Article-149[ Regarding Arguments to be given by respondent’s lawyers in ICA cases in IHC]

 [DRAFT OF ARGUMENTS]

 

Dear all concerned

A-o-A

As you know, that during the proceeding of ICA cases in the apex court on the 24th June 2021, the revelation of PTCL lawyer Shahid Anwar Bajwa, that the non-gazetted employees (of grade 1 to grade 15)   , who were working in the then T&T i.e. were workmen, as fall into the such category of employees specified in Section 2(1)(b) (iii) of Civil Servant Act 1973. The Honorable Chief Justice seems to be convinced, and he questioned to the lawyers of the respondents to clarify the same, how the workman can be treated in Civil Savants. Proving of that, would be a daunting task, like climbing Mount Everest .Such remarks of worthy HCJ, were very unfortunate. He directed all councils of such respondents to come up with the answer of that in next date, i.e.  on the 14th July 2021.

I think that to reply of this, such  respondent’s lawyers should avoid giving the references of HSCP’s decisions like the following cases

1. Masood Bhattie etc Vs FoP etc ( 2012  SCMR 152)

2. PTCL  etc Vs Masood Bhattie ( 2016 SCMR 1362)

3. PTCL vs. Muhammad Arif etc ( 2015 SCMR 1472)

4. Muhammad Riaz vs. FoP etc ( 2015 SCMR 1783)

Since, from the reaction of the Hon'ble Chief Justice on that day, it was clear that he would not accept the references of these decisions of the Hon'ble Supreme Court at all.  I would like to inform that, I had been mainly working almost 26 years out of total 35 years service in PTCL, on the posts of non technical nature and mostly related administration and human resources. I have a lot of experience because of it. I knew that if , even , any disciplinary action had to be taken against a regular employee of basic scale 1 ,  Civil Servants (E&D) Rules 1973,  had to be applied on him/her. Because such government statutory rules are only applicable to civil servants.  There was only one changed in the  definition of  "authority" and of   the authorized officer , relating to the  Telegraph and Telephone Department, but the rules & procedure has to be followed same as given  such government rules. Which is an ample proof, that all regular employees of any grade of Telegraph and Telephone Department of Government of Pakistan were “Civil Servant “. And being Civil Servants, they had amenable to constitutional jurisdiction of High Court, they can file writ petitions under Artical- 199 of the Constitution to solve their girevencec etc in High Courts. [See PTCL etc Vs Masood Bhattie (2016 SCMR 1362)]. Hence contention of the appellant's lawyer Anwar Shahid Bajwa was completely wrong, baseless and fabricated. According to him, that the Section 2(1)(b) (iii) of the Civil Servants Act, 1973 states that a person working in a government department cannot be a civil being “Workman”. And the HCJ was seemed to be apparently convinced on it , that is why he was insisting how the work man can be treated civil servant and it would be a daunting task, like climbing Mount Everest to prove it

So now we have to must first take a closer look at the Factories Act, (XXV of 1934) and the Workmen's Compensation Act, 1923 (VIII of 1923) . The Factories Act, (XXV of 1934) is related employees of factories only, so it does not come in this preview. Where, according to the Section 2 (n) of the Workman Compensation Act, 1923 (VIII of 1923) 

            “Workman” means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business) who is–

                  (i)   a railway servant as defined in section 3 of the Railways Act, 1890[17], not permanently employed in any administrative, district or sub-divisional office of railway and not employed in any such capacity as is specified in Schedule II, or

                 (ii)   employed [18] [* * *] [19] [* * *] in any such capacity as is specified in Schedule II

 

Note down that the definition of “workman “in this law is given in clause (n) 2 and its sub-clause (ii) refers to the persons who are employed in the place mentioned in Schedule 2.  Now the part of the same Schedule 2 says at serial # (xiii) as

 (xiii)  employed as an inspector, mail guard, sorter or van peon in the Railway Mail Service, or employed in any occupation ordinarily involving outdoor work in the [191][* * *] Posts and Telegraphs Department; or

This reflects employees of &T Department , who had been performing  their duties in outdoor i.e. in outside plant T&T department ,were treated as “Workman “ only, and so they lost the status of “ Civil Servant “ in accordance to the Section (2)(1) (b) (iii)  of the Civil Servants Act, 1973. The Schedule 2 , serial (xiii) refer to the Post and Telegraph Department and not the Pakistan Telegraph  and Telephone t Department (called as T&T Department in short).  I would also like to add here the Government Department of Post and Telegraph was created in 1898 during the British rules in United India and was named as Indian Post and Telegraph Department  [This department has its own separate rules regarding both administration, finance and revenue etc . For   General Account Code Post and Telegraph Department Initial Account Code Volumes namely IAC 1. 2, 3  etc  and for other works, in admin station , staff matters, appointments  and duties and responsibilities  ,  working rules etc P&T Volume namely 1, 2 3.   were motioned.] . After partition, this Indian Post and Telegraph Department was bifurcated in to two parts, the part, which came under the jurisdiction of Government of Pakistan, was named as Pakistan Postal and Telegraph Department. In 1964, the Postal Service Department was disbanded and the Telegraph Service was merged with the Telephone Service to form the Government's Telegraph and Telephone Department, which had its own rules and regulations. Employee of BPS-1 to BPS 15, of said Government's Telegraph and Telephone Department were being appointed according to the rules and regulations of the department. The duties, responsibilities, its specifications   and working criteria according to grade wise, were being fallowed accordingly to such rules and regulations given in T&T Manuals.

To prove this, that all regular employees of the then Government's Telegraph and Telephone Department came under the category of Civil Servants and the Compensation Act, and the Workmen's Compensation Act, 1923, was applicable for the grant compensation to only those T&T employees , who were performing their outdoor duties only, I would like to refer a Establishment Division, Government of Pakistan, Rawalpindi U.O NO.3/2/78-R  dated 1-1-1989 in this connection, which was sent to  the Director General of T&T Department, in response of his office U.O. of even  dated 10-12-88 under the subject CLARIFICATION OF CIVIL SERVANT ACT, 1934, FACTORIES ACT, 1934 AND WORK COMPENSATION ACT 1923, in which he i.e. DG T&T inquired .” That according to the  Workman Compensation Act 1923 applies to employees of T&T who were performing their duties in outdoor field only to compensate them in case of injury, limb damage or death, in accordance  to rules and regulations of the  Workman Compensation Act 1923,  but these were  excluded from the category of Civil Servants , as defined under Section (2)(1) (b) (iii) of Civil Servant Act 1973. So, weather the Civil Servants Act 1973, can be applicable side by side to such categories of employees, like Wiremen, Linemen Telecom Technicians etc.

To that , The Establishment Division Government of Pakistan Rawalpindi (at that period the office of Estiblshment Division was situated in Rawalpindi ) responded that “that the categories of employees stated in aforesaid U.O fall under the definition of worker/workman as given in the worker compensation act 1923 and thus terms of Section 2(1) (b) (iii) of the Civil Servant Act 1973 they fall outside the jurisdiction of the Civil Servant Act, 1973. and the rules made there under, including the Govt Servant (Efficiency and Discipline) Rules, 1973.These categories of employees, although they are not civil servants, can be treated as government servants as they are serving in government department. As being government servants they can be governed by the service rules are as normally applicable to the other government servants say Government Servants (E&D) Rules 1960. By virtue of their field duties they under the Workmen’s Compensation Act, 1923, are only entitled to compensation, in case of death, loss of limb or injury caused during the performance of their outdoor duties

Now it is very important to explain why the Director General of T&T had sought such approval from the Establishment Division Government of Pakistan. This happened when the Finance Division Government of Pakistan has approved to grant of pension to Ex- Engineering Supervisor (who was performing outdoor duty only) Mr. Abdul Qayyum Nawaz Baloch “The Finance Division has held that under section 19 of Civil Servant Act, 1973 pension is admissible to the Civil Servants and Section 2(1)(b) III ibid a person who is“ Worker ” or “  Workmen” as defined in Factories Act 1934 (xxv) or the Workmen’s Compensation Act, 1923 (viii) is excluding from the terms” Civil Servant” . Hence  to get such approval for  the other categories of employees , performing their outdoor , such as Wiremen, Linemen and Telecom Technicians etc to whom Workmen’s Compensation Act, was applicable ,so   whether Civil Servants Act, 1973 is applicable  to the such  categories of employees also side by side the Workmen’s Compensation Act, 1923.This request was sent the Establishment Division Government of Pakistan Rawalpindi with the signature of the then Director (Establishment) Mr. Rahim Qadir under the  title as narrated above . And the answer given by the Establishment Division Government of Pakistan Rawalpindi was in affirmative as also stated above.

To understand, why the Establishment Division Government of Pakistan Rawalpindi came up with such an affirmative answer, it is very important to know, first,  the contents of the said letter. In paragraph 2 of the said letter states, “A question arises as to whether Civil Servants Act, 1973 is applicable to the above categories of employees side by side the Workmen’s Compensation Act, 1923 .Then in paragraph 4 , it is stated In the Telegraph and Telephone Department, the main status of the employees is civil servants and the applicability of Compensation Act, 1923 is extended to only those categories of staff who perform outdoor duties, met with any mishap during performance of their duties. The Work Compensation Act, compensated in case loss of life or injury if sustained by them during service. As Civil Servant, they are entitled to avail their service benefits and also accountable under E&D rule. Where in concluded Para 5 it is stated that “This important issues requires special consideration in view of the contention of Finance Division referred to above. Establishment Division is therefore requested kindly to examine and clarify position in the large number of employees with reference to the terms and conditions of their employment.

 

So, I, suggest if the respondent's lawyers are remain focused with their arguments based on the queries of former D G T& T department and replies of the Establishment Division & the Finance Division Government of Pakistan, as stated above, then there will be fruitful chances to achieve favorable results. In Sha Allah,

Regards

Tariq

Dated 12th July 2021

 

[Note: -Photocopies and True copies of the same as mentioned above are pasted beneath, one copy of endorsement letter issued under the signature by the then Assistant Director (Establishment) T&T Mr. Abdul Latif. He endorsed the letter of the DG T&T No. E (I) .4-2 / 88 Dated 30-1-1989 to General Manager CTR Lahore having the reply of the Establishment Division Government of Pakistan Rawalpindi and the other of the DG T&T office i.e. the letter under the subject CLARIFICATION OF CIVIL SERVANT ACT, 1934, FACTORIES ACT, 1934 AND WORK COMPENSATION ACT 1923,.   This letter was issued under the signature of Director (Establishment) Mr. Rahim Qadir]

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