Law:

Section:

(a) Constitution of Pakistan (1973)---Art. 185(3)-Leave to appeal -Question of fact-Question whether respondent a civil servant or a worker at best a mixed question of law and fact - Factual basis having not been furnished by proper and adequate evidence, High Court, held, justified in refusing to interfere with concurrent findings of Courts below.-[Question of fact]. (b) Constitution of Pakistan (1973) - Art. 185(3)-New point-Point never urged at any stage and even not raised in petition for leave to appeal, held, cannot be allowed to be raised in leave to appeal proceedings. ORDER M. S. H. QURESHI, J: In the result of a Department action, respondent Muhammad Allauddin, a Ward Keeper in the Loco Stores Depot in the office of the District Controller of Stores, Pakistan Railways, Mughalpura, was by order dated 23-7-1974, reduced to the lower post 'of Ledger keeper and also required to refund. Rs. 19,476.22 being the cost of material found to have been misappropriated by him. He challenged the action by a suit which was decreed in his favour on 14-3-1977. The Department's appeal before the Additional District Judge, Lahore, and Civil Revision in the High Court having failed they have filed this petition for leave to appeal. 2. It is urged that .the respondent was a civil servant as such civil Court had bad no jurisdiction in the matter. On this point, an issue had been framed which is Issue No. 5, but the Department, it appears did not contest it before the trial Court, because the finding of that Court is "the plaintiff admittedly a workman, as he is attached to shop depot of Pakistan Railways, Mughalpura". The trial Court further found that "the nature of his duties is such that he is doing manual work and as such he does not come within the definition of a civil servant". The appellate Court, before which the point was re-agitated upheld the finding for the reason that the respondent worked in Loco Shop within the four walls of Railway Workshop, that he was not `permanently employed in any administrative district or sub­ divisional office and that he was…

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