' MUHAMMAD SHABBIR JAMAL, MEMBER.--- These petitions have been filed under section 49(4)(e) of the Industrial Relations Ordinance, 2002 (hereinafter called as IRO, 2002) against Pakistan Housing Authority (hereinafter referred to as PHA) as respondent. It is contended in Petition No,4A(19) of 2006 that the petitioners are in the employment of the respondent's establishment for a period of over and above five to six years. It is further contended that the petitioners in view of the nature of their jobs and lengths of their services have attained the status of permanent employees. It is alleged that the respondent management has denied this legal right of the petitioners and have not regularized their services despite recommendations. It is contended that as a measure to be calculated towards occurrence of unfair labour practice, the respondent management has recently issued a list (Annexure "C" appended to the petition) wherein all the petitioners have been shown as daily wagers. It is apprehended that this list has been issued in the wake of petitioners' opting for formation of trade union. It is apprehended that their services can be terminated at any time without any process of law simply for the reason that all the petitioners have been shown as daily wage employees.
2. In Petition No,4A(38) of 2006 it is stated that the petitioner is employed in the respondent establishment and recently has been posted in A&P Wing of the office of PHA. It is contended that the petitioner has applied to the Registrar Industry-wise Trade Unions (RITU) for the registration of newly formed industry-wise trade union for which he has been named as General Secretary. It is contended that with the making of this application, the management has issued series of letters of explanation (D to D7: appended to the petition) which are contended to be mala fide on the part of the respondent. It is apprehended that the respondent may consequently damage to the employment of the petitioner by way of dismissal, discharge etc. For his active involvement in the forming of a trade union.
3. The Petition No,4A(39) of 2006 has been filed by one Muhammad Naveed Alam, an employee of PHA against PHA as respondent also under section 49(4)(e) of IRO, 2002 read with section 63 of IRO, 2002. It is contended that petitioner has shown his intention to become member of all Pakistan PHA employees union which has applied for its registration to RITU as industry-wise trade union. It is apprehended by the petitioner that his services will be terminated for the reason of his inclination to become member of the said union.
4. The reply statement filed by the respondent establishment in all these petitions has raised number of preliminary objections which include the main objection regarding jurisdiction of NIRC to hear these petitions and their maintainability. It is, therefore, necessary to proceed with these petitions to dispose of these main issues before proceeding with other mattes. It is contended that the Prime Minister Housing Authority (PMHA) was established under a Cabinet's Resolution issued wide Notification No,4-8/99-MIN.1, May 18, 1999 (Annexure "A" appended to the reply statement) and was renamed as Pakistan Housing Authority (PHA) vide Ministry of Housing and Works' Resolution issued by Notification No,1(1)/2000-Works dated March 8, 2000 (Annexure "B" appended to the reply statement). It is further contended that according to the opinion of the Law and Justice Division the Pakistan Housing Authority created through Resolution will not have the legal status of an autonomous body but it would just be considered to be Government Department and its employees will be deemed to be civil servants. It is further stated by the Law and Justice Division that if PHA is intended to be given the status of an autonomous body then the legislative measure will have to be adopted.
5. The case was argued on the question of jurisdiction and maintainability of the petitions by the learned counsel of both the parties. The learned counsel for the petitioner, Mr. Abdul Hafeez Amjad has argued that section 2, subsection (1), clause (b) of the Civil Servants Act, 1973 reads as follows:- - "Civil servant" means a person who is a member of an All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include:--
(i) a person who is on deputation to the Federation from any Province or other authority;
(ii) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies; or
(iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923).
' It was argued by the learned counsel that the plain reading of this definition shows that none of the petitioners is a civil servant in view of the nature of his job as they are not members of any of the service mentioned in the definition. He argued that they are rather attracted by the exemptions provided to the above definition. He argued that the petitioners by no stretch of imagination perform any regal functions of the State and so they are not employed in the administration of State and so they are covered by IRO, 2002. He further argued that the functions assigned to the Authority under the aforesaid Notification constituting the Authority are not regal in nature and sovereign in character but obviously are of socio-economic dimensions. It was argued that in this view of the matter the application of IRO, 2002 to PHA is not barred and therefore NIRC has the jurisdiction. He has further argued that para.16 of the Resolution which reads as follows is not attracted in these cases.
"16. Discipline. The officers and staff of the Authority shall be subject to the Civil Servants Act, 1973 (LXXI of 1973), and the rules made thereunder including the Government Servants (Appointment, Promotion and Transfer) Rules, 1973 and such other rules as may be prescribed from time to time till such time a separate law is framed for their governance."
6. The learned counsel argued that the definition of "civil servant" as reproduced in the above has not been followed in the above para.16 of the impugned Resolution and so the same is in conflict with the act which obviously has overriding effect. It was contended by him that the provisions of the Resolution in question are ultra vires of the Act and so are liable to be struck down. It was argued that for all these reasons petitions are. Maintainable and NIRC is competent to adjudicate the same. The learned counsel also termed PHA as an undertaking attracted by the Industrial Relations Ordinance, 2002 as an establishment. To substantiate his arguments the learned counsel placed reliance on the following case-law:-- ' PLD 1985 Quetta 234; 1988 SCMR 922; PLD 1988 SC 633; PLD 1977 Lah. 415; PLD 1996 SC 610; 1996 SCMR 1947; 2000 PLC 237.
7. The learned counsel for the respondent, Mr. Muhammad Ishtiaq Ahmed Raja who filed his power of attorney in Petition No,4A of 2006 has contended in his arguments that the petition is not maintainable in the present form as PHA is an Attached Department of the Federal Government. He has argued that it has been constituted by a resolution which is a valid mode of setting up a body to function as an Attached Department of the Federal Government. He has further argued that according to the Resolution in question employees of PHA are civil servants and so are not covered by the Industrial Relations Ordinance, 2002. It has been contended that in view of the present status of the employees of PHA, jurisdiction of NIRC to adjudicate the instant petition is totally barred. In support of his arguments the learned counsel relied on the judgments in the following reported cases:-- ' Faqir Muhammad v. The Director of National Savings, Malian Region, Multan PLD 1992 SC 127; Saeed Rabbani v. Director-General Leather Industry Development Organization and another PLD 1994 SC 123; Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Ghazala Perveen v. Federation of Pakistan through Secretary Health, Government of Pakistan, Islamabad and 2 others 1994 PLC 684.
8. Syed Naseer Ahmed who filed his power of attorney in all these petitions to plead the case on behalf of the respondent has adopted the arguments of the learned counsel, Mr. Muhammad Ishtiaq Ahmed Raja on the issue of maintainability and jurisdiction. He added that the vires of the Resolution cannot be challenged before NIRC which is not the proper forum for this purpose.
9. After going through the contents of Resolution in question, the authority under which a Resolution is issued by the Federal Government, the relevant provisions of Civil Servants Act, 1973 and of IRO, 2002 and the case-law quoted by the learned counsel I observe that "Resolution" is one of the modes of written communications described in paragraph 48 of Appendix "E" of the Secretariat Instructions issued in pursuance of the Rules of Business, 1973 which in turn have been made by the Federal Government in exercise of the powers conferred by Articles 90 and 99 of the Constitution of the Islamic Republic of Pakistan, 1973 for the purpose of conducting the business of the Federal Government. But in no manner it is a piece of legislation or a subordinate legislation issued under the authority of an Act of the Parliament. Therefore, the contention of the learned counsel for the petitioner that it is ultra virus of the Civil Servants Act, 1973 is not maintainable. Under the Article 90 of the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minster and the Federal Ministers, which shall act through the Prime Minister who shall be the chief executive of the Federation. Under Article 99 of the Constitution orders and others instruments made any executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the Federal Government, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. It is further provided that the Federal Government may regulate the allocation and transaction of its business and may for the convenient transaction of that business delegate any of its functions to officers or authorities subordinate to it. In this view of the position PHA constituted by Resolution clearly is an administrative body meant to perform functions for the purpose of executive authority of the Federal Government and so is attracted by the term "administration of State" in respect of which the application of IRO 2002 is barred-section 1(4)(d). Furthermore, the officers and the staff of PHA under paragraph 16 of the Resolution have been made subject to the existing law relating to civil servants. As such the case-law cited by the learned counsel for the petitioners is not attracted by the instant petitions.
10. Further, the said opinion of the Law and Justice Division that PHA created by Resolution is an attached department of the Federal Government, which has been defined in Rule 2(1)(iii) of the aforementioned Rules of Business, 1973 as a Department which has direct relation with a Division and has been declared as such by the Federal Government. In this context PHA is direct functionary of the Ministry of Housing and Works whose functions as spelled out in the resolution pertain to the planning of housing projects, coordination with Federal and Provincial agencies, negotiations of financial resources, selection of professionals etc. Which are absolutely of executive and administrative nature. It was held by the Honourable Supreme Court of Pakistan in PLD 1992 SC 127 that persons employed in an attached department of the Government whether in the administration of State and as such excluded from the application of IRO. It was further held that an employee of the attached department of the Government could not seek application of the Industrial Relations Ordinance. In the case-law PLD 1994 SC 123 it was held that Leather Industry Development Organization being directly controlled, managed and financed by the Government of Pakistan under the authority derived from the Constitution and placed under the administrative control of the Ministry of Industries, its employees hold a civil post in connection with the affairs of the Federation and were thus, covered by section 2(b) of the Civil Servants Act, 1973. The reference to the Industrial Relations Ordinance in the above case-law is to 1969 Ordinance that has since been repealed, but the relevant provision pertaining to the exclusion of persons employed in the administration of State has been retained in section 1(4)(d) of the repealing Ordinance of 2002.
Other case-law cited by the learned counsel for the respondent substantiates the above points.
The arguments of the learned counsel for respondent have therefore, force.
11. For the foregoing reasons I hold that PHA having been constituted by Resolution is not covered by the Industrial Relations Ordinance, 2002. Therefore, National Industrial Relation Commission clearly lacks jurisdiction to adjudicate the instant petitions and so the same are not maintainable under the Industrial Relations Ordinance, 2002. These petitions are, therefore, dismissed and the interim order is recalled.