' This is an appeal directed against the decision dated 8-10-1987 recorded by the learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi, whereby the grievance petition of the appellant for his reinstatement in service has been dismissed.
2. On account of certain charges of misconduct the appellant was dismissed from service. The charges are given in charge-sheets Exhs. P-4, P-5 and Exh.R-15. The appellant challenged the order of dismissal before the learned lower Court in his petition brought under section 25-A of the Industrial Relations Ordinance, 1969 which was contested by the respondents. It was contended in the written statement that the appellant was a civil servant and was not a workman, thus the Labour Court had no jurisdiction and that the grievance notice was time-barred. On merits it was contended that the appellant had been afforded proper opportunity during the inquiry and since the charges were proved, he was rightly dismissed. The learned lower Court has held that the appellant is a civil servant and that the grievance notice served by him was hopelessly time- barred. On merits no decision in the impugned order has been recorded.
3. So far as the point whether the appellant is a civil servant is concerned, the definition of the term given in section 2 of the Civil Servants Act has not been properly considered by the learned lower Court. Obviously the appellant not being a P.C.S. Cannot be said to be a member of the civil service. The other provision is that a person who is employed in the affairs of the Province is a civil servant. The respondent is an Agriculture Department and its business is to develop agriculture.
Development of agriculture is not such a function which only the Government is entitled to perform and no private person can do it. The respondents let bulldozers to the Zamindars on rent. This function is also not, such which may not be performed by any private person. Any person can purchase bulldozers and use the same in their land and may let them on rent to other Zamindars.
So the appellant is not employed in the affairs of the State and thus is not covered by the definition of civil servant. The exceptions may not be I considered since the very definition of civil servant is not applicable. Learned counsel for the respondents has not been able to cite any authority to the effect that a Unit Supervisor like the appellant employed in the Agriculture Department is a civil servant.
4. Now it is to be seen whether the appellant is a workman. Since the Agriculture Department is a Department of Government, the appellant is a Government servant and Government Servants Efficiency and Discipline Rules, 1960 are applicable to him. Thus both the conditions given in the first proviso to section 1(4)(c) of the Standing Orders Ordinance, 1968 are satisfied and the said Ordinance is not applicable. So the definition of workman given in the Industrial Relations Ordinance, 1969 only is to be considered. According to the dentition, a person, who is not covered by the definition of employer, is a workman. There are two exceptions (a) and (b) given under the definition. Exception (a) does not need discussion since this is not the case of the respondents that the appellant had managerial duties. Since the appellant was designated as Unit Supervisor, it is to be seen whether he is such a supervisor who is ousted from the definition of workman. There are two conditions given in exception (b). One is that the person should have supervisory capacity and the other is that his wages should be in excess of Rs,800. There is no evidence on the record about the emoluments of the appellant. Learned counsel for the appellant and the appellant himself have at the bar deposed during arguments that at the time of removal from service, the wages of the appellant were Rs,700 per month. Anyhow, since there is no evidence on the record about the wages of the appellant, he is not hit by the exception. So far as his duties are concerned, there is no evidence that some person was under him and that he used to supervise any person. So he is a workman.
5. Now it is to be seen whether the grievance notice admittedly served by the appellant was time- barred? Learned counsel for the appellant has conceded that the notice was time-barred but he says that there are sufficient grounds given in the application for condonation of delay, therefore, the learned lower Court has erred in holding otherwise. The grounds of condonation of delay given in the application are not sufficient but the grievance notice is not time-barred. It is no doubt belated from the date of removal from service but admittedly the appellant had preferred two appeals simultaneously, one to respondent No. 2 and the other to respondent No.
3. Respondent No. 2 dismissed the appeal on 16-3-1981. The appellant filed a review petition to the same authority, which too was dismissed on 20-9-1981. The grievance notice was given in 1983. The appeal lodged to respondent No. 3 remained pending and it appears that it has not yet been decided since no order of rejection is on the record, nor there is any material to show that if it was rejected, the order was conveyed to the appellant on such a date that from that date the grievance notice was time-barred. Learned counsel for the respondents has argued that respondent No. 2 was competent to hear the appeal according to the amendment made in the rules vide Notification of 1962 and, therefore, the appellant had rightly lodged the appeal to this authority and respondent No. 3 had no jurisdiction and that from the date of the decision of the appeal and the review petition, the grievance notice was time-barred. Outwardly the arguments of the learned counsel for the respondents may appear forceful but in reality they are not tenable.
The charge-sheet was served by respondent No. 2 and the dismissal order was passed by respondent No.
1. Since respondent No. 2 had issued charge-sheet, he incapacitated himself from hearing the appeal. Since C he had decided to issue charge-sheet and that the case was such that it required inquiry and taking of action, and appointed Inquiry Officer, he could not hear the appeal. This appears to be the reason that the appellant did not content himself with preferring appeal to respondent No. 2 alone and preferred appeal to respondent No. 3 also. He appears to have done so as a matter of precaution. He did not know what view may be taken by his department and the Courts. Since respondent No. 2 stood incapacitated from deciding the appeal, therefore, the authority who was competent in the circumstances of the case, to decide the appeal was respondent No.
3. Since respondent No. 3 has not disposed of the appeal, no period of limitation has started. The appellant waited for a considerable time and when his appeal was not decided by respondent No. 3, he gave the grievance notice. So in the peculiar circumstances of the case, the grievance notice served by him is not time-barred and the learned lower Court has wrongly held that it was so.
6. So far as the inquiry proceedings are concerned, they were not proper. Their perusal shows that during the recording of prosecution evidence, the statement of the appellant was recorded and after the close of the prosecution evidence his statement was not recorded again. Needless to say that the statement of a person under inquiry is recorded in order to afford him opportunity to explain the material brought against him by the prosecution evidence. Since his statement was not recorded after the close of the prosecution evidence, he was prejudiced. The other defect, which is most damaging for the respondents, is that no opportunity of cross-examination was afforded to the appellant upon any of the prosecution witnesses. No opportunity of defence was also given since his statement was not recorded to the effect that he did not want to produce evidence in defence. In these circumstances, he was condemned unheard and the order of dismissal based upon such an inquiry is not sustainable.
7. So far as the back benefits are concerned, the appellant did not assert in his statement recorded before the learned lower Court that he remained jobless from the date of his removal from service.
8. As a result of the observations made above, the appeal is accepted and setting aside the impugned decision of the learned lower Court and the order of dismissal, the grievance petition of the appellant is accepted and he is directed to be reinstated in service without back benefits.