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Appeal No. LHR‑176 of 1980, decided on 28th June, 1982.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑‑ S. 1 (4) and Industrial Relations Ordinance (XXIII of 1969), Ss. 2 (xxviii), 25‑A & 38 (3)‑Post offices‑Being run by Govern ment‑Employees of post offices governed by Civil Servants Rules‑Not within ambit of West Pakistan Industrial and Commer cial Employment (Standing Orders) Ordinance, 1968‑Postman Covered by cl. (xiii), Sched. II read with S. 2 (n) of Workmen's Compensation Act, 1923 hence ousted from definition of "civil servant" under S. 2 (b) of Civil Servants Act, 1973‑Being a workman within jurisdiction of Labour Court‑Dismissal from service under Government Servants Efficiency and Discipline Rules, 1973 challenged before Labour Court‑No proof that enquiry held properly with opportunity to accused to cross‑examine witnesses Labour Court in circumstances, held, rightly awarded re‑instatement allowing the department to make fresh enquiry. ‑

Zia Mahmood Mirza for Appellant.

Nemo for Respondent.

Date of hearing : 14th June, 1982.

This appeal arises from the decision dated 5th February, 1980 passed by the learned Presiding Officer, Punjab Labour Court No. 3, Lahore at Ferozewala, whereby the grievance petition of the respondent was accepted and he was directed to be re‑instated in service without back benefits, observing that the order passed by him would not debar the appellant from holding fresh enquiry against the respondent on the same charge, if otherwise not forbidden by any law.

2. The respondent was a postman at Sharakpur and the allegation against him is that on 27th April, 1976 he without any authority opened a parcel containing answer books of the Intermediate Examination. A preliminary enquiry was made and, thereafter, the respondent was charge sheeted. The learned trial Judge has re‑instated the respondent on the sole ground that the enquiry was made under the Efficiency and Discipline Rules and not under the Standing Orders Ordinance, 1968, although he held that otherwise the enquiry was properly made.

3. It has been argued by the learned counsel for the appellant that Stan ding Orders Ordinance, 1963 is not applicable according to the proviso to section 1 (4) of the said Ordinance. The objection is well‑founded. The post offices are run by the Government and since civil servants rules are applicable, therefore, both the conditions laid down in proviso to sec tion 1 (4) stand fulfilled. The enquiry, therefore, according to the Efficiency and Discipline Rules was rightly made.

4. The learned counsel for the appellant has raised a question that the appellant is a civil servant. Such an objection cannot be raised in the written statement but the learned counsel says that this is a question of law involving the jurisdiction of the Court and, therefore, can be raised even at the appellate stage. The question may be examined elaborately in some other case, but so far as the present case is concerned, suffice it to say that a postman is covered by clause (xiii) of Schedule‑II read with section 2 (n) of the Workmen's Compensation Act and thus the postman is covered by the definition of workman and stands ousted from the defi nition of civil servant. Neither the enquiry file is on the record nor the Enquiry Officer was examined. The learned counsel for the appellant says that Muhammad Jamil (R. W. 1) stated before the lower Court that full opportunity of defence was given to the respondent. Since he was not the Enquiry Officer and even was not present at the time of enquiry, his state ment that full opportunity was given to the respondent cannot be accepted. Since the enquiry proceedings are not on the record, it cannot be said whether they were made properly and the respondent was given full opportunity to cross‑examine the witnesses and to produce his defence. In these circumstances, the learned lower Court rightly directed the reinstate ment of the respondent allowing the appellant to make fresh enquiry, if they so liked. There is no force in the appeal, which is dismissed.

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