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Petitioner: KHALID FAROOQ TIPU VS Respondent: SECRETAY, MINISTRY OF FINANCE, PAKISTAN SECRETARIAT, ISLAMABADHonorable Justice Sheikh Ahmad FarooqRiaz Ahmad Tahir,Miss Humaira Latif Ch.
2015 P L C (C.S.) 1091
[Federal Service Tribunal]
Before Justice (Retd.) Sheikh Ahmad Farooq, Chairman Muhammad Arshad Bhatti, Syed Nasir Ali Shah, and Ishtiaq Ahmed, Members
KHALID FAROOQ TIPU and another
versus
SECRETAY, MINISTRY OF FINANCE, PAKISTAN SECRETARIAT, ISLAMABAD
Review Petitions Nos.2 and 3 of 2015 in Appeal No.99(L)CS of 2012, 5 of 2015 in Appeal No.199(L)CS of 2010 and Misc. Petition No.66-A of 2013 in Appeal No.56(L) CS of 2011, decided on 20th May, 2015.
(a) Service Tribunals Act (LXX of 1973)---
----S. 4-A [as inserted by Service Tribunals (Amendment) Act (IV of 2014), S.3]---Review of order by Service Tribunal---Limitation---"Aggrieved party"---Scope---Only an "aggrieved party" could file a review petition within 30 days of the passing of final order---Petitioner was not a party in appeal wherein the order sought to be reviewed had been passed---Impugned order was not a final order rather an interim order and was not liable to be reviewed---Petitioner could not be considered to be an "aggrieved party" and review petition was not maintainable---Review petition could not be filed against an interim order---Review petition was dismissed.
2004 SCMR 1397; Chief Mechanical Engineer Locomotive Factory, Risalpur and 2 others v. Chairman, Labour Appellate Tribunal N.-W.F.-P, Peshawar and another 2003 PLC 118; Mufti Mushtaq Ahmed v. The Federation of Pakistan PLD 1981 SC 172; Mehboob Khan and 307 others v. Government of Pakistan through Secretary, Ministry of Railways, Islamabad and 7 others 1993 SCMR 2385; 2003 PLC (C.S.) 1335; PLD 1985 SC 159 and 1997 PLC (CS) 533 ref.
Pakistan Railways through its General Manager and others v. Samiullah and others 1999 SCMR 2554; Chairman, Pakistan Railways and others v. Arif Hussain and others 2008 PLC (C.S.) 240; Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195 and Pakistan Defence Officer's Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 distinguished.
(b) Service Tribunals Act (LXX of 1973)---
---S. 4-A [as inserted by Service Tribunals (Amendment) Act (IV of 2014), S.3]---Review petition---Limitation---Review petition could be filed within 30 days of the passing of a final order.
(c) Service Tribunals Act (LXX of 1973)---
----S. 4---Civil Procedure Code (V of 1908), O.VII, R.11---Application for rejection of appeal before Service Tribunal---Maintainability--- Scope---Application for rejection of plaint under O.VII, R.11, C.P.C., could be filed in civil suit and not to reject appeal---Application for rejection of appeal before Service Tribunal was not maintainable.
(d) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Scope---Civil servants could not invoke constitutional jurisdiction of High Court under Art.199 of the Constitution, notwithstanding their terms and conditions of service had statutory characteristics.
National Assembly Secretariat through Secretary v. Manzoor Ahmed and others 2015 SCMR 253 rel.
Riaz Ahmad Tahir for Petitioner (in Review Petition No.2 of 2015).
Umar Khan for Pro Forma Respondent No.4 (in Review Petition No.2 of 2015).
Miss Humaira Latif Ch. for Respondents Nos.1 and 2 (in Review Petition No.2 of 2015).
Tahir Pervaiz, Director-General (Legal Affairs) Pakistan Railways (in Review Petition No.2 of 2015).
Mian Mahmood Hussain and Mian Jaffar Hussain Amicae Curiae (in Review Petition No.2 of 2015).
Miss Humaira Latif Ch. for Petitioner (in Review Petition No.3 of 2015).
Umar Khan for Appellant (in Review Petition No.3 of 2015).
Tahir Pervaiz, Director General (Legal Affairs) Pakistan Railways (in Review Petition No.3 of 2015).
Mian Mahmood Hussain and Mian Jaffar Hussain Amicae Curiae (in Review Petition No.3 of 2015).
Riaz Ahmad Tahir for Petitioner (in Review Petition No.5 of 2015).
Salman Riaz Ch. for Appellant No.3 (in Review Petition No.5 of 2015).
Miss Humaira Latif Ch. for Respondents Nos.1 and 2 (in Review Petition No.5 of 2015).
Tahir Pervaiz, Director-General (Legal Affairs) Pakistan Railways (in Review Petition No.5 of 2015).
Mian Mahmood and Jaffar Hussain Amicae Curiae (in Review Petition No.5 of 2015).
Riaz Ahmad Tahir for Respondents Nos.3 to 7 and 10/Petitioners (in Misc. Petition No.66-A/2013 in Appeal No.56(L)CS/2011).
Asif Nazir Awan for Appellant (in Misc. Petition No.66-A/2013 in Appeal No.56(L)CS/2011).
Mian Asghar Ali Gurdaspuri for Respondents Nos.1 and 2 (in Misc. Petition No.66-A/2013 in Appeal No.56(L)(CS)/2011)..
Nemo for Respondent No.8 (in Misc. Petition No.66-A/2013 in Appeal No.56(L)(CS)/2011).
Tahir Pervaiz, Director-General (Legal Affairs) Pakistan Railways.
Mian Mahmood Hussain and Mian Jaffar Hussain Amicae Curiae.
Dates of hearing: 21st, 22nd and 23rd April, 2015.
JUDGMENT
JUSTICE (RETD.) SHEIKH AHMAD FAROOQ (CHAIRMAN).--- Through this consolidated judgment, we intend to decide the aforementioned two Review Petitions bearing Nos.2 and 3/2015 in Appeal No.99(L)CS/ 2012 and Review Petition No.5/2015 in Appeal No.199(L)CS/ 2010 as well as M.P.No.66-A/2013 filed under Order VII, Rule 11, C.P.C. for rejection of Appeal No.56(L)CS/2011, as the status of the Railway employees is involved in all the aforesaid petitions.
2. Before proceeding further, it would be advantageous to give brief background of the aforementioned petitions.
3. Review Petitions Nos.2 and 3/2015 in Appeal No.99(L)CS/2012:
Jawad Ahmad Khan, who was a Prosecuting Inspector in Pakistan Railway Police filed Appeal No.99(L)CS/2012 in this Tribunal wherein he prayed for passing a direction to the respondents for payment of TA/DA, actual conveyance charges, 20% Special Pay and enhancement of the Prosecution Allowance on the analogy of Prosecutors working in the FIA. Respondents Nos.2 and 3 i.e. Divisional Superintendent and Divisional Accounts Officer, Pakistan Railways, Rawalpindi in the said appeal raised a preliminary objection that the appellant/Jawad Ahmad Khan is not a civil servant as his terms and conditions of service are governed through Pakistan Railway Police Act, 1977. A Bench of this Tribunal comprising of two learned Members/Kazi Afaq Hossain and Syed Nasir Ali Shah after hearing the learned counsel for the parties on the aforementioned preliminary objection, decided that the appellant/Jawad Ahmad Khan is a civil servant vide order dated 12-12-2014. However, the main appeal of Jawad Ahmad Khan bearing No.99(L)CS/2012 is still pending adjudication in this Tribunal. However, one Khalid Farooque Tipu, who claimed to be directly or indirectly aggrieved filed a Review Petition under Section 4A of the Service Tribunals (Amendment) Act, 2014 against the order dated 12-12-2014, primarily, on the ground that the employees of Pakistan Railway Police as well as other Railway servants are not civil servants and as such outside the ambit of section 2(1)(b) of the Civil Servants Act, 1973.
4. Another Review Petition bearing No.3/2015 was also filed on behalf of Pakistan Railways through Miss Humaira Latif Ch., Advocate for reviewing the order dated 12-12-2014 on the plea that the declaration of the Prosecuting Inspectors of Pakistan Railways as civil servant is against the law.
5. Jawad Ahmad Khan, who had filed Appeal No.99(L)CS/2012 and declared to be a civil servant vide order sought to be reviewed dated 12-12-2014 controverted the averments of both the abovementioned Review Petitions by maintaining that he is a civil servant. He also challenged the locus standi of Khalid Farooque Tipu, who was neither a party in Appeal No.99(L)CS/2012 nor an aggrieved person and as such, not competent to file Review Petition under section 4-A of the Service Tribunals (Amendment) Act, 2014. He also pointed out that Review Petition No.3/2015 purportedly moved by Pakistan Railways through Miss Humaira Latif Ch., Advocate is a replica of the Review Petition filed by Khalid Farooque Tipu. He claimed that even after his promotion as Prosecuting Deputy Superintendent, he is being governed by Pakistan Railway Police Act, 1977 and Pakistan Railway Police Rules, 1980 and is a civil servant as defined in section 2(1)(b) of the Civil Servants Act, 1973. He also referred to the Notification issued by the Government of Pakistan, Ministry of Railways (Railway Board) dated 15-10-2009 whereby Railway Police, amongst others, is to be dealt with under the Civil Servants Act, 1973 falling within the category of subordinate office in the light of Rule 2(w) of Rules of Business, 1973.
6. Review Petition No.05/2015 in Appeal No.199(L)CS/2010:
Shams-ud-Din, an employee of Railways, who is respondent No.3 in this Review Petition, was departmentally proceeded against and a penalty of dismissal from service was imposed upon him. Claiming to be a civil servant and thus amenable to the jurisdiction of this Tribunal, the aforesaid Shams-ud-Din filed Service Appeal No.222(L)CS/2002 before this Tribunal. Vide judgment dated 24-9-2009, the appeal was accepted and Shams-ud-Din was ordered to be reinstated in service. However, the respondents in the said appeal were directed to initiate against Shams-ud-Din and hold the de novo departmental proceedings against him. It was directed that question of back benefits shall depend upon the result of de novo departmental proceedings. Thereafter, departmental proceedings were accordingly initiated against Shams-ud-Din and consequently the intervening period from 20-9-2001 to 17-10-2001 was treated as leave with full pay and the period from 18-10-2001 to 20-10-2009 was treated as leave without pay. Not contented with the aforesaid order, Shams-ud-Din filed a second Appeal No.199(L)CS/2010 before this Tribunal in which he prayed that the period from 20-9-2001 to 20-10-2009 be treated as "spent on duty." The appeal was resisted by the respondents. Jurisdiction of this Tribunal was questioned by maintaining that Shams-ud-Din was not a civil servant. However, vide judgment dated 27-1-2015 this Tribunal by repelling the contention of the respondent-Railways, decided that Shams-ud-Din was a civil servant and as such his appeal was accepted.
7. Thereafter, one Khalid Farooque Tipu, who is a private respondent in Appeal No.56(L)CS/2011 which is pending adjudication below this Tribunal, filed the instant Review Petition against the order dated 27-1-2015 on the plea that Shams-ud-Din was not a civil servant and as such, the appeal was not maintainable before this Tribunal. The review petitioner/Khalid Farooque Tipu inter alia contended that Railway is a big business concern and as such, comes in the definition of Industrial and Commercial Establishment, has its own statutory rules and the terms and conditions of service of its employees are duly protected under Articles 241, 260 and 268 of the Constitution. He maintained that all the non-gazetted Railway servants, who are governed by Pakistan Railways Establishment Code, Volumes I and II and rules made thereunder, are not civil servants and as such, cannot knock the door of this Tribunal for the redressal of their grievances. The review petitioner/Khalid Farooque Tipu thus prayed for the setting aside of the aforesaid order dated 27-1-2015.
8. This review petition was resisted by Shams-ud-Din/respondent by maintaining that the review petitioner has no locus standi to file the review petition, being not a party to the aforesaid appeal. It was also submitted that this Tribunal has rightly held the respondent/Shams-ud-Din to be a civil servant. It was further contended that the review petitioner is not aggrieved person and necessary ingredients of review are not available in this case. The respondent/Shams-ud-Din, further contended that judgment dated 27-1-2015 is appealable and not revisable as neither there is any error or mistake apparent on the face of record nor any new or important matter or evidence has been put forward by the review petitioner.
9. M.P.No.66-A/2013 in Appeal No.56(L)CS/2011:
In Appeal No.56(L)CS/2011, filed by Ghulam Jaffar, private respondents Nos.3 to 7 and 10, have moved the instant M.P.No.66-A/2013 under Order VII, Rule 11, C.P.C. for rejection of the said appeal. The petitioners claimed that non-gazetted Railway servants whether they are workers or workmen fall under the definition of The Factories Act, 1934 (Act No. XXV of 1934) and The Workmen's Compensation Act, 1923 (Act No. VIII of 1923) respectively and the employees, whose terms and conditions of service are governed by Pakistan Railways Establishment Code, Volumes-I and II and rules made thereunder, are not civil servants. They have prayed that Appeal bearing No.56(L)CS/2011 filed by Ghulam Jaffar may be rejected as he is not a civil servant and this Tribunal lacks jurisdiction to entertain and adjudicate the appeal filed by him.
10. In all the aforementioned Review Petitions as well as in the application under Order VII, Rule 11, C.P.C., the pivotal question requiring adjudication is that as to whether the Railway employees are civil servants or not. Keeping in view the significance of the matter, impact of the likely judgment and to solve the Gordian knot regarding the status of Railway employees, a Special Bench comprising of the Chairman and three learned Members of this Tribunal was constituted.
11. First of all, we would like to decide the Review Petitions Nos.2 and 5/2015 which have been filed by Khalid Farooque Tipu. In this context, at the outset, we would like to observe that Khalid Farooque Tipu was neither a party in the Appeal bearing No.199(L)CS/ 2010, which was filed by Shams-ud-Din and finally decided vide judgment dated 27-1-2015 nor was impleaded as respondent in the Appeal No.99(L)CS/2012 filed by Jawad Ahmad Khan, which is still pending adjudication and only through an interim order dated 12-12-2014, the said Jawad Ahmad Khan has been declared to be a civil servant. The locus standi and the competence of Khalid Farooque Tipu to file Review Petitions is to be decided on the touchstone of the criteria laid down in section 4A of the Service Tribunals (Amendment) Act, 2014, which is being reproduced hereunder for ready reference:---
"4A. Review.---(1) A Tribunal shall have the power to review its final order on a review petition filed by an aggrieved party within thirty days of the order on the following grounds, namely:----
(i) discovery of new and important matter or evidence which after exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him at the time when the order was passed;
(ii) on account of some mistake or error apparent on the face of record; or
(iii) for any other sufficient cause.
(2) The Tribunal shall decide the review petition within thirty days;
(3) The Tribunal may confirm, set aside, vary or modify the judgment or order under review."
12. A bare perusal of the aforementioned Section 4A of the Act ibid would reveal that only an aggrieved party could file a Review Petition within 30-days of the passing of a final order. No doubt, Khalid Farooque Tipu has filed his review petitions against the orders dated 12-12-2014 and 27-1-2015 within the period of 30-days, as permissible under section 4A of the Act ibid. But there is no denial of the fact that he was not a party in the aforesaid two appeals wherein the orders sought to be reviewed have been passed. Even otherwise, order dated 12-12-2014 passed in Appeal No.99(L)CS/2012 is not a final order, rather, an interim order and not liable to be reviewed under section 4-A of the Act ibid. Khalid Farooque Tipu also cannot be considered to be an aggrieved party as the aforesaid judgments are judgments in personam and were delivered after considering the status of the appellants of those appeals as well as the peculiar attending facts of the case. The apprehension of the review petitioner/Khalid Farooque Tipu that the impact of the aforesaid two judgments dated 12-12-2014 and 27-1-2015 would trickle down or spill over the other cases, particularly, to the Appeal No.56(L)CS/2011, wherein he has filed an application under Order VII, Rule 11, C.P.C., is totally misconceived. Consequently, we are of the considered view that Review Petitions No.2/2015 and No.5/2015 filed by Khalid Farooque Tipu against the interim order dated 12-12-2014 and final judgment dated 27-1-2015 passed in Appeal No.99(L)CS/ 2012 and Appeal No.199(L)CS/2010 respectively are not maintainable.
13. Similarly, Review Petition No.3/2015, which has been filed through Miss Humaira Latif Ch. Advocate by the Divisional Superintendent Pakistan Railways and Divisional Accounts Officer Pakistan Railways/who are respondents Nos.2 and 3 in the Appeal of Jawad Ahmad Khan bearing No.99(L)CS/2012, is also not maintainable as the order dated 12-12-2014, which is sought to be reviewed, is an interim order and not a final order in the abovementioned appeal, which is still pending adjudication. No review petition under section 4-A of the Service Tribunals (Amendments) Act, 2014, could be filed against an interim order.
14. Nevertheless, the issue raised in the above three Review Petitions i.e. status of Railway employees as civil servants or otherwise is also subject matter of an application filed under Order VII, Rule 11, C.P.C. in Appeal No.56(L)CS/2011 and the same is being discussed and decided in the subsequent paras of this judgment.
15. In this backdrop, we asked Mr. Riaz Ahmad Tahir, learned Advocate, who had filed M.P.No.66-A/2013 under Order VII, Rule 11, C.P.C., to start his arguments on the point in issue. He submitted that the non-gazetted Railway servants whether they are workers or workmen falling under the definition of The Factories Act, 1934 (Act No. XXV of 1934) and The Workmen's Compensation Act, 1923 (Act No. VIII of 1923) respectively and other Railway servants whose terms and conditions of service are embodied in the Pakistan Railways Establishment Code Volume-I and II as well as Railway Servants (Efficiency and Discipline) Rules, 1973 do not fall within the definition of civil servants as mentioned in section 2(1)(b) of the Civil Servants Act, 1973. He contended that non-gazetted Railway servants have their own statutory rules and as such, this Tribunal lacks jurisdiction to entertain and adjudicate any appeal filed by them in respect of their terms and conditions. Mr. Riaz Ahmad Tahir, learned Advocate was candid enough to present before us the galaxy of judgments in support of his arguments and contra. He maintained that Railway employees are governed by Pakistan Railways Establishment Code Volume-I and II which derives its validity from Article 241 of the Constitution. He claimed that there are three types of non-gazetted Railway servants namely (i) those who come within the definition of 'worker' as defined under section 2(h) of The Factories Act, 1934; (ii) those who come under the definition of 'workman' as defined under section 2(h)(i) of The Workmen's Compensation Act, 1923; and (iii) Ministerial Staff in the Headquarters' Office or Regional Offices of Pakistan Railways. Learned counsel has thus contended that such employees are governed by Pakistan Railway Establishment Code - Volume-I and II and rules made thereunder and as such, are not civil servants. To fortify his contention learned counsel has relied upon following case-law:---
(i) Pakistan Railways through its General Manager and others v. Samiullah and others (1999 SCMR 2554)
(ii) Chairman, Pakistan Railways and others v. Arif Hussain and others (2008 PLC (C.S.) 240).
(iii) Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi (2010 SCMR 1484).
(iv) Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195)
(v) Pakistan Defence Officer's Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707)
16. Miss Humaira Latif Ch. Advocate, who had filed Review Petition No.3/2015 in Appeal No.99(L)CS/2012, which is undoubtedly a replica of Review Petition No.2/2015 moved by Khalid Farooque Tipu, literally adopted the arguments advanced by Mr. Riaz Ahmad Tahir, learned Advocate. Surprisingly, she has also filed a conceding reply to the application filed by Mr. Riaz Ahmad Tahir, learned Advocate under Order VII, Rule 11, C.P.C. This is too much a coincidence and indicates much more than meets the eye. We refrain from passing any observation in this regard and leave it to the Pakistan Railways, whose case she was defending, to probe into the matter, if they so desire, particularly in view of the fact that the Director General, (Legal Affairs) Pakistan Railways did not support the stance taken by Miss Humaira Latif Ch., Advocate during the proceedings of the matter in hand.
17. Mian Mahmood Hussain, learned ASC/amicus curiae in his arguments, submitted that Article 99(3) of Constitution of Islamic Republic of Pakistan empowers the Federal Government to make rules for the allocation and transaction of its business. Pakistan Railways has been described as a Division of the Government of Pakistan at S.No.26 of Schedule-II of Rules of Business, 1973. He submitted that Pakistan Railways and all its servants are performing functions in connection with the affairs of the Federation and as such, they fall in the definition of Service of Pakistan as enshrined in Article 260 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard, he referred to section 2 of the Civil Servants Act, which includes a person, who is a member of All Pakistan Service or of a civil service of the Federation or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence but excludes the person on deputation or employed on contract, work charged basis or who is paid from contingencies and similarly, the worker and workman as defined in the Factories Act and Workmen's Compensation Act. Similarly, the Railway servant has been defined in section 3(7) of the Railways Act, which means any person employed by a Railway administration with the service of a Railway company. That Railway Servants (E&D) Rules, 1975 deal with the Railway servants. Section 3 envisages two classes of Railway employees and the said Rules are applicable to every person, to whom Pakistan Railway Establishment Code applies, except a person, who is a civil servant within the meaning of Civil Servants Act, 1973. The learned counsel has drawn our attention to section 2(n)(i) of Workmen's Compensation Act, which provides that a Railway servant as defined in section 3 of the Railways Act, 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, can also be considered as a workman. The learned counsel further submitted that a Railway servant may also be a worker, provided he is engaged in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process, but does not include any person solely employed in any clerical capacity in any room, where no manufacturing process is being carried out. The learned counsel has added that under Article 241 of the Constitution of Pakistan, all the existing laws were protected. The Railway employees, who are not workers or workmen, have to be the civil servants, as they are in the service of the Federation. The learned counsel also quoted the examples of members of Pakistan Rangers and Frontier Constabulary, who have been treated as the civil servants. Reliance is placed on 2004 SCMR 1397. In support of his arguments, the learned counsel has placed reliance on 2003 PLC 118, PLD 1981 SC 172, 1993 SCMR 2385 and 2003 PLC (C.S.) 1335. He elaborated that all the Railway employees, who are working in the offices and administration, regardless of their status as gazetted or otherwise, are civil servants. Conversely, the railway servants working in the carriage factories, loco-sheds etc. are either the workers or the workmen.
18. Mian Jaffar Hussain, Advocate, the other learned amicus curiae was in complete harmony with Mian Mahmood Hussain, Advocate and adopted his arguments. He added that Notification of 1992, issued by G.M. Railways and referred to by the learned counsel for the review petitioner, could not supersede Articles 240, 241 and 260 of the Constitution. He placed reliance on judgment reported as PLD 1985 SC 159 and 1997 PLC (C.S.) 533 Karachi to embellish his arguments.
19. Mian Aslam Gurdaspuri, learned counsel for the respondents Nos.1 and 2 (Railways) in Appeal No.56(L)CS/2011 and Mr. Tahir Pervaiz, Director General (Legal Affairs) of Pakistan Railways also articulated their arguments by submitting that Railway Servants E&D Rules, 1975 visualize dichotomy of the officials, one to whom,…
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