S.U. SIDDIQUI Versus MANAGER, PERSONNEL AND ADMINISTRATION DEPARTMENT P.N. DOCKYARD, KARACHI
ABDUR RASHID (MEMBER): ‑‑The appellant joined the Pakistan Navy Dockyard as a Time‑keeper on 16‑11‑1951: He was promoted to higher grade on 31‑5‑1980. On 25‑1‑1981, he was charged for:‑
"(a) You tampered and wrongfully marked the attendance in the cards of Aqeel Ahmed T. No. 1339 for the months of August, September and October, 1980, in collaboration with P. No. 26192 Mr. G. Sadiq and P. No. 21657 Mr. A. Rehman A/IM‑
(b) On 13th May, 1981, you gave false and contradictory statement to the Board of Inquiry appointed by the MP.
(c) You deliberately did not inform your superiors of the prevailing mal practices in the workshop.
2. While replying to the charges the appellant admitted his guilt conditionally and begged to be 'excused. The appellant was, thereafter, provided with a copy of enquiry report and show cause dated 11‑8‑1981 served on him. He furnished his reply on 24‑8‑1981 mainly by saying "I have already admitted my mistake committed under compulsion and under influence of the supervisory staff of the workshop."
3. A final show‑‑cause notice dated 29‑8‑1981 was served on the appellant. He was also suspended with effect from the same date.
4. A dismissal order was passed against the appellant on 17‑9‑1981. From the said order of dismissal passed‑ by the Manager, Personnel and Administration Department, the appellant went in appeal on 16‑10‑1981, to the Commander Logistics, P.N. Dockyard, Karachi. The Commander Logistics rejected the appeal vide his letter dated 31‑10‑1981. Thereafter the appellant filed his present appeal before the Federal Service Tribunal on 1‑12‑1981. The case was heard on 18‑i‑1984 and is now being disposed of by this order.
5. We heard the learned counsel from both sides. The primary issue in this case relates to our jurisdiction to hear the appeal. The learned State Counsel argues that the appellant comes within the definition of the worker as mentioned in the Factories Act, 1934. He is, therefore, not amenable to the jurisdiction of the Federal Service Tribunal. The learned counsel for the appellant, in his able presentation, has made out a convincing case for us to assume jurisdiction.
6. We would have reproduced the lucid arguments of the said learned counsel except for the fact that in similar case at Islamabad relating to a skilled Mechanic, Vehicle, of 501 Central Workshop (Appeal No. 47(R) of 1982), Muhammad Rashid v. Secretary, Ministry of Defence and another an identical question of jurisdiction had been under arguments before us well before we heard the present appeal at Karachi. The Tribunal after hearing the Islamabad appeal on 8‑2‑1984 has already given a judgment on 16‑5‑1984 in favour of assumption of jurisdiction. Relevant extracts from the said Appeal (No. 47(R) of 1982) are reproduced to form an integral part of this judgment.
"Since the question of Tribunal's jurisdiction with regard to the determination of appellant's rights as well as those of others like him for redressal before us was involved, the case was heard again, on 8‑2‑1984 by the Tribunal consisting of a larger Bench of three members to decide the important issue of our jurisdiction in the present and the like cases in future."
The learned counsel for the appellant opened his argument with reference to Chapter I, Factories Act, 1934, section 2 wherein "worker" has been defined as under:
"(h) "worker" means a person employed (directly or through .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 clerical capacity in any room place where no manufacturing process is being carried on."
He then went on to read the definition of the "workman" as given in Chapter I, section 2(1) (n) of Workmen's Compensation Act, 1923 which is reproduced:
"(n) "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 an administrative, district or Sub‑Divisional Office of Railway and not employed in any such capacity as 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."
The list of persons, who are subject to the provisions of section 2(1)(n) and having included in the definition no workmen are to be seen in Schedule II to the Workmen's Compensation Act, 1923. The said Schedule II did not cover the category to which the appellant belonged because the Workmen's Compensation Act, 1923 did not apply like the Factories Act, 1934 and as such he was excluded therefrom.
Arguing further, the learned counsel stated that 501 Workshop did' not come with in the definition of the factory. Also, being defence installation on one from social Security or Labour Department could go there. It was for all practical purposes a Government installation. The departmental representative Mr. Roy (Labour officer) stated at the Bar that the Workmen's Compensation Act, 1923 and the Factories Act, 1934, were very much applicable to 501 Central Workshop which employed a) large civilian work force. However, the said Acts were applied through the Special Pakistan Army Orders. It was also brought to our notice that compensations, where necessary, have been paid to the workmen. The implication of this statement of the departmental representative seems to be that the Workmen's Compensation Act and the Factories Act were not applicable initially to 501 Central Workshop but their application was extended to the said 501 Workshop by the Central Special Pakistan Army Order. Be that as it may, in view of our conclusion that follows, the question of applicability of these laws to 501 Central Workshop does not remain much relevant.
The learned counsel for the appellant thereafter urged that since the advent of the IRO 1969, the administration of justice in respect of the service grievances of those, who come within the definition of workers/workmen, has been articulated in. a way as to provide speedy and cheap justice through the Labour Courts. Section 11(3) of the IRO, 1969, however, lay down: ‑
It shall not apply to any person employed in the police or any of the Defence Services of Pakistan and any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government or to any person employed in the administration of the State other than those employed as workmen by the Railways, Posts, Telegraph and Telephone Departments."
The implication of this exclusion of the workers/workmen employed in the Defence Services of Pakistan is obviously to debar them from seeking remedy from the Labour Courts in respect of their service grievances. In other words, the workers and workmen of the Defence Services of Pakistan by virtue of their service with the Defence Services are at a disadvantage in relation to their counterparts i.e. workers or workmen of non‑Defence Service. This discrimination or disadvantage must be removed so that the workers/workmen of the Defence Service, who are primarily civil servants, are also allowed to seek justice from Federal Service Tribunal, argued the learned counsel.
Opposing the proposition, the learned counsel for the respondent department mainly emphasised that number of the appeals of the workers/workmen of the category of the appellant had always been dismissed by this Tribunal for want of jurisdiction. Their remedy lies with the Civil Courts as always. The learned counsel, perhaps, lost sight of the fact that it was in view of the' previous' decisions referred to by the learned counsel that a larger Bench was constituted to reconsider the question of jurisdiction in such cases. At any rate, those decisions have no binding force. The contention, therefore, is without any force. After all, as observed by Lord Macmillan "The criterion of judgment must adjust and adapt itself to the changing circumstances of life." Again to quote Denning L.J. "What is the argument on the other side? Only this that no case has been found in which it has been done before. The argument does not appeal to me in the least. If we never do anything, which has not been done before, we shall never get anywhere. The law will stand while the rest of the world goes on and that would be bad for both." Packer v. Packer CA (1953) 2 AER 1.
We have given our anxious thoughts to the submissions made before us and also carefully considered the various provisions of relevant laws. The simple proposition that emerges is that IRO, 1969 does not apply to the workers/workmen employed in the Defence Service but the IRO ibid applies to the said categories of persons who are not employed in the Defence Services. Those employed in the. Defence Services vis‑a‑vis their colleagues in non‑Defence Service were, thus, at a disadvantage in that the latter can approach the Labour Courts but the former cannot. The position remained so till promulgation of the Service Tribunals Ordinance, 1973 (later on converted into an Act of Parliament) which provided an appellate forum for adjudication matters relating to the terms and conditions of persons who are or have been civil servants' within the meaning of Civil Servants Act, 1973. Clause. (b) of section 2(1) of the Civil Servants Act, 1973, defines "civil servant" as under:
"(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).
It is to be seen that sub‑clause (iii) above is an exception clause. The main function of such an exception clause is either to create an exception in respect of certain matters which would otherwise fall within the section, or to qualify or restrict the operation of the main part of the section. According to Crawford:
"The appropriate and natural office of the exception is to exempt something from the scope of the general words of a statute, which would otherwise be within the scope and meaning of such general words. Consequently, the existence of an exception in a statute clarifies the intent that the statute should apply in all cases not excepted. Unlike that of the proviso, however, it is apparent that the position of the exception in the statute is unimportant. But the exception is also subject to the rule of strict construction, that is, any doubt will be resolved in favour of general provision and against the exception, and anyone claiming to be relieved from the statute's operation must establish that he comes within the exception. Indeed, the liberal construction of a word would, in many instances, seem to require that the exception, by which the operation of the statute is limited or abridged should receive a restricted meaning."
Another well-established rule of interpretation of statutes is that an exception ease can only operate to deal with a case which, but for its existence, would have fallen within the ambit of main section to which the exception is provided. The principle underlying this is that the main section covers a particular field and the proviso takes out or carves out from that a particular situation and, therefore, to that extent only modifies the main provision of the section.
It is to be noted that the category of persons to which the appellant belongs, by virtue of their holding civil posts connected with defence, are covered by the main definition of the civil servant but persons who are "workers" or `workmen' as defined in the Factories Act, 1934, or the Workmen's Compensation Act, 1923, are excepted from the definition. Borrowing wisdom from the above‑stated principles of interpretation and keeping in view that the provisions and effect of the relevant legislative enactments, we are of the considered view that the basic idea of the exception clause was to except workers or workmen from the definition of the civil servants only for the purposes of the Factories Act, 1934, or the Workmen's Compensation Act, 1923, as the case may be, and for all other intents and purposes they are covered by the definition of civil servant. In taking this view we are also fortified by the following rule about the construction and effect of exception offered by Corpus Juris Secundum: ‑‑
"Exceptions, as a general rule, should be strictly, but reasonably, construed; they extend only so far as their language fairly warrants, and all doubts should be resolved in favour of the general rule rather than the exception. Where a general rule is established by statute with exceptions, the Court will not curtail the former nor add to the latter by implication, and it 'is a general rule that an express exception excludes all others, although it is always proper in determining the applicability of this rule, to inquire whether, in the particular case, it accords with reason and justice."
We, further, find that the police who are also excluded from the application of IRO 1969, just like the workers/workmen employed in any of the Defence Services of Pakistan, have the Provincial Service Tribunals at the provincial level. At the Federal level, they file their appeals before the Federal Service Tribunal. 'Me Police have; therefore been adequately taken care of in the administration of service grievances. The WAPDA employees, despite being workers or workmen, can also be cited as an example who have all been declared civil servants vide section 17(1B) of the WAPDA Act, 1958, and Ore subject to our jurisdiction in service matters. If the Police and the WAPDA have been adequately provided for as mentioned, we see no reason why the persons of the category of workers or workmen of the Defence Services should remain the victim of deprivation and be prevented from coming to the Federal Service Tribunal for speedy justice. The suggestion that, workers/workmen holding civil posts connected with defence may seek their remedy in service matter before Civil Courts did not at all impress us because firstly the Civil Courts have only a limited jurisdiction in such matters and secondly the procedure followed in civil suit is too cumbersome and time consuming. Therefore, the remedy before the Civil Courts cannot be equated with the remedy before the Service Tribunals and Labour Courts. As rightly observed by Maxwell .
"In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. "An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available." Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction." (The Interpretation of Statutes).
In view of the foregoing, we are led to an irresistible conclusion that the workers and workmen holding civil posts connected with defence are covered by the definition of civil servant for the purposes of the Service Tribunals Act and are excepted from such definition only for the purposes of the Factories Act, 1934, and the Workmen's Compensation Act, 1923. We accordingly hold that the present appeal before us is maintainable.
7. In 'view of the quotation given above the controversy as to jurisdiction has since been resolved in favour of the appellants of the category of the workers/workmen employed in the defence establishments of Pakistan.
8. Now, to advert to the case before us. The learned counsel for the appellant, raised two important technical objections as to the soundness of the disciplinary proceedings, against the appellant, S.U. Siddiqui. The first one was that no witnesses were examined in the presence and hearing of the appellant and the second was that Mr. Meraj Din, who was himself, a guilty person became member of the enquiry committee. The objections, prima facie, do seem to carry weight. However, the fact that the appellant in‑ his written statement made a clean breast of his guilt and pleaded forgiveness, the said technical objections become meaningless. The confession of the appellant as to his guilt is all that matters.
9. In the result we are satisfied that having been given a reasonable opportunity of defence the charges levelled against the appellant stand established beyond doubt. His dismissal has been in accordance with the law. However, we do feel that the ends of justice would be met if the extreme punishment of dismissal were modified to that of removal. We order accordingly and dismiss the appeal with no costs. The security deposit would be refunded to the appellant.
H.B.T./763/Sr.F Penalty modified.