2022 SCMR 292
(i) The postman is not a civil servant rather he is a workman and remedy for redressal of his grievance lies before the National Industrial Relations Commission;
(ii) The postman has a guaranteed right under Standing Orders Ordinance, 1968;
(iii) The Industrial Relations Act, 2012, will override Balochistan Industrial Relations Act, 2010, therefore, Section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, to the extent as it deals with the workmen/employees of Pakistan Post, being a trans-provincial subject/entity is declared repugnant and void in terms of Article 143 of the Constitution of the Islamic Republic of Pakistan, 1973, being the sole and exclusive prerogative of the Federal Legislature to enact laws falling in the Federal Legislative List.
Postman does not fall within the definition of “worker” as defined in Section 2(h) of the Factories Act, 1934.
The main job duty of a postman is to sort mail on a sorting frame, getting it into address order, operate automated equipment, deliver mail on foot, by a bicycle/motorcycle or by van, get customer signatures for registered post and recorded deliveries, pick up mail from post boxes, post offices and businesses and deal with wrongly addressed or returned mail. Although, a postman performs indoor work but the main work of a postman relates to outdoor. Now we will deal with the question of foremost importance, whether the respondent is a civil servant in terms of Section 2(1)(b) of the Civil Servants Act, 1973 entitling him to avail remedy before the Service Tribunal, if falls within the ambit of a civil servant as contained in the Act. It is not disputed that the Service Tribunals Act, 1973, applies to all “civil servants” wherever they may be and it has exclusive jurisdiction in respect of matters relating to the terms and conditions of service of ‘civil servants’ including disciplinary matters. The term “civil servant” includes a person who is or has been a civil servant within the meaning of the Civil Servants Act, 1973, so we will have to see as to what the term ‘civil servant’ means under the Civil Servants Act, 1973.
The plain reading of the above-referred definition of ‘civil servant’ brings us to the conclusion that a civil servant is one whose characteristics/qualifications are given in sub clause (b) above and the Civil Servants Act, 1973 applies to all “civil servants” wherever they may be but sub clause ‘iii’ excludes a person who is a "worker" as defined in the Factories Act, 1934 or "workman" as defined in the Workman’s Compensation Act, 1923. In the instant case sub-clauses (i)(ii) are not relevant as the respondent postman is neither a contract employee nor on deputation and, therefore, sub-clause ‘iii’ would be applicable. Now, we would find out as to whether the respondent postman is a ‘worker’ or a ‘workman’. The term “worker” as defined in the Factories Act, 1934.
The term “workman”, as defined in Section 2(1)(n) read with Second Schedule of the Workman’s Compensation Act, 1923, includes any person who is employed in any occupation ordinarily involving outdoor work in the ‘Posts and Telegraphs Department’, meaning thereby that such person will be excluded from the definition of “civil servant” and the Service Tribunal shall not have jurisdiction in respect of such person. It is important to consider the evolution of the Post and Telegraphs Department. The Post Office Department is one of the oldest departments of the Sub-Continent working under the Post Office Act, 1898. After the independence of Pakistan in 1947, the Post Office started functioning as the Department of Posts & Telegraph in the Ministry of Communications. In 1962, the Pakistan Post was separated from the Pakistan Telephone & Telegraph Department and started working as an independent attached department under the Ministry of Communications. Later on, the Pakistan Post was separated from the Ministry of Communications and was made an independent Corporation under the Ministry of Postal Services. As a result of reforms introduced in Civil Services structure in the year 1972, the Postal Group was formed. The Post Office Department provides postal and financial services to the people. It also performs other functions which inter-alia include (1) Post Office Savings Bank, (2) Postal Life Insurance, (3) Civil & Military Pension Payments, (4) Collection of Utility Bills, (5) Renewal of Driving and Arms Licences, (6) Issuing PTV Licence, etc. Later, an autonomous High Powered Postal Services Management Board was established through Pakistan Postal Services Management Board Ordinance, 2002. Under the Rules of Business, 1973, as per Serial No.27 of list of Ministries and Divisions provided in the Schedule under Rule 3(1) thereof, ‘the Postal Service Division’ falls under ‘the Ministry of Postal Service’. As per Entry No.31A of the Schedule II under Rule 3(3) thereof, which provides ‘Distribution of Business among the Divisions’, the Postal Service Division has been mandated to deal with the business of ‘Posts, including Saving Bank and Postal Life Insurance’ and ‘Agency functions on behalf of other Divisions such as military pensions, etc.’. As per Entry No.70 of the Schedule III under the Rule 4(4) thereof, ‘Pakistan Post Office Department’ has been declared as an attached Department of ‘Postal Services Division’. Now the question remains whether, in view of the changed status of ‘Posts and Telegraphs Department’, a person employed in any occupation ordinarily involving outdoor work in the Posts would be excluded from the definition of “civil servant” provided in Section 2(1)(b)(iii) of the Civil Servants Act, 1973, bringing such person out of the jurisdiction of the Service Tribunal in terms of the Civil Servants Act, 1973, or in the changed circumstances, a person involving outdoor work (which includes a postman) working in the Pakistan Post Office under the Postal Services Division, which is an attached Division of Ministry of Postal Services, is still subject to the jurisdiction of the Service Tribunal. In this regard, it would be appropriate to consider the objects and purposes of the Civil Servants Act, 1973 as well as the Workmen’s Compensation Act, 1923. The object of the Civil Servants Act, 1973 as mentioned therein is “to regulate the appointment of persons to, and the terms and conditions of Service of persons in, the service of Pakistan”. The preamble thereto provides that “Whereas it is expedient to regulate by law, the appointment of persons to, and the terms and conditions of service of persons, in the service of Pakistan, and to provide for matters connected therewith or ancillary thereto”. Whereas, the object of the Workmen’s Compensation Act, 1923, as provided therein, is to “provide for the payment by certain classes of employers to their workmen of compensation for injury by accident”. Likewise, the preamble of the Workmen’s Compensation Act, 1923 provides that “Whereas it is expedient to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident”. In the ‘Statement of Objects and Reasons’ given at the time of enacting the Workman’s Compensation Act, 1923 it was stated, inter alia, that “the growing complexity of industry in this country, with the increasing use of machinery and consequent danger to workmen, along with the comparative poverty of the workmen themselves, renders it advisable that they should be protected, as far as possible from hardship arising from accidents. The general principle is that the compensation should ordinarily be given to workmen who sustained personal injuries by accidents arising out of and in the course of their employment, which directly relates to nature eof job assigned to them. Compensation will also be given in certain limited circumstances for disease. The actual rates of compensation payable are based on the unanimous recommendation of the committee …”. Thus, the objects of both the laws are different, in that, the object of the Civil Servants Act, 1973 is to regulate the appointment of persons to, and the terms and conditions of service of persons in the service of Pakistan and the object of the Workmen’s Compensation Act, 1923, is to protect the workman, as far as possible, from hardship arising from accidents and provide for the payment by certain classes of employers to their workmen of compensation for injury by accident as they are exposed due to description of job. The definition of one law may not be relevant for the purpose of other law but as the definition of workman has been borrowed by the Civil Servants Act, 1973 from the Workmen’s Compensation Act, 1923, it would have same meaning as given in the Workmen’s Compensation Act, 1923. As mentioned above, the Postal Department was established under the Post Office Act, 1898. Later, an autonomous High Powered Postal Services Management Board was established through Pakistan Postal Services Management Board Ordinance, 2002. However, Section 29 of the Pakistan Postal Services Management Board Ordinance, 2002 provides, inter alia, that nothing in the said Ordinance shall derogate/affect the provision of the Post Office Act, 1898. The Post Office Act, 1898 having remained in force and the Pakistan Post Office being functioning under the Act of 1898, notwithstanding the fact that the Post Office is an attached Department of Postal Service Division working under the Ministry of Postal Services, the employees of Post Office employed in any occupation ordinarily involving outdoor work shall remain included in the term “workman” as defined in the Workman’s Compensation Act, 1923 and are excluded from the term “civil servant” as defined in the Civil Servants Act, 1973.
From the perusal of above provision, it is clear that the Industrial Relations Act, 2012 is applicable to all persons employed in any ‘establishment’ or ‘industry’, in the Islamabad Capital Territory or any trans-provincial authority carrying on business ‘in more than one province’ but shall not apply to any person inter alia employed in the administration of the State, other than those employed as ‘workmen’. Prior to Industrial Relations Act, 2012, Section 1(3)(b) of the Industrial Relations Ordinance, 2008, provided that it shall not apply to any person employed “in the administration of the State other than those employed as workmen by the Railway and Pakistan Post”. In Section 1(3)(b) of the Industrial Relations Act, 2012, the words “by the Railway and Pakistan Post” have been deleted, therefore, now all the persons in the administration of the State employed as workmen have been made subject to Industrial Relations Act, 2012, instead of only workmen of Railway and Pakistan Post. The terms “establishment” and “industry” as defined in Industrial Relations Act, 2012.
The “Pakistan Post Office Department” is an Attached Department of “Postal Services Division” which falls under the “Ministry of Postal Services” in terms of the Rules of Business, 1973, therefore, the employees of Pakistan Post Office Department, being employed in the administration of the State are excluded from the operation of Industrial Relations Act, 2012. However, only those employees of Post Office are subject to the Industrial Relations Act, 2012 who are employed as workmen. The term ‘workman’ has been defined in Industrial Relations Act, 2012.
Thus a “workman” means a person not falling within the definition of employer who is employed in an establishment or industry for hire or reward either directly or through a contractor. The Postman does not fall within the definition of employer, therefore, it is included in the definition of workman and is subject to the Industrial Relations Act, 2012. As per Section 33 of the Industrial Relations Act, 2012 a ‘worker’ may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent within ninety days of the day on which the cause of such grievance arises. Under Section 54(h) of the Industrial Relations Act, 2012, the functions of the Commission include, to deal with cases of individual grievance in the manners prescribed in Section 33. Now we shall consider the relevant provisions of the Balochistan Industrial Relations Act, 2010.
From the perusal of Section 1(4) above, it is clear that the Balochistan Industrial Relations Act, 2010 shall apply to all persons employed in any establishment or industry to the extent of Balochistan only, but shall not apply to any person employed in the administration of the State other than those employed as workmen by the Railway and Pakistan Post. Under Section 2(dd) of the Balochistan Industrial Relations Act, 2010, “worker” and “workman” have been defined in almost similar terms as defined in the Industrial Relations Act, 2012. As noted above, Industrial Relations Act, 2012 is applicable to all persons employed in any establishment or industry, in the Islamabad Capital Territory or to any other establishment or industry, which being trans-provincial is carrying on business in more than one province, whereas, the Balochistan Industrial Relations Act, 2010 shall apply to all persons employed in any establishment or industry to the extent of province of Balochistan. The Pakistan Post Office Department is managed by the Pakistan Postal Services Management Board established under the Pakistan Postal Services Management Board Ordinance, 2002, and rendering services not only in the Islamabad Capital Territory but also in all the four Provinces, therefore, it is squarely covered by Section 1(3) of the Industrial Relations Act, 2012. Section 54(i) of the Industrial Relations Act, 2012, specifically provides that it shall be the function of the Commission “to exercise exclusive jurisdiction over the establishment or group of establishments situated in the Islamabad Capital Territory and trans-provincial”. As by virtue of Section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, applicability of provincial statute extends to trans-provincial department i.e. Post Office, therefore, it is inconsistent with the Federal Legislation i.e. Industrial Relations Act, 2012, wherein the Preamble, Section 2(xxxiii) as well as Section 54(i) deals with the trans-provincial matters. Entry No. 13 of Part II of Federal Legislative List empowers the Parliament to enact on any matter which is related to inter-provincial matters and co-ordination, however, while enacting Section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, the Provincial Legislature went beyond its competence/power to enact. Article 142 of the Constitution is very important, which commands that “Majilis-eShoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List”. This Court in the case of Sui Southern Gas Company Vs. Federation of Pakistan (2018 SCMR 802) has candidly held that “under the command of Entry No. 13 in Part-II of the Federal Legislative List, the Federation has competence to enact laws relating to interprovincial matters, Entry No. 18 thereof further enlarges the scope of said entry, therefore, the Federal Legislature has legislative competence to legislate in this regard.” In such a situation, Article 143 of the Constitution of Islamic Republic of Pakistan, 1973, also becomes relevant.
Article 143 of the Constitution envisages that in the event of provision of a statute being repugnant to Federal Statute, provision contained in the latter would prevail and provision of Provincial Statute to the extent of repugnancy would be void. From the combined reading of Section 1(3) of the Industrial Relations Act, 2012, Section 1(4) of the Balochistan Industrial Relations Act, 2010 and Article 143 of the Constitution, it is clear that Section 1(3) of the Industrial Relations Act, 2012, where it has been applied to workmen employed in the administration of the State (which includes the Postal Service Department) will override the provisions of Section 1(4)(b) the Balochistan Industrial Relations Act, 2010.
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