1990 PLP 716 (PLC)

‑‑‑S. 37‑‑‑Appeal‑‑‑Cross‑objections do not lie where appeal lies‑‑‑Workman awarded reinstatement without back benefits‑‑‑Order of Labour Court challenged in appeal by employer‑‑‑Workman cannot demand back benefits in his cross -objections. M. Azam Bhaur for Appellant. H.R. Haider for Respondent. Date of hearing: 18th June, 1989. The appeal captioned above emerges from the decision dated 1‑3‑1989 recorded by the learned Presiding Officer, Punjab Labour Court No. 5, Sargodha, whereby the respondent has been directed to be put on duty without back benefits.

2. The respondent was a waterman/baildar in the appellant Institute. He is alleged to have committed sodomy with a boy namely Irfan son of Muhammad Ramzan on 13‑10‑1986. He was charge‑sheeted and after holding an inquiry was dismissed from service. Cross‑objections have also been filed by the respondent for claiming back benefits. The inquiry was not properly, held, inasmuch as the statements of the witnesses were not recorded and only their affidavits were accepted by the Inquiry Officer. The respondent was not allowed opportunity of cross‑examination over the persons who had filed their affidavits.

3. It has been argued by the learned counsel for the appellant, as it was argued before the learned lower Court, that the respondent was a civil servant and thus the Labour Court had no jurisdiction. The learned lower Court has rightly held after examining the definition of civil servant that the respondent was not a civil servant. According to the definition, that person is covered by the definition who is a member of the civil service of the Province or who holds a civil post in connection with the affairs of the Province. The employees who are P.C.S. are members of the civil service of the Province and this is not the case of the appellant that the respondent was a P.C.S. officer. The other clause was not applicable. The respondent was not employed in connection with the affairs of the Province. Affairs of the Government are those which cannot be performed by any other private person or body. The respondent is employed in the Agricultural Training Institute run by the Agriculture Department. There is no restriction upon running and maintaining Agricultural Training Institutes. If the Government does any work which every person in the street is entitled to do, such a work done by the Government would not come in the affairs of the Province. The respondent was a waterman/baildar and the duties performed by him can, by no stretch of imagination, be treated to be affairs of the Province. So, the respondent was not covered by the definition of civil servant, He being waterman/baildar is not obviously covered by the definition of employer or supervisor. So, he is a workman as defined in section 2(xxviii) of the Industrial Relations Ordinance, 1969. Since the Agriculture Department which is running the appellant institute is a department of the Government, therefore, Standing Orders Ordinance, 1968 does not apply. 'Needless to say that Government Servants (Efficiency and Discipline) Rules, 1975 apply to the Government servants. The respondent being employed in the Department of the Government is a Government servant and thus is governed by the Government Servants (Efficiency and Discipline) Rules. Thus, both the conditions contained in the first proviso to section 1(4)(c) of Standing Orders Ordinance stand satisfied. Therefore, the definition given in section 2(i) is not relevant to the case. Since inquiry was not properly held and the respondent was not afforded opportunity of cross‑examination, he was wrongly found guilty on the evidence produced during the enquiry and the learned lower Court has rightly directed the reinstatement of the respondent in service.

4. So far as cross‑objections are concerned, they do not lie, because in cases where back benefits have not been allowed, the employee concerned has a right of appeal. In cases where appeal lies, cross‑objections do not lie. Even otherwise the respondent is not entitled to back benefits since he did not urge that he remained jobless during the period of his dismissal.

5. As a result, the appeal as well as cross‑objections are dismissed. A.E./694/Lb. P Appeal and cross‑objection dismissed.