SIRAJ DIN Versus DIVISIONAL PERSONNEL OFFICER, P.R. LAHORE

This judgment shall dispose of two appeals re: Siraj Din v. Divisional Personnel Officer and General Manager (P), Pakistan Railways, Lahore (Appeal No. FD‑311/92‑Punjab) and re: Muhammad Anwar Lodhi v. Divisional Personnel Officer, Pakistan Railways, Lahore (Appeal No. FD 411/92‑Punjab) as they involve identical question of law.

2. The appellants are employed as Guards Grade‑III with the respondents. Siraj Din, appellant was allowed six months' leave salary as encashment in lieu of leave preparatory to retirement vide order dated 26‑1‑1992 (Exh. P‑4) passed by the Divisional Personnel Officer, Pakistan Railways, Lahore. The grievance of Siraj Din, appellant in his grievance petition was that he was not allowed 55% running allowance alongwith leave salary for the above period. He, therefore, prayed for the grant of the above allowance.

3. Muhammad Anwar Lodhi, appellant was granted L.F.P. for ninety days from 1‑6‑1991 to 30‑8‑1991. Before proceeding on leave he was getting pay at the rate of Rs.1,958 per mensem plus 55% thereon as running allowance. During the leave, pay scales were revised with effect from 1‑6‑1991 as a result of which his monthly salary increased to Rs.2, 795. However, he was allowed this increase on the expiry of his leave instead of from 1‑6‑1991. He, therefore, claimed revised pay plus 55% thereon from 1‑6‑1991 to 30‑8‑1991.

4. The respondents in their replies inter alia raised a legal objection to the effect that the appellants were not competent to invoke jurisdiction of the Labour Court as they had been declared as employer by the Federal Government.

5. The learned Punjab Labour Court No. 4, Faisalabad vide its decision dated 19‑7‑1992 in the case of Siraj Din, appellant and decision 'dated 27‑10‑1992 in the case of Muhammad Anwar Lodhi appellant upheld the objection of the respondents and dismissed the grievance petitions of the appellants as untenable, without giving any fording on merits.

6. Feeling aggrieved, the appellants have filed these appeals.

7. I have heard Mr. Muhammad Anwar Lodhi who is appellant in one appeal and representative of the appellant in the other appeal and learned counsel for the respondents and perused the record. The forum of a Labour Court for redress of a grievance under section 25‑A of the Industrial Relations Ordinance, 1969 is provided only to a worker. A worker, according to the definition given in section 2 clause (xxviii) ibid, means any person not falling within the definition of employer. Clause (viii) of section 2 ibid defines an employer as under: ‑‑

"(viii) `Employer' in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employees workmen in the establishment under a contract of employment and includes‑‑

(a) ........................

(b) ............................................

(c) in relation to an establishment run by or under the authority of any department of the Federal Government, or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department;

(d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the Chief Executive Officer of that authority;

Special Provision:-- ‑‑ For the purpose of distinction from the category of worker or workman' officers and employees of a department of the Federal Government or a Provincial Government or a local authority, who belong to the superior, managerial, Secretarial, directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of `employers'.

(e) ........................................... , "

In pursuance of the above provisions of law, the Federal Government issued two notifications; one on 15‑11‑1983 (Exh. R‑2 in the case of Siraj Din and Exh. P.5 in the case of Muhammad Anwar Lodhi) and the second on 16‑1‑1985 (Exh. R.3 in the case of Siraj Din and Exh. P.6 in the case of Muhammad Anwar Lodhi). The first notification was as follows: ‑

"In pursuance of the special provision below sub‑clause (d) of Clause (viii) of section 2 of the Industrial Relations Ordinance, 1969 (XXIII of 1969), the Federal Government is pleased to direct that the Railway servants specified in the schedule below, who belong to the supervisory staff, shall be deemed to fall within the category of `employer .

In the Schedule appearing below the notification certain categories of Railway servants with their basic scales of pay were mentioned. The schedule 'did not include Guards to which category the appellants belonged. According to this notification, certain categories of Railway servants who belonged to the suprvisory staff, were deemed to fall within the category of employer. I inquired from learned counsel for the respondents and Mr. Muhammad Anwar Lodhi about the instructions according to which the categories of Railway servants specified in the Schedule belonged to the supervisory staff. Both of them in this connection referred to Appendix A to Rule 3(4) of the Railway Servants Hours of Employment Rules, 1931 appearing in Chapter VI‑A of the Railways Act, 1890 as amended by the Railways (Amendment) Act, 1930. This Appendix has no nexus with the special provision below sub‑clause (d) of clause (viii) of section 2 of the Industrial Relations Ordinance, 1969. It pertains to the Railway Servants Hours of Employment Rules, 1931 referred to above. However, the categories of Railway servants specified in the Schedule of the first notification are mentioned in Appendix A as supervisory staff. Therefore, it can be assumed that this Appendix reflects the decision of the Federal Government to treat the categories of Railway servants specified therein as belonging to the supervisory staff.

8. The second notification issued on 16‑1‑1985, however, is touched differently. It runs as under: ‑‑

"In part amendment of this Ministry's Notification of even number, dated 15th November, 1983, and in pursuance of the special provision below sub‑clause (d) of clause (viii) of section 2 of the Industrial Relations Ordinance (XXIII of 1969), the Federal Government is pleased to add the Railway servants specified in the Schedule below in the list of Railway servants belonging to the supervisory staff and deemed to fall within the category of `employer'.

SCHEDULE

S. No

Category of Railway

Servants

Basic Scale of Pay

1.

Guards

11 and 12 (provided the total wages drawn by the Railway servant exceed

Rs.800 per mensem).

2.

Drivers

11 and 12 (provided the total wages drawn by the

Railway servant exceed

Rs.800 per mensem).

The categories of Guards and Drivers do not appear in the above mentioned Appendix A. Therefore, the Federal Government firstly added them in the list of Railway servants belonging to supervisory staff and then deemed them to fall within the category of employer, In other words, the second notification is wider in its implication and impact than the first notification. The Federal Government is fully competent under the special provision below sub‑clause (d) of clause (viii) of section 2 of the Industrial Relations Ordinance, 1969 to notify any category of Railway servants mentioned therein as belonging to supervisory staff and deeming them to fall within the category of employer.

9. For the foregoing reasons, I concur in the finding of the learned Labour Court that since the appellants have been declared as employer by virtue of the Notification dated 16‑1‑1985, they are not competent to invoke the provisions of section 25‑A of the Industrial Relations Ordinance, 1969.

10. In the result, I uphold the impugned decisions and dismiss both these appeals.

H.B.T./756/Lb.P

Appeals dismissed.