1. ' The supra titled appeal has been directed under Section 42 of the Azad Jammu & Kashmir Industrial Relations Ordinance, 1974, against the impugned decision dated 03.02.2014, passed by the learned District/Labour Judge Mirpur, whereby grievance petition addressed under Section 30 of the aforesaid Ordinance, filed by the appellant, was dismissed on solitary ground of jurisdiction.
2. 2.The brief facts of the case are that appellant was appointed as A/C Clerk, in Water and Power Development Authority, (hereinafter to be referred as WAPDA) at Mangla vide order dated 24.06.1987. He was later on posted as Cashier vide order dated 14.12.2000. The competent authority of appellant, General Manager Finance WAPDA (Power), Respondent No, 6, initiated disciplinary proceedings against appellant pertaining to misappropriation of a sum of Rs, 41,00000/- while performing duties as Cashier during period commencing from 01.02.2006 to 31.10.2009. After show- cause notices and hearing, the appellant was dismissed from service vide order dated 21.02.2012.
3. Against the aforesaid order the appellant preferred a grievance petition under Section 30 of Industrial Relations Ordinance, 1974, before Direct/Labour Judge Mirpur, on 03.03.2012. The petition was, however, resisted by respondents through written objections dated 23.04.2012. On the basis of pleadings of parties Court below framed 08 issues on 28.04.2012. The respondents meanwhile moved an application for disposal of grievance petition on the ground of preliminary objection of jurisdiction which was opposed by appellant through objections dated 10.12.2013. The learned District/Labour Judge Mirpur, after hearing dismissed the grievance petition filed by the appellant vide impugned decision dated 03.02.2014, hence, the instant appeal.
4. 3.Chaudhry Muhammad Riaz, the learned counsel for appellant, vehemently argued that although appellant was an employee of WAPDA, however, he was not covering within the definition of a civil servant, therefore, by quashing the impugned decision, the case may be remanded to the trial Court for disposal on merits.
5. 4.Mr. Muhammad Noorullah Qureshi, the learned counsel for respondents, strenuously argued that appellant was a civil servant within the meaning of Section 17(1-B) of WAPDA Act, 1958, therefore, his grievance petition before the Labour Court was not maintainable, which was rightly turned down by the Court below and submitted for dismissal of appeal.
6. 5.After hearing the learned counsel for parties at length, I have perused the contents of appeal, examined the record and have given my earnest thought to the point raised by the learned counsel for parties.
7. 6.The appellant was appointed as A/C Clerk, in WAPDA vide order dated 24.06.1987. It appears that later on he was posted as a Cashier in WAPDA at Mangla vide order dated 14.12.2000. The appellant was charge sheeted on 18.10.2010, by General Manager Finance (Power) as a competent authority on the basis of report of Audit Party of the Chief Auditor WAPDA that while posted as Cashier during 01.02.2006 to 31.10.2009, in Reservoir WAPDA Mangla, he misappropriated an amount of Rs, 39,31992/- while receiving cash on account of rent, electricity bills, auction proceeds, security deposits, tender fee and other miscellaneous collection from different tenants, contractors and not deposited the actually collected cash in full into the Miscellaneous Collection Bank Account, hence, embezzled a portion of actually received cash through making fake bank pay-inslips and also produced bogus bank statements. It reflects from record that apart from report of Audit Party the afiaresaid embezzlement amount was scrutinized by the Fact Finding Committee as well and confirmed by the Habib Bank Ltd. Branch, Mangla. An Inquiry Committee was also constituted by the competent authority to probe into the allegations levelled against the appellant which submitted its report on 18.04.2011. The appellant-accused was granted an opportunity to defend himself against the Charges levelled vide script dated 28.04.2011. He was also granted personal hearing by the competent authority on 12.05.2011. After giving final show-cause notice on 27.01.2012 and obtaining reply thereof from him on 10.02.2012, he was dismissed from service vide order dated 21.02.2012. Against the aforesaid order the appellant preferred a grievance petition under Section 30 of the Azad Jammu & Kashmir Industrial Relations Ordinance, 1974, before Labour Court Mirpur, on 03.03.2012. The said grievance petition of appellant was dismissed on the ground of jurisdiction vide impugned decision dated 03.02.2014. The appellant is admittedly an employee of WAPDA and at the time of initiating disciplinary proceedings, he was performing his duties as a Cashier/Accounts Assistant WAPDA at Mangla. According to Section 17(1-B) of the WAPDA Act, 1958, service under the Authority is declared to be service of Pakistan which speaks as under: "17(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."
8. ' The term authority has been defined in Section 2(i) of the ibid Act, which is also reproduced as follows: "2.(i). "Authority means the West Pakistan Water and Power Development Authority established under Section 3 of this Act; "
9. ' A bare reading of Section 17(1-B) supra makes it abundantly clear that service under WAPDA is declared to be a service of Pakistan and every person holding the 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 Service Tribunals Act, 1973. The question that whether an employee of WAPDA is a civil servant and can invoke jurisdiction of the Service Tribunal came under consideration before the apex Court of Pakistan in case titled Chairman, WAPDA and 02 others vs. Abdul Hafeez Khan [2000 SCM R 1734], At Page 1737 of the report it was held as under: "The implication is that any employee of the Provincial Government or any other authority constituted by the Provincial Government were to be treated as the employee of WAPDA by the deeming clause (c) (ibid). Again under Section 17(1-B) of the Pakistan Water and Power Development Authority Act (XXXI of 1958), service under the Authority has been 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). We have already held that the deputation of the respondent, he held in WAPDA, has been severed by virtue of Article 12(1)(c) (ibid). The respondent has thus, ceased to be the employee of the Government of Punjab and by operation of law he has become the employee of WAPDA amenable to the jurisdiction of the Federal Service Tribunal."
10. ' The aforesaid view was reiterated by the apex Court of Pakistan in case titled Muhammad Ibrahim Mangrio and others vs. Chairman, WAPDA and another [2001 SCMR 8481, wherein at page 853, it was observed as under:- "7.We have heard the learned counsel for the parties at some length and have also gone through the case-law cited by them at the Bar. The conflicting pleas of the parties are divisible into two grounds. Firstly, the question which falls for decision is as to what is the rationale behind the legislative moves in relation to the employees of WAPDA in the context of the Constitutional mandates contained in Articles 260, 240 and 212 of the Constitution. It is an admitted position that the provisions contained in Section 17(1-B) (ibid) are tantamount to making the declaration by the Legislature to the effect that the petitioners were in the "Service of Pakistan" and deemed to be civil servants for the purposes of Section 4 of the Service Tribunals Act (No, LXX of 1973). The case of Muhammad Ashraf Naeem (supra) has put the controversy at rest to the effect that in present the employees similarly placed as the petitioners are in the "Service of Pakistan" and are deemed to be 'civil servants' for the purposes of Section 4 of the Service Tribunals Act, 1973."
11. ' The same proposition was considered by the Federal Service Tribunal in case titled [PM 1983 Tr. C.
12. (Services) 1561 At page 159 of the report it was held as under: "10.All acts done mala-fide by WAPDA under Section 17(1-A) can obviously be questioned before us.
13. However, it is to be seen whether those acts which are not mala-fide can too be challenged before the Service Tribunal under Section 4 of the Service Tribunals Act, 1973. The very fact that under subsection (1-B) of Section 17 of the 1958 Act, the employees of WAPDA have been made civil servants goes to show that the Service Tribunal can exercise its powers under Section 4 of the Service Tribunals Act, 1973 in respect of any orders passed by WAPDA or any functionary thereof.
14. The Service Tribunal has full power to modify or to alter the orders of WAPDA. It can substitute its own order for the order of WAPDA in suitable cases. The fact that the language of Section 17(1 A) indicates that the WAPDA can pass an order of retirement or removal without assigning any reason, does not mean that it can pass an order without any reason or that such an order will not be open to appeal before the Service Tribunal."
15. ' Again at Page 160 of the precedent case it was observed as follows: "13.For the foregoing reasons, we are clearly of the view that we have fully jurisdiction to interfere in an order passed by the WAPDA under Section 17(1-A) or in any order that may be passed by it or any of its functionaries that affects the terms and conditions of its employees."
16. ' After examining Section 17(1-B) of WAPDA Act, 1958, and survey of case law, it is safely held that appellant for all practical purposes was a civil servant, therefore, his grievance petition addressed under Section 30 of Industrial Relations Ordinance, 1974, before Labour Court was not maintainable.
17. 7.The crux of above discussion is that finding no substance in the instant appeal, the same is hereby dismissed with no order as to the costs.