' ABDUL GHIAS NOUSHERWANI (MEMBER).---- This appeal is directed against the order dated 6-11- 2012 passed by Learned District and Session Judge Labour court one Balochistan Quetta in Case No,12/2012 wherein application under section 41 of B.I.R.A., 2010 was dismissed for want of jurisdiction with the following prayer:--- "It is therefore respectfully prayed that to set aside the impugned order marked as annexure-A may be set aside and application of the appellant may be allowed in the interest of justice."
2. For disposal of instant appeal the short facts are that as mentioned in application of appellant under section 41 of B.I.R.A., 2010 that he was appointed by Authorities of QESCQ on "Son quota" as his father was expired during the course of service in QESCO. After his appointment and joining the service as Assistant Line Man. He served the Department for nine months with entire satisfaction of his officeRs, On 9th September, 2009 his services were terminated on the charge that he filed a fake school certificate. Without adopting procedure i,e, issuing any show cause notice, charge- sheet, enquiry and last opportunity of final hearing for the reasons that there were two school certificates which contradict each other. Thereafter he approached the appointing Authorities by him as well as by the President/Chairman of the union but such approaches had not been considered and he filed application before Learned Labour Court which was dismissed without recording evidence to determine the status of appellant as workman.
3. The Learned Labour Court framed amended issues and dismissed the application in view of preliminary legal objections 'A', 'B' and 'E' to 'I' raised by respondent with regard to jurisdiction of the court. The Learned Presiding Officer came to conclusion that appellant being a servant of QESCO which has been declared as a Government service therefore in such situation the Labour Court has no jurisdiction with the following observations:--- "keeping in view the all above discussion, arguments of the both sides and the authorities and documents of reliance, I came to the conclusion that this honourable Court has got no jurisdiction to adjudicate upon the matter in the light of Article of 212 of Constitution of Islamic Republic of Pakistan, 1973 and under section 17(1)(b) of Pakistan Water and Power Development Act, 1958.
Applicant under the mentioned Article and Section has no right granted to claim the relief from this Honorable Court. Thus the application is dismissed accordingly. However the applicant has right to invoke the jurisdiction of Federal Service Tribunal for the purpose."
4. The Learned counsel for appellant contended that the impugned order has been passed without determination of the status of applicant for the reason that according to the guideline of Superior Courts the Service Tribunal has no power to entertain the matter of worker as defined in the Labour Laws. Next contended that the employees/worker of QESCO have the right to approach Learned Labour Court instead of Federal Service Tribunal. In support of his contention he referred a written statement of WAPDA in Case No,2(1)/2013 wherein it is stated that employees of QESCO andother Provincial Electric supply corporation do not fall within the category of Government servant. Next he submitted that it was obligatory to record evidence on framed issues. On the other hand the learned counsel for respondent contended that QESCO adopted the Rules of WAPDA therefore his application rightly rejected by the Learned Labour Court on point of jurisdiction. Secondly contended that the application as well as present appeal is time-barred.
5. The Learned Presiding Officer while discussed Article 212 of the Constitution, perhaps overlooked the landmark judgment of honourable Supreme Court of Pakistan reported in PLD 2006 Supreme Court 602 wherein the Article 212(1) has been reproduced and after perusal it is held as under at Para No,33:--- "Perusal of the above definition of 'Civil Servant' reproduced earlier indicates that at least three types of persons were excluded from the definition of 'Civil Servant'; firstly, those who are on deputation to the Federation from any Province or other Authority; secondly, who are employed on contract, or on work-charged basis or who are paid from contingencies; and thirdly who are 'Workers' or .'Workmen' as defined in the Factories Act, 1934 (XXV of 1934), or the Workman's Compensation Act, 1923 (VIII of 1923)."
6. Meaning thereby that at first it is obligatory for the Courts/ Tribunal to determine the status of appellant whether he falls within the category of worker/workman or otherwise as observed by Honorable Supreme Court in above Para.
7. In the same judgment at page No,673 with regard to interpretation of Article 212 observed as under:- "-Arts. 240 & 260--- Service of Pakistan--- Basic propositions for the purpose of ascertaining as to whether a person is in the Service of Pakistan are that a declaration must exist that he shall be deemed to be in the Service of Pakistan and that such person must hold post or office in connection with the affairs of the Federation or of a Province and includes in all Pakistan Service (p.
673) V."
In view of above observation no declaration exist that appellant shall be deemed to be in service of Pakistan. The Honorable Apex Court while 'interpreting' Service Tribunals Act (LXX of 1973) holds:--- "Service Tribunals Act (LXX of 1973) ----S. 2-A--- Constitution of Pakistan (1973), Arts.260 & 240--- Industrial Relations Ordinance (XCI of 2002), Preamble--- Civil servant--- Service of Pakistan--- Workers or Workmen, whose cases are covered under the Industrial Relation Ordinance, 2002, cannot be declared to be in the service of Pakistan for the purpose of invoking the jurisdiction of Service Tribunal because their appointment had not taken place by virtue of the terms and conditions laid down by the Legislature under Art.240 of the Constitution nor such persons shall deem to be Civil Servants because they are not holding a permanent post for the purpose of discharging their functions in connection with the affairs of the Federation."
From perusal of above observations it is crystal clear that the worker/workman cannot invoke the jurisdiction of Federal Service Tribunal rather their cases falls under the Labour laws.
8. The learned counsel for appellant referred a photo state copy of Case No,2(1)/2013 before NIRC Islamabad in written statement by WAPDA authorities where in at Para No,(e) the WAPDA authorities stated as under:- "WAPDA and N.T.D.C. Are trans-provincial establishments and are located at Lahore i,e, not within territorial limits of Islamabad Capital Territory. The establishment of IESCO only falls within the limits of Islamabad Capital Territory. All the other establishments of GENCOs and DISCOs are located within the Territorial limits of the provinces of Sindh, Punjab, Khyber Pukhtunkhwa and Balochistan and as such these establishments are governed by the respective Industrial Laws of the Provinces concerned."
Meaning thereby that WAPDA Authorities do not own QESCO and bifurcated it that such establishments are governed by the respective Industrial Laws of provinces concerned.
9. The learned counsel for respondent while defending the order impugned stated that the section 17(1)(b) of Pakistan Water and Power Development Act, 1958 was adopted by QESCO therefore applicant being the servant of QESCO is a Civil Servant. The Learned Presiding Officer also discussed the above provisions of Act, 1958 but as stated in Para supra that in the light of law as well as observations of honorable apex Courts that the matter of worker/workman fall under the Industrial Relation Laws which are enough that the Labour Court as well as Tribunal has the jurisdiction in the matter of Worker/Workman under Industrial Relation Laws in the provinces.
However the honorable Supreme Court of Pakistan in above cited Judgment at Para No,37 observed as under:---
9. "Thus, in view of ratio decidendi of the above judgment, it can be held that a worker or a Workman as defined in Factories Act, 1934 or the Workman's Compensation Act, 1923, notwithstanding the fact that the controlling share in the industry vests in the Federal Government shall not be treated as Civil Servant. Similarly, person on contract, even though discharging their functions in connection with the affairs of the Federation and likewise, as well as the deputations from the Provinces to the Federal Government have not been granted protection of CSA, 1973, therefore, they were excluded from the definition of 'Civil Servant' and as per terms and conditions of the person of latter category, laid down in CSA, 1973 they shall not be entitled to approach the Service Tribunal, established under Article 212 of the Constitution. It may be noted that this Court in the case of Qazi Wali Muhammad (ibid), has crystallized the proposition, leaving no ambiguity in respect of 'Civil Servant or other persons, as per section 2 (1) (b) (i), (ii) and (iii) of the CSA, 1973 to avail remedy before the Service Tribunal in respect of their terms and conditions, being in the Service of Pakistan, including disciplinary matters, as per the mandate of Article 212 (1) of the Constitution"
In view of above observations/definition arguments of learned counsel for respondent with regard to Civil Servant and jurisdiction of Federal Service Tribunal is out of consideration.
10. If the contention of learned counsel for respondent and conclusion drawn by Learned Labour Court is considered to be correct that QESCO adopted the Rules and Regulations of WAPDA whereof the employees of QESCO fall in the category of Civil Servant. Even then the employee (Worker/Workman) of QESCO does not fall in the category of Civil Servant. The Honorable Supreme Court of Pakistan in above cited judgment at Para No,39 fully discussed the status of employees of WAPDA and held, "In the position of work charge establishment under the Authority the respondents would undoubtedly be treated as in the Service of Pakistan but not everyone in the Service of Pakistan is as Civil Servant for the purposes of Service Tribunals Act. In Service Tribunal Act itself and in the Civil Servants Act 'Civil Servant' has been so defined as to exclude workman. That apart, for the purposes of Service Tribunals Act only such of the employees of the WAPDA could be treated as Civil Servants who were holding a post under the Authority. Work charge establishment as such holds no post hence they cannot for the purposes of Service Tribunals Act be treated as Civil Servant. In the absence of their being Civil Servants, the remedy lay before the forum other than the Service Tribunal. If they fell in the definition of 'Workman' the Authorities providing them the redress were the appropriate authorities and there was no exclusion of the jurisdiction in the case."
Meaning thereby that the worker/workman of WAPDA also excluded from the category of Civil Servant though the case of QESCO is quite different from that of WAPDA. Apart from above discussion it is admitted that the matter of Industrial Relation dispute fall under Standing Order Ordinance, 1968. In support of above view it is benefited that the observation of honorable Supreme Court of Pakistan opt to be reproduced as under at Para No,40 in the above referred judgment:--- "This provision of law is in two parts. By the first, service under the authority has been declared to be Service of Pakistan. The second part, which is distinct from the first, is that every person holding a post under the Authority of the type described shall be deemed to be a Civil Servant for the purposes of the Service Tribunals Act, 1973. The result of this bifurcation is that employee shall be deemed to be in the service of Pakistan but not necessarily Civil Servant as defined in Civil Servants Act. If the respondent stands excluded from the definition of the Civil Servant as contained in the Civil Servants Act, then the statutory provision made for the Civil Servants will not apply. In the case in hand, it appears that the respondent is excluded from the definition of employee under the Workmen's Compensation Act, 1923 [clause (xix) to Schedule II] whereby persons connected with the generation transformation and supply of electricity are to be treated as Workmen for the purposes of Workmen's Compensation Act. (underlined by us to supply emphasis)."
Admittedly the appellant/applicant is Assistant Line Man which is connected with the generation transformation and supply of electricity and according to above citation they are to be treated as Workmen. Therefore the Learned Labour Court has the jurisdiction to entertain and proceed with the matter according to law for a just decision on merit.
11. The learned counsel for respondent relied upon on a Judgment of Honorable High Court of Balochistan in three Constitutional Petition wherein discussed the status of employee of QESCO and observed as under:--- "Whilst this may be correct the question is not whether the petitions are maintainable against QESCO but whether QESCO employee, who were previously the employees of WAPDA, can file petitions in respect of matters pertaining to the terms and conditions of their service and whether the bar contained in Article 212 of the Constitution does not come in their way. Both Mr. Muhammad Amir Rana and Mr. Qahir Shah relied upon the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 which they stated were applicable to QESCO. Mr. Amir Rana contended that the said Rules were the only statutory Rules applicable to QESCO whilst Mr. Qahir Shah stated that since QESCO governed by statutory rules they could approach the Federal Service Tribunal for redressal of their grievances, if the petitioners were transferred for mala fide reasons. Mr. Amir Rana also sought to distinguish the case of Muhammad Shafiq (supra) by stating that in the said case the petitioner had acknowledged that he was an employee of WAPDA whereas the petitioner's (in C.Ps. Nos.303, 304 and 766 of 2011) state that they are employees of QESCO. It is however not the case of the petitioners that they joined service after QESCO was formed, but that they had opted to become part of QESCO, and as such the facts of their cases are on all fours are the same as those of Muhammad Shafiq."
The conclusion in my humble view with regard to above citation is that the employees basically were employee of WAPDA and joined QESCO after its formation fall under the category of Civil Servant whereas the employee appointed by QESCO after its formation does not fall within the category of Civil Servant.
12. The learned counsel for respondent also relied upon the case of Muhammad Shafiq v. QESCO dated 24-5-2011 in C.A. No,89-Q of 2009 of Supreme Court of Pakistan. The above cited authority is not applicable in the case in hand for the reasons that petitioner Muhammad Shafiq was Deputy Manager (C.M. And 0 QESCO Quetta) who naturally does not fall within the category of worker/workman and not connected with the generation, transformation and supply of electricity.
Secondly in the order of honorable Supreme Court of Pakistan the jurisdiction of Federal Service Tribunal was not discussed rather the learned counsel for petitioner made a request that his Constitutional petition dismissed by Honorable High Court of Balochistan be transmitted to Federal Service Tribunal and be treated as service appeal. The order of honorable Supreme Court of Pakistan is reproduced for ready reference:--- "Learned counsel concedes that the petitioner is an employee whose services are governed by the Statutory Rules; therefore, instead of filing Constitutional petition for redressed of his grievance, remedy was available to him before the Federal Service Tribunal. As such he requests that on setting-aside the impugned Judgment, the writ petition so filed by him be forwarded to the Service Tribunal for treating it as an appeal against the order dated 16th of January, 2007 in pursuance whereof he was compulsorily retired from the service."
13. However conclusion drawn by honorable Supreme Court of Pakistan is reproduced as under:--- "Following above dictum in the fact and circumstances of this case, the appeal is allowed.
Impugned judgment is set-aside. Memo of the writ petition filed before the High Court of Balochistan, is directed to be transmitted to the Tribunal for treating the same as the Service Appeal pending before it, subject however to all just exceptions, and for decision on merits in accordance with law."
14. From perusal of above order the honorable Supreme Court of Pakistan did not discuss the jurisdiction of Federal Service Tribunal rather the request of petitioner was allowed for transfer of appeal to Federal Service Tribunal. After hearing the parties in Appeal No,16(Q)CS of 2011 filed by Muhammad Shafiq Deputy Manager QESCO was decided by Learned Federal Service Tribunal and drawn the following conclusion:--- "From the above resume we are constrained to hold that the appellant was earlier in service of WAPDA but had subsequently become an employee of QESCO. He had lost his status of WAPDA employee and thus as a civil servant. When the impugned order was passed he was in service of QESCO, a limited commercial company. The Tribunal therefore, did not have jurisdiction to hear this appeal. Relying on the above judgment we hold that since the appellant is an employee of QESCO, therefore, the Tribunal did not have jurisdiction."
15. From above order of Service Tribunal as well as the order dated 24-5-2011 passed by honorable Supreme Court of Pakistan it is clear that the jurisdiction of Federal Service Tribunal has not been determined by honorable Supreme Court of Pakistan in above cited case. Otherwise under Article 189 of the Constitution of Islamic Republic of Pakistan the decision of honorable Supreme Court is not only binding on Federal Service Tribunal but also on all Courts and Tribunals and to follow the principle lay down by the Honorable Supreme Court of Pakistan.
16. What discussed hereinabove up shoot is that the learned Labour IB Court has the jurisdiction to entertain the application/petitions of employees of QESCO who falls under the category of Worker/Workman. No material is available on record whereof the matter be finally decided by this Tribunal. Consequently appeal is partly allowed and order dated 6th November, 2012 passed in Case No,12 of 2012 by the learned Presiding Officer one Quetta is set aside and case is remanded for fresh proceedings according to law for a decision on merit. However there is no order as to cost.
17. The copy of order along with original record of trial court be sent to trial Court. Case after completion be consigned to record.