' The judgment, dated 5-5-1999 has been assailed through the instant writ petition by the petitioner challenging the jurisdiction of the Presiding Officer Punjab, Labour Court, Multan.
2. The facts giving rise to the present writ petition are that respondent No.2 was working as Sub- Engineer and Member of Local Council Service in Municipal Committee, Layyah and dismissed on 12-12-1993 on the basis of the inquiry report by the Chairman Punjab Local Board. The appeal against the above said order, filed by respondent No.2 was also dismissed on 22-9-1994 by the Appellate Committee headed by Nazir Ahmed Chaudhry, Additional Cheif Secretary, Punjab.
3. Thereafter, respondent No. 2 filed a revision petition under section 25-A of Industrial Relations Ordinance before Punjab Labour Court No.9 for setting aside the order of dismissal, dated 12-12- 1993 and 22-9-1994. The Presiding Officer of the Punjab Labour Court No.9 Multan vide the impugned judgment, dated 5-5-1999 set aside the dismissal of respondent No.2 and restored the respondent to his post.
4. Learned counsel for the petitioner contended that the Labour Court lacks the jurisdiction in the matter as respondent Not is a Member of Local Council Service and he is a civil servant for the purpose of Punjab Service Tribunals Act, 1974. He further submitted that the petitioner is not a worker as defined in section 2 of the Industrial Relations Ordinance, 1969 and thus, the judgment impugned has been passed illegally, without lawful authority and liable to be set aside.
5. On the other hand, learned counsel for respondent No.2 vehemently opposed the argument of learned counsel for the petitioner and supported the judgment of respondent No.1 contending that the petitioner is a worker as defined in Industrial Relation Ordinance, 1969 and section 2 of sub- clause (N)(ii) of Workers Compensation Act, 1923 and relied on case of Kh. Ijaz and another v.
Government of Punjab (1983 PLC (C.S.) 690).
6. I have heard the arguments of the learned counsel for the parties and perused the record.
7. There is no cavil with the facts that at the time of dismissal from service respondent No.2 was posted as Sub-Engineer in Municipal Committee, Layyah and a Member of the Local Council Service. Section 44 of the Punjab Local Government Ordinance has contemplated Member of Local Council service is to be civil servant. The said section is re-produced below as under:--
(1) Notwithstanding anything to the contrary in any other law, the members of the Local Council Service constituted under the Ordinance shall be deemed to be civil servants for the purposes of the Punjab Service Tribunal Act, 1974. (2) Till such time the Local Council Service is constituted under the Ordinance a member of the Local Council Service constituted under the Basic Democracies Order 5, 1959, shall be deemed to be a civil servant for the purposes of the Punjab Service Tribunals Act, 1974.
8. The Punjab Local Council Service (Appointment and Conditions of Service) Rules, 1983 are applicable to the respondents, Rule 3 of the above rules has provided that
(1) There is hereby constituted, for the province of the Punjab, a Local Council Service to be known as the Punjab Local Council Service.
(2) The service shall comprise the posts shown in the Schedule.
(3) The posts comprising the Service shall be classified according to the Functional Units indicated in the Schedule.
' Rule 4 of the above Rules has further provided that,
(1) Appointment to a post in the Service shall be made by initial recruitment, promotion or transfer by the authority specified in column 5 of the schedule in respect of the corresponding post mentioned in column 2 thereof.
' The schedule referred in the above rules has provided different functional units and in Schedule No.3 of Engineering Functional Unit the post of Sub-Engineer has been provided at Serial No.5 of the Schedule of Engineering Units, the appointing authority of which is the Commissioner of the Division.
9. It is sufficient to hold that respondent No.2 is governed by the Punjab Local Councils Servants (Appointment and Conditions of Service) Rules, 1983 thus, respondent No.2 would be Member of the Punjab Local Council Service as enunciated in section 44 of the Punjab Local Government Ordinance, 1979 and a Member of the Local Council Service shall be deemed to be civil servant for the purpose of Punjab Civil Services Tribunal Act. Respondent No.2 has been punished and appointed under the Punjab Local Councils Servants (Efficiency and Disciplinary) Rules, 1981 which has provided remedy of appeal and revision and under the law respondent No.2 has availed of the same.
10. From the above discussion, there is no doubt in the proposition that respondent No.2 is an employee of the Local Council under Local Councils Servants (Appointment and Conditions of Service) Rules, 1983.
11. The next question that boils down for determination in the matter is whether respondent No.2 is a workman and respondent No.1 has legally exercised its jurisdiction. Section 2 of the Punjab Industrial Relations Ordinance has provided the definition of a workman which is re-produced as under:-- " 'Worker and Workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or) as an apprentice in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied and for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute (but does not include any person).
(a) who is employed mainly in managerial or administrative capacity; or
(b) who, being employed in a supervisory capacity, draws wages exceeding eight hundred rupees per mensem or performs, either because of the nature of duties attached to the office or by reason of the power vested in him functions mainly of managerial nature."
' The workman has also been defined in section 2(n) of Workmen's Compensation Act, 1923 which is as under:-- "Workman means any person who is employed on monthly wages not exceeding one thousand rupees in any such capacity as is specified in Schedule II."
' The criteria for the determination of a person as worker from the plain reading of the above referred provisions of law would be that the employee must be drawing wages/salary not exceeding eight hundred per mansum and one thousand rupees. Learned counsel for respondent No.2 when confronted with this situation has not been able to satisfy the Court whether respondent No.2 was drawing the salary or wages more than one thousand rupees. It would mean that certainly the wages of respondent No.2 is more than one thousand rupees and in this way his case does not fall within the definition of the above two laws. The duties of the Sub-Engineer are supervisory in nature in connection with the construction or repair of the roads and buildings etc. The principle enunciated in case of Khawaja Ijaz and another (supra) that Sub-Engineer was drawing less than eight hundred rupees but now this is not a case of respondent No.2, therefore, the dictum laid down in the above case referred to above is not attracted to respondent No.2.
12. As introduced under section 44 of the Punjab Local Government Ordinance the Member of the Local Council shall be deemed a civil servant for the purpose of Punjab Service Tribunal Act, 1974.
Learned counsel for the respondents has not been able to controvert the said provision of law.
13. For the foregoing reasons, I am constrained to hold that respondent No.2 is a civil servant for the purpose of Punjab Services Tribunal Act, 1974, therefore, the impugned judgment, dated 5-5-2000 passed by respondent No.1/Presiding Officer of Labour Court No.9, Multan is declared to have been passed illegally, without lawful authority of no legal effect. Resultantly this writ petition is allowed.