 in instalments of Rs, 200 p.m.
On the ground that the same was illegally sanctioned.
3. In Appeal No, SUK-324 of 1991 the respondent Mumtaz Shahid Electrical Foreman Muhammad Zaman, Assistant Electrical Foreman Muhammad Akram, Sub-Engineer, Muhammad Saleem, Electrician and Muhammad Shabbir, Electrician were allowed higher scales of pay pending approval by the D.P.C. But for one reason or the other no meeting of the D.P.C. Was convened to consider the cases of their promotion. Therefore, by decision dated 18-6-1991 they were called upon to refund the difference of the higher pay drawn by them since they were not cleared by the D.P.C.
These employees contended that if the meeting of the D.P.C. Was not held and their cases were not considered it was not due to their fault and their pay scales cannot therefore be reduced unilaterally.
4. The Labour Court, Sukkur allowed the grievance of these employees and found the reduction of their overtime allowance and difference of their pay scales as being against the principle of natural justice.
5. The learned Advocate for Pakistan Railways, Mr. Shabbir Ahmed Awan has first argued that the respondents are civil servants being the employees of the Federation and their grievance petitions are not therefore maintainable under the Industrial Relations Ordinance, 1969.
6. The Civil Servants Act, 1973, under section 2(b) defines a 'civil servant' as a member of an All Pakistan Service of the Federation holding a civil post but under clause (iii) 'a person who is a 'worker' or 'workman' as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923, is excluded. Under section 2(n) of the Workmen's Compensation Act, 1923 the `workman' is defined as under:-- "'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 five hundred rupees, in any such capacity as is specified in Schedule II."
' Under Schedule II the workman as defined under section 2(1)(n) are mentioned. At serial No, 1 workman 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."
7. Under Factories Act, 1934 section 2(h) defines 'worker' as under: "(h) 'worker' means a person employed directly or through an agency whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on."
8. Section 1 of the Industrial Relations Ordinance, 1969 also excludes from its application the employees employed in the administration of the State other than those employed as workman by the Railway Department. The `workman' worker' under the I.R.O., 1969, is defined under section 2(xxviii) as "any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person--
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."
9. The appellants are shown to be Signallers, Assistant Electrical I Foreman and merely Electricians working in the Railway Department drawing more than Rs,2,000 as their salaries therefore they do not fall within the 'A definition of workman under the Workmen's Compensation Act, where the maximum salary is Rs,1,500 under the Factories Act or the Industrial Relations Ordinance and the Standing Orders Ordinance. Even apart from their salaries I the appellants do not answer to the description of workman under the Workmen's Compensation Act. In the case of Akbar Ali v.
Pakistan Railways reported in 1992 SCM R 1341 it was held: "That the appellants did not fall in the category of workman as they would be civil servants not falling within the definition of workman as defined in the Factories Act or the Workmen's Compensation Act. That 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 will not be within the purview of the Labour Courts but such matters would be exclusively determined by the Services Tribunals. Civil Servants Act being of later date (1975) would exclude jurisdiction of other authorities (I.R.O. 1969 and Standing Orders Ordinance, 1968)."
' The Supreme Court also found that even on merits the appellants did not fall under the definition of workers under Schedule II of the Workmen's Compensation Act relating to section 2(1)(n).
Workers on a Railway could be considered to be workmen if they worked in connection with the operation or maintenance of a Railway, Steam Engine or Electric Engine. According to this decision the workmen maintaining the record of movement of such vehicles would not be included in the category as operation or maintenance of the vehicles means working physically with regard to these vehicles on the railway lines. The employees in the Railway Department working in their offices as Signallers or working otherwise, than on the lines, would not fall in that category.
10. In the case of Mufti Mushtaq Ahmed v. Federation of Pakistan PLD 1981 SC 172 it was held that 'ticket collector in the Railways performing clerical duties did not fall within the definition of workman and the Service Tribunal possess the jurisdiction to deal with his case'.
11. Mr. S.P. Lodhi, Representative for the respondents in Appeal No, SUK-324 of 1991, for Electricians and Foreman, has pointed out that the Railway Service could not be considered as Service of the Federation and that the I.R.O. And the Standing Orders Ordinance would apply. It has, however, been already shown that the Civil Servants Act includes the Railway Servants also and only such workman has come within the defmition of workman under the Workmen's Compensation Act and the Factories Act have been excluded. The burden being on the appellants workmen to show that they fall within these definitions and if the burden is not discharged, their petitions,would not be maintainable for decisions by the Labour Courts, as already pointed out above.
12. It would not, accordingly, be necessary for this Tribunal, to go into the question, whether the admissibility of over-time allowance or applications of Scales of Pay would be matters for decision under grievance petitions contemplated by section 25-A of the I.R.O. The Railway servants, as Government servants, can seek redress from their own Department or the Service Tribunal. Even the Authority under the Workmen's Compensation Act will have no jurisdiction in such cases.
13. The decisions of the Labour Court, allowing their grievance petitions, are therefore, set aside and the appeals of the Divisional Superintendent and the Divisional Personnel Officer, Pakistan Railways are allowed.