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Petitioner: S. ZAFAR EJAZ VS Respondent: CHAIRMAN, STEEL MILLS CORPORATION
1998 P L C (C
1998 P L C (C. S.) 777
[Karachi High Court]
Before Mrs. Majida Razvi and Saiyed Saeed Ashhad, JJ
S. ZAFAR EJAZ
versus
CHAIRMAN, STEEL MILLS CORPORATION
Constitutional Petition No.D-1276 of 1996 and 1627 of 1995, decided on 28th January, 1998.
Per Mrs. Majida Razvi. J.--
(a) Interpretation of statutes--
---- Intention of Legislature---Grammatical and ordinary sense of the words used by Legislature in expressing its intention must be adhered to---Where literal adherence to words of any enactment appears to produce absurdity or injustice, Court, while interpreting, must consider state of law at the time the relevant statute was passed so as to ascertain whether language of enactment was capable of another fair interpretation and whether it would not be desirable to put upon the language used, restrictive meaning---First rule of construing any enactment would be to give the words their natural meaning and if no reasonable result could be arrived at by giving the words their natural meaning, only then some other interpretation would be permissible-- Where, however, phraseology of law was changed by amendment, presumption would be that some change in law was intended---Change of language in same Code or Act would be presumed to indicate change of intention on the part of Legislature.
Corpus Juris Secundum, Vol. 72; Stroud's Judicial Dictionary, 4th Edn., p. 1830 and Wharton's Law Lexican, 14th Edn., p. 711 ref.
(b) Service Tribunals Act (LXX of 1973)---
----Ss. 2(a) & 2-A [as added by Service Tribunals (Amendment) Act (XVII of 1977)]---Civil Servants Act (LXXI of 1973), S. 2---Factories Act (XXV of 1934), S. 2(h)---Workmen's Compensation Act (VIII of 1923), S.2(n)-- Employees covered by newly-added S. 2-A of Service Tribunals Act, 1973-- Exception---Every person holding post in corporate body or organisation which was owned or controlled by Federal Government would be treated as in Service of Pakistan and deemed to be civil servant for purpose of Service Tribunals Act, 1973---In absence of any non obstante clause, any change in phraseology and amendments in Factories Act, 1934 and Workmen's Compensation Act, 1923, while categories mentioned in sub-cls. (i), (ii) & (iii) of S. 2(1)(b) of Civil Servants Act, 1973 remain excluded from purview of S. 2, Service Tribunals Act, 1973---Such exclusion, however, would not apply to those in the service of corporations and bodies falling under S.2-A, Service Tribunals Act, 1973.
Sher Mahmood v. Chairman, Labour Appellate Tribunal 1995 PLC 188; Mst. Nargis Nazar v. Divisional Superintendent, Pakistan Railways, Multan 1992 PLC 58; WAPDA v. Muhammad Ashraf Naeem 1997 SCMR 1128; Executive Engineer v. Abdul Aziz PLD 1996 SC 610; Employees' Old Age Benefits Institution v. National Industrial Relations Commission and others 1988 SCMR 765; Faqir Muhammad v. The Director of National Savings, Multan Region PLD 1992 SC 127; Registrar, Supreme Court of Pakistan v. Wali Muhammad 1997 SCMR 141; Abdul Bari v. Government of Pakistan PLD 1981 Kar. 290 and Muhammad Ants v. Abdul Haseeb PLD 1994 SC 539 ref.
(c) Constitution of Pakistan (1973)--
----Arts. 199 & 212---Civil servant---Exclusion of jurisdiction of High Court---Where case of any person falls within jurisdiction of Service Tribunal, jurisdiction of all Courts including High Court under Art. 199 of the Constitution was barred.
Per Saiyed Saeed Ashhad. J.---__
(d) Service Tribunals Act (LXX of 1973)---
----S. 2-A---Civil Servants Act (LXXI of 1973), S. 2(iii)---Word ' civil servant' as used in S. 2-A, Service Tribunals Act, 1973---Connotation-- Word 'civil servant' used in S. 2-A, Service Tribunals Act, 1973 was not subject to exception or qualification contained in exception cl. (iii) of S.2, Civil Servants Act, 1973---A11 persons holding posts in corporation or organisations owned or controlled by the Government were to be deemed civil servants for purposes of S.2-A, Service Tribunals Act, 1973.
Per Mrs. Majida Razvi and Saiyed Saeed Ashhad JJ.---
(e) Service Tribunals Act (LXX of 1973)---
----S. 2-A---Constitution of Pakistan (1973), Arts. 199 & 212---Word ~ Post' appearing in S. 2-A, Service Tribunals Act, 1973---Connotation---Word 'post' appearing in S. 2-A, Service Tribunals Act, 1973 would be assigned its ordinary dictionary meaning and would include every office, assignment, job and position of any person in Government-owned corporation or those controlled by the Government---Pakistan Steel Mill being owned and controlled by Government, its employees would be deemed to be civil servants for purposes of Service Tribunals Act, 1973 and they could seek their grievance from Service Tribunal and not by invoking Constitutional jurisdiction of High Court in terms of Art. 199 of the Constitution.
Muhammad Tasneem for Petitioner.
M.G. Dastagir for Respondent.
ORDER
MRS. MAJIDA RAZVI, J.---The petitioner who is an employee of Pakistan Steel Mills Corporation, respondent No. 2 herein, by this petition has challenged the decision dated 9-5-1996 passed by the learned Sindh Labour Appellate Tribunal at Karachi in Appeal No. KR-95 of 1996.
Mr. M.G. Dastagir, the learned counsel for respondent No. 2 has raised preliminary objection in regard to the maintainability of this petition. According to him, in view of the amendment to the Service Tribunals Act, 1973 by virtue of the Service Tribunals (Amendment) Act, 1997 adding new section 2-A to the said Service Tribunals Act the petitioners have acquired the status of "civil servant" and as a result this appeal has abated.
In reply to the preliminary objection the learned counsel for the petitioner contended that the present case though pertains to service of an employee of respondent No. 2 but the same is in respect of the service of a workman who has been excluded under section 2(1)(b)(iii) of the Civil Servants Act, 1.973 from the definition of the civil servant and as such appeal is maintainable.
After hearing the arguments of the learned counsel in our opinion the logical questions which arise are:--
(1) Who is a civil servant and whether it has any relationship to the 'post' it holds?
(2) What is the status of workman/worker after the enactment of Service Tribunals (Amendment) Act, 1997 and by virtue of the said amendment whether subsections (i), (ii) and (iii) 2(i)(b) become redundant or remain intact?
Section 2(i)(b) which defines "civil servant" reads as under:--
(1) In this Act, unless there is anything repugnant in the subject or context.--
(a) .
(b) "civil servant" means a person who is a member of an 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 does not include-- `
(i) ...................................................................
(ii) ...................................................................
(iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923):
Section 2(a) of the Service Tribunals Act, 1973 reads as under:--
"(2) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. ... ... ... ... ... ...
(a) 'Civil servant' means ' a person who is, or has been a civil servant' within the meaning of Civil Servants Act, 1973 (LXXI of 1973)."
In view of above the Service Tribunals Act, 1973 incorporated in it, by reference to the definition of the term "civil servant" as defined in the Civil Servants Act, 1973. Act No. XVII of 1997 has brought amendment by adding section 2-A to the Service Tribunals Act. 1973 which is as under:--
"2-A. Service under certain corporation. etc. to be service of Pakistan. ---Service under any Authority, corporation body or organisation 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 organisation shall be a civil servant for the purposes of this Act."
The wordings of the above amendment/addition/insertion indicates that it is a deeming clause which includes every person holding a post under such authority as defined in the said section. The contention of the counsel for the petitioner is that since the definition of "worker" and "workmen" remains the same which have been excluded from the definition of the "civil servant" and as no amendment has been brought in the Factories Act. 1934 or the Workmen's Compensation Act, 1923 the services of worker/workman still remains excluded from the purview of the amending section entitling the worker to come to this Court by invoking Constitutional jurisdiction instead of approaching the Service Tribunal. The two important terms used in the amendment and relevant herein are 'post' and 'civil servant'
First we will deal with the word 'post'. The word ' post' has not been defined in the Civil Servants Act or any of the other laws, rules and regulations promulgated thereunder. However, the word 'post' has been defined under section 2(a) of N.-W.F.P. Public Servants (Regulations of Services) Act, 1988 as:--
post' means a post under Government or in connection with the affairs of Government to be filled in on the recommendation of Commission'."
In; our opinion the above definition has been given in context with N.-W.F.P. Public Servants (R & S) Act and concerns only those Government posts which are filled on recommendation of Government.
Now taking the ordinary dictionary meaning of the word "post", according to Corpus Juris Secundum (Volume 72) the word 'inter alia' is defined as:--
"The word 'post' is also defined as meaning an office or employment; a position, as a trust or emolument; situation; especially, a public office;
In this sense the word 'post' has been held to be synonymous with office'."
The word 'office' has been defined by Stroud's Judicial Dictionary (4th Edition, page 1830) as under:--
" ' office' was held to be apt word to describe the position of trustee, or any position in which services are due by the holder and in which the holder had no employer "
Wharton's Law Lexicon (14th Edition, page 711) defines office' as:--
"The word 'office' has been defined as an employment, either judicial, municipal, civil, military or ecclesiastical."
In the same book the word 'post' has been defined as:--
"The term ' post' means the place and position in service held by him."
All the above-referred definitions indicate that the word 'post' as well as the word 'office' has various meaning but commonly used for a position being held by a person. A common example of this will be when advertisements are given for recruitment of employees in different categories it is mentioned as 'posts' which can be for a Chowkidar or for an engineer.
Thus to determine as to whether a particular employee is a civil servant or in the service of Pakistan for the purpose of ouster of jurisdiction under Article 212 of the Constitution, definition under section 2(I)(b) of the Civil Servants Act, 1973 as well as amended provision contained in the amended section 2(a) of Service Tribunals Act, 1973, will have to be referred to.
One of the cardinal rules of interpretation of statute is that the grammatical and ordinary sense of the words used by the Legislature in expressing its intention is to be adhered to. If literal adherence to the words of any enactment appears to produce an absurdity or an injustice, it will be the duty of a Court, so interpreting, to consider the state of the law at the time the Act was passed with the view to ascertaining whether the language of the enactment is capable of another fair interpretation or whether it may not be desirable to put upon the language used, a restrictive meaning. The first rule of construing any enactment is to give the words their natural meaning and it is only if no reasonable result can be arrived at by giving the words their natural meaning that some other interpretation is permissible.
Further, when phraseology of the law is changed by an amendment the presumption will be that some change in the law is intended. It is an ordinary rule of construction that a change of language in the same code or Act may be presumed to indicate a change of intention on the part of the Legislature.
In the present case neither phraseology has been changed nor any amendment in the definition is made but a new subsection has been added keeping the existing section intact.
Keeping the principles of interpretation in mind, it seems that the intention/object of the Legislature in bringing the amendment is to end as far as possible, conflict if any of old decisions and provide one forum for all employees of Corporations, as mentioned in the amending enactment.
In the light of the above, if we look at section 2(a) of the Service Tribunals Act, 1973, after the amendment, it stands as follows:--
"2(a). 'Civil servant' means a person who is, or has been, a civil servant within the meaning of the Civil Servants Act, 1973 (LXXI of 1973) and shall include a person declared to be a civil servant under section 2-A. "
Section 2-A of the Service Tribunals Act 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 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 organisation shall be deemed to be a civil servant for the purpose of this Act "
The position clearly indicates the object of the amendment i.e. the service of all the employees holding a post in any corporation, body or organisation will be deemed to be civil servant for the purposes of seeking grievances from one and one Forum alone i.e. Service Tribunal.
The learned counsel for the appellant relied on the case of Sher Mahmood v. Chairman, Labour Appellate Tribunal (1995 PLC 188), wherein the question was whether a postman is a workman or a civil servant and if the Appellate Tribunal was right in holding the postman as a civil servant. It was held that "a workman is not a civil servant and that a postman is decidedly a workman".
Another case relied on was the case of Mst. Nargis Nazar v. Divisional Superintendent, Pakistan Railways, Multan (1992 PLC 58) wherein the question was raised whether a Special Ticket Examiner is a worker within the meaning of Workmen's Compensation Act, 1923 or a civil servant within the meaning of Civil Servants Act, 1973, and it was held that the petitioner (Special Ticket Examiner) was not a 'civil servant'. It was observed as:--
"When we look into the definition of civil servant given in the Civil Servants Act, we find that the employees falling within the exceptions are not civil servants. The exceptions are that the employees who are covered by the definition of workman given in the Workmen's Compensation Act and the Factories Act, are not civil servants so not all the employees of WAPDA but only those who do not come within the exceptions are to be deemed to be civil servants. "
In the case of WAPDA v. Muhammad Ashraf Naeem (1997 SCMR 1128), Muhammad Ashraf Naeem, who was an employee of WAPDA, approached the Labour Court which allowed his claim against WAPDA and ordered his reinstatement.
In appeal it was contended on behalf of WAPDA that in view of section 17(1-B) of Water and Power Development Authority, 1958, the services under the appellant have been declared to be Service of Pakistan. The appellant has framed statutory rules of Efficiency and Discipline for recruitment. The appellant is a statutory corporation functioning under the Authority of the Federal Government and for these reasons proviso to Standing Order 1(4)(c) was attracted and the applicability of the provisions of the Standing Orders Ordinance was altogether excluded. It will be interesting to reproduce the said proviso:--
"Provided that nothing in this Ordinance shall apply to Industrial and Commercial Establishment carried on by or under the authority of the Federal or any Provincial Government where statutory rules of service, conduct or discipline are applicable to ::e workman employed therein."
Section 17(1-B) of the WAPDA Act reads as under:,,
"Service under the Authority is hereby declared to t: Service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority, from any province, shall be deemed to be a civil servant for the purpose of Service Tribunals Act."
But, the Court considering section 2(b)(iii) of civil servants Act, 1973, declared the petitioner as workman as exempted under the law and, as such, the appeal was dismissed. Section 17(1-B) of me WADA Act is similar to amended/added subsection (2-A). '
The case-law cited by the learned counsel though permits to cases decided by the Courts before the amendment was introduced but the observation made while deciding the case of Mst. Nargis Nazar and Muhammad Ashraf Naeem are very pertinent keeping in view tie language of the two provisions which is similar.
In the case of Executive Engineer v. Abdul Aziz PLD 1996 SC 610 the employees of P.W.D. who were engaged on work-charge basis for construction had filed application under section 25-A, of the I.R.O. before the learned Labour Court, Balochistan inter alia requesting for reinstatement. The Department filed various legal objection as regal-c.1 to the maintainability of the application and denying that the employees are permanent employees as workmen. The Labour Court came to conclusion that the applicants were permanent employees and the termination of their services as illegal. Appeals were filed by the department and subsequently Constitutional petitions were filed which were dismissed in limine _ Petition n leave to appeal was granted. It was contended on behalf of the employees that they were not covered by the definition of the term civil servant given in subsection (1) of section 2 of the Civil Servants Act, 197: by virtue of clause (iii) thereof and were covered by definition of worker/workmen given in section.2(1) of the Standing Orders Ordinance and section 2(xxviii) of the Industrial Relations Ordinance.
One of the three points for consideration was:
(i) Whether the respondents are civil servants in terms of section 2(1)(b) of the Act?'
It was observed and held as under:--
"It seems that the respondents are not covered -- by the definition of 'worker' given in section 2(h) of the Factories Act, 1934, as they are not employed directly or through an agency 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, whether for wages or not, whereas the definition of 'workman' given in section 2(1)(n) of the Workmen's Compensation Act, 1923, appears to be very wide in its scope
A perusal of the definition shows that 'workman' means any person other than a person whose employment is of casual nature and who is employed otherwise than for the purpose of the employer's trade or business. The definition includes 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 specified in Schedule II. It also includes persons employed on monthly wages not exceeding three thousand rupees in such capacity as is specified in Schedule II. It may be noticed that the proviso to the above sub-clause (ii) of clause (n) lays down that it does not make any difference whether the contract of employment was made before or after the passing of the said Act and whether such contract is express or implied, oral or in writing. It may be pointed out that originally the above proviso excluded any person working. in the capacity of a member of His Majesty and in Indian service. .
The above amendments were made by Ordinance No. XXVII of 1981 and by Amending Ordinance No. XXVIII of 1937 respectively. It may also be stated that Item 8 of the II Schedule referred to in the above clause includes within the definition of 'workman' the persons employed in the construction, repair or demolition of any building or structure, any dam or embankment which is 20 feet or more in height from its lowest to its highest or any road or tunnel or any work qua, sea-wall or marine work including any moorings of ships. There is long list of the items in the above II Schedule including the persons working in the various walks of life referred to therein for the purpose of including in the definition of 'workman'. It may be observed that prima facie respondents are covered by item No. 8 of the above II Schedule to the Workmen's Compensation Act and, therefore, they are also excluded from the definition of 'civil servant' on that account. It is, therefore, evident that the respondents cannot be treated as civil servants for the above two reasons."
In the case of Employees' Old-Age Benefits Institution v. National Industrial Relations Commission and others 1988 SCMR 765 while interpreting the phrase ' in the administration of the State' it was observed:
"The expression 'administration of the State' is to be interpreted in the limited and narrow sense of the practical management and direction or the executive machinery or the operation of the various organs of the sovereign or the conducting or carrying on of the details of the Government,"
In the case of Faqir Muhammad v. The Director of National Savings, Multan Region PLD 1992 SC 127 it was observed, while deciding the reference as third Judge by Justice Saad Saood Jan while agreeing with one of Hon'ble Judges as under:--
"The appellant undoubtedly is employed in the said Department as a Chowkidar likely any time to guard/protect Government money. The employees of the Supreme Court in this category or for that matter in the Ministries and Departments of the Central Government even if technically be described workmen would, by virtue of the exclusion contained in section 1(3)(b) of the I.R.O., be excluded from the application of the said law.
Following the test laid down in this judgment I am inclined to agree with my learned brother that the appellant, being a Chowkidar in a Directorate concerned with mobilizing savings in the country, can hardly be described as a person employed in the administration of the State."
Yet in another case Registrar, Supreme Court of Pakistan v. Wali Muhammad 1997 SCMR 141 the two expressions civil servant and in the Service of Pakistan have been discussed and the Hon'ble Supreme Court held that:--
"We would like to mention here that from the trend of arguments at the bar it appeared that the two expressions 'Service of Pakistan' and 'civil servants' were treated as synonymous. This in our opinion is not so. Service of Pakistan is defined in Article 260 of the Constitution as meaning, any service, post or office in connection with the affairs of Federation or a Province. This expression also includes an All Pakistan Service and a service in the Armed Forces or any other service declared under an Act of the Parliament or a Provincial Assembly as Service of Pakistan. The term 'civil servant' is defined in the Civil Servants Act, 1973 as a person, who is a member of an All Pakistan Service or of a Civil Service of the Federation or a person holding a civil post in connection with the affairs of Federation, including a civil post connected with the defence. However, a person on deputation to the Federation from any Province or other authority, a person who is employed on contract or on work-charge basis who is paid from contingencies and a person who is 'worker' or 'workman' as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923, are expressly excluded from the category of 'civil servant'. On a careful examination of the definitions of 'service of Pakistan' 'as given in Article 260 of the Constitution and the 'civil servant' as mentioned in the Civil Servants Act, 1973, it would appear that the two expressions are not synonymous. The expression 'Service of Pakistan' used in Article 260 of the Constitution has a much wider connotation than the term 'civil servant' employed in the Civil Servants Act. While a 'civil servant' is included in the expression 'Service of Pakistan', the vice versa is not true."
We have discussed all the above cases in order to ascertain that in spite of the fact that amending clause is a deeming clause whether the categories which…
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