' This is an appeal challenging the decision dated 17-11-1985 recorded by the learned Presiding Officer, Punjab Labour Court No, 2, Lahore, whereby the grievance petition of the respondent was accepted setting aside the order of recovery of Rs,2,500 from the-respondent directing that the amount recovered should be refunded. The punishment of W.I.P., however, was kept intact.
2. An objection has been raised by the learned Representative of the respondent to the maintainability of the appeal. It has been argued that the appeal is time-barred and the grounds given for condonation of delay are not sufficient. Admittedly, the appeal is time-barred. The ground taken in the application given under section 5 of the Limitation Act read with section 65-B is that the peon who was taking the file to the learned counsel for bringing the appeal met with an accident, resulting in the misplacement of the file which was traced out with great difficulties only few days before lodging the appeal. The affidavit is of the learned counsel for the appellants and not of the peon who is alleged to have met with an accident and lost the file. Even the name of that peon has not been disclosed in the application for condonation and the affidavit attached to it.
Counter-affidavit has been filed on behalf of the respondent denying the fact that any accident took place and that the file had been lost. Only the peon who is alleged to have met with an accident should have given an affidavit as only he knew those facts. Whatever the learned counsel for the appellants has said in his affidavit is only hearsay. It is not said that in the presence of the learned counsel the peon had met with an accident and had lost the file. So, no sufficient ground is made out for the condonation of delay. The application for condonation of delay, therefore, is rejected and the appeal cannot be taken to be within time.
3. So far as merits of the case are concerned, the respondent cannot succeed because he being a Booking Clerk at the Railway Station was a civil servant. Booking Clerks and other clerks working at the Railway Station cannot be said to have been employed upon Railway. It has been argued that all persons who discharge duties in connection with the trains are persons employed upon railway, but this argument is not acceptable. Only those employees can be said to have been employed upon railway who actually travel with the trains, such as ticket collectors, guards, drivers, firemen, etc.
4. So far as the allegation that the respondent misappropriated one thousand tickets there is no proof. The allegation that he had received seventeen thousand tickets but entered 16999 does not stand proved inasmuch as no witness was examined to say that the entries were in the handwriting of the respondents. The mere fact that at the relevant time the respondent was Booking Clerk is not sufficient. The record is lying at the railway station unattended and is accessible to every employee, therefore, possibility cannot be excluded that someone else may.
Have made misappropriation. There is no evidence that the successors of the respondent had indented tickets beyond number 16999 and that the office reported that up to 17,000 numbers the tickets had already been issued. Likewise there is no evidence that at Faisalabad Railway Station 1,000 tickets bearing numbers between 16,999 and 17,000 were detected.
5. As a result of the observations made above, the appeal is dismissed as time-barred.