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Appeal No. RI‑411 of 1983, decided on 22nd ‑April, 1984.

‑‑Ss. 2 (xxviii) & 25‑A read with Civil Servants Act (LXXI of 1973), S. 2 and Workmen's Compensation Act (VIII of 1923), S. 2 (n) "Workman"‑"Civil servant"‑Railway employee a clerk in Loco Shed‑Cannot be said to have been employed in any administration, district or Sub‑Divisional Office ‑Covered by exceptions of "Civil servant" in S. 2 (c) of Civil Servants Act, 1973‑A workman entitled to file grievance petition before Labour Court.

P L D 1981 S C 172 distinguished.

Ch. Muhammad Yousaf for Appellant.

Nemo for Respondent.,

Date of hearing : 16th May, 1984.

This is an appeal preferred against the decision, dated 4th July, 1983 recorded by the learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi, allowing the grievance petition of the respondent for, his rein statement in service.

2. The allegation for which the respondent was dismissed from service was that he had prepared bogus bills in fictitious names. The learned lower Court has found that the respondent is not a civil servant but a workman and set aside the punishment of dismissal on the ground that the Enquiry Committee did not show the disputed bills to the respondent on his demand and that it relied upon the finding of the previous Enquiry Committee.

3. It has been argued by the learned counsel for the appellant citing P L D 1981 S C 172 that the respondent has been wrongly held by the learned lower Court as a workman. He says that as the respondent was at the relevant time doing clerical work he was a civil servant. The ruling cited by the learned counsel for the appellant was rightly distinguished by the learned lower Court. The employee in that case, no doubt, was a ticket collector employed upon railway but at the relevant time was not acting as such and was working as a clerk in the office of the Station Master, but tie case of the respondent is different. He was U. D. C. in the Loco Shed. The person who falls within the definition of workman as defined in section 2 of the Factories Act or section 2 (n) of the Work men's Compensation Act, is not a civil servant according to section 2 (e) of the Civil Servants Act, 1973. The respondent does not fall within the definition of workman given in section 2 (g) of the Factories Act but falls within the definition of workman given in section 2 (n) of the Workmen's Compensation Act. The definition goes 11(i) employed as a Railway Servant as defined in section 3 of the Railways Act not perma nently employed in any administration, district of sub‑Divisional Office of a Railway and not employed in any such capacity as is specified in Schedule II ; (ii) or employed on monthly wages not exceeding Rs. 1,000 in any such capacity as is specified in Schedule‑II". Since the respondent is admittedly an employee of the Railway, so be is a railway servant as defined in section 3 of the Railways Act. Since he is in the Loco Shed, he cannot be said to have been employed in any administration, district or Sub‑Divisional Office. So, he falls in section 2 (n) (i) of the Workmen's Compensation Act. This is not the case of the appellant that the pay of the respondent exceedes Rs. 1,000 so he comes under section 2 (n) (ii) also. So, he comes within the exceptions of the definition of civil servant as defined in section 2 (c) 'of the Civil Servants Act, 1973 and thus is not a civil servant.

4. On merits too the respondent has a good case. The enquiry has not been made properly. No prosecution evidence was recorded, so much so that even the bogus document alleged to have been prepared by the respon dent was neither seen by the Enquiry Committee nor was shown to the respondent on his genuine demand. Since the respondent did not admit the preparation of any bogus bill, the allegation should have been proved by cogent evidence. This could be possible if the document had been before the Enquiry Committee and any witness had deposed either that he had seen the respondent preparing it or that he being familiar with the handwriting and signatures of the respondent have said that it was in his handwriting or was bearing his signatures. So, the charge was not proved and the respondent was rightly directed to be re‑instated in service by the learned lower Court.

5. As a result, I do not find any force in the appeal and, dismiss the same.

A. E. Appeal dismissed.

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