' The appeal captioned above emanates from the decision, dated 30th June, 1983 recorded by the learned Presiding Officer, Punjab Labour Court No, 1, Lahore, whereby the respondents were directed to be allowed to continue in service till they are terminated in accordance with law.
2. The learned counsel for the appellants has raised such points in arguments that were not taken up in the written statement. It is too late to urge such points for the first time. They are such that without evidence they cannot be resolved. The first point raised by him is that in view of section 1
(3) (a) of the Industrial Relations Ordinance, 1969, the said Ordinance is not applicable. He says that this is a legal point. No, this is not a pure question of law but is a mixed question of fact and law. Clause (a) reads as "the Police or Defence Services of Pakistan or any services or installations connected with or incidental to the Armed Forces of Pakistan... . ...". According to the evidence on record, the respondents work for the constructions of buildings and roads. There is no evidence that the said buildings and roads are meant for Defence Services or that the respondents are employed in the service or installation connected with or incidental to the Armed Forces. If such a point had been raised in the written statement, the respondent may have ,led evidence to show that they had no connection with such services or installations, or that the roads and buildings had no connection with the Defence Services of Pakistan. If without any material it is held that section 1
(3) (a) applies, it would amount to more surmises and speculations not supported by any material on the record. He was asked to point out some material in support of his arguments but since the case was not fought with this point of view, he failed to show any material. Merely because the Defence Secretary defended the grievance petition and was party would not be sufficient to say that section 1 (3) (a) of the Industrial Relations Ordinance, 1969 applies.
3. The other point argued by the learned counsel is that Standing Orders Ordinance, 1968 is not applicable. This point too was not raised in the written statement. The respondent cannot be allowed to be surprised unaware. It does not stand established that Standing Orders Ordinance, 1968 is not applicable. In the affidavits the respondents had asserted that their rights were protected by Standing Orders Ordinance, 1968 but in spite of it, it was not contended in the written statement that Standing Orders Ordinance, 1968 was not applicable. Even otherwise, there is no force in this argument. According to first proviso to section 1 (4) (c) of the Standing Orders Ordinance, 1968 there are two conditions for the non-application of the said Ordinance-one is that the establishment concerned must be running by or under the authority of Federal or any Provincial Government and the other is that such an establishment should have its own statutory rules of service, conduct or discipline. Since the Federal Government has been sued through the Deferce Secretary, it may be said that either the Federal Government itself is running the construction industry or that it is being run with its authority but the second ingredient is absent.
Statutory rules are those that have been framed under any statute and have been notified in the official Gazette. Copy of Rules Exh. R-3/164 does not reveal that these rules were framed under any provision of an enactment. It also does not show that they were duly notified in any official Gazette.
There is no evidence on the record to this effect. So Standing Orders Ordinance, 1968 does apply.
4. The other point argued is that the respondents are civil servants. The term 'civil servants' is defined in section 2 (1) (b) of the Civil Servants Act. The subsection has three exceptions and the respondents fall in exceptions (ii) and (iii). In the written statement it is mentioned that the respondents are work-charged employees. According to exception (ii), work-charged employees are not civil servants. So they are not civil servants. They do construction work with their own hands and thus are workers as defined in section 2 (i) of the Standing Orders Ordinance, 1968. They are workers even as defined in section 2 (xxviii) of the Industrial Relations Ordinance, 1969, according to the nature of their duties given in their affidavits and evidence. No other point has been argued.
5. R. W.-I has said that the posts of work mistries were abolished for the future. In order of abolition too, it is said so. R. W.-1 says that it means that in future no work mistry will be employed. But the respondent were in service before the order of abolition for the future was issued. So they could not be terminated, unless the posts held by them are for good and cogent reasons abolished.
6. The respondents admitted that they have not passed departmental examination but no rule has been shown, nor such a point had been argued by the learned counsel for the appellant that passing of departmental examination is necessary. So the respondents were rightly directed to be allowed to continue in service till they are legally terminated.
7. As a result, the appeal having no force is dismissed.