Mufti MUSHTAQ AHMED ) vs TIDE FEDERATION OF PAKISTAN

1. ANWARUL HAQ, C. J.--This appeal, by the leave of the Court, is directed against the judgment of the Federal Service Tribunal, Islamabad, dated the 9th of September, 1976, whereby an appeal filed by the appellant Mushtaq Ahmad Mufti against the order of his removal from service, was dismissed as being incompetent and also on the ground of limitation.

2. The relevant facts are that the appellant was appointed as a Ticket Collector under the North Western Railway in 1944, and posted at Railway Station, Gujrat. In the year 1951 he was ordered to work as Correspondence Clerk in the office of the Station Master, Gujrat, and it was part of his duties to prepare passes and P. T. Os. For the Railway Staff. Some irrigu--larities were detected in this behalf by the Accounts Department, whereupon a departmental inquiry was conducted against him, and he was removed from service vide order dated the 30th of August, 1966, passed by the Divisional Commercial Officer.

3. The appellant filed an appeal against this order, which was, however, rejected by the Divisional Superintendent, Lahore, by his order dated the 13th of September, 1966. Thereafter the appellant filed a further appeal or revision before the Vice-Chairman of the Railway Board, which was also rejected on the 14th of November, 1969.

4. Having failed in departmental proceedings, the appellant filed a civil suit on the 27th of September, 1966, but the same was dismissed, and the appeals filed by the appellant in the District and High Courts also failed. He filed a petition for special leave to appeal, but this was dismissed by the Supreme Court on the 10th of October, 1973.

5. On the establishment of the Service Tribunal on the 22nd of February, 1974, the appellant filed a service appeal under section 4 of the Service Tribu--nals Ordinance (XV of 1973!, but the same has now been dismissed by the Service Tribunal on the 9th of September, 1976. The Tribunal has taken the view that the appeal was not competent for two reasons;-

(a) That the appellant, holding the post of a Ticket Collector in the Pakistan Railways, was not a civil servant, but a workman within the definition of clause 2(1) (a) of Workmen's Compensation Act ; and

(b) That the order appealed against had been passed on the 13th of September, 1966, i.e. prior to the 1st of July, 1969, the date prescribed in the proviso to section 4 of the Ordinance.

6. It is contended on behalf of the appellant that both the grounds taken by the Service Tribunal for holding the appeal before it as incompetent are not tenable in law. The learned counsel submits that while taking the view that the appellant was not a civil servant, the Tribunal has not given any reasons, but has merely referred to a judgment given by it in some other similar cases, and even those cases do not contain any elaborate arguments on these points. He further contends that the Tribunal was also in error in ignoring the order made by the Vice-Chairman of the Railway Board on the 14th of November, 1969, as this order was regularly passed under rule 1725(a) of the Railway Servants (Efficiency and Discipline) Rules, 1961, and could not be ignored for the purpose of determining the maintainability of an appeal before the Service Tribunal.

7. On the question whether the appellant was a civil servant within the meaning of that term as employed in the Service Tribunals Ordinance of 1973, we find that section 2(i) of the Ordinance defines the term `civil servant' with reference to its definition as contained in section 2(b) of the Civil Servants Act, which does not include, inter alia, a person, who is a worker or workman as defined in the Factories Act, 1934, or the Workmen's Compensation Act, 1923. The question, therefore, is whether the appellant fell within the definition of a workman as contained in section 2 of the Workmen's Com--pensation Act. It may be stated here that according to section 3(7) of the Railways Act, 1890, the appellant, was a railway servant, as this term is defined as meaning "any person employed by a Railway Administration in connection with the service of a railway".

8. According to section 2(I)(a) of the Work--men's Compensation Act; this. Term includes a railway servant as defined in section 3 of the Railways Act, 1890, who is not permanently employed in any administration, District or sub-divisional office of a Railway, and is not employed in any such capacity as is specified in Schedule 11.

9. The contention on behalf of the appellant is that the Service Tribunal has based its decision on this point merely on the description of the post held by the appellant, without examining the nature of the duties, which the appellant was performing at the relevant time. He contends that there is authority for the view that for the purpose of determining the status of a person as a workman or otherwise, it is necessary to examine the nature of the duties actually being performed by him, as mere designa--petition of his job may not provide the right answer. Mr. Beg, places reliance on Bombay Burmah Trading Corporation v. Ma E .Nun (AIR 1937 Rang 45), Secretary of State v. Mt.

10. Geeta (AIR 1938 Nag. 91), Muhammad Aslam v. Federation of Pakistan (PLD 1974 Lah. 545) and Pakistan Western Railway v. Muhammad Usman (PLD 1971 Lah. 27in support of this proposition.

11. The cases referred to by the learned counsel for the appellant do indeed, support his submission that for the purpose of determining the question whether the person concerned is a workman or not within the definition of that term, the occupation of the person at the relevant time must considered. The Rangoon case is directly relevant in the sense that the person concerned was employed as an Elephant Rider, but at the time of his death he was employed as a mere messenger and not as an Elephant Rider, and it was held that he had ceased to be a workman and his dependents were not entitled to any compensation. It seems to us, therefore, that for the purpose of determining whether the appellant has to be regarded as a work man or a civil servant, the nature of the duties on which he was employed a the time to which the allegations against him relate, had to be looked into.

12. From the documents placed on the record, we find that the charges served upon the appellant on 23-2-1965 related to irregularities in the pre--paration of passes and P. T. Os. For members of the railway staff and their families, and not to any outdoor duties performed by him as a Ticket Collector. In other words, duties which he was performing at that time were primarily of a clerical nature in the office of the Station Master, Gujrat. Such being the case, he did not fall within the definition of a workman at that time. The Tribunal was, therefore, clearly in error in holding that the appeal filed by the appellant was not competent on this ground.

13. As to the appeal being incompetent for the reason that it was directed against an order made prior to the Ist of July, 1969, the Tri--bunal was again in error, an it had altogether excluded from consi--deration the fact that the final order in the matter bad been made by the Vice-Chairman of the Railway Board on the 14th of November, 1969.

14. Subsection (1) of section 4 of the Ordinance provides that any civil servant aggrieved by any final order whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may prefer an appeal to the Tribunal ; but proviso (a) stipulates that "Where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, or any rules against any order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representa--petition; to such' departmental authority, and a period of 90 days has elapsed from the day on which such appeal, application or representation was preferred."

15. Clause (c) of the proviso lays down that :-- "No appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the Ist July, 1969."

16. It is clear that for their proper construction and application these provisions have to be read together. Proviso (a) to subsection (1) of section 4 makes it clear that no appeal can be filed before the Tribunal unless,the civil servant has exhausted all the remedies available to him by way of appeal, review or representation before the departmental authorities. In this sense, the phrase `by any final, order, whether original or appellate' has to be read as including an order passed in revision or review ; otherwise it cannot be said that the departmental proceedings had . Attained finality within the meaning of proviso (a) to the subsection.

17. Now, it is not disputed that the appellant had invoked the revisional jurisdiction of the Vice- Chairman of the Railway Board under rule 1725(a) of the Railway Servants (Efficiency and Discipline) Rules, 1961. That being so, the final departmental order in the case of the appellant was clearly the one made by the Vice-Chairman of the Railway Board on the lath of Novem--ber, 1969, with the result that the appeal filed by him was not hit by the target date in proviso (c) to subsection (1) of section 4 of the Act.

18. On this view of the matter, we have reached the conclusion that the Service Tribunal has erred in law in thinking that the appeal filed by the appellant was not competent. We consider that he was a civil servant within the meaning of the Service Tribunals Ordinance ; and that the filial depart-- mental order was made in his case after the 1st of July, 1969. For these reasons, the appeal is accepted, and the case is remitted to the Service Tribunal for a decision on merits.. s. A. H. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.