DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS Versus IRSHAD HUSSAIN

DECISION

This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No.I at Karachi, dated 12-3-1989, whereby the grievance petition of the respondent was allowed and he was ordered to be reinstated in service with full back benefits.

2. I have heard Ch. Abdul Latif Saghar, learned counsel for the appellants and Mr. Imran Ahmed, learned Advocate for the respondent.

3. The preliminary point that requires consideration is whether the respondent is a `workman' so as to seek relief from the Labour Court under section 25-A, I.R.O., 1969. Admittedly, he was working as `Assistant Foreman' with the appellants and evidence on record shows that he was doing manual work. However, the appellant is an establishment run by and under the authority of the Federal Government and .has got its own Efficiency and Discipline Rules both against the `civil servants' as such under proviso to section 1 of West Pakistan Industrial and Commercial Employment (.Standing Orders) Ordinance, 1968; Standing Orders would not be applicable to the employees of Railways Department even if they are not `Civil servants' as defined in Civil Servants Act. The `Statutory Rules' with respect of those Railway Servants who are not `civil servants' within the meaning of `Civil Servants Act' have been promulgated by the Federal Government to exercise of the powers conferred under Article 241 of the Constitution of Islamic Republic of Pakistan. Under Railway Servants (Efficiency and Discipline) Rules, 1975, Clause (3) of Rule 1 of these Rules provides they shall apply to every person to whom the Pakistan Railways Establishment Code applies except a person who is a civil servant within the meaning of the Civil Servants Act, 1973. With regard to the Railway employees who are civil servants, Government Servants ((Efficiency and Discipline) Rules, 1973 would be applicable. Under the circumstances the definition of `workman' under the Standing Orders Ordinance would not be attracted in the case of the respondent.

4. Under section 25-A of the I.R.O., 1969, a `workman' is entitled to enforce any right guaranteed to him under any law. Thus, a workman, even if he is Railway employee, is entitled to enforce right that may be guaranteed to him under the Statutory Rules. However, before such a workman invokes the jurisdiction of the Labour Court under section 25-A, he has to show that he is a workman as defined in I.R.O. The `workman' is defined under clause (xxviii) of section 2 of I.R.O., 1969 (hereinafter called the Ordinance) is wide enough to include all the employees who are not employers and who are not employed mainly in a managerial or administrative capacity or in a supervisory capacity drawing salary exceeding Rs.1,000 per month. The employer is defined under clause (viii) of section 2 of the Ordinance to mean--

"(viii) `employer' in relation to establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under 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 not 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;

(e) .........................................

In the evidence a Notification Exh. A.W. 1 has been produced which is dated 15-11-1983 under which the Federal Government has declared certain officers as, `employer' under clause (viii) of section, `Assistant Foreman' is at Serial No. 2.'

5. However, in this context, the special provision of Clause (viii) would be relevant which reads, as under:--

"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, secretariat directional 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,"

Thus, the mere Notification of the respondent as an employer would not be sufficient, but, it would have to be shown that he falls in one of the categories mentioned in this special provision.

6. It is a settled law that it is not the designation of an employee, but only. the nature of duties which would determine his status as a `workman'. The respondent in his grievance petition has stated that his duties were not of supervisory nature, therefore, he was a workman. In this affidavit-in-evidence, he has stated that he used to do the technical work with his own hands and used to apply physical and mental toil in the work of repairing and fitting the parts of engine, and that he was working under the General Foreman and had no powers of hire or fire. In the cross-examination, he had denied the suggestion that he was in supervisory staff, but stated that his work was manual. He had further stated that Assistant Foreman works alone. In the rebuttal, the appellants have filed the affidavit-in-evidence of one Usman Khan, an Upper Division Clerk. He throws no light on the nature of the duties of the respondent. In the cross-examination, he had admitted that the respondent used to work in the workshop and used to repair the parts and used to fit engine and that he was not a supervisor. In view of this evidence, the case of the respondent would not fall in any of the categories mentioned in the special provision and, therefore, mere notification by the Railways authorities that he was an employer would not take him out of the category of workman as defined in Industrial Relations Ordinance, 1969. The learned Labour Court had rightly held the respondent as a `workman'.

7. It may be pointed that admittedly the respondent had applied for leave because of sickness of his mother which was refused. Because his mother had died, he, therefore, submitted an application for leave preparatory to retirement wherein he has mentioned that he was moving this application only because he was refused leave on account of sickness of his mother who subsequently had died and he could not see her face. However, the appellants instead of retiring him on L.P.R., prematurely retired him without L.P.R. Aggrieved by this, the respondent had filed a petition on 17-8-1987, in which the respondent made the following prayers:--

"(a) that this Honourable Court may pass an order directing the respondents to grant the applicant pre-retirement leave from 3-5-1987 to 2-5-1987 and to make the payment of wages/salary of 455 days Rs.35,465 (Rs.28,286 loss of salary due to non-grant of 1 year L.P.R. plus Rs.7,179 loss of 90 days salary) and loss in gratuity Rs.20,276 thereby making total loss of Rs.55,741 as computed and given in the enclosed `Schedule of Loss'.

(b) future loss of Rs.77 per month, the different amount in pension for ever as mentioned in the enclosed `Schedule of Loss';

(c) .

8. On 2-5-1988, he was permitted to rile an amended grievance petition in which, besides the aforementioned prayers, he made the following alternative prayers, as under:--

"(d) In the alternative, the applicant further prays as under---

"Declare that the order of premature retirement of the applicant dated 30-3-1987 served on him on 2-5-1987 is void ab initio, mala fide, without lawful authority, inoperative and in clear infringement of the guaranteed rights of the applicant under the Railway Rules and other provisions of law and direct the respondents to allow the applicant to perform his duties till he attains the age of superannuation i.e. 60 years alongwith all The back benefit i.e salaries, allowances, increments etc. with effect from 2-5-1987.

9. Mr. Latif Saghar, the learned Advocate for the appellants had raised a plea that this alternative prayer was time-barred as the grievance notice was given on 8-7-1987; whereas amended grievance petition has been filed much beyond the period of 2-1/2 months as provided under subsections (3) and (4) of section 25-A, I.R.O., 1969. Mr. Ali Amjad, the learned Advocate for the respondent, on the other hand, has relied upon the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others reported in P L D 1985 S C 345. In that case, a suit was filed for declaration that the plaintiff was owner in possession of the land and for injunction against the respondents from interfering with his possession. The frame of the suit was contested by the respondents who pleaded that such a suit for declaration and injunction was not maintainable in its present form. The suit was decreed in favour of the plaintiffs. However, the appellate Court was of the opinion that as the plaintiffs had still to pay some amount to the seller, he should have filed the suit for specific performance of the agreement and not suit for declaration and hence, the suit was not maintainable in the present form. In the second appeal, the plaintiff filed an application for amendment of the suit which was rejected by the High Court; against which the leave to appeal was allowed by the Supreme Court. The Honourable Supreme Court had referred to its earlier decisions and observed--

"In the light of the foregoing discussion if the cause of action does not change the main substance of the suit and nature of the suit would not change and if that does not change the question of limitation would then remain only of form and not of substance, That is why this Court has so far followed the liberal rule in interpreting Order VI, Rule 27 so as to permit amendment if otherwise necessary notwithstanding the possibility that on account of some formal change, the question of limitation might have acquired pronounced importance, had it not been a case of amendment under Order VI, Rule 17."

Reference was also made by their Lordships to a decision of Privy Council in the case of Bhagwanji Morarji Gocul Das v. Alembic Chemical Works Co. Ltd. and others reported in A T R 1948 P C 100, wherein their Lordships observed that that case did not assist the respondents because the amendment of the plaint, as held therein, would have introduced a new claim and that being so, its effect on question of limitation could not be ignored. Their Lordships of the Supreme Court had allowed the amendment of the plaint in case of Mst. Ghulam Bibi as in their opinion the nature of the suit so far as the cause of action was not changed. The instant case is, however, distinguishable. By the amendment allowed by the learned Labour Court, the respondent had introduced a new claim which claim is for reinstatement which was not claimed in the initial grievance application. As such, as held by their Lordships of the Privy Council which views was endorsed by the Supreme Court, the question of limitation with regard to new claim cannot be ignored. The prayer of the respondent with respect to his reinstatement is time -barred. He has not been able to explain the delay nor he has even moved an application for condoning the delay in preferring the claim of reinstatement.

10. The respondent had prayed for the grant of leave preparatory to retirement which admittedly under the Rules, he is entitled to be granted if he is retired before the date of superannuation. Admittedly the respondent had not reached the age of superannuation and, therefore, the appellants could not have retired him except on his own request or for misconduct unless regular enquiry had been held. No doubt, the respondent had moved an application for leave preparatory to retirement, which according to Rules is 12 months. Under Rule 804, it is provided that a railway servant who is required to retire in terms of Rule 801, shall be entitled to such leave preparatory to retirement as is admissible to him and he shall then retire on the expiry of such leave. It further provides that in future leave preparatory to retirement due must be availed of before retirement and subject to exigencies of service such leave when due, should not be refused. Under Rule 801, a railway servant wilt ordinarily retire from service on the completion of sixty (60) years of age and shall have the right to retire on retiring pension after completion of 25 years qualifying service. The respondent had admittedly joined the Railways' service in 1955. Thus, he had more than 25 years qualifying service when he had applied for retirement, therefore, he was entitled to leave preparatory to retirement which could not have been refused to him specially when the exigency of service did not require his retention in service, which is apparent from the fact, that he was retired.

11. The respondent had also claimed for encashment of 455 days earned leave which was still in his balance. The learned counsel for the respondent could not point out any provision of the Rules under which such encashment was allowed. In fact, the L.P.R. is granted only if the leave is due. His prayer for encashment of leave for 455 days cannot be granted.

12. In view of the above discussion, the appeal of the appellants is partially allowed and the order of the learned Labour Court directing reinstatement of respondent is set aside. However, the respondent is ordered to be granted leave preparatory to retirement from 3-5-1987 to 2-5-1988, where after he would be deemed to have retired. He should be paid the difference of salary for this period and his pension be refixed from the new date of retirement as per decision of this Tribunal and the difference, if any, in the pension/gratuity so fixed and the pension and gratuity actually paid to him should also be paid to him. The appeal stands disposed of in the above terms. The orders with regard to payment of dues to be implemented within three months.

M.Y.H./1708/Lb. S Appeal partly allowed.