' Mazhar Ali Khan, the petitioner in this revision petition under section 115, C. P. C., has called into question the judgment and decree dated 22nd November, 1980 of the learned Additional District Judge, Lahore, dismissing the suit filed by the petitioner for a declaration to the effect that the impugned order terminating the service of the petitioner was illegal, ultra vires, mala fide and without jurisdiction, and consequently the petitioner continues to be in service with all benefits appertaining to the post of Senior Electrician. The aforesaid declaration was sought on the assertions that the petitioner was appointed as Electrician on 8th January, 1973 by Provincial Chief M. C. P. (Malaria Control Programmed) and was subsequently confirmed and then was promoted to the post of Senior Electrician. It was also mentioned in the plaint that Malaria Control Programmed, Punjab was brought under the direct control and administration of. Punjab Health Department and as such the Province of Punjab through Health Secretary as well as the Director Health were being impleaded as defendants in the suit.
2. The order of termination of service dated 24th May, 1977 came to be passed as the petitioner failed to resume duty despite directions given vide letter dated 29th May, 1977 where under leave applied for was refused and the petitioner was informed that on his failure to resume duty, his services will be terminated without any further notice and so he should return to Pakistan and resume duty immediately. The petitioner had gone to Masqat on Ex-Pakistan leave granted, for a period of one month only vide letter dated 31st August, 1976 (Exh. P. 3). This leave was further extended on petitioner's request vide letter dated 10th February, 1977 (Exh. P. 4) for a period of six months commencing from 3rd October, 1976 to 13th April, 1977. The petitioner again on 28th March, 1977 applied for further extension of leave for three months but this time the leave was refused as indicated above vide letter dated 29th April, 1977. The petitioner, it is asserted could not return to Pakistan earlier to 13th June, 1977 due to illness and non-availability of seat in the plane, and therefore, he reported for duty on 14th June, 1977 when he was informed that his services had already been terminated. The petitioner filed representation as well as appeal against the order of termination but none could achieve the desired result. This led to the filing of the declaratory suit on 3rd October, 1977 and the same was resisted by the respondents inter alia on the ground that the Civil Court had no jurisdiction to try the suit. During trial the Provincial Government was not defended properly as the counsel engaged except for submitting the written statement failed even to appear before the Court on various dates. Neither any evidence was produced nor did the counsel appear to argue the case on behalf of the defendants. The learned Civil Judge, however, vide judgment and decree dated 16th February, 1980 decreed the suit and on the question of jurisdiction it was held by him that the petitioner/plaintiff being electrician getting Rs, 311 was neither a civil servant nor worker but he was covered by the definition of "workman" as given in Workmen's Compensation Act, read with clause XIX of Schedule II thereof and that the said Act does not bar the Jurisdiction of the Civil Court.
3. On appeal, the learned Additional District Judge, Lahore held that the petitioner was neither a "worker" nor "workman" but was holding a civil post in connection with the affairs of the province and as such he being a civil servant the Civil Services Tribunal had exclusive jurisdiction in the matter and that jurisdiction of the Civil Courts was barred. The decree granting the declaration as prayed was thus reversed and the suit 'was dismissed. It is this decree of dismissal of suit which is under challenge in this revision petition.
4. The main and the only plea raised before me by the learned counsel for the petitioner was that the petitioner was not a civil servant but was a "workman" as held by the trial Court. It was argued that the ouster of jurisdiction is not to be inferred lightly as there is no provision of law expressly barring the jurisdiction of Civil Courts. In reply learned counsel for the respondents submitted that the petitioner is not a civil servant but a "worker" as defined by section 2(xxviii) of Industrial Relations Ordinance. 1969 and that the suit is impliedly barred on the principle of law that where a Special Tribunal or a Public Body is created by or under the authority of an Act of the Legislature for the purpose of determining rights which are criterion of the Act, then the jurisdiction of that Tribunal or of that Body, unless provided otherwise. Is exclusive and Civil Courts cannot take cognizance of such matters. It was submitted relying on the above-stated principle that Civil Courts' jurisdiction stands impliedly barred as section 25-A of the Industrial Relations Ordinance provides machinery for redress of the grievance made in the suit.
5. It is pertinent to mention that the learned trial Judge granted the declaration after recording the conclusion that the petitioner was "workman" by making a reference to the definition given of the said term in the Workmen's Compensation Act, 1923. The learned Additional District Judge on the other hand returned the finding that the petitioner was a "civil servant" as he was of the view that the employment of the petitioner does not fall within the connotation of the term "workman" as defined in the Workmen's Compensation Act, 1923. The learned trial Court as well as the first appellate Court recorded the respective views by proceeding to tackle the problem from an incorrect angle. Both the learned Judges proceeded to examine the nature of employment, of the petitioner by making reference to the definition of civil servant as given in the Punjab Civil Servants Act, 1974. This approach was misconceived. The status of a person or the nature of his employment is to be determined with reference to the averments made in the pleadings and ultimately established on record. The applicability of law, on the facts so found and established, is then to be determined. In the instant easel both the learned Courts below did not at all refer to the averments made in the pleadings or to the facts, established on record. The term 'Workman" was held by the learned Additional District Judge to be inapplicable on the basis of assumptions and conjectures as no factual basis existed in the record for making the following observation :- "The plaintiff was an employee as electrician with the Health Department and his duty was to repair the electric appliances of the office and he had nothing to do with any manufacture etc. Of any goods or he has to perform his duty with regard to operation of any machine, therefore, he was neither a "worker" nor a "workman" and he was holding civil post in connection with the affairs of the Province he was a civil servant."
' It will be noted that in the plaint the averments made were only to the extent that the petitioner was employed as an electrician on 8th January, 1963 by the Provincial Chief M. C. P. (Malaria Control Programme) and was subsequently confirmed and the said programme was brought under the direct control and administration of Punjab Health Department, In evidence, letter of appointment dated 7th January, 1963 was produced as Exh. P. 7 through Ashiq Hussain, clerk, Office of the Director Health (P. W. 1) who in his statement further deposed that the job of the petitioner was not clerical but technical as he used to perform manual work and that Malaria Control Programme had come under the control of Secretary, Health, and the disciplinary rules of the Punjab Government were applicable to the petitioner. The petitioner/plaintiff in his own statement did not say anything about his job, the nature of his work or the duties to be performed by him as an Electrician. A reference at this stage may be made to Exh. P. 7 the appointment letter, clause 4 of which reads as under :-
4. His services may be terminated :-
(i) On 15 days' notice or 15 days' pay in lieu thereof during the probationary period, without giving any reason or without observing any formality ;
(ii) on 30 days' notice or 30 days' pay in lieu thereof, during the contract period after the successful completion of the probationary period without giving any reason or observing any formality ; and
(iii) without any previous notice and without observing any formality if he is guilty of any insubordination, intemporance, misconduct or absence from duty without permission, of which this Administration will be the sole judge. No cause for legal or other action shall lie against the Administration for termination of his services under this clause.
On the basis of the aforenoted evidence on record there was hardly any material to hold that the petitioner was a civil servant. Two facts which emerge from the evidence on record were that the petitioner was employed on contract basis on a job which was not clerical one. It will therefore be seen that sufficient material was not available on record on the question of nature of the job of the petitioner and as such the applicability of the provisions of Industrial Relations Ordinance or Workmen's B Compensation Act cannot possibly be determined. On the other hand, as per letter of appointment Exh. P. 7 the job was contractual one. The learned Additional District Judge was, therefore not right in holding that the petitioner was a civil servant. This does not mean that the learned trial Judge was right in decreeing the suit as it was incumbent upon him to consider the question whether a Civil Court can grant the declaration prayed for. To my mind the petitioner was not entitled to the grant of the declaration under section 42 of the Specific Relief Act. It is well established that a declaration cannot be sought in respect of rights reserved and liabilities incurred under a contract of service as the afore--said section applies only to a "legal character" or "status" apart from the contract. "Legal character" or "status" denotes a character or C status conferred by law and not the one created by a contract. See Barmah East Ltd. v. Barmah Eastern Employees (I). The rights and liabilities under the service contract (Exh. P. 7) could not, therefore, form subject-matter of a declaratory suit under the Specific Relief Act.
5. The result of the above discussion is that decree of dismissal of suit passed by the Additional District Judge is maintained on the reasons different from the one given by the Appellate Court.
The revision petition is, therefore, dismissed leaving the parties to bear their own costs.