' The two appeals captioned above arise from the decision, dated 4th January, 1983 passed by the learned Presiding Officer, Punjab Labour Court No, 2, Lahore, whereby Qamar Din (hereinafter to be called the respondent) was directed to be re-instated in service without back benefits leaving Pakistan Railways (hereinafter to be described as the appellant) at liberty to hold fresh enquiry.
Pakistan Railways has challenged the direction of re-instatement of the respondent, whereas the respondent in his appeal has claimed back b benefits. Since both the appeals arise from the same decision, they are being disposed of together through this Single judgment.
2. The respondent was a peon in Railways Accounts Department (Cash Office). He used to bring from and place black in the strong room cash box and gunny bag containing currency notes. On 15th December, 1978 he had as usual placed the cash box and the sealed gunny bag in the strong room but on 16th December, 1978 the seal of the gunny bag was found broken and the cash was deficit by Rs, 1,27,645. The respondent was charge-sheeted and after holding an enquiry, was dismissed from service. The learned lower Court directed the re-instatement of the respondent for the reason that the enquiry was not properly held.
3. The objection of the appellant was, as mentioned in the judgment of the learned lower Court, that the respondent was civil servant but no finding has been recorded on it. He has been declared as workman but this does not mean that he is not a civil servant. An employee of the Government, who falls within the definition of workman as defined in the Factories Act or the Workmen's Compensation Act, is not a civil servant but the learned lower Court has not held that the respondent comes within the exceptions of the definition of civil servant. According to section 2(n) of the Workmen's Compensation Act, a railway servant not permanently employed in any administration, District or Sub-Divisional Office of Railways, is a workman. There is no evidence if the Railway Accounts Department (Cash Office) has any connection with any administration, District or Sub-Divisional Office of Railways. This is also significant to note that according to section 2(n)(i), only those persons are excluded from the definition of workman who are permanently employed in any administration, district or Sub-Divisional Office of a Railway. If a person employed in such an office is not performing duties in the office, he cannot be said to be permanently employed in the office. The appellant has adopted the definition of workman given in section 2(n) of the Workmen's Compensation Act and the same is contained in Advance Chapter IV of Personnel Manual. An explanation has been appended to the definition which goes as under :- "The expression 'permanently employed' does not mean a railway servant who is permanently engaged as opposed to the one who is temporarily engaged and thus a peon, who in the course of his employment has to do outdoor work of delivering office post or other official errands, is not servant who is continuously or habitually working in the office and, therefore, falls within the ambit of the definition of a workman."
'The respondent in his statement said that he used to accompany the Cashier to the Hospitals, Schools, Workshops etc. For the distribution of salaries. He used to carry the cash box and bag of money to the above-mentioned places and used to bring back to the strong room. He was performing outdoor duties and thus was not permanently employed in the cash office. He came within the explanation and is covered by the definition of workman defined in section 2(n) of the Workmen's Compensation Act and thus is not a civil servant. The learned lower Court rightly declared /the respondent as not a civil servant although the grounds given by it are different.
4. The ground given for permitting the holding of fresh enquiry is cogent. Since sufficient amount is alleged to have been embezzled, fresh enquiry was necessary. Where fresh enquiry has been permitted, back benefits always depend upon the result of the fresh enquiry.
5. As a result, both the appeals fail and are dismissed.