This constitutional petition by the Water and Power Development Authority (WAPDA), through its Resident Engineer, assails the legality of an order, passed on 17-6-1976, by the 4th Labour Court, Karachi, holding that the appeal preferred by the petitioners against the decision of the Commissioner, Workmen's Compensation, and the Authority under the Payment of Wages Act, awarding to respondent No. 3 an amount of Rs. 3,458.25 as difference of wages, had abated by reason of the provisions of Ordinance 16 of 1975 and the Service Tribunals Act, 1973.
2. Respondent No. 3, who was appointed on 21-6-1969 by the petitioners as a Machine Attendant in their New Thermal Power Station, Tando Muhammad Khan Road, Hyderabad, filed an application on 30-8-1973 under section 15 of the Payment of Wages Act before respondent No. 2 claiming a sum of Rs. 2,458.25 on account of difference of pay from-- March 1971 to August 1973, and a further amount of Rs. 903 on account of arrears of increments for the period from June 1970 to August 1973, the full sum amounting to Rs. 4,361.25. The petitioners resisted the claim on the grounds that respondent No. 3 was a temporary employee who was not entitled to the wages claimed, that he had not exhausted the remedy before the petitioners, that even otherwise he was not entitled to generation pay scale which was sanctioned only for employees appointed prior to 1-1-1969, that he being a civil servant was not entitled to prefer his claim to the Authority under the Payment of Wages Act and that finally the jurisdiction of the Authority under the Payment of Wages Act was barred by reason of the fact that the services to which respondent No. 3 belonged had been declared essential services for the purposes of the Pakistan Essential Services (Maintenance) Act, 1952. All these objections of the petitioners were rejected by respondent No. 2, who, by his order, passed on 10-2-1975, allowed the claim of respondent No. 3 for the difference of pay, but rejected his claim on account of arrears of increments. Against this decision, the petitioners preferred an appeal to the XVth Labour Court, Hyderabad, which, by the impugned order, held that the appeal had abated.
3. It was sought to be argued by Mr. Abdul Hamid Khan, the learned counsel for the petitioners, that as respondent No. 3 was in the employment of the WAPDA, all services wherein have been declared to be essential services for the purposes of the Pakistan Essential Services (Maintenance) Act, 1952, the provisions of the Payment of Wages Act would not apply to respondent No. 3 and other employees of the WAPDA by reason of the provisions of section 7-A of the former Act. His contention was that on the provisions of the Pakistan Essential Services (Maintenance) Act being made applicable to any service or class of service, the members of such service could not only be dealt with and to have redress in accordance with the provisions of that Act and no other. However, on the attention of the learned counsel being drawn to the D. B. Decision of this Court reported as A.
Jawed v. National Industrial Relations Commission (PLD 1978 Kar. 64), the learned counsel did not press this point. The only other contention urged by Mr. Abdul Hamid Khan was that respondent No. 3 was not a civil servant but a worker, as defined in the Factories Act, 1934, and as such, the learned Labour Court erroneously has held that the petitioner's appeal had abated under a law which is applicable only to civil servants. The learned counsel, in support of his contention, relied upon the definition of "Civil Servant" as contained in the Civil Servants Act, 1973. That definition, no doubt, excludes "workers" as defined in the Factories Act, 1934. It would also prima facie appear that respondent No. 3 falls within the definition of "worker" as contained in that Act, since he is employed in the generation and transmission of power. The learned counsel, however, has ignored the amendment made in the WAPDA Act, 1958, by Central Ordinance No. 16 of 1975, promulgated on 30-9-1975, which was replaced by Central Act LXXIV of 1975. By this amendment it was provided "Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973)."
4. In view of the above amendment, respondent No. 3, who admittedly was not on deputation with the petitioners from a Province, is deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973, and the appeal preferred by the petitioners before the Labour Court was, in my opinion rightly held to have abated. The effect of the amendment made in the WAPDA Act, 1958, by Ordinance 16 of 1975, was considered by a learned Single Judge of the Lahore High Court in the case reported as Muhammad Salim v. WAPDA (PLD 1976 Lah. 492), wherein it was held that on the coming into force of Ordinance 16 of 1975, employees of WAPDA became civil servants for the purposes of the Services Tribunals Act, 1973, and consequently their petitions before the High Court abated by reason of the provisions in section 6 of the Act. I am in respectful agreement with this view.
5. For the reasons stated by me above, I find no merit in this petition, which is dismissed with costs.