1. ' By means of this common judgment, Labour Appeals Nos. 19 of 2002 and 43 of 2002 are disposed of as both appeals involve common facts and similar law points.
2. ' The appellants/employees of Pakistan Railways on being aggrieved by the letter dated 6-3-1999 refusing them the travelling allowance and letter dated 10-10-2001 for deduction of the amount already received by them as travelling allowance, approached Labour Court by filing of application under section 25-A of Industrial Relations Ordinance 1969 (I.R.O.). The appellants claimed to be entitled fc r travelling allowance in accordance with the judgment of Hon't le Supreme Court dated 10-4-1985.
3. ' The respondent Organization contesting the application on merits, challenged its maintainability on the ground that the appellants being employees of Pakistan Railways a Federal Organization are civil servants. Therefore, the jurisdiction, of Labour Court was barred to adjudicate upon any matter concerning their service/employment.
4. ' The learned Labour Court accepting the plea of respondent organization dismissed the applications as the applicants/appellants were held to be civil servants.
5. ' Mr. S.A.M. Qadri, the learned counsel for the appellants challenging the dismissal of the applications under section 25-A of I.R.O. Filed by the appellants argued that section 2-A of Civil Service Tribunal Act does not cover the appellants who though being employees of Federal Organization are admittedly workmen as defined in Section 2(1) of Industrial and Commercial Ordinance (Standing Orders) Ordinance, 1968. The learned counsel further contended that section 2-A was added in Civil Service Tribunal Act vide amendment XVII of 1997 dated 10-6-1997, whereas the 'claim of the petitioners pertains to period prior to said amendment, hence the said amendment cannot be given retrospective effect. The learned Labour Court failed to take into consideration the said aspect of the case, therefore, dismissal of the application without proper application of law was illegal.
6. ' To the contrary Mr. H. Shakil Ahmed, the learned counsel for the respondent submitted that the appellants after insertion of section 2-A of Civil Service Tribunal Act have become civil servants, therefore, all matters relating to their service was to be adjudicated upon by the Service Tribunal and not by any other forum including Labour Court. It was further argued that the appellants have challenged the letters dated 6-3-1999 and 10-10-2001, which were admittedly issued after insertion of section 2-A in Civil Service Tribunal Act and the appellants were already declared to be civil servants. Hence Labour Court had no jurisdiction to adjudicate upon the matter related to the terms of service of the appellants.
7. ' The submissions made by the learned counsel for the parties considered in the light of the documents so available on the record. The appellants who are serving in Pakistan Railways in different categories are running staff as they performed duty in the running trains, in said connection they also travelled to Iran. The appellants and others employees of their category were paid running allowance. Some of the employees being dissatisfied by he running allowance claimed travelling allowance, which was being paid to some of the categories of Railways servants, who also in connection with their official duties travelled with the train, this dispute came up before Honourable Supreme Court in Civil Appeals NOS. Q-47 and Q-48 of 1983 which was disposed of by means of judgment dated 10-4-1985 with following observation:-- "After a careful perusal of rules 221 and 509 aforesaid and the letters in question we have reached the conclusion that there is no inconsistency between the two. In our view the aforementioned statutory rules deal with a situation which is different from the situation dealt with in the letter of the Finance Ministry as applied to all categories of Railways servants. In this view of the matter, rules 221 and 509 of the Railways Establishment Code do not debar the respondents from obtaining the benefit which the Courts below have found to be admissible to them."
8. ' Subsequent to the above judgment the appellants in Labour Appeal No,43 of 2002 were paid the travelling allowance w,e,f, 1-2-1988, whereas, they claimed the same w,e,f, 1972, hence they filed application before Authority under Payment of Wages Act, their applications were allowed vide order dated 5-8-1991. The said order was challenged by the respondent which finally came up before Honourable Supreme Court where from the same was remand to the Appellate Court i,e, Presiding Officer, 1st Labour Court, Quetta. The learned Presiding Officer, Ist Labour Court, on remand of the appeals, disposed of the same vide judgment dated 31-12-1998 whereby the order dated 5-9-1991 passed by "Authority" under Payment of Wages Act was set aside holding that the Authority had no jurisdiction over the matter. The said judgment was challenged before Chairman, Lahore Appellate Tribunal by means of Revision Petition No,6 of 1999 which too was dismissed vide judgment dated 31-7-2000, whereafter C.P. No,792 of 2000 was filed before this Court the same was dismissed vide order dated 5-11-2001 with following observations:-- "In our view, the proper course for the petitioners in the circumstances is to approach a Labour Court for the enforcement of right guaranteed or secured to them under law, rules and instruction etc. However, the apprehension of learned counsel for the petitioners is that in case such an application is instituted, same would be hopelessly barred by time. But we are of the view that they can still approach to a Labour Court with an application for condonation of delay and explain the circumstances under which the proceedings before learned Authority under the Payment of wages Act were initiated. It may be noted that it cannot be ignored that the petitioners in the first round of litigation succeeded upto learned Labour Appellate Tribunal and even when the mater came up for consideration before the Hon'ble Supreme Court, it was observed that the real controversy was not attended by the forums below, and therefore, matter was remanded to the Labour Court. However, it is for the Court concerned to consider the question of good faith, 'reasonable' and criteria of due diligence' for enlargement of time, on the basis of averments to be made in the application in case they approach and the precedent are not lacking, where superior Courts condoned the delay, in the peculiar circumstances of the case. We on our own refer 1995 SCMR 584 and PLD 2000 SC 94.
9. The upshot of the above discussion is that this petition has no merit which is accordingly dismissed."
10. ' During above period when the appellants of Labour Appeal No,43 of 2002 were agitating their claim with regard to arrears prior to 1-2-1988, the respondent organization issued letter dated 6-3- 1999 which reads as under:- "The category of running staff are not entitled for payment of Travelling Allowance under para-221 of Railway Establishment Cade Vol: I, therefore, the practice for paying- Night T.A. To running staff who work on DLH-TFT-ZHN section be-stopped forthwith as view of the Railway Administration has been upheld by Ist Labour Court; Quetta, in its Judgment in. Cases Nos.6/97 to 13/97. This is in continuation to this office letter of even number dated 12-1-1999.
11. ' This issued with the approval of competent authority.
12. (Sd)
13. ' For Regional Manager/PBU, ' P.R. Quetta."
14. ' The above letter was followed by letter dated 10-10-2001 whereby directions were issued for deduction of the travelling allowance so paid to the appellants. ,The appellants in Labour Appeal No,19 of 2002 on being aggrieved by the above letters after serving of grievance notice of 25-A of I.R.O. Filed applications before Labour Court for redressal of their grievance, whereas the appellants in Labour Appeal No,43 of 2002 in pursuance of order dated 5-11-2001 passed by this Court in. C.P.
15. No,792 of 2000 after serving of notice under section 25-A of I.R.O. Also approached Labour Court by filing of application under section 25-A of I.R.O. Both the applications were rejected as the appellants were found to be not workmen after the amendment is Service Tribunal Act by insertion of section 2-A., which reads as under:-- "2. A. Service under certain corporations, etc. To be service of Pakistan.---Service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act."
16. ' Pakistan Railways is admittedly an organization which has been established and is controlled by Federal Government, hence the employees of Pakistan Railways in view of section 2-A Service Tribunal Act are found to be Civil Servants. This has already been held by the Lahore High Court in its judgment reported in 2000 PLC (C.S.) 1049 which reads as under:-- "A Perusal of section 2-A clearly shows that it relates to four categories of persons who are the employees of (1) authority (2) corporation (3) body or organization established by or under the Federal Law or which owned or controlled by the Federal Government (4) or in which the Federal Government has a controlling share or interest. Besides these four "categories" section 2-A of the Service Tribunals Act, 1973 further lays down and includes every person holding a post under such authority, corporation, body or organization to be a civil servant for the purposes of this Act. The works "every person" are very important, as by inserting these words employees of four categories mentioned above of whatever status have been included and declared to be civil servants for the purpose of this Act. Admittedly the petitioners are Junior/Senior clerks and electrical Chargemen employed in the Pakistan Railways. There is no cavil to this proposition that Pakistan Railways is an organization, which is controlled by the Federal Government Thus, by no stretch of imagination, it can be said that the petitioners stand excluded from the purview of section 2-A added by Service Tribunal (Amendment) Act (XVII of 1997). Since the petitioners have been adjudged to be civil servants, jurisdiction of the Court stands barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 even if the orders are considered to be mala fide, as held in Khalid Mahmood Watto v. Government of Punjab and others.
17. Above all the Honourable Supreme Court in its judgment 1999 SCMR 197 and PLD 2003 SC 724 declared the employees of any Authority, Corporation, Body or Organization established by or under a Federal law or which is owned or controlled by Federal Government or in which the Federal Government has a controlling share or interest, to be Civil Servants for the purposes of Service Tribunals Act. In the first cited judgment following has been observed:-- "A perusal of the above quoted newly enacted section 2-A indicates that the service under any Authority, Corporation, Body or Organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest has been declared to be service of Pakistan. It has also been provided that every person holding a post under any such Authority, Corporation, Body or Organization shall be deemed to be in civil service for the purposes of this Act i,e, the Service Tribunals Act 1973. In our view, it is not necessary for an employee working in any of the organizations covered by section 2- A that he should also come within the ambit of definition of the "Civil servant" given in section 2(b) of the Act of 1973. The employees of the various Authorities, Corporations etc. Mentioned in section 2-A have been treated in the service of Pakistan for limited purpose for providing remedy by way of appeal to them against an order of which they may feel aggrieved."
18. ' In the last cited judgment his lordship Justice Iftikhar Muhammad Chaudhry observed as under:-- "In view of above dictum it would not be out of context to point out that right to approach the Service Tribunal by an employee of an Authority, Corporation, Body or Organization, established by or under the Federal Law or which is owned or controlled by the Federal Government or in which Federal Government has controlling share or interest was conferred vide section 2-A inserted by means of Service Tribunal (Amendment) Act, 1997 w,e,f, 10th June 1997, according to which the employees of such Corporation, etc, would be deemed to be civil savants for the purpose of Service Tribunals Act, 1973. Section 2-A of the Act, 1997 was interpreted in the case of Zahir Ullah and 13 others v. Chairman, WAPDA, Lahore and others (2000 SCMR 826) and held that its benefit is not extendable only to regular employees of the such Organization but also to the employees who were on contract or workman. Distinction may be noted that under the Civil Servant Act, an employee who is working on contract basis does not fall within the definition of civil servant but by promulgating section 2-A of the Act, 1973 such right has been conferred upon the contract employees as well as on workmen."
19. ' In view of above there can be no cavil with regard to the status of the employees of Pakistan Railways to be civil servants irrespective of nature of work being assigned to them which may be of the nature as D defined in section 2 (i) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
20. ' Now averting to the ground that the right which the appellants are pressing pertains to period prior to insertion of section 2-A in the Service Tribunals Act 1973, therefore, the amendment can not be given retrospective effect so as to knock out the claim of appellants on technical ground. I am unable to accept the said plea, firstly on the ground that main grievance of the appellants is the issuance of letter dated 6-3-1999 whereby respondent Organization, refused to pay travelling allowance to the appellants and subsequently by means of letter dated 10-10-2000, the already paid amount to the appellants as travelling E allowance was ordered to be recovered. Both the above orders have been issued after insertion of section 2-A in Service Tribunals Act. Hence the grievance pertains to the period when the appellants were already declared civil servants.
21. Secondly the amendment does not affect the right of the appellant, if any; the same is only of procedural in nature, therefore, applicable retrospectively. For such view I take support of the judgment of the Hon'ble Supreme Court PLD 1969 SC 187 wherein their lordships were pleased to observe as under:-- "The general principle with regard to the interpretation of the statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irving (1) is that "if the matter in question be a matter of procedure only", the provisions would be retrospective. "On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act", then "in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the legislation would not operate retrospectively, unless the Legislatures had either "by express enactment or by necessary intendment" given the legislation retroactive effect."
22. ' The above view was followed by the Honourable Supreme Court in its judgment 1999 SCMR 197 while examining the applicability of section 2-A of Service Tribunal Act, it was held to be a procedural matter and applicable retrospectively. Thus, in such view of the matter the appellants in any case were required to have approached the Service Tribunal. Hence dismissal of the applications filed under section 25-A of J.R.O. By the appellants before Labour Court is found to be in accordance with law and free from any infirmity so as to allow any interference.
23. ' The learned counsel for the appellants expressed his fear with regard to bar of limitation stating that the same will be an obstacle in the way of appellants to approach Service Tribunal. Without making any comments with regard to the above fear, I feel to observe that remedy is available to the appellants who can still file application for condonation of delay. The Honourable Supreme Court observed that in suitable cases the appellants may not be knocked out on technical grounds and directions were issued to the subordinate Courts/forums to consider the plea of condonation of delay sympathetically. In case Syed Aftab Ahmed and others v. K.E.S.C. And others 1999 SCMR 197 following was observed:-- "As regards civil petitions in which the High Court has declined Constitution petitions on the ground that the petitioners should have approached the Service Tribunal, we would uphold the order of the High Court with the observation that in case the petitioners file applications for condonation of delay till the filing of appeal, the same may be considered sympathetically and the petitioners may not be knocked out on technical grounds."
24. ' Similar view was recorded in judgment Pir Nazir Ahmed Shah v. Government of Pakistan and two others 2002 PLC (C.S.) 953 by making following observations:-- "We accordingly convert the titled petition into an appeal, accept it set aside the impugned judgment and remand the case to the learned Tribunal with the direction that the application for condonation of delay be reconsidered afresh leniently in the light of the observations made above.
25. The learned Tribunal shall simultaneously decide the appeal on merits so as to obviate the eventuality of remand of the case again."
26. ' In such view of the matter the appellants may approach the competent forum for redressal of their grievances, where they may avail the legal remedy with regard to condonation of delay.
27. ' Upshot of the above discussion is that orders dated 10-5-2002 and 28-6-2002 passed by Additional District and Sessions Judge/Presiding Officer 1st Labour Court Balochistan Quetta, being just and proper do not allow any interference, the same are accordingly upheld. The appeals being without any merits are dismissed, with no order as to costs.