P L D 1985 Lahore 420 (PLP)

(d) Constitution of Pakistan (1973)- -- Art. 199-Laches--Service matter-Impugned order passed nearly nine months back-Delay of nine months in service matter being rather inordinate, petition, held, suffered from laches. Link S. A. Jabbar for Petitioner. ORDER ABDUL SHAKURUL SALAM, J.-Respondent No. 3 was a peon in the Railway Accounts Department (Cash Office). 'His duty was to accompany the Cashier to the hospitals, schools, workshops, etc. for the distribution of salaries. He used to carry the cash box and bag of money to the above mentioned places and used to bring back to the strong room. He was performing outdoor duties. One gunny bag's seal was found broken and money deficit. After enquiry, the respondent was removed from service on 4-7-1981. He filed a petition under section 25-A of the I. R. O., 1969 on 18-2-1982 which was accepted on the ground that no proper enquiry had been held. However, it was directed that since "the matter relates to embezzlement of a huge amount of public funds so the respondents can hold fresh inquiry in accordance with law". This is vide order, dated 4-1-1983. The petitioners challenged the order by means of an appeal and so did respondent No. 3 who had been denied back benefits. Both the appeals were dismissed by the learned Punjab Labour Appellate Tribunal vide order, dated 29-4-1984. This Constitutional petition has been filed on 5-1-1985.

2. Learned counsel for the petitioners has vehemently contended that the Tribunals of the Special jurisdiction were in error to hold that the respondent No. 3 was a `workman' and entitled to relief under the Industrial Relations Ordinance, 1969. He also contended that respondent No. 3 was a civil servant.

3. The learned Punjab Labour Appellate Tribunal has relied on the definition of a workman as given in section 2(n) of the Workmen's Compensation Act, 1923 which lays down that "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 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 any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II." It is quite obvious that respondent No. 3 was not employed in any administrative district or sub-divisional office. He was a peon carrying on errands ; "The expression `permanently employed' does not mean a railway servant who is permanently engaged as opposed to the one who is temporarily engaged and thus a peon, who in the course of his employment has to do outdoor work of delivering office post or other official errends, is not servant who is continuously or habitually working in the office and, therefore, falls within the ambit of the definition of a workman." In view of the facts found and the relevant law relied upon by the Punjab Labour Appellate Tribunal, its finding that the respondent No. 3 was a workman, is hardly open to question in these proceedings. The emphasis of the learned counsel for the petitioner that the respondent was a civil servant as defined in section 2(b) of the Civil Servants Act, 1973, a~ perusal thereof will show, is not quite apt. The definition of civil servant as given in the aforesaid provision is as under : "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, 1913 (VIII of 1923)." From the perusal thereof, it would be quite apparent that the respondent was not a civil servant because he was neither a member of an All-Pakistan Service or of a civil service of the Federation, or held a civil post in connection with the affairs of the Federation. He is an employee of the Pakistan Railways. Even the exclusion clause of the persons from the definition of a civil servant would also make it manifest that the respondent has been excluded because it is stated in sub-clause (iii) that a person who is a workman as defined under the Workman's Compensation Act, i not included in the definition of the civil servant. As seen above, the respondent was a `workman' according to the definition of the, Workmen' Compensation Act quoted above. Therefore, both positively as well as negatively the respondent does not fall in the category of persons who are defined as civil servants in the Civil Servants Act, 1973. This being so, the order of the Special Tribunal calls for no interference. Learned counsel referred to two decisions in Writ Petitions No. 472/78 and Civil Revision No. 1306/79 both of which rejected the claim of the then petitioners to be treated as workmen because they were found to be Head Clerks. Now it is obvious that it is the nature of the duty which makes a man whether he is holding an administrative office or is a workman. Therefore, the reliance of the learned counsel for the petitioner, on the aforesaid judgments is of no avail to him. A word may also be said that the respondent's petition against removal was accepted on 4-1-1983 with permission to the petitioners to hold fresh enquiry. Nearly 2J years have gone by and there is nothing on the record to show if the petitioners have held any enquiry. If the petitioners were inclined, they should have held the enquiry and if the respondent No. 3 were to be found guilty that would have ended the matter. But the learned counsel for the petitioners-persisted that the petitioners want a decision whether the respondent was a workman or not. Academic controversies are not raised in Courts. '

4. The learned counsel for the petitioners also contended that grievance notice given by the respondent to the petitioners was out of time and so also the petition under section 25-A of the I. R. O., 1969. A perusal of the appellate order impugned in this petition would show that no such plea was taken before the appellate Authority. No fresh ground, requiring enquiry into facts can be raised in these proceedings.

5. The last impugned order was passed on 29-4-1984. Constitutional petition was filed on 5-1-1985 In such like cases delay of nearly nine months is rather inordinate. Therefore, the petition suffers from laches a well. .

6. For the foregoing reasons, there is no force in this petition. It is accordingly dismissed in limine. M. B. A.????????? Petition dismissed. (d) Constitution of Pakistan (1973)- -- Art. 199-Laches--Service matter-Impugned order passed nearly nine months back-Delay of nine months in service matter being rather inordinate, petition, held, suffered from laches. S. A. Jabbar for Petitioner. ORDER ABDUL SHAKURUL SALAM, J.-Respondent No. 3 was a peon in the Railway Accounts Department (Cash Office). 'His duty was to accompany the Cashier to the hospitals, schools, workshops, etc. for the distribution of salaries. He used to carry the cash box and bag of money to the above mentioned places and used to bring back to the strong room. He was performing outdoor duties. One gunny bag's seal was found broken and money deficit. After enquiry, the respondent was removed from service on 4-7-1981. He filed a petition under section 25-A of the I. R. O., 1969 on 18-2-1982 which was accepted on the ground that no proper enquiry had been held. However, it was directed that since "the matter relates to embezzlement of a huge amount of public funds so the respondents can hold fresh inquiry in accordance with law". This is vide order, dated 4-1-1983. The petitioners challenged the order by means of an appeal and so did respondent No. 3 who had been denied back benefits. Both the appeals were dismissed by the learned Punjab Labour Appellate Tribunal vide order, dated 29-4-1984. This Constitutional petition has been filed on 5-1-1985.

2. Learned counsel for the petitioners has vehemently contended that the Tribunals of the Special jurisdiction were in error to hold that the respondent No. 3 was a `workman' and entitled to relief under the Industrial Relations Ordinance, 1969. He also contended that respondent No. 3 was a civil servant.

3. The learned Punjab Labour Appellate Tribunal has relied on the definition of a workman as given in section 2(n) of the Workmen's Compensation Act, 1923 which lays down that "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 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 any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II." It is quite obvious that respondent No. 3 was not employed in any administrative district or sub-divisional office. He was a peon carrying on errands ; "The expression `permanently employed' does not mean a railway servant who is permanently engaged as opposed to the one who is temporarily engaged and thus a peon, who in the course of his employment has to do outdoor work of delivering office post or other official errends, is not servant who is continuously or habitually working in the office and, therefore, falls within the ambit of the definition of a workman." In view of the facts found and the relevant law relied upon by the Punjab Labour Appellate Tribunal, its finding that the respondent No. 3 was a workman, is hardly open to question in these proceedings. The emphasis of the learned counsel for the petitioner that the respondent was a civil servant as defined in section 2(b) of the Civil Servants Act, 1973, a~ perusal thereof will show, is not quite apt. The definition of civil servant as given in the aforesaid provision is as under : "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, 1913 (VIII of 1923)." From the perusal thereof, it would be quite apparent that the respondent was not a civil servant because he was neither a member of an All-Pakistan Service or of a civil service of the Federation, or held a civil post in connection with the affairs of the Federation. He is an employee of the Pakistan Railways. Even the exclusion clause of the persons from the definition of a civil servant would also make it manifest that the respondent has been excluded because it is stated in sub-clause (iii) that a person who is a workman as defined under the Workman's Compensation Act, i not included in the definition of the civil servant. As seen above, the respondent was a `workman' according to the definition of the, Workmen' Compensation Act quoted above. Therefore, both positively as well as negatively the respondent does not fall in the category of persons who are defined as civil servants in the Civil Servants Act, 1973. This being so, the order of the Special Tribunal calls for no interference. Learned counsel referred to two decisions in Writ Petitions No. 472/78 and Civil Revision No. 1306/79 both of which rejected the claim of the then petitioners to be treated as workmen because they were found to be Head Clerks. Now it is obvious that it is the nature of the duty which makes a man whether he is holding an administrative office or is a workman. Therefore, the reliance of the learned counsel for the petitioner, on the aforesaid judgments is of no avail to him. A word may also be said that the respondent's petition against removal was accepted on 4-1-1983 with permission to the petitioners to hold fresh enquiry. Nearly 2J years have gone by and there is nothing on the record to show if the petitioners have held any enquiry. If the petitioners were inclined, they should have held the enquiry and if the respondent No. 3 were to be found guilty that would have ended the matter. But the learned counsel for the petitioners-persisted that the petitioners want a decision whether the respondent was a workman or not. Academic controversies are not raised in Courts. '

4. The learned counsel for the petitioners also contended that grievance notice given by the respondent to the petitioners was out of time and so also the petition under section 25-A of the I. R. O., 1969. A perusal of the appellate order impugned in this petition would show that no such plea was taken before the appellate Authority. No fresh ground, requiring enquiry into facts can be raised in these proceedings.

5. The last impugned order was passed on 29-4-1984. Constitutional petition was filed on 5-1-1985 In such like cases delay of nearly nine months is rather inordinate. Therefore, the petition suffers from laches a well. .

6. For the foregoing reasons, there is no force in this petition. It is accordingly dismissed in limine. M. B. A.????????? Petition dismissed. S. A. Jabbar for Petitioner. ABDUL SHAKURUL SALAM, J.-Respondent No. 3 was a peon in the Railway Accounts Department (Cash Office). 'His duty was to accompany the Cashier to the hospitals, schools, workshops, etc. for the distribution of salaries. He used to carry the cash box and bag of money to the above mentioned places and used to bring back to the strong room. He was performing outdoor duties. One gunny bag's seal was found broken and money deficit. After enquiry, the respondent was removed from service on 4-7-1981. He filed a petition under section 25-A of the I. R. O., 1969 on 18-2-1982 which was accepted on the ground that no proper enquiry had been held. However, it was directed that since "the matter relates to embezzlement of a huge amount of public funds so the respondents can hold fresh inquiry in accordance with law". This is vide order, dated 4-1-1983. The petitioners challenged the order by means of an appeal and so did respondent No. 3 who had been denied back benefits. Both the appeals were dismissed by the learned Punjab Labour Appellate Tribunal vide order, dated 29-4-1984. This Constitutional petition has been filed on 5-1-1985.

2. Learned counsel for the petitioners has vehemently contended that the Tribunals of the Special jurisdiction were in error to hold that the respondent No. 3 was a `workman' and entitled to relief under the Industrial Relations Ordinance, 1969. He also contended that respondent No. 3 was a civil servant.

3. The learned Punjab Labour Appellate Tribunal has relied on the definition of a workman as given in section 2(n) of the Workmen's Compensation Act, 1923 which lays down that "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 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 any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II." It is quite obvious that respondent No. 3 was not employed in any administrative district or sub-divisional office. He was a peon carrying on errands ; "The expression `permanently employed' does not mean a railway servant who is permanently engaged as opposed to the one who is temporarily engaged and thus a peon, who in the course of his employment has to do outdoor work of delivering office post or other official errends, is not servant who is continuously or habitually working in the office and, therefore, falls within the ambit of the definition of a workman." In view of the facts found and the relevant law relied upon by the Punjab Labour Appellate Tribunal, its finding that the respondent No. 3 was a workman, is hardly open to question in these proceedings. The emphasis of the learned counsel for the petitioner that the respondent was a civil servant as defined in section 2(b) of the Civil Servants Act, 1973, a~ perusal thereof will show, is not quite apt. The definition of civil servant as given in the aforesaid provision is as under : "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, 1913 (VIII of 1923)." From the perusal thereof, it would be quite apparent that the respondent was not a civil servant because he was neither a member of an All-Pakistan Service or of a civil service of the Federation, or held a civil post in connection with the affairs of the Federation. He is an employee of the Pakistan Railways. Even the exclusion clause of the persons from the definition of a civil servant would also make it manifest that the respondent has been excluded because it is stated in sub-clause (iii) that a person who is a workman as defined under the Workman's Compensation Act, i not included in the definition of the civil servant. As seen above, the respondent was a `workman' according to the definition of the, Workmen' Compensation Act quoted above. Therefore, both positively as well as negatively the respondent does not fall in the category of persons who are defined as civil servants in the Civil Servants Act, 1973. This being so, the order of the Special Tribunal calls for no interference. Learned counsel referred to two decisions in Writ Petitions No. 472/78 and Civil Revision No. 1306/79 both of which rejected the claim of the then petitioners to be treated as workmen because they were found to be Head Clerks. Now it is obvious that it is the nature of the duty which makes a man whether he is holding an administrative office or is a workman. Therefore, the reliance of the learned counsel for the petitioner, on the aforesaid judgments is of no avail to him. A word may also be said that the respondent's petition against removal was accepted on 4-1-1983 with permission to the petitioners to hold fresh enquiry. Nearly 2J years have gone by and there is nothing on the record to show if the petitioners have held any enquiry. If the petitioners were inclined, they should have held the enquiry and if the respondent No. 3 were to be found guilty that would have ended the matter. But the learned counsel for the petitioners-persisted that the petitioners want a decision whether the respondent was a workman or not. Academic controversies are not raised in Courts. '

4. The learned counsel for the petitioners also contended that grievance notice given by the respondent to the petitioners was out of time and so also the petition under section 25-A of the I. R. O., 1969. A perusal of the appellate order impugned in this petition would show that no such plea was taken before the appellate Authority. No fresh ground, requiring enquiry into facts can be raised in these proceedings.

5. The last impugned order was passed on 29-4-1984. Constitutional petition was filed on 5-1-1985 In such like cases delay of nearly nine months is rather inordinate. Therefore, the petition suffers from laches a well. .

6. For the foregoing reasons, there is no force in this petition. It is accordingly dismissed in limine. M. B. A.????????? Petition dismissed.