Mr. Justice (R) Tanvir Bashir Ansari, Chairman.--The West Pakistan Water and Power Development Authority Act, XXXI of 1958 was promulgated on 24.04.1958 to provide for the unified and coordinated development of the Water and Power resources of Pakistan. Upon the creation of the Authority, all persons serving in connection with the affairs of the provinces in the Electricity and Irrigation Departments were liable to serve under the Authority. The Authority under Section 17 was further authorized to employ such officers and officials as it may consider necessary for the performance of its functions.
2. Later by virtue of Article 12 of the Province of West Pakistan (Dissolution) Order-I of 1970, the West Pakistan Water and Power Development Authority continued to function under the Act of 1958 subject to the following modifications:-- "12. Continuance of West Pakistan WAPDA. (1) As from the appointed day, the West Pakistan Water and Power Development Authority established under the West Pakistan Water and Power Development Authority Act, 1958 (West Pakistan Act XXX of 1958), in this Article referred to as the said Authority, shall continue to function under the said Act subject to the following modifications, namely:--
(a) all powers of the Provincial Government in relation to the said Authority shall be exercisable by the President;
(b) any reference to the Provincial Government in any law or other legal instrument in relation to the said Authority shall be construed as reference to the President;
(c) any authority constituted by the Provincial Government under the said Act and any officer or other person appointed for the purposes of the said Authority by the Provincial Government shall be deemed to have been constituted or appointed by the President.
2. To aid and advise him in relation to the administration and management of the affairs of the said Authority, the President shall constitute an Advisory Board consisting of such representatives from the new Provinces as he may, after consultation with the Government of those Provinces, appoint.
3. The procedure of the advisory Board constituted under clause (2) shall be regulated by rules made by the Board with the approval of the President and, until such rules are made, in such manner as the President may direct.
4. The Advisory Board constituted under clause (2) shall exercise such powers and perform such functions relating to the administration and management of the affairs of the said Authority as the President may direct.
5. In the matter of recruitment of persons for the purposes of the said Authority, there shall be maintained such ratio between the new Provinces as the President may direct.
6. The President may, be order, make provisions for the financing of the said Authority and for the appointment amongst the new Provinces of the liabilities arising therefrom and of the sums recoverable from the said Authority by the Provincial Governments.
7. The powers vested in the President under this Article shall be exercised by him for the purposes of the new Provinces.
3. Subsequently vide Ordinance II of 1979 as amended by Ordinance XX of 1998, the Pakistan Water and Power Development Authority was constituted and the Pakistan Water and Power Development Authority Act, 1958 extended to the whole of Pakistan except the Districts of Karachi.
The original employees of WAPDA were thus federalized.
4. Vide General Order No, 1 dated 26.03.1998 issued by the Chairman, WAPDA it was decided that under the Pakistan Power Sector Reform Programme as many as twelve companies under the Companies Ordinance, 1984 shall be incorporated to manage and run the power sector of WAPDA.
Pursuant to this the respective asset block of WAPDA were decided to be corporated into separate independent commercial entities to enhance the efficiency and competitiveness of the Power Wing. Correspondingly it was decided that the erstwhile Area Electricity Boards be incorporated into companies. Consequently as many as twelve companies were incorporated under the Companies Ordinance, 1984 and certificates of incorporation under Section 32 ibid alongwith certificate for commencement of business under Section 146 (2) ibid were issued to them. This comprised of nine distribution companies, three thermal generation companies besides NTDC for performing of function of transmission. Vide office order dated 17.06.1999 the services of concerned WAPDA employees were placed at the disposal of the newly incorporated companies. This placing/secondment was initially affective for a period of three years where-after options were invited from all such employees to opt for employment under the respective companies. This constituted what was termed as Manpower Transition Programme whereby the employees serving in the companies who had opted to become companies' employees ceased to be WAPDA employees and became employees of the respective companies with effect from the prescribed date (s). In pursuance of the order dated 17.06.1999 options were obtained from WAPDA employees for company employment and the employees who opted for company employment were declared as such with effect from the date specified in each case. Subsequently fresh contracts of employment were executed between the employees and the respective companies with the specific provision of severing their employment with the WAPDA. The terms and conditions of employment of such opting employees was to be not less favourable than the ones obtaining in WAPDA for such employees. Thus from effective date, the employees of the Power Wing, WAPDA were transferred to the respective companies incorporated under the Companies Ordinance, 1984 and assumed employment of the companies discontinuing the employment with WAPDA. The Memorandum and Articles of Association ensured financial and administrative autonomy of these companies. Regarding the rules relating to service, discipline and other matters, it was provided that the employees of the companies shall be governed by the companies' rules and regulations as to be notified by the company. These rules and regulations would be based on the corresponding rules enforced in WAPDA which shall be adopted by the company to the maximum possible extent. These rules were to be approved by the Board of Directors of the company concerned. In the interregnum the employees of the companies were to be governed for all purposes by the rules, orders enforced in WAPDA for the present. The relevant letters/memoranda are reproduced below for reference:-- "PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY WAPDA HOUSE LAHORE, Shahrah-i-Quaid-i-Azam, Lahore.
GENERAL ORDER NO. 01 TO: All WAPDA Officers and Employees in the Power Wing and Finance Wing.
Subject: CORPORATIZATION/COMMERCIALIZATION OF THE LAHORE AREA ELECTRICITY BOARD.
WHEREAS, pursuant to the Pakistan Power Sector Reform Program, asset blocks of the Authority will be corporatized into separate, independent commercial entities to enhance the efficiency and competitiveness of the Power Wing.
WHEREAS, upon careful study of the technical, financial, management, and legal implications of incorporating the business and assets comprising the Lahore Area Electricity Board, the Steering Committee created under the Office Order dated May 7, 1997 of the Managing Director (WPPO) has endorsed for approval the corporatization plan for the proposed Lahore Electric Supply Company Limited (the "Company", for brevity); WHEREAS, the Authority has reviewed, and found satisfactory, the recommendations of the Steering Committee; NOW, THEREFORE, pursuant to the powers and duties vested by the Pakistan Water and Power Development Act of 1958, as amended, the Authority approves and order, as it hereby approves and orders the following:
1. The following documents, together with their schedules, annexes and other attachments, are hereby adopted and approved for the corporatization of the Lahore Area Electricity Board, to wit: a. Memorandum and Articles of Association; b. Draft Licence; c. Business Transfer Agreement; d. Operation and Development Agreement; and ti2 e. Electricity Supply Agreement;
2. The following officers are each authorized to hold in their names, in trust and in favour of the Authority, an initial qualifying share in the Company, and are hereby appointed to the Board of Directors of the Company in the capacity provided opposite their respective names: a. G.M. (Operation)" WAPDA Chairman b. Chairman Lahore AEB Executive OfficerMember and Chief c. G.M. (System Operation) Member d. G.M. (Accounts/G.M. (C.F.) Member e. G.M. (GSO) Member f. G.M. (Admn) Member g. Director Legal (WPPO) Member
3. The Director Legal (WPPO) is hereby authorized to file the necessary application for registration of the Memorandum and Articles of Association with the Corporate Law Authority and to follow up the expeditious issuance of the corresponding certificate of registration.
4. The Chairman, this Authority, is hereby given full power and authority to execute the agreements described in Clause 1 hereof in behalf of the Authority.
5. The Member (Finance) and the Member (Power) are hereby given full power and authority to make delivery of the assets, documents and papers to be conveyed to the Company by virtue of the Business Transfer Agreement herein approved.
6. The Member (Finance) is hereby authorized to secure the consent, where necessary, and/or notify creditors of WAPDA of e proposed transfer of assets to the Company.
7. The General Manager (Admn) is hereby authorized to take necessary action to effect the secondment of WAPDA employees to the Company as required under the Operation and Development Agreement herein approved.
This Order shall take effect immediately in supersession of all previous orders inconsistent therewith and all concerned parties shall be guided accordingly.
DONE this 22nd day of Mar, 1998 in Lahore, Pakistan.
Sd/- CHAIRMAN WAPDA Endost No, MD/WPPO/CCP-121/4805-4865 Dated: 26.03.1998." ******* "PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY OFFICE OF THE MANAGING DIRECTOR (POWER) WAPDA, WAPDA HOUSE, LAHORE.
No, 18613-ZC/MDP/E-1/10/3400DATED: 17.06.1999 OFFICE ORDER 1.Authority is pleased to place the services of the WAPDA employees enumerated in the attached lists (duly countersigned by the authorized officer of the company) at the disposal of Lahore Electric Supply Company Ltd., Lahore on secondment basis with immediate effect. Details of the lists are as under: List "A" Employees BPS-1 to 11 11928 Nos, List "B" Employees BPS-12 to 16 600 Nos, List "C" Employees BPS-17 to 20320 Nos, Total Employees 12848 Nos,
2. The seconded employees will continue to be governed by the terms and conditions of their service as heretofore. In addition the following provisions will also apply:--
(a) The secondment shall be for a Transition Period of three years which is extendable. During the transition period, LESCO, if they so choose, may make offer of employment under a new contract to individual secondees. Personnel to whom such offer is not made or those who refuse such offer, shall revert to WAPDA. During the period of secondment, a secondee's contract of employment with WAPDA shall remain intact till such time that he is transferred to LESCO, or another corporate entity by mutual agreement under a new contract.
(b) There shall be no diminution in rank and pay of the einployees nor withholding of any benefits, during the transition period.
(c) There shall be no severance from employment as a result of WAPDA's restructuring during the period of secondment except when due to normal causes such as physical and mental incapacity or mandatory retirement under the existing rules and regulations.
3. Hereafter, secondees whose names appear in the attached lists shall not be posted/transferred outside the Lahore Electric Supply Company Ltd., except with prior approval of Pakistan Electric Power Company (Pvt.) Limited, WAPDA House, Lahore.
4.Kindly acknowledge receipt of this letter and the lists attached therewith.
Sd/- CHIEF ENGINEER (ADMN) POWER WAPDA, WAPDA HOUSE, LAHORE.
"WATER AND POWER DEVELOPMENT AUTHORITY Office of the Member (Finance) WAPDA WAPDA House, Lahore.
No, Car/AN/681-82/5013/359-68 Dated: 29/31.01.2001 OFFICE ORDER Competent authority has approved re-structuring of Internal Audit Division and placement of its personnel enumerated in the attached lists (duly countersigned by the authorized officer of the office of the Chief Auditor, WAPDA) at the disposal of LESCO on secondment basis w,e,f, 01.02.2001.
The details of the lists are as under:-- List "A" Employees BPS-17 to 20 007 List "B" Employees BPS-12 to 16 033 List "C" 111 Total Employees 151 Some posts have been kept vacant. The officers/officials will join the respective corporate entity after completion of their assignment.
The seconded employees will continue to be governed by terms and conditions of their services as heretofore. In addition the following provisions will also apply:--
(a) There shall be no diminution in rank and pay of the employees nor withholding of any benefits, during the transition period.
(b) There shall be no severance from employment as a result of Internal Audit Division WAPDA's restructuring during the period of secondment except when due to normal causes such as physical and mental incapacity or mandatory retirement under the existing rules and regulations.
(c) The secondment shall be for a period of 3 years subject to further extension. During the transition/secondment period the Corporate Entities, if they so choose, may make offer of employment under a new contract to individual secondees. Personnel to whom such offer is not made or those who refuse such offer, shall revert to WAPDA. During the period of secondment, a secondee's contract of employment with WAPDA shall remain intact till such time that he is transferred under a new contract to LESCO, or another corporate entity by mutual agreement.
3. Hereafter, secondees whose names appear in the attached lists shall not be posted/transferred outside LESCO except with prior approval of Pakistan Electric Power Company (Pvt.) -Limited, WAPDA House, Lahore.
4. Procedures:--
(a) The Dy. Chief Auditors will report various Important matters/progress to the Chief Auditor as heretofore.
(b) The Dy Chief Auditors will work as per audit procedures and arrangements prescribed in the WAPDA audit Manual and Revenue Audit Manual.
(c) The Dy. Chief Auditors of DISCONS, NTDC and GENCOIII will exercise all financial and administrative powers of Grade-19 officers. They will maintain an independent imprest account which will be reimbursed by Director Accountant of each Company.
(d) The salaries, allowances and employee claim will be paid by the Dy. Chief Auditors under arrangements as per para 4 (c) above. Employees of GENCO-I & II will received salaries and allowances directly from their Chief Executive Office.
Sd/- MEMBER (FINANCE)."
"PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY Office of the Chief Engineer-HI (WPPO) WAPDA Power Privatization Organization 133-WAPDA House, Lahore.
No, CEO (PEPCO)CE-III/WPPO/03-37 Dated: 01/01/2002 All Chief Executive Officers, DISCOs.
All Chief Executive Officers, GENCOs.
Chief Executive Officer, NTDC Subject: NEW CONTRACT OF EMPLOYMENT MANPOWER TRANSITION PROGRAMME, PHASE-III Reference: CEO PEPCO Letter No, 2931-50/CEO/DD (A)/310(II) dated 26.12.2001 addressed to All HRD Director, IESCO, LESCO, HESCO, NTDC, MEPCO, Directors (Admn), PESCO, GEPCO, FESCO, QESCO and Dy. Directors (Admn), GECO-I, GENCO-II & GENCO-III.
Authority is pleased to extend the date for the submission of the new contract of employment under the above subject manpower transition programme by 10th January 2002 instead of 31st December 2001 as already circulated.
In order to facilitate WAPDA towards greater appreciation for better understanding, contracts of employment have also been got translated in Urdu. Copies of the Urdu version of contracts for type-1 and type-2 employees are also enclosed for widely dissemination among the employees. It may be highlighted that the existing terms and conditions of the WAPDA Employees will not be altered to their disadvantage.
Please make sure that exercise is completed on the extended target date i,e, 10.01.2002.
Sd/- (KALEEM HANFI)
Chief Engineer-III (WPPO/PEPCO)."
"PEPCO Office of the Chief Executive Officer 722-WAPDA House, Shahrah-e-Quaid-e-Azam, Lahore, 54000.
No, 592-612/CEO/DD (A)/310 (III)Dated: 08.4.2002 NOTIFICATION Subject: AUTONOMY TO THE CORPORATISED ENTITIES.
Authority in its meeting held on March 05,2002 has been pleased to place employees of Category-I (local seniority) BPS-1 to 16 in their respective Companies permanent employment w,e,f, 31.3.2002 on the terms & conditions in the new contract of company employment executed between employees and the Companies and therefore, they shall cease to be WAPDA employees from the dates so notified by the Company. The employees of common seniority in BPS-1 to 16 in Category-II and officers in BPS-17 and above in Category-III shall be offered new contract of employment subsequent to their adjustments in the Corporatised Entities on the basis of their options for company employment and criteria approved by Authority.
By virtue of Company employment, falling in Category-I (local seniority) BPS-1 to 16 shall not be transferable to other entities without prior consent of the Corporatised Entities concerned, who shall exercise effective administrative control over the Human Resources for efficient operations.
The Company shall take necessary steps following good HRM practices to develop and improve skills of its employees for improved company performance and to enable them to work under new corporate culture as envisaged under the Power Sector Reforms Programme.
Sd/- (Javed Nizam)
Chief Executive Officer PEPCO."
"PEPCO PAKISTAN ELECTRIC POWER COMPANY (PTV.)LIMITED 701-WAPDA House, Shahrah-e-Quaid-e- Azam, Lahore-54000 No, c/dda/pcpco/2004/a-418-I/3550-70 15 December 2004
1. Brig. Tasadaq Hussain Shah, Chief Executive Officer QESCO, Quetta7.Brig. Saifulla t Khalid, Chief Executive Officer GEPCO, Guj ranwala 2.Mr. Adeeb-ul-Hassan Chief Executive Officer HESCO, Hyderabad8.Brig. Tariq Rasool Chief Executive Officer FESCO, .
Faisalabad 3.Brig. Abbas Ali Khan Chief Executive Officer MEPCO, Multan9.Mr. Abu Aadil Chief Executive Officer GENCO- I, Jamshoro
4. Brig. Tahir Saeed Malik Chief Executive Officer PESCO, Peshawar10.Mr. Muhammad Jamil, Chief Executive Officer GENCO-II, Guddu
5. Mr. Muhammad Akram Arain, Chief Executive Officer LESCO, Lahore11.Mr. Maqbool Anjum Chief Executive Officer GENCO- III, WAPDA House, Lahore
6. Brig. Shehbaz Azam Chief Executive Officer IESCO, Islamabad12.Mr. Muhammad Tariq Malik Chief Executive Officer NTDC, WAPDA House, Lahore SUBJECT: MANPOWER TRANSITION PROGRAMME PHASE-HI-COMMENCEMENT OF COMPANY SERVICE OF OFFICERS IN BPS-17 AND ABOVE It is hereby advised that the WAPDA Authority has been pleased to authorize the companies to notify, all regular WAPDA Officers (BPS-17 and above) of Power Wing and Common Services, serving in the companies and have opted to become company employees in pursuance of this office letter No, CEO (PEPCO) DDA/A-310-W/108-38, dated 09.01 2003, that they shall cease to be WAPDA employees w,e,f, 31.12.2004 (A.N) and shall become companies' employees with effect from 01.01.2005 (F.N.) with all protections as contained the offer of employment made to them by the Company and accepted by them. Notification to this effect may be issued or before 31.12.2004.
In order to minimize the chance of errors and omissions, lists of such officers may be displayed prominently and objections (if any) thereto may be invited from officers so as to reach the Company within seven (7) days of the display of such list. Thereafter all such officers may be notified individually in writing about the cessation of their earlier status (WAPDA employees) and the commencement of their new status with regard to the Company (as company employees).
The adjustment of officers, who have not accepted company employment by their respective competent authorities, may be ensured at the earliest.
Sd/- (Tariq Hamid) Chairman PEPCO c.c. to:
1. Member (Finance) WAPDA
2. Member (Power) WAPDA .
3. PSO to Chairman, WAPDA/PEPCO
4. General Manager (Admn) WAPDA
5. General Manager (Finance) WAPDA
6. General Manager (Operation) WAPDA 7, General Manager (M&S) WAPDA
8. PM Director PEPCO
9. Chief Engineer (Admn) Power, WAPDA
10. Chief Engineer-III (WPPC), WAPDA
11. Chief Auditor WAPDA
12. Director General (IS) WAPDA
13. Director General, (S&GA) WAPDA 14.Secretary, WAPDA 15.Dy. Director (Admn) PEPCO 16.Master file."
"PEPCO PAKISTAN ELECTRIC POWER COMPANY (PTV.)LIMITED 721-WAPDA House, Shahrah-e-Quaid-e-Azam, Lahore-54000 No MD (PEPCO)/PS-1A/437-11/3587-3618 Dated: 17 October 2007 OFFICE ORDER Subject: WAPDA POWER WING MANAGEMENT REPORTING LINES.
Reference: Ministry of Water & Power's Letter No, A-111/6/6/04 dated 10 October 2007 (copy enclosed).
I am pleased to inform you that the PEPCO BOD Meeting held on 12 October 2007, Mr. Muhammad Ismail Qureshi, Secretary, Ministry of Water & Power has been elected as Chairman PEPCO as per his nomination by the Prime Minister. In the same meeting, I have also been ratified as Managing Director PEPCO, while Mr. Muhammad Saleem Arif will continue with PEPCO as Advisor to the Chairman and MD PEPCO.
I am further pleased to inform you that as per GOP policy and Prime Minister's directives, WAPDA Power Wing henceforth will be under the management of PEPCO. As you are aware that this is part of the continuing action under the Power Wing Reform and Restructuring Programme as per approved GOP Polity and is focused on bringing about major improvements in the power sector operations, planning, project implementation etc. and to increase the productivity and efficiency, so as to move the DISCOs, GENCOs and NTDC towards autonomous, independent and commercial operations.
Now it is essential that forward steps, as envisioned in the GOP policy documents, be implemented with full vigour and enthusiasm. We have a formidable task ahead of us, to meet the ever growing electric power .demand of the Nation, to control load shedding, to provide Quality Customer Services and to ensure safe, reliable and continuous electric power supply for industry, business and the people of Pakistan.
It may please be noted that affairs of the departments in the Power Wing and corporate entities are to continue without any hindrance or bottlenecks to ensure smooth operations and effective phased transition to the new model with immediate effect.
'As an interim measure, following reporting lines for the Power Wing offices and Corporate Entities are to be observed: Sr. No, Department/EntityReport to
1. CEOs DISCO MD PEPCO
2. CEOs GENCOs Advisor PEPCO through GM (Thermal)
3. CEO NTDC MD PEPCO through Sr. GM (Tech & Planning) PEPCO
4. GM (Thermal) Advisor PEPCO
5. GM (C&M) MD PEPCO
6. GM Finance PowerMD PEPCO/ Member (Finance)
7. DG (Customer Services)Advisor PEPCO
8. DG (IS) MD PEPCO
9. GM WPPO MD PEPCO
10. GM (M&S) MD PEPCO
11. GM (Admn) Chairman WAPDA MD PEPCO
12. GM (CCC) Chairman WAPDA MD PEPCO Subsequently, as PEPCO management is put in place further adjustments and fine tuning will be done in the management structure to ensure effective management control.
I look forward to the full cooperation, commitment, perseverance, and diligence of all officers in WAPDA, PEPCO and the Corporate Entities as we endeavour with our best efforts for bringing about the required improvements in the Power Sector and meeting the strategic objectives set for us by the GOP, Ministry of Water & Power, President and Prime Minister of Pakistan.
Sd/- Munawar B: Ahmad, PE Managing Director C.C.
1. Chairman PEPCO/Secretary, Ministry of Water & Power, Islamabad
2. Chairman, WAPDA
3. Additional Secretary, Ministry of Water & Power, Islamabad
4. PSO to Minister Water & Power, Islamabad
5. Members (Power)/ (Finance)/ (Water) WAPDA
6. CEOs of all corporate entities
7. All Officers noted above."
5. Pakistan Electric Power Company Limited (PEPCO) was the holding company of all the above referred to companies. As the holding company, PEPCO was responsible for overseeing the autonomy and manpower transition to the above said companies and in this respect through notification dated 08.04.2002 also notified that after permanent employment in all the respective companies and the entering of new contract of company employment, all such employees shall cease to be WAPDA employees from the dates so notified by the company.
6. The restructuring/bifurcation of WAPDA resulted in general harmony between the WAPDA and PEPCO about the duties and obligations of officers and staff. It was clearly understood that PEPCO should be independent to manage and be exclusively responsible in respect of the power sector through its own staff and that there should be no duplication of tasking of staff left with WAPDA.
7. These companies shall hereinafter be referred to as WAPDA related companies.
8. In the various Miscellaneous Petitions/Appeals before us the primary question that falls for determination is the status of the appellants being civil servants or not. The following points arose from the submissions made by the learned counsel appearing for the parties which were reduced to the following legal formulations to resolve the issue:--
9. (i) Whether the WAPDA employees who were transferred to various WAPDA related companies upon the restructuring/ bifurcation of WAPDA continued to enjoy the status of civil servants despite the terms and conditions of the offers of employment in the companies.
(ii) Whether employees of WAPDA who fall under the definition of workers under the Factories Act 1934 or Workmen under Workmen Compensation Act 1923 would fall outside the definition of civil servants as defined in the Civil Servants Act, 1973.
(iii) Whether the WAPDA related companies after incorporation under Section 32 of the Companies Ordinance, 1984 and issuance of certificate for commencement of business under Section 146 (2) of Companies Ordinance 1984 acquired the full status of autonomous corporations including the financial powers of disbursing salaries etc. to its employees.
(iv) Whether the WAPDA related companies are revenue generating entities with full power of management, administration and control including disciplinary matters of the employees transferred to them from WAPDA.
(v) Whether or not the incorporation of WAPDA related companies is real and not merely a veil of incorporation.
(vi) Whether there shall be any effect of acceptance of offer of employment in WAPDA related companies upon any cause of grievance which has arisen prior to the making of such option.
(vii) Whether the rules of WAPDA regarding terms and conditions of service as well as disciplinary matters shall apply to the employees opting for service in WAPDA related companies as statutory rules.
(viii) Whether cases arising out of Removal from Service (Special Powers) Ordinance, 2000 shall be entertainable before the FST both in respect of the employees of WAPDA and employees of WAPDA related companies.
9. In order to resolve the controversy, it is necessary to examine the genesis of Section 17 of the WAPDA Act, 1958 as amended from time to time. Section 17 ibid is reproduced as under:-- "Employment of Officer and Servants
17. (1) The Authority may from time to time employ such officers and servants, or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit. *Provided that all persons serving in connection with the affairs of a Province in the Electricity and Irrigation Departments shall be liable to serve under the Authority, is required to do so by the Provincial Government, on such terms and conditions as the Provincial Government may, in consultation with the Authority, determine but shall not be entitled to any deputation allowance. *Provided further that the Provincial Government may, in relation to any such person as aforesaid delegate such administrative, disciplinary and financial powers to the Authority as the Provincial Government may deem fit.
Provided also that the terms and conditions of service of any such person and aforesaid shall not be varied by the Authority to his disadvantage. **/ (1A) Notwithstanding, anything contained in sub-section (1) or any law, or award for the time being in force, or any rules or regulations made under this act, or any rules, regulations, orders or instructions issued by the Authority, or in the terms and conditions of service of any person employed by, or serving under the Authority, the Authority may, at any time.
(a) retire from its service any person without assigning any reason; or
(b) remove from its service any person after informing him in writing of the grounds on which such action is proposed to be taken and giving him an opportunity of showing cause against the action within fourteen days.
(1AB) Where a person is retired from service under sub-section (1A), he shall, in addition to the retiring benefits admissible to him under the terms and conditions of his service, if any, be paid additional pay for three months" ** Explanation I- For the purpose of this sub-section any person employed by, or serving under the Authority includes a person referred to in the provisos to sub-section (1). Explanation II- Any person referred to in the provisos to sub-section (1) who is removed or retired from service by the Authority under this sub-section shall stand reverted to the Province to which he is allocated under the Province of West Pakistan (Dissolution) Order, 1970 (P.O. No, 1 of 1970); and (1-B)- 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. ** (1-C) Any order of removal or termination of service passed by the Authority in exercise of the power conferred by subsection (1-A), shall not be called in question in any proceedings taken under the Industrial Relations Ordinance, 1969 (XXIII of 1969), or the Essential Services (Maintenance) Act, 1952 (LIT of 1952) or under any law for the time being in force, before any Court, Tribunal or Commission and any order passed by any Court, Tribunal or Commission after the Thirtieth day of September 1975 and before the coming into force of the Pakistan Water and Power Development Authority (Amendment) Ordinance, 1979 setting aside or modifying or declaring any order of the Authority to be void and of no effect, shall stand vacated. *** (1-D) Nothing contained in the Industrial Relations Ordinance, 1969 (XXIII of 1969) shall apply to or in relation to any person employed as a member of the security staff of the Authority for the protection of the installations and establishments of the Authority.
(2) The Chairman, in case of urgency, may appoint such officer and servants on such terms and conditions as may be necessary.
Provided that every appointment made under this sub-section shall be reported to the Authority without unreasonable delay.
[Amendment version of (3) above] ## (3) Notwithstanding anything contained in sub-section (1) or any rules made, orders or instructions issued by the Authority or. in the terms and conditions of service c any person employed by, or serving under the Authority, the Authority may, at any time, transfer, second or depute any such person to any company or other entity promoted, formed or sponsored pursuant to a scheme framed under clause (vii) of sub-section (2) of Section 8 on such terms and conditions as it may deem fit."
10. Section 17 (1-B) was inserted vide WAPDA Amendment Ordinance 1975 published by the Government of Pakistan, Ministry of Law and Parliamentary Affairs, vide No, 24 (3), dated 30.09.1975.
This provision consists of two limbs. Firstly it declared service under the Authority to be Service of Pakistan and secondly it provides that a 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 purpose the Service Tribunals Act, 1973. First limb is to be interpreted upon touch stone of Article 260 of the Constitution of Pakistan, 1973.
Service of Pakistan is defined under Article 260 as under:-- "Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All Pakistan Service, service in the Armed Forces and any other service declared to be a Service of Pakistan by or under Act of "Madis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate-General, Parliamentary Secretary or Chairman or Member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or Member of a House or a Provincial Assembly".
Service under WAPDA has been declared to be service of Pakistan through a statutory provision.
This meets the requirement of Article 260 which ordains that Service of Pakistan means any service declared to be Service of Pakistan by an order or under an Act of Parliament. The service under the Authority having been declared to be the service of Pakistan by the Act of Parliament is in no way repugnant to the provision of Article 260 of the Constitution.
The second limb however, shall not be construed to simultaneously confer the status of a civil servant upon such declaration. It has been held in the case of Muhammad Mubeen-us-Salam Vs. Federation of Pakistan through Ministry of Defence and others PLD 2006 S.C. 602, that a person cannot be deemed to be a civil servant upon the strength of a deeming clause of a Statute unless and until he fulfills the criteria of a civil servant as laid down in the Civil Servants Act, 1973. Article 240 of the Constitution, inter alia, provides that subject to the Constitution, the appointments to and the conditions of service of persons in the Service of Pakistan shall be determined in the case of service of the Federation, posts in connections with the affairs of the Federation and All Pakistan Service by or under an Act of Parliament. In pursuance of the said Article, the Civil Servants Act, 1973 was enacted by the Parliament. It is advantageous to reproduce Section 2 and Section 5 of this Act alongwith Section 7 of the Federal Public Service Commission Ordinance 1977:-- "Civil Servants Act, 1973.--2 (b) "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);"
"5. Appointments.--Appointments to an All-Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected With defence shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf."
"7. Federal Public Service Commission Ordinance, 1977.--Functions of the Commission.--The functions of the Commission shall be (a)to conduct test and examinations for recruitment of persons other than officers of the Armed Forces of Pakistan to all Pakistan services the civil services of the Federation and such posts in connection with the affairs of the Federation as may be prescribed by rules made under Section 10, and (b)to advise the President on matters relating to qualifications for, and methods of recruitment, to the services and posts referred to in clause (a), and other matters which the President may refer to Commission.
Explanation.--In this section, "recruitment" means initial appointment otherwise than by promotion or transfer."
11. Thus in order to qualify to be a civil servant under the Civil Servants Act, 1973 an employee under the Authority must not be a worker under the Factories Act, 1935 or a workman under the Workmen's Compensation Act, 1923. For ready reference worker under the Factories Act is defined as under:-- "Section 2
(h) "worker" means a person employed, [directly or through an agency] whether for wages or not, in any manufacturing process, or in cleaning any part of the machine -or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on ; Section 2 (g) describes manufacturing process as under: "manufacturing process" means any process-
(i) for making, altering, repairing, ornamenting, finishing or packing, or otherwise treating any article or substance with a view to its use, sale, transport, delivery or disposal, or
(ii) for pumping oil, water or sewage, or
(iv) for generating, transforming or transmitting power.
Sections 2(j) and 2(k) defines "factory" & "machinery" respectively.
12... A "workman" under the Workmen's Compensation Act, 1923 is defined as under:-- "Section 2
(n) "workman" means any persons (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is--
(i) a railway servant as defined in Section 3 of the Railways Act, 1890 (IX of 1890), not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or
(ii) employed on monthly wages not exceeding [5 thousand] rupees in any such capacity as is specified in. Schedule II, Whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of naval, military or Air Forces; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them........"
This was further amplified in Schedule II made under Section 2 (1) (n) of the Act, 1923.
13. It would thus follow that despite being declared as Service of Pakistan any person falling under the definition of a "worker" under the Factories Act, 1934 or Workmen's Compensation Act, 1923, if he is in receipt of remuneration less than the prescribed one shall fall outside the definition of a civil servant as defined in the Civil Servants. Act, 1973 and shall not be entitled to any rights available to a civil servant despite the deeming clause of Section 17 (1-B). This status of the WAPDA employees continued up till the submission of option by them, acceptance of such option, execution of a fresh contract of employment and severing their connection with WAPDA employment, pursuant to General Order No, 1, dated 26.03.1998 issued by the Chairman, WAPDA when it was decided that under the Pakistan Power Sector Reforms Programme various companies under the Companies Ordinance 1984 shall be incorporated to manage and run the power sector of WAPDA. Accordingly the respective asset blocks of WAPDA were decided to be corporatised into separate independent commercial entities to enhance the efficiency and competitiveness of the Power Wing.
Correspondingly it was decided that the erstwhile Area Electricity Boards (AEB) be incorporated into companies. Consequently as many as 12 companies were incorporated under the Companies Ordinance 1984 and certificates of incorporation under Section 32 ibid alongwith Certificate for commencement of business under Section 146 (2) ibid were issued to them. As many as 9 distribution companies, 3 thermal generation companies besides NTDC for performing function of transmission were thus formed. Vide Office Order dated 17.06.1999 the services of WAPDA employees were placed at the disposal of these newly incorporated companies referred to as WAPDA related companies. This dispensation/secondment was initially effective for a period of 3 years whereafter options were invited from all such employees to opt for employment under the respective companies. This was termed as a "manpower transition programme" whereby the employees serving in the companies who had opted to become companies' employees ceased to be WAPDA employees and became the employees of the respective companies with effect. from the prescribed date. Fresh contract of employment were executed between the employees and the respective companies containing the provision of severance of their employment with WAPDA.
Necessary amendments in the WAPDA Act was also made by inserting Section 17 (3) through Ordinance V of 1999 dated 24.05.1999 which is to the following effect:-- ## (3) Notwithstanding anything contained in sub-section (1) or any rules made, orders or instructions issued by the Authority or in the terms and conditions of service of any person employed by, or serving under, the Authority, the Authority may, at any time, transfer, second or depute any such person to any company or other entity promoted, formed or sponsored pursuant to a scheme framed under clause (vii) of sub-section (2) of Section 8 on such terms and conditions as it may deem fit.
Sub-section (1) of Section 8 and sub-section (2) (vii) ibid is reproduced as under:-- "(1) The Authority shall prepare, for the approval of the Government a comprehensive plan for the development and utilization of the Water and Power resources of Pakistan on a unified and multi- purposes basis."
(2)(vii) "Privatise or otherwise restructure any operation of the Authority except the hydel generating power stations."
14.The Pakistan Electric Power Company Limited (PEPCO) was incorporated as the holding company of all the above-mentioned WAPDA related companies. As the holding company, PEPCO was responsible for overseeing the autonomy and manpower transition to the above said companies and in this respect through Notification dated 08.04.2002, notified that after permanent employment in the respective companies, and the entering of new contract of company employment, all such employee shall cease to be WAPDA employees from the dates so notified by the respective company. Whatever administrative or financial power was originally retained by WAPDA in respect of these employees stood transferred to PEPCO making WAPDA completely bereft of any such power. PEPCO thus became responsible to manage the power sector through its own staff and there remained no duplication of tasking of staff left with WAPDA.
15.A conjoint effect of the above was that the employees of WAPDA who fulfilled the definition of a civil servant under the Civil Servants Act, 1973 and who had not severed their employment with WAPDA as hereinbefore detailed would alone be entitled to approach this Tribunal in respect of their terms and conditions of service. The employees of WAPDA related companies were denuded of the status of civil servant being:
(a) employees of a corporate entity independent of WAPDA
(b) not being governed by a statute or statutory rules of service, and wherever applicable being "workers" under the Factories Act, 1934 and/or "workmen" under the Workmen's Compensation Act, 1923 and
(c) having opted for Company employment and severing their connection with WAPDA employment.
16.The effect of corporatization has been conclusively laid down by their Lordships of the Supreme Court in case of Mrs. M.N. Arshad & others Vs. Ms. Naeema Khan & others PLD, 1990 S.C. 612.
That case pertained to the services in Islamabad Model Schools/Colleges, which were originally setup through a Resolution of the Federal Government. It was held that as the Islamabad Model Schools/Colleges were a creation of the Resolution of the Federal Government itself, the employees of said institutions were in the service of Pakistan and would continue to remain so till corporatization of the said institution. It was held that "in Pakistan, corporations are not created by Royal Charter but they are incorporated either by a statute like the Karachi Port Trust, incorporated under the Karachi Port Trust Act, 1886, or by registration under a statute like companies under the Companies Act or associations under the Societies Act or cooperative societies under the Cooperative Societies Act or a trust under the Trust Act etc. However, corporations can also be created by an executive order under the authority delegated by an Act of the Parliament".
17.In the instant case the corporatization of the Power Wing of WAPDA has been effected by incorporation of different companies under the Companies Ordinance, 1984. These companies have been demonstrated to be revenue generating entities with full powers of management, administration and control including disciplinary matters of the employees transferred to them from WAPDA. The Act of incorporation is real following the intendment of the WAPDA Act, 1958 as contemplated in Section 8 read with Section 17 (3) ibid. It is not merely a veil of incorporation and does not merit to be pierced.
18.This will lead us to the question of treatment of those cases where cause of grievance might have arisen to a WAPDA employee before his transfer to a WAPDA related company. In such an eventuality the principle contained in Section 6 of the General Clauses Act 1897 shall prevail and all such cases shall be liable to be continued and concluded under the law then in force. An appeal in such a case shall be competent before this Tribunal.
19.The jurisdiction of this Tribunal shall however, continue to be available to a person aggrieved of an order under the Removal from Service (Special Powers) Ordinance 2000 as provided under Sections 10 and 11 ibid. The reason for this is not far to seek as the RSO 2000 does not use the term "civil servant" but only refers to a person in Government Service or a perstm in corporation service and allows any such persons if aggrieved of an order under the said Ordinance, to approach this Tribunal in accordance with law.
20. "Person in corporation service" means every person in the employment of a corporation, corporate body authority, statutory body or other organizations or institutions set up, established, owned, managed, or controlled by the Federal Government, or by or under any law for the time being in force or a body or organization in which the Federal Government has a controlling share or interest and includes the Chairman and the Managing Director, and the holder of any other office therein; and "Person in Government Service" includes every person who is a member of an All-Pakistan or of a Civil Service of the Federation or who holds an civil post in connection with the affairs of the Federation or any employee serving in any Court or Tribunal set up or established by the Federal Government but does not include a Judge of the Supreme Court or of a High Court or Federal Shariat Court or any Court subordinate to the High Court, or any employee thereof.
21. Removal from Service (Special Powers) Ordinance 2000 is validated by Seventeenth Amendment made by way of substitution of Article 270-AA of the Constitution of Pakistan 1973. This is valid piece of legislation.
22. The Removal from Service (Special Powers) Ordinance is a special law providing special remedies and forum. The Hon'ble Supreme Court of Pakistan as already held in Anwar Parvez V.
Chairman, Board of Intermediate and Secondary Education, Abbottabad and 2 others (2005 SCMR 1603) and Federation of Pakistan through D.G. Military Lands & Cantonment Rawalpindi & others Vs. Syed Ibrahim Shah (NLR 2006 Service 51), has taken note of the special features of the said special legislation. Under S.10 therefore, appeal lies before the Federal Service Tribunal against any final order passed against the aggrieved person. Prima facie the implications of judgment in Muhammad Mubeen-us-Salam's case are not invokeable to such a case. In view of special provisions of such law having overriding effect as held in the above precedents and Full Bench of Lahore High Court Lahore in Muzaffar Hussain Vs. The Superintendent of Police District Sialkot (2002 PLC (CS) 442) jurisdiction of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be invoked.
23.There is no cavil with the proposition that Removal from Service (Special Powers) Ordinance, 2000 (Ordinance No, XVII of 2000) is prospective. The Same cannot be retrospective. Section 13 of Removal from Service (Special Powers) Ordinance, 2000 (Ordinance No, XVII of 2000) is reproduced as under:-- "For the removal of doubts, it is hereby provided there all proceedings pending immediately before the commencement of this Ordinance against any persons whether in Government service or corporation service under the Civil Servants Act, 1973 (LXXI of 1973) and rules made thereunder, or any other law or rules, shall continue under the said laws and rules, and as provided there under".
24. As a result of the above discussion, the Misc. Petitions and appeals shall be disposed of in accordance with the conclusion arrived at as under:--
(i) Appeals pertaining to employees of Water Wing of WAPDA, who fall under the definition of civil servants, are maintainable before the Service Tribunal subject to all other just and legal exceptions and such employees can seek enforcement of the provisions of the Civil Servants Act, 1973 and the rules etc. made there-under as well as other Rules lawfully applicable to them.
(ii) Appeals pertaining to the terms and conditions of employees of the Power Wing of WAPDA after their transfer and absorption in the WAPDA related companies are incompetent and liable to be dismissed/abated.
(iii)Appeals against the order passed under Removal from Service (Special Powers) Ordinance 2000 are competent before the Tribunal subject to other just and legal exceptions.
(iv)Appeals pertaining to a cause of grievance prior to the incorporation of WAPDA related companies and complete absorption of employees in such companies shall be competent subject to other just and legal exceptions.
25. Parties be informed.