1980 PLP (C (PLC(CS))

5. As regards the status of the appellant being a civil servant the plea taken by the respondents that be is a worker or workman has no sub stance. No doubt under sub‑clause (iii) of sub‑clause (b) of subsection of section 2 of the Civil Servants Act, 1973 worker or workman excluded from the definition of a civil servant, nevertheless it is not estab lished that the appellant is either a worker or a workman. The defini tion of worker is given in clause (h) of section 2 of the Factories Act, 1934 and it reads as follows :‑ "Worker" means a person employed (directly or through an agency) whether for wages or not, in any manufacturing pro cess, or in cleaning any part of the machinery or premises used for a manufacturing process or any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any persons solely employed in a clerical capacity in room place where no manufacturing process is being carried on." The above definition shows that for being a worker the person should be employed in any manufacturing process or in cleaning any part of the machinery or premises used for manufacturing process or he should be working in any other kind of work whatsoever incidental to or connected with the subject of manufacturing process. The appellant was a Security Supervisor and as such by no stretch of imagination he was connected with the manufacturing process in the factory. In fact there is a certificate by the Commandant of Central M. T. & Stores Depot dated 29th March, 1978 which is to the effect that Mr. Shah Abdul Hamid was employee of the department. That he was performing duties of Security Supervisor in the installation and his duties were of administrative nature. It was further certified that he was not dealing with any part of machinery or premises used for manufacturing process. This certificate itself negates the contention of the respondents that the appellant was a worker within, the meaning of the term as given in Factories Act, 1934.

6. The term "workman" is defined in clause (n) of subsection (1) of section 2 of the Workmen's Compensation Act, 1923. This is as under :‑‑ "Workman" means any person (other than a person whose employment is of a casual nature and who is employed other wise than for the purpose of the employer's trade or business) who is‑‑ (i) a railway servant as defined in section 3 of the Railway 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: (ii) employed on monthly wages not exceeding (one thousand) rupees in any such capacity as is specified in Schedule II." Reading the aforesaid clause with Schedule II to the Act, it is evident that the appellant is not covered by the definition of the workman though his salary might be less than rupees one thousand. The prelimi nary objection that the appellant is not a civil servant being a worker or workman, therefore, cannot be sustained and we hold that the appellant is a civil servant within the definition of Civil Servants Act, 1973 and as such has a right of appeal to the Tribunal under section 4 of the Service Tribunals Act. 1973.

7. Coming to the facts of the case and after examining the record we find that in the "Medical Certificate for the Civilian in Military Employees" relating to the appellant in item 17 the following opinion was given :‑ "He is suffering Epigastric Hernia (O. P.) Effect of (550) and in consequence thereof is considered permanently unfit liability for filed service for further service of any kind in C. M. T. & S. D. Depott." It is not disputed that the appellant had been operated upon for Epigastic Hernia and was given only four weeks rest. The above opinion is negated by the certificate of Major General Shaukat Hassan who is renowned Surgeon of the Combined Military Hospital. The later view could be preferred but since the certificate was obtained voluntarily and not on any reference from any authority, no action can be taken thereon by this Tribunal. However, this certificate does cast a doubt on the opinion of the Medical Board as confirmed that the appellant has been permanently invalidated. C. S. R. 443 which is relevant in this case can be referred to with advantage. This reads as follow :‑ "443.‑‑(x) A succinct statement of the medical case, and of the treatment adopted, should, if possible, be appended. (b) If the Examining Medical Officer, although unable to discover any specific disease in the officer, considers him incapacitated for further service by general ability while still under the age of fifty‑five years, he should give detailed reasons for his opinion and, if possible, a second medical opinion should always to such case be obtained. (e) In a case of this kind, special explanation will be excepted froze the head of the office or department of the grounds on which it is proposed to invalid tire officer." The provisions of the above rule, as the wording thereof show, are to the effect that when no specific disease is discovered detailed reasons for the opinion should be given and if possible a second medical opinion should always in such case be obtained where the employee is below the age of fifty‑five years. This rule appears to have been made in order to check uncalled far invalidation anal thus causing disadvantage to the Govern ment exchequer. The opinion of the Board is very brief and no detailed reasons as made mandatory in C. S. R. 443 have been given. No doubt the appellant had been suffering from Epigastic Hernia but he wa3 operated upon. He might have some complaint of abdominal plains as pointed out by the learned counsel for the respondent but that complaint unless specifically digonised should not be taken as disease rendering the appellant invalidated and unfit for retention in service. The inten tion of the rule is that special care should be taken in such cases when the employee is below the age of 55 years. It is clear that the rule requires detailed reasons for the: opinion arid a reference to the second medical opinion. In the present case we are of the view that the reasons given by the Board on which action had been taken were not detailed or sufficient for invalidating the appellant and that if he was complaining of any abnormality which could nest be detected second medical opinion should have been obtained.

8. In view of the above facts we accept this appeal and set aside the order of invalidation of the appellant and direct that he should be referred for a second medical opinion and the final decision should be taken thereon afterward. If the second Medical Board after careful con sideration still holds the appellant to be unfit for retention in service the appellant shall have to be considered to have been invalidated. If however the appellant is found to be fit to work as Security Supervisor then he should be considered to have been re‑instated from the date of his invali dation and in that case the retirement benefits already obtained by him shall have to be refunded by him to the Government and instead he should be considered to be in service entitled to normal salary etc. which would have been payable to him had he not been invalidated.

9. Parties to be informed accordingly. Appeal accepted.