1994 PLP 232 (PLC)

Zafar Saleem for Respondent (in Appeal No.129 of 1993) and for Appellant (in Appeal No.127 of 1993). Date of hearing: 16th January, 1994. Muhammad Khalid was appointed as Junior Clerk on ad hoc basis for a period of six months vide letter, dated 9th of July, 1988 by the Superintending Engineer, Highways Department, Gujranwala. The period of six months was extended for a further period 'of three months vide order, dated 12th of January, 1989 and upto 31st of May, 1989 by order, dated 3rd of May, 1989. Since the appointment of Muhammad Khalid was made on ad hoc basis in a leave vacancy, his services were terminated with effect from 13th of June, 1989 on the resumption of duty by Sardar Mahmood Khan, a permanent incumbent. On 19th of June, 1989 Muhammad Khalid filed a grievance petition for his reinstatement in service. He alleged that he was working against a permanent post and his services could not be terminated in the manner adopted by the Superintending Engineer. .

2. The grievance petition was opposed by the Superintending Engineer. He contended that Muhammad Khalid was appointed in a leave vacancy and on the return of the permanent incumbent from leave,, his services were terminated according to law. Legal objections were also taken to the effect that Muhammad Khalid was incompetent to invoke the provisions of the Industrial Relations Ordinance, 1969 as he did not fall within the ambit of a workman and that the grievance petition had been filed without the service of a grievance notice.

3. The learned Labour Court after appraising the evidence adduced by the parties, accepted the grievance petition of Muhammad Khalid and directed the Superintending Engineer to re‑instate him in service without back benefits.

4. The Superintending Engineer feeling aggrieved, preferred an appeal which was accepted by this Tribunal on 9th of December, 1991 and the grievance petition was remanded to the Labour Court for its decision afresh after determination of the controversy as to whether Labour Laws were applicable to Muhammad Khalid.

5. The learned Labour Court vide its decision, dated 20th February, 1993 again accepted the grievance petition holding that Muhammad Khalid was a workman and the provisions of the Industrial Relations Ordinance, 1969 were applicable to him. However, the back benefits were again denied to him.

6. Feeling dissatisfied, the Superintending Engineer as well as Muhammad Khalid have filed appeals; the former agitating that Muhammad Khalid was a civil servant and the Labour Laws were not applicable to him and the latter claiming back benefits. This judgment shall dispose of both the appeals. The Superintending Engineer shall hereinafter be described as the appellant while Muhammad Khalid as the respondent.

7. I have heard learned counsel for the parties and perused the record. The primary question which falls for determination is as to whether the respondent was a civil servant and he could competently invoke the provisions of section 25‑A of the Industrial Relations Ordinance, 1969. The respondent was admittedly an employee of an attached department of the Provincial Government and holding a civil post in connection with the affairs of the Province. According to the definition of "civil servant" given in section 2(1)(b) of the Punjab Civil Servants Act, 1974, this term does not include a person who is a "worker" or "workman" as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923 or a person who is employed on contract or on work charged basis or is paid from contingencies or a person who is on deputation from the Federation or any other Province or authority. The respondent was admittedly appointed as a clerk in an office and was not employed as a worker in any factory as defined in section 2, clauses (h) and (j) of the Factories Act, 1934. He was neither employed as a workman in the construction, repair or demolition of any road as provided in section 2(1)(n) read with clause (viii) of Schedule II of the Workmen's Compensation Act, 1923. Therefore, the provisions of both these statutes were not available to him. He was not on deputation nor employed on contract or on work charged basis or paid from contingencies. In view of these facts, the respondent was a civil servant as defined in the Punjab Civil Servants Act, 1974, and therefore, he was incompetent to invoke the provisions of section 25‑A of ‑the Industrial Relations Ordinance, 1969. The result concomitant to this finding is that the learned Labour Court had no jurisdiction in the matter and the impugned decision passed by it is unsustainable.

8. Accordingly, the appeal of the appellant is accepted, the impugned decision is set aside and the appeal filed by the respondent is dismissed.