FAKHRUDDIN G. EBRAHIM, J.--.The impugned order of compulsory retirement made against the petitioners is in an identical terms and reads as follows : "Since you have completed 25 (twenty-five) years qualifying service, you are hereby retired from service with immediate effect in the public interest in terms of rule 13 (ii) of Civil Servants Rules 1973, with full retirement benefits under the Rules .
(Sd.)
Divisional Personnel Officer, Pakistan Railways, Karachi."
2. The learned Assistant Advocate-General made it clear that in the event of Constitutional Petition No. 75 of 1976 succeeding the order of compulsory retirement made in respect of Petitioner No. 1 will meet the same fate as the order made in this petition in respect of Petitioners Nos. 2 and 3.
3. The case of the petitioners is that though they are Railways Servants within the meaning of the expression defined in the Railways Act and also civil servants as defined in clause (b) of section 2 of Civil Servants Act, 1973 they have been expressly excluded from this category by sub-clause (111) of clause (b) of section 2 of the said Act. Under this sub-clause (N) person who Is a worker or a workman as defined in the Factories Act, 1934 and the Workmen's Compensation Act, 1923 has been excluded. On behalf of the respondent Mr. Usman Ghani Rashid. Contended that sub-clause
(iii) has been inserted not with a view to limit the categories of civil servants who are workmen under the Workmen's Compensation Act, to enjoy the benefits of the Workmen's Compensation Act.
To enable a person to have recourse to Workmen's Compensation Act, 1923 will entirely depend upon whether op not he was covered by that enactment and the argument is indeed strange that the exclusion in sub-clause (iii) was to make further clear that a workman will be entitled to the benefits of the Workmen's Compensation Act. It is quite plain that the Legislature has excluded a workman, within the meaning of Workmen's Compensation Act, 1923 from the definition of civil servants and this exclusion is for the purpose of the Civil Servants Act, 1973 and not as was sought to be argued to re-enforce the application of Workmen's Compensation Act, 1923 to a workman entitled to the benefits of that Act.
4. It was next argued that in any event the petitioners were not workmen within the meaning of the expression as defined in the Workmen's Compensation Act and for this purpose while conceding that the petitioners are workmen as defined in sub-clause (1) of clause (n) of section 2 of the Act they were not workmen as they do not come within the list of workmen included in Schedule II of the Act. First of all Schedule II at best can enlarge the persons who are included in the definition of workman. Schedule II cannot contract the categories of workmen who otherwise come within the defined expression in section 2. In any event Schedule II itself states- "list of persons who, subject to the provisions of section 2 (t), (n), are included is the definition of workmen."
It was next contended on behalf of the Railway Administration that Civil Servants Act applies to the petitioners because it has been the practice of the Railway Administration to apply various Rules and Regulations applicable to civil servants to Railway Employees. In fact, the learned counsel pointed out the relevant rules enacted by the Railway Administration from time to time, when terms and conditions governing civil servants generally were sought to be made applicable to the Railway Employees. It is, therefore, not that the Rules and Regulations applicable to civil servant generally apply to Railway Servants automatically by way of practice but of necessity under a law or rule having force of law. This is further clear from the fact that the Rules made by the Central Government viz., Government Servants (Efficiency and Discipline) Rules, 1973, in exercise of powers conferred by section 25 of the Civil Servants Ordinance, 1973, were made applicable to Railway Employees not by virtue of some practice but by enacting the Railway Servants (Efficiency and Discipline) Rules, 1975. These Rules do not provide for compulsory retirement simpliciter. In any event these Rules were not in force when the action complained of was taken against the petitioners. It is, therefore, irrelevant to refer these Rules. In any event the larger question is whether or not Civil Servants Act, 1973 applies to the petitioners and to which our answer, in view of what has been stated above, is in the negative.
6. It was then argued in the alternative that assuming that Civil Servants Act, 1973 do not apply, the Railway Administration have proceeded against the petitioner under Railway Servants (Further Usefulness in Public Service) Rules, 1964, which empowers the Railway Administration to compulsorily retire a Railway Servant on completion of 25 years of service. No counter-affidavit has been filed by the respondents nor any material placed before us to show that action against the petitioners was taken under these Rules. In fact the assertion is belied by the impugned order itself which is expressly under the Civil Servants Act. Faced with this situation it was argued that in any event the Railway Administration had this power under the said Rules and it would not matter if an inapplicable enactment is referred to in the impugned order for even otherwise the Railway Administra--petition could in law compulsorily retire the petitioners. The answer to this is that to enable the Railway Administration to retire an employee under the said Rules would oblige them to follow the mandatory procedure laid down in the said Rules which among other things provides for a report by an appropriate authority to an appropriate committee and a hearing to the affected person by the appropriate committee which procedure was admittedly not followed in this case.
The fact, therefore, that some independent power was available to the Railway Administration to compulsorily retire the petitioners is of no avail to the respondents.
7. It was next contended that if the petitioners are workmen then the petitioners are governed entirely by law relating to Master and Servant under which their services can be terminated at any time and the remedy, if any, of the aggrieved person would be to invoke the jurisdiction of the Labour Courts. Merely, because the petitioners are workmen, and in the present case we are only concerned with the definition of the word "workman" as appearing in the Workmen's Compensation Act, 1923, the petitioners do not cease to be governed by the Rules and Regulations governing the employees of the Railway Administration. We are concerned with the question whether or not the petitioners are workmen for the limited purpose of whether or not they are excluded from the purview of the Civil Servants Act. Such exclusion cannot result in converting the employment between the petitioners and the Railway Administration into a contractual employment between a Master and a servant unconcerned with the laws and statutory rules which govern such employment. Even if we were to assume that the petitioners had recourse to the Labour Courts for redress of their grievance we axe of the view that the more appropriate remedy for the petitioners was invoking the Constitutional Jurisdiction of this Court for what they were challenging was application of a law and the incompeteney of the authority concerned to make the impugned order.
8. Lastly, it was contended that all that has happened is that the petitioners have been compulsorily retired to which no stigma is attached and they, therefore, cannot make any grievance. Of it. Mr. Usman Ghani Rashid invited our attention to the following observation of the Supreme Court in the case of Lt: Col. Farzand A.I and others v. Province of West Pakistan and others PLD 1970 SC 98 : "Compulsory retirement which carries with it no stigma and no vindictive. Ness against the person concerned is different from removal from service or dismissal. There may be a variety of reasons which may impel a Government to compulsorily retire an officer on his having completed the period of service qualifying him for pension and Government atone is the best Judge of these reasons. It is not possible for the Courts to sit on judgment over the action of Government, if from material disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse of power. It must of necessity be left to the Government itself to decide as to whether retirement of the officer concerned was in public interest or not. The Government, it is said, has an absolute discretion to retire any of its officers at this stage."
9. In the present case, however, the petitioners do not challenge the order of compulsory retirement on merits but the competency of the Authority making the order. If the order made is without jurisdiction it is no answer that the order does not attach any stigma, though it otherwise results in serious prejudice to the petitioners.
10. With particular reference to Petitioner No. 3, Mr. Usman Ghani Rashid pointed out that in view of his conduct, referred to hereinafter, the discretionary relief under Article 199 should not be granted in his favour. It was pointed out that the petitioners applied for the stay of the impugned order of compulsory retirement and in relation to Petitioners Nos. 1 and 2, it wag granted for it vas shown that they had not yet handed over charge but in relation to Petitioner No. 3 stay was not granted for he was unable to make a statement that he had not handed over charge. He was asked to file an affidavit that he had not handed over charge and the grievance is that he failed to comply with this order. In other words the Court wanted this petitioner to be placed in the same situation as Petitioners Nos. 1 and 2 1f he had not handed over charge. 'the petitioner No. 3 did not file affidavit for he bad handed over the charge before the petition eras filed which is confirmed by Mr. Usman Ghani Rashid. Therefore, there is nothing is the conduct of the Petitioner No. 3 to disentitle him to the relief claimed.
11. The result, therefore, is that this petition is allowed in terms prayed for, subject to what has been stated in para. 2 hereinabove in relation to petitioner No. 1.