Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SHARIF HUSSAIN VS Respondent: PUNJAB LABOUR APPELLATE TRIBUNAL, LAHOREHonorable Justice M. Javed ButtarAsmat Kamal Khan,Sh. Nadeem Anwar-ul-Haq
2003 P L C (C
2003 P L C (C.S.) 1335
[Lahore High Court]
Before M. Javed Buttar, J
SHARIF HUSSAIN
Versus
PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 4 others
Writ Petition No. 13939 of 1999, heard on 2nd July, 2003.
(a) Service Tribunals Act (LXX of 1973)---
----S.2-A---Civil Servants Act (LXXI of 1973)----Employees of Federal Government---Provisions of S.2-A of Service Tribunals Act, 1973-- Applicability---Provisions of S.2-A of Service Tribunals Act, 1973, are not applicable to Federal Government employees but are applicable only to those employees who are in service under any Authority, Corporation, Body or Organization established by or under a Federal Law or which is under or controlled by Federal Government or where the Federal Government has a controlling share or interest in any such Authority and Corporation etc.-- Such employees have by fiction of law to be considered in service of Pakistan and deemed to be civil servants for the purposes of Service Tribunals Act, 1973---Employees of Federal Government who have been excluded from the definition of civil servant' as provided in S.2(1)(b) of Civil Servants Act, 1973 are not amenable to the provisions of Service Tribunals Act, 1973.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S.25-A---Service Tribunals Act (LXX of 1973), S.2-A---Civil Servants Act (LXXI of 1973), S.2(1)(b), third proviso---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Employee of Federal Government---Status of workman---Petitioner was Goods Clerk in Pakistan Railway and his services were terminated---Grievance petition under S.25-A of Industrial Relations Ordinance, 1969 was accepted by Labour Court and he was ordered to be reinstated in service---Labour Appellate Tribunal set aside the order passed by the Labour Court only tin the ground that after insertion of S.2-A in Service Tribunals Act, 1973, remedy was with the Service Tribunal---Plea raised by the petitioner was that he was workman and being employee of Federal Government was not covered under the provisions of S.2-A of Service Tribunals Act, 1973---Validity---Only those employees of Federal Government could approach Service Tribunal who were not excluded from the definition of 'civil servant' as provided in S.2(1)(b) of Civil Servants Act, 1973---Petitioner having been held a 'workman' by Labour Court and such finding having trot been upset by the Labour Appellate Tribunal, the petitioner stood excluded from the definition of civil servant' as provided in S.2(1)(b) third proviso of Civil Servants Act, 1973---Pakistan Railways is a Department of Federal Government and as such its employees do not hold posts in connection with the affairs of Federation, thus it is not an Authority, Corporation; Body or Organization within the meaning of S.2-A of Service Tribunals Act, 1973---Petitioner could not approach the Service Tribunal and Labour Appellant Tribunal had illegally applied the provisions of S.2-A of Service Tribunals Act, 1973, as the same was not applicable to the Federal Government employees-- Judgment passed by Labour Appellate Tribunal was set aside and the case was remanded to it for decision of appeal on merits---Petition was allowed accordingly.
Chief Mechanical Engineer, Locomotive Factory, Risalpur and 2 others v. Chairman, Labour Appellate Tribunal, N.-W.F.P., Peshawar and another 2003 PLC 118 fol.
Zaheer Ullah and 13 others v. Chairman, WAPDA, Lahore and others 2000 SCMR 826 distinguished.
Asmat Kamal Khan for Appellant.
Sh. Nadeem Anwar-ul-Haq for Respondents.
Date of hearing: 2nd July, 2003.
JUDGMENT
The petitioner, Sharif Hussain, a former employee of Pakistan Railways, through this Constitutional petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has assailed the judgment dated 29-6-1999, passed by the Punjab Labour Appellate Tribunal, Lahore, whereby the appeal of respondents 2 to 4/Railways authorities, against the judgment dated 10-9-1998, passed by the Punjab, Labour Court No.4, Faisalabad, accepting the petitioner's grievance petition, was allowed, the judgment passed by the Labour Court was set-aside only on the ground that by virtue of insertion of section 2-A in the Service Tribunals Act (No.LXX) of 1973, w.e.f. 10-6-1997 the Labour Court had no jurisdiction to decide the issue.
2. The relevant facts are that the petitioner was employed as Goods Clerk, in Pakistan Railways, in the year 1961. His services were terminated on the alleged ground of being absent without leave. His departmental appeal was, however, accepted in September, 1987 but he, was not reinstated and was reappointed, which led to the institution of a grievance petition under section 25-A of Industrial Relations Ordinance, 1969. The learned Labour Court after recording evidence and after hearing arguments of the learned counsel for the parties, vide its judgment dated 10-9-1998, accepted the grievance petition and after declaring the petitioner to be a "workman", directed that reappointment of the petitioner through the then impugned orders dated September, 1987, be converted into reinstatement in service without back benefits. The appeal of respondents 2 to 4, as mentioned above, was accepted by the Punjab Labour Appellate Tribunal, Lahore, on 29-6-1999; only on the ground that because of insertion of section 2A in the Service Tribunals Act (No. LXX), 1973 w.e.f. 10-6-1997, the Labour Court lacked jurisdiction to decide the grievance petition.
3. I have heard the learned counsel for the parties and have also seen the relevant record, the copy of which is attached with this petition.
4. It is submitted by the learned counsel for the petitioner that the petitioner is a "workman", under the Workmen Compensation Act, 1923 and section 2A of the Service Tribunals Act, 1973 is not applicable to the Federal Government employees and because of the exclusion clause as contained in 3rd proviso of section 2(1)(b) of Civil Servants Act (No.LXXI) of 1973 the petitioner being a "workman" is not a civil servant for the purpose of the Service Tribunals Act (No.LXX) of 1973 and cannot approach the Service Tribunal. Reliance in this regard is placed on Chief Mechanical Engineer, Locomotive Factory, Risalpur and 2 others v. Chairman, Labour Appellate Tribunal, N.-W.F.P., Peshawar and another (2003 PLC 118). The learned counsel representing the contesting respondents, while opposing this petition has submitted that the learned Punjab Labour Appellate Tribunal has correctly applied section 2A of the Service Tribunals Act, 1973 and has correctly held that Labour Court has no jurisdiction. He has also placed his reliance on Zaheer Ullah and 13 others v. Chairman, WAPDA, Lahore and others (2000 SCMR 826).
5. A bare perusal of section 2A of the Service Tribunals Act, 1973 shows that it is not applicable to Federal Government employees. It is applicable only to those employees who are in service under any Authority. Corporation, Body or Organization established by or under a Federal Law or which is under or controlled by the Federal Government or where the Federal Government has a controlling share or interest in any such Authority and Corporation etc. Such employees have been declared, by fiction of law, to be in service of Pakistan and they shall be deemed to be civil servants for the purposes of the Service Tribunals Act, 1973. This Act is not applicable to those employees of Federal Government, who stand excluded from the definition of "Civil Servant" as provided in section 2(1)(b) of Civil Servants Act, 1973, due to the exclusion clause (provisos) and such employees cannot approach the Service Tribunal because under section 2(a) of the Service Tribunals Act, 1973, the words "Civil Servant" mean a person who is, or has been, a civil servant within the meaning of the Civil Servants Act, 1973 and shall include a person declared to be a civil servant under section 2A. It is thus manifest that only those employees of Federal Government can approach the Service Tribunals who are not excluded from the definition of "Civil Servant" as provided in section 2(1)(b) of the Civil Servants Act, 1973. The petitioner having been held a "workman" by the Labour Court and the finding having not been upset by the learned Labour Appellate Tribunal, stands excluded from the definition of "Civil Servant" as provided in section 2(1)(b) of the aforesaid Act, due to the 3rd proviso of the said clause. He, therefore, cannot approach the Services Tribunal and the Punjab Labour Appellate Tribunal, Lahore, illegally applied the provision of section 2A of the Service Tribunals Act, 1973, which is not applicable to the Federal Government employees. The learned counsel for the respondents 2 to 4/Railways authorities has incorrectly placed his reliance on Zahir Ullah and 13 others v. Chairman, WAPDA, Lahore and others (supra). The said case relates to employees of WAPDA, which is an Authority created under a Federal Law and its employees are fully covered under the provision of section 2A of the Service Tribunals Act, 1973. The learned counsel has heavily relied on the observations of the Hon'ble Supreme Court in the said judgment that Service Tribunals Act does not make any differentiation between the employees working in such Organization either as regular employees or contract employees or workmen and the employees though not falling in the definition given in section 2(b) of Civil Servants Act, 1973 were covered by the provisions of section 2A of the Service Tribunals Act, 1973, for the purposes of availing remedy before the Service Tribunal. The above decision and observations of the Hon'ble Supreme Court relate to the employees of the authorities/corporations etc., which stand covered under section 2A of the Service Tribunals Act, 1973 and not to the employees of the Federal Government. On the other hand, learned counsel for the petitioner has correctly placed his reliance on Chief Mechanical Engineer, Locomotive Factory, Risalpur and 2 others v. Chairman, Labour Appellate Tribunal. N.-W.F.P., Peshawar and others (supra) wherein a Division Bench of Peshawar High Court leas deal.( with the issue in hand, in dential. It is in fact applicable to the facts of the present case on all fours as the matter related to the employees of Pakistan Railways. In the above referred case, the Chairman, Labour Appellant Tribunal held that the Labour Court had the jurisdiction notwithstanding the insertion of section 2A of the Service Tribunals Act, 1973, if the petitioners before the Labour Court were found to be "workmen". The decision of the Chairman,, Labour Appellate Tribunal was assailed by different officials of Pakistan Railways through four writ petitions, in the Peshawar High Court. It was held by a Division Bench that Pakistan Railways is a Department of Federal Government, as such its employees hold posts in connection with affairs of Federation and Pakistan Railways is not an Authority, Corporation, Body or Organization, within the meaning of section 2A of the Service Tribunals Act, 1973. It was also correctly clarified that employees of Pakistan Railways are either civil servants within the meaning of section 2(1)(b) of Civil Servants Act, 1973 or fall within the exception thereto including section 2(1)(b)(iii) and that the employees of Pakistan Railways being employees of Federal Government for purposes of redressal of grievance regarding terms and conditions of service would be unaffected by addition of section 2A in Service Tribunals Act, 1973. It was thus decided that the Labour Court would have jurisdiction to entertain a grievance petition of ail employee of Pakistan Railways if such an employee was found to be a '"workman". All the petitions of Pakistan Railways were accordingly dismissed. It is not the case of Railways authorities, before me, that Pakistan Railways is not part of the Federal Government and is an Authority or a Body etc. for the purposes of section 2A of the Service Tribunals Act, 1973. It may, however, be mentioned here that this issue has been dealt with exhaustively in Chief Mechanical Engineer, Locomotive Factory, Rasalpur and 2 others v. Chairman. Labour Appellate Tribunal, N.-W.F.P., Peshawar and another (supra) and it has been correctly held that Pakistan Railways is a Department of the Federal Government and as such its employees hold posts in connection with the affairs of the Federation. It is, therefore, not an Authority, Corporation, Body sir Organization within the meaning of section 2A.
6. In view of the above mentioned, the writ petition is accepted, the impugned judgment dated 29-6-1999, passed by the Punjab Labour Appellate Tribunal, Lahore, is set-aside and the case is remanded to the learned Labour Appellate Tribunal for decision of the appeal of respondents 2 to 4 on merits as it is declared that the Labour Court bad the jurisdiction to decide the petitioner's grievance petition. There is, however, no order as to costs.
M.H./S-698/L Case remanded.