The petitioner had been employed as Works Supervisor in the WAPDA when on 5th January, 1977, he was not allowed to perform his duties. The petitioner allegedly made a representation but without any response. According to him, he came to know on 4th February, 1977, that respondent No. 2 had terminated his services. He, therefore, served a grievance notice on 28th April, 1977, under section 25-A (1) of the Industrial Relations Ordinance, 1969. As no reply was given the petitioner filed a ,petition under section 25-A of the Industrial Relations Ordinance on. 17th June, 1977. It came up before the Labour Court which accepted .The petitioner's plea vide order dated 5th December, 1977 and re-instated him with back benefits.
2: 'Respondent No. 2 challenged the order of the Labour Court in an appeal which succeeded wide order dated 31st December, 1977 mainly on the ground that the case of the petitioner was covered by section 25-A (6) and, therefore, he ought to have filed an appeal straightaway within a period of two months from the date when the cause of action arose. The petitioner .Challenges that order through the present constitutional petition.
3. It is contended by the learned counsel for the petitioner that the Labour Appellate Tribunal erred in law in holding that the case of the petitioner was governed by section 25-A(6). According to him, the above provision only allows an alternate remedy but it in no way excludes the one provided under section 25-A(4).
4. After bearing both the parties, I find that the submission made by the petitioner is quite correct.
Section 25-A(6) comes into play only if a . Worker does not give a grievance notice to the employer as provided under section 25-A(1) of the 1. R. O. He could, in the alternative send a grievance notice within three months of the cause of action to the employer and proceed to file a petition before the Labour Court within two months if there was no favourable response within 15 days after the grievance notice. The, petitioner in this case resorted to the remedy in section 25-A(l) and, therefore, he could give a grievance notice within three months, wait for another 15 days if no reply was given and thereafter file a petition under section 25-A within a further period of two months.
The order of the Appellate Tribunal, therefore, is prima facie bad.' The Tribunal ought to have considered the other alternative and should have seen if in view of the facts on the record, the petition filed before the Labour Court was within time.
5. The other submission made by the learned counsel for the respondent was that in view of a specific objection raised before the Labour Court, about its jurisdiction, the re-instatement of the petitioner without deciding' that question was unlawful. He referred to section 17 (1-A) of the WAPDA ,Act (as amended) and submitted that as the petitioner had been given the status of a civil servant, he could file an appeal before the Service Tribunal and therefore, the Labour Court had no jurisdiction, in view of Article 212 of the Constitution. The learned counsel relied on Muhammad Salim Khan v. West Pakistan Water and Power Development Authority (PLD 1976 Lah. 492).
6. The counsel for, the petitioner submitted that the petitioner always remained a workman, and, therefore, his right 'to take the matter to the Labour Court could not have been denied. He relied on WAPDA v. Commissioner for Workmen's Compensation (PLD 1977 Lah. 1156) and Chairman, WAPDA v. Muhammad Khan (PLD 1978 Lah. 781).
7. The view taken in 197 7 by a learned Single Bench cannot be applied to the case in band as the question considered therein concerned the Workmen's Compensation Act and not Article 212 of the Constitution read with Civil Service Act. It may further be noted that the 1976 case referred to above was not brought to this Lordship's notice though the same had been decided and reported earlier.
The 1978 case referred to above also did not deal with the proposition arising here. The case concerned a Provincial Government employee engaged on deputation in generation of electricity in an industrial establishment (WAPDA). He, therefore, was not a WAPDA employee and was excluded from the definition of a `Civil Servant, under the Service Tribunal Act. The only case relevant to the one in hand is the 1976 Judgment, the relevant portion of which reads as under:-- "This shows that a competent Legislature could declare any service to be a service of Pakistan. It is exactly what Ordinance XVI of 1975 has done in the instant case. It has made service of WAPDA foe the limited purpose of the Service Tribunal Act, 1973, to be Civil Service. This will show that when a Tribunal is established with reference to Article 212 of the Constitution 'then according to clause (2) of that Article no other Court shall grant any injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such administrative Court or Tribunal extends. It means that this Court is now not to entertain any proceedings in respect of any matter which falls within the jurisdiction of the Service Tribunals. It is to be remembered that for the purpose of applying section 6 in the light of Article 212 all that is to be seen is whether at the time when a Service Tribunal comes into being or is functioning, the subject-matter in hand was such which if the petitioner had been a civil servant could be covered by that section. If the subject matter, for instance, was regarding his terms and conditions of service then any proceedings pending in any other forum are to abate, Similarly if the subject-matter at that time is that of a civil servant whose service has been categorized as ,.Service of Pakistan, and the dispute is also with respect to his terms and conditions of that very service, then his case squarely fads within section 6 of Article 212 ibid. In my opinion this is the only way in which the provision; of the law under examination should be construed and any other interpretation will simply defeat the object which was in view of the law maker while. Enacting Ordinance XVI of 1975."
I am in respectful agreement with the above observations and hold that the petitioner should have filed an appeal before the Civil Service Tribunal. The jurisdiction of the Labour Court, therefore, stood excluded.
8. The result of the above discussion is that both the orders of the Labour Court and the Tribunal are without lawful authority. Any relief to the petitioner in this situation would, therefore, amount to let him retain illegal gains through the auspices of this Court. Such a result, however, has not been permitted by the Supreme Court. Reference be made to Wall Muhammad v. Sakhi Muhammad (PLD 1974 SC 106).
In view of the above I decline to allow any relief to the petitioner who may have resort to the proper remedy provided by law.