M. S. H. QURESHI, J: In the result of a Department action, respondent Muhammad Allauddin, a Ward Keeper in the Loco Stores Depot in the office of the District Controller of Stores, Pakistan Railways, Mughalpura, was by order dated 23-7-1974, reduced to the lower post 'of Ledger keeper and also required to refund. Rs. 19,476.22 being the cost of material found to have been misappropriated by him. He challenged the action by a suit which was decreed in his favour on 14-3-1977. The Department's appeal before the Additional District Judge, Lahore, and Civil Revision in the High Court having failed they have filed this petition for leave to appeal.
2. It is urged that .The respondent was a civil servant as such civil Court had bad no jurisdiction in the matter. On this point, an issue had been framed which is Issue No. 5, but the Department, it appears did not contest it before the trial Court, because the finding of that Court is "the plaintiff admittedly a workman, as he is attached to shop depot of Pakistan Railways, Mughalpura". The trial Court further found that "the nature of his duties is such that he is doing manual work and as such he does not come within the definition of a civil servant". The appellate Court, before which the point was re-agitated upheld the finding for the reason that the respondent worked in Loco Shop within the four walls of Railway Workshop, that he was not `permanently employed in any administrative district or sub-- divisional office and that he was drawing less than Rs. 1,000 per mensem. The appellate Court also relied on an official Letter No. 971-S/3-Il dated 30-10-1942, in which it was stated that `Ward Keepers are workmen under the Factories Act'. Before the High Court, the Department has relied on the duties of ward keepers as specified in paragraph 1233 of the Railways Code for Stores Department to contend that the respondent was not employed in connection with any manufacturing process. The contention, however, did not prevail, as the learned Judge of the High Court found that the question whether he was employed in connection with any manufacturing process was one of fact and the Department had led no evidence whatsoever before the trial Court in this regard, although the onus had been placed on them. The learned Judge, however, observed that the official letter dated 30-10-1942 should not have been relied upon by the appellate Court as the same had not been duly proved.
3. After hearing learned counsel, we find that the question whether the respondent was a civil servant or a worker was at best a mixed one of fact and law and as the factual basis had not been furnished by proper and adequate evidence, the High Court was not unjustified in refusing to interfere with the concurrent finding of the Courts below.
4. Learned Counsel then raised the question that even if the respondent be held to be a worker, he could not maintain the civil action because his remedy lay before a Labour Court under section 25- A of the Industrial Relations Ordinance. Unfortunately, this point had not been raised any time before not even in this petition, and as such cannot be permitted to be raised for the first time now.
The petition is dismissed.