' The decision, dated 16-4-1984 by the learned Presiding Officer, Punjab Labour Court No,1, Lahore has been challenged in this appeal, whereby the grievance petition of the respondent was accepted with past benefits.
2. On account of allegation of misconduct the respondent was charge-sheeted and an enquiry was held which culminated in the reduction of his emoluments to his minimum scale.
3. In the cross-objections it has been contended that the appeal was not properly presented within time, so is liable to be dismissed on this short ground. The learned counsel for the appellant, as is evident from the power-of-attorney attached to the appeal, is Sh. Maqbool Ahmad but the appeal was not presented by him and was presented by Mr. Naveed Masood, Advocate. On behalf of the respondent it has been argued that if some other lawyer appears on any date for the original counsel, there should be a written memo. Of appearance executed by the original counsel in favour of the other lawyer who appears for the original counsel, as required by section 22(3) (b) of Legal Practitioners Act. Admittedly, no memo. Of appearance was filed by Mr. Naveed Masood alongwith the appeal or even afterwards. Learned counsel for the appellant Sh. Maqbool Ahmed has cited some rulings and has argued that some other lawyer can present the memorandum of appeal on behalf of the original counsel and that Mr. Naveed Masood had presented the appeal on his behalf. The authorities cited by him are AIR 1939 Rang. 1, AIR 1920 Lah. 212 and PLD 1961 Lah.
723. The rulings are not helpful. So far as presentation of appeal by another lawyer on behalf of the original counsel is concerned, no memo. Of appearance was filed nor Naveed Masood filed his own declaration that he was presenting the appeal for Mr. Maqbool Ahmad, Advocate. In the note of presentation recorded by the Superintendent of this Court, it is not recorded that Mr. Naveed Masood presented the appeal for Maqbool Ahmad. Another lawyer can present an appeal but there must be a written memo. Of appearance executed by the original lawyer in his favour. Not only that the memo. Of appearance was not filed but even this was not disclosed either in writing or verbally that the memo. Of appeal was being presented on behalf of the original counsel. It has also been argued that even if a power-of-attorney does not bear signatures, the signatures can be obtained at a late stage even after the period of limitation for bringing the appeal. But the present case is not so. The counsel for the appellant is Maqbool Ahmad, who has signed the memo. Of appeal and not Naveed Masood. After presenting the appeal Naveed never appeared. It is thus evident that he was not engaged by the appellant as counsel in the appeal. Maqbool Ahmed, Advocate, who is counsel, appeared for the first time on 19-6-1984 but before that the period of limitation for bringing the appeal had expired. So, the appeal was not properly presented within limitation and since a valuable right has accrued to the respondent by lapse of time, it cannot be denied to him.
4. It has been further argued that as the impugned order is a nullity in the eye of law, no question of limitation arises. Reliance has been placed in this respect upon PLJ 1975 Tr. C. Labour 43 and PLD 1970 Lah.
6. The Lahore ruling is very much authoritative. It does not say that the point of limitation is to be totally ignored when the order appealed against is a nullity. It says that the period of limitation would not start from the date of the order but from the date when that order is sought to be used.
The line of argument of the learned counsel for the appellant is that the respondent being a civil servant, the Labour Court had no jurisdiction and thus the order is a nullity. Since the order was challenged in appeal, it is evident that the respondent seeking to implement the decision of the Labour Court. The ruling thus is not helpful. Apart from it where factual position is not disputed and in spite of it the order is a nullity, the period of limitation may not start from the date of illegal order.
In the present case point of civil servant is very much disputed and the learned lower Court has given finding that the respondent is not a civil servant. So, unless the appeal is decided on merits, it cannot be held that the order is a nullity. Simply for the fact that a point has been raised that the order of the lower Court is without jurisdiction, the period of limitation cannot be ignored. So, presentation of appeal not being proper on 15-5-1984, it had become time-barred on 19-5-1984 when the original counsel Maqbool Ahmed appeared for the first time.
5. However, the learned lower Court has not decided the point of civil servant correctly. Two exceptions are given in the definition of civil servant in section 2 of the Civil Servants Act. They are that the employees who fall within the definition of workman given in section 2(n) of the Workmen's Compensation Act or section 2 of the Factories Act, are not civil servants. The respondent does not come within the definition of workman as defined in either of the abovementioned two Acts. I do not find force in the argument of the learned representative of the respondent that clauses (xiii) and (xxvi)(a) of Schedule-II of the Workmen's Compensation Act apply to this case. There is no evidence that the respondent had any outdoor duties. He admitted that one output man and ten labourers worked under him. So, manual work is done by his subordinates. So far as clause (xxvi)
(a) is concerned, he being U.D.C. It is not his duty to handle the goods received or lying in the store.
Since he had ten labourers under him, obviously the work of handling and transporting goods was done by them under his supervision. He thus is a civil servant.
6. No opportunity was afforded to the respondent in the enquiry to cross-examine the prosecution witnesses as is evident from the record of the proceedings. Likewise no opportunity to produce defence was given. No statement of any defence witness is on the record, nor the respondent stated that he did not want to produce any defence.
7. It has been argued by the learned representative of the respondent that the charge-sheet was given by an incompetent authority, inasmuch as the notification of the appointment of the 'Authority' by the President was not published in the official Gazette as is evident from the copy of the notification. The other point argued by the learned representative of the respondent is that the notification, whereby the authorised officer was appointed was not published in the Government Gazette. The relevant rule is 6 of the Government Servants Efficiency and Discipline Rules. It does not provide that the appointment of 'authorised officer' shall be notified in the official Gazette. So, the objection is overruled.
8. It has also been argued by the representative that second show- cause notice was not given. I have carefully gone through the Rules of 1973. They do not provide that after the submission of the enquiry report second show-cause notice shall be given. The argument, therefore, is without force.
9. The other point raised is that the statement of the respondent was recorded before the examination of prosecution witnesses and thereafter, his statement was not recorded again. This argument has sufficient force. Statement of accused workman is recorded to give him opportunity to explain the material that has come on the record by the prosecution evidence. Since after the close of the prosecution evidence, the statement of the respondent was not recorded, he could not explain what the prosecution witnesses had said against him. This is a serious defect.
10. This objection is also correct that no opportunity of cross-examination was afforded to the respondent. The proceedings reveal that no such opportunity was given, so the prosecution evidence could not be used against the respondent.
11. The argument of the learned counsel for the appellant is .Correct that Standing Orders Ordinance, 1968 is not applicable. The appellant is a department of the Government and Efficiency and Discipline Rules, 1973 show that they are statutory. They were duly notified in the official Gazette but this makes no difference because the said rules guarantee right to the respondent and since enquiry was not held according to the said Rules, the respondent was justified in applying under section 25-A of the Industrial Relations Ordinance, 1969.
12. As a result, the appeal is dismissed as not having been properly presented within limitation and for the reason that due to the defective enquiry, the learned lower Court was justified in accepting the grievance petition of the respondent.