1983 PLP 155 (SCMR)

M. S. H. QURESHI, J.‑Muhammad Allauddin respondent No. 3 was, in the result of a departmental proceeding against him, reverted to the lower rank of a ledger‑keeper on 23‑7‑1974. He did not join the latter post and instead challenged the departmental decision by instituting a civil suit, wherein e was granted an order for maintenance of status quo on 31‑7‑1974. Since failed to join his duties, he was removed from service as a ledger‑keeper by order dated 19‑8‑1976. He took the matter to Labour Court under section 25‑A of the Industrial Relations Ordinance, 1969. 7 he Labour Court by order dated 27‑2‑1978 set aside the order of his removal and directed that he be paid all the back benefits of the post of ward‑keeper. The Department's appeal before the Labour Appellate Tribunal was dismissed on 13‑7‑1979. The only contention raised there that the re‑instatement ought to be to the post of ledger‑keeper and not to that of ward‑keeper, was turned down. The Department then invoked the constitutional jurisdiction of the High Court but without success as their writ petition was dismissed on 8‑7‑1981.

2. The plea of the Railway before the High Court was that the respon dent was a civil servant and as such the Labour Court had no jurisdiction to entertain his application. The learned Judge of the High Court observed that the question whether the respondent was a civil servant was one mixed of fact and law and that as the point had not been pressed during the appeal before the Labour Appellate Tribunal, the Department was deemed to have accepted the finding of the Labour Court and it was no longer open to them to reagitate the matter in the constitutional jurisdiction. The Department has now filed this petition for leave to appeal.

3. The contention before us is two‑fold the first being that the respon dent was a civil servant and as such not amenable to the jurisdiction of the Labour Court and the second, that his removal having been from the post of ledger‑keeper, he could be re‑instated to that post had not to that of a Ward‑keeper. On the first point, we see no reason to interfere with the view taken by the High Court. As regards the second point, we find that the Labour Court had treated the respondent as a ward‑keeper for the reason that "the order of his reversion was set aside by the Civil Court". The Appellate Tribunal before whom the point had been specifically taken had also ruled out the same for the reason that "the respondent in actual fact wash never reverted and had always been working as ward‑keeper "and that the ' award given by the Authority under the Payment of Wages Act, on 14‑1‑1976 for payment to the respondent of his wages as ward‑keeper had not been appealed against by the Department. The point was, thereafter, not pressed by the Department in their writ petition, and as such cannot be permitted to be raised now.

4. No interference is, therefore, called for with the order of the High Court. The petition is dismissed. Petition dismissed,