MEHBOOB KHAN Versus GOVERNMENT OF PAKISTAN

SHAFIUR RAHMAN, J.‑ ‑‑These two appeals have been certified by the Lahore High Court, Lahore under Article 185(2)(0 of the Constitution as a substantial question of law as to the interpretation of the Constitution is involved in these appeals. These appeals were filed in this Court in November, 1990. Under Order XXII, Rule 1 of the Supreme Court Rules such certified appeals should have been filed within thirty days from the date of the Certificate of the High Court. The date of certificate of the High Court is 5‑6‑1990. Hence, the office has reported that the appeals are barred by 23 days. The application for condonation of delay filed in one of the appeals i.e., Civil Appeal No. 1329 of 1990, gives two reasons. The first is that as a large number of appellants were involved, the delay took place in obtaining their signatures for filing the appeal. In the alternative, it is claimed that the appeal should be treated as petition for leave to appeal for which a period of sixty days is available. The appeal is within time if it is treated as a petition for leave to appeal.

2. As the Appeal No. 1329/1990 has been certificated and involves question of Constitutional importance requiring interpretation of Constitution, we would for the reasons given condone the delay and proceed to determine this appeal on merits. As the questions involved in the two appeals are identical, the locus standi of the appellant in Civil Appeal No. 1356/1990 as a Union under the Industrial Relations Ordinance is not free from doubt and as no condonation of delay application has been filed in it, we would treat it (Civil Appeal No. 1356/1990) as incompetent.

3. The case of the appellants in Civil Appeal No. 1329/1990 is that they are Railways servant within the meaning of section 3(7) of the Railways Act, 1890. They are working in the Workshop establishments. They are all Sub- Engineers/Chargemen or Assistant Foremen or Foremen Grade‑I and Grade II. They are all members of the Union which is the appellant in Civil Appeal No. 1356/1990 and is registered under the provisions of the Industrial Relations Ordinance, 1969. After the Union had filed a Constitution petition, an objection was raised that the Union could not independently file any such Constitution petition in the High Court on which the employees collectively filed a separate Writ Petition. The claim in both was identical.

4. According to the appellants piece‑work profits were granted to the Railways employees even prior to 1933. The rate of payment and the categories to which it was admissible were changing from time to time but the basic idea of piece‑work profits was as old as the Railway administration. On the 24th of December, 1978, Ministry of Railways granted the following concession to the employees of the category of the appellants:‑‑

"Sub: Grant of Consolidation piece‑work profits to the Railway workshops employees.

Sanction of the Railway Board is hereby communicated to the following:‑‑ .

(i) Assistant Chargemen, Chargemen (now designated as Sub‑Engineers Grades I and Il) in all the productive and non‑productive Units of Moghalpura Shops, Hyderabad Shops and Carriage Factory, Islamabad, will be granted consolidated piece‑work profits at 33‑1/3% per month of the mean of their pay scales in lieu of existing piece‑work profits.

(ii) Foremen Grades I, II and III (now designated as Sub‑Engineers Grades III, IV and V respectively) in Moghalpura Shops, Hyderabad Shops and Carriage Factory, Islamabad will also be entitled to consolidated piece‑work profits at the monthly rate of 25% of the mean of their pay scales.

(iii) Production Office technical staff viz. Inspectors and Mistries earning piece‑work profits on average basis will also be granted consolidated piece‑work profits at 33‑1/3% of the mean of their pay scales for 25/26 days spread over a calendar month in lieu of existing piece‑work profits.

(iv) The grant of consolidated piece‑work profits will be extended to the former class IV staff (including Mistries) in the following shops at the rate of 33‑1/3% of the mean of their pay scales for 25/26 days spread over a calendar month:

(a) Motor Shop, Meter Shop, Power House, in Moghalpura.

(b) Millwright, Tool and Electric Shops in Carriage Factory, Islamabad.

With the introduction of consolidated piece‑work profits, the grant of overtime presently being liberally allowed to staff, will be stopped and if necessary it will be granted only by the Works Managers of the respective shops under the general directions of the Divisional Superintendent workshops and the Deputy Chief Mechanical Engineer (Carriage Factory) as and when considered absolutely necessary."

5. On the introduction of the Basic Pay Scales in the Government departments and the Railways, notification issued in P.R. Gazette, Extraordinary, Tuesday, September 18, 1984 to the following effect:‑‑---

Sanction of the President of Pakistan is further conveyed to the nomenclature `consolidated piece‑work profits' admissible to the under mentioned categories of the Workshops employees being changed to that of `consolidated allowance' and to the payment thereof with effect from 1st July, 1983, at the rate of 25% on the mean of the relevant Basic Pay Scale, subject to the maximum indicated against each:‑ ----

(a) Chargemen (B‑11) .. Rs.200.00 per month

(b) Asstt. Foremen (B‑12) .. Rs.250.00 per month

(c) Foremen, Grade‑I (B‑14) .. Rs.300.00 per month

(d) Foremen, Grade‑II (B‑16) .. Rs.350.00 per month

The consolidated allowance will be admissible to the abovementioned categories in all workshops and sheds on Pakistan Railways. All existing rules and orders in regard to the grant of `piece work profits' admissible to other categories shall continue to be in force. Necessary amendment of the relevant rules in the Mechanical Code (Workshops) will be made in due course for which a draft correction slip may be sent to this Ministry."

6. On the 12th November, 1985, Ministry of Railways issued another directive removing the anomalies and achieving rationalization of Pay Scales and Allowances of various categories of Railway employees in the following words:‑‑

"On the basis of recommendations contained in the High Powered Committee's Report of 1985 as well as additions and modifications made thereto, sanction of the President of Pakistan is hereby conveyed:‑‑

(1) ......................................................

(2) ......................................................

(3) ......................................................

(4) To the withdrawal of Consolidated Allowance being paid to the following categories of Supervisors in Workshops and Sheds, as notified under this Ministry's letter No. E.IV/83‑PC.1/11 dated 31st August, 1983:‑‑

(i) Sub‑Engineers/Chargemen

(ii) Assistant Foremen

(iii) Foremen Grade‑I

(iv) Foremen Grade‑II.

(5) ......................................................

(6) ......................................................

(7) ......................................................

Soon thereafter on 10th of December, 1985 another directive issued maintained status quo in the matter, as hereunder:‑‑

"A copy of Railway Board's letter No.E‑IV/84‑PC.1/8 dated 12th November, 1985, alongwith its enclosures is forwarded for information and necessary action with the instructions that action on para. 4, page 9, may not be implemented and status quo maintained till further advice from this office."

Finally, on 7th September, 1987, the following instructions were issued:‑‑---

"Sub: CONSOLIDATED ALLOWANCE PAID TO SUPERVISORS IN RAILWAY WORKSHOPS .

Attention is invited to para. 4, page 9 of Railway Board's letter No.E.IV /84‑PC.1/8 dated 12‑11‑1985 and it is intimated that payment of Consolidated Allowance be discontinued forthwith.

This supersedes our letter of even number dated 10‑12‑1985."

This aggrieved the appellants who instituted the Constitution petitions challenging the denial of the allowance to them.

7. An objection to the competence of the Constitution petitions was taken as hereunder:‑‑

"That all Assistant Foremen, Foremen (Basic Scale of Pay 12‑16); Supervisors, Sr. Supervisors (Basic Scale of Pay 11‑15); Sub‑Engineers (Basic Scale of Pay 11) have been declared as employers vide Notification No.SRO‑El/83‑NL/1, dated 15‑11‑1983 (Copy appended as Annex. R/3). These categories of staff do not fall within the definition of `Workmen' and they are `Civil Servants' within the meaning of Civil Servant. Act, 1973. As such Article 212 is a complete bar to the jurisdiction of this Hon'ble Court in matters relating to the terms and conditions of persons in the service of Pakistan."

8. The High Court has by preliminary objection holding as hereunder:‑‑

"When the definitions of `employer' and `workman' are read together then the inescapable conclusion is that the petitioners are not covered by the definition of workman. The petitioners all belong to supervisory staff and are deemed to be within the category of employer in accordance with the notification dated 15‑11‑1983, therefore, they are not workmen. It is therefore, held that the petitioners are neither `workers' nor `workmen'. They are fairly and squarely covered by the definition of `Civil Servant'."

The appellants were directed to approach the Service Tribunal for the purpose of obtaining the relief.

9. The Civil Servants Act, 1973 excludes from the definition of `civil servant' amongst others, the following two categories of persons as mentioned in clause (iii) of subsection (1) of section 2 of the Civil Servants Act:‑‑---

"A person who is `worker' or `workman' as `defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)."

10. The establishment to which the appellants are attached is manufacturing unit, employing more than fifty persons, and the definition of `worker' in the Factories Act is contained in section 2(h) as hereunder:‑‑---

" `Worker' means a person employed (directly or through an agency) whether for wages or not, 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, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on."

The word "factory" has been defined in clause (j) of the same section in the following words:‑‑---

" `Factory' means any premises, including the precincts thereof, whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on or is ordinarily carried on with or without the aid of power, but does not include a mine, subject to the operation of the Mines Act, 1923 (IV of 1923)."

`Manufacturing process' has been defined in clause (g) of the same section as hereunder:‑‑---

" `Manufacturing process' means any process‑‑

(i) for making, altering, repairing, ornamenting, finishing or packing, or otherwise treating any article or substance with a view to its use, sale, transport, delivery or disposal, or

(ii) for pumping oil, water or sewage, or

(iii) for generating, transforming or transmitting power."

11. In the Workmen's Compensation Act, 1923, `workman' has been defined in clause (n) of section 2, as hereunder:‑‑---

" `Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business who is‑‑‑

(i) a railway servant as defined in section 3 of the Railways Act, 1890 (IX of 1890) not permanently employed in any administrative, district or sub‑divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of naval, military or air forces; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them."

12. The High Court has not specifically held nor is the case that the appellants do not fall in the definition of "workman" as provided in the 13 Factories Act and the Workmen's Compensation Act. If they do, they fall outside the Civil Servants Act and cannot be treated as civil servants for the purposes of the Service Tribunals Act.

13. The main reason which prevailed with the High Court in adjudging them to be not "workmen" was a notification which issued under sub‑clause (d) of clause (viii) of section 2 of the Industrial Relations Ordinance, 1969 and which was slightly modified subsequently, on 12th of November, 1992, as hereunder:‑ ---

"In the aforesaid notification, in the preamble, for the word `supervisors' at the end the word `employers' shall be substituted."

Prior to its amendment/modification, the notification dated 9‑6‑1992 read as hereunder:‑

"In supersession of Ministry of Railways Notification No.E‑1/83‑NI/1, dated the 15th November, 1983, and the 16th January, 1985, and in pursuance of the special provision below sub‑clause (d) of clause (viii) f section 2 of the Industrial Relations Ordinance, 1969 (XXIII of 1969), the Federal Government is pleased to direct that the Railway servants specified in Part A of the Schedule below, who belong to the supervisory staff of workers and workmen and those specified in Part B of that. Schedule who belong to the supervisory staff of civil servants, shall also be deemed to be Supervisors."

The special provision made in sub‑clause (d) of clause (viii) of section 2 of the Industrial Relations Ordinance, invoked in both the notifications dated 9‑6‑1992 and 12‑11‑1992, reads as hereunder:‑‑

"For the purpose of distinction from the category of `workers or workmen' 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, 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."

The effect of the notification dated 12‑11‑1992 is that the appellants will not be treated as "workmen" for the purposes of Industrial Relations Ordinance. May be, on account of it they are unable to form a Union like workmen and seek remedies and redress of their grievances under the Industrial Relations Ordinance. Such a notification will not, however, have the effect of undoing of their inclusion in the category of `workmen' under the‑ Factories Act or the Workmen's Compensation Act whose definitions and effect on the appellants remain unaffected by the notification under the provisions of the Industrial Relations Ordinance. For this reason their exclusion from the category of civil servants will remain intact. If it is so then they cannot seek relief from the Service Tribunal. Having been excluded on the strength of notification under Industrial Relations Ordinance from the category of workers under that Ordinance, they cannot seek redress in Labour Courts either. Nevertheless being workers under the Factories Act and the Workmen's Compensation Act they enjoy statutory protections enforcible through Constitution petition.. The, further questions whether wages include consolidated piece work profits, whether no denial or reduction in it can take place have remained unexamined in the High Court. We too are not in a position, nor it is proper to deal with it here without having a considered judgment from the High. Court. For the above reasons the Civil Appeal No. 1329 of 1990 is accepted and the matter is remanded to the High Court for a considered judgment on the merits of the case. As regards the other appeal (CA. 1356/90), it is barred by time in this Court, was not competent in High Court as the employees being supervisors/employers could not form a union as workers nor could institute a petition as such. Hence it is dismissed.

M.BA./M‑1804/S Order accordingly.