' ABDUL QADEER CHAUDHRY, J.-This judgment would dispose of 18 petitioners common law points are involved in these petitions. They are being disposed of on legal grounds.
C. P. No, 131 of 1980. -The petitioner was appointed as Helper on 10-11-1984 and he was operator-11 when his services were terminated. - C. P. No, 132 of 1980-The petitioner was appointed as Cleaner on 16-2-1964 and he was Machine Attendant-II in Thermal Power Station, WAPDA, Quetta when his services were terminated.
C. P. No, 133 of 1980.-The petitioner was appointed as Cleaner on 16-2-1966 and he was Machine Attendant-II when his services were terminated.
C. P. No, 134 of I980. -The petitioner was appointed as Cleaner on 30-10-1968 and he was Helper when his services were terminated.
C. P. No, 135 of 1980. -The petitioner was apoointed as Cleaner on 26-9-1964 and he was Boiler when his services were terminated.
C. P. No, 136 of 1980. -The petitioner was appointed as peon on 1-7-1961 and he was Machine Attendant when his services were terminated.
C. P. No, 137 of 1980. -The petitioner was appointed as Cleaner on 23-5-1966 and he was Boiler Attendant when his services were terminated.
C. P. No, 138 of 1980. -The petitioner was appointed as Cleaner on 16-3-1965 and he was Boiler Attendant. II when his services were terminated.
C. P. No, 139 of 1980.-The petitioner was appointed as Work Charge Cooly on 23-11-1967 and he was Boiler Attendant-II when his services were terminated.
2. These petitioners were tried under section 427, P. P. C., by Tehsilder Quetta who convicted and sentenced each of them to 6 months R. I. But on appeal their sentences were reduced to 3 months.
Their Revision petitions were accepted by the Member, Board of Revenue Boluchistan and they were acquitted.
C. P. No, 266 of 1980. -The petitioner was appointed as Junior Clerk in 1963 and he was Head Clerk when his services were terminated.
C. P. No, 267 of 1980. -The petitioner was appointed as Machine Attendant-III on 14-9-1971 and he was Machine Attendant-II when his services were terminated.
C. P. No, 268 of I980. -The petitioner was appointed as Junior Clerk on 26-10-1968 and he was Senior Clerk when his services were terminated.
C. P. No, 269 of I980. -The petitioner was appointed as Driver on 10-10-1972 when his services were terminated.
C. P. No, 270 of 1980.-The petitioner was appointed as Line Superintendent-II on 10-7-1970 and he was Line Superintendent-I when his services were terminated.
C. P. No, 271 of I980. -The petitioner was appointed as Machine Attendant-II on 10-3-1973 and he was Machine Attendant-I when his services were terminated.
C. P. No, 272 of 1980. -The petitioner was appointed as Driver on 10-7-1967. His services were terminated, like others.
C. P. No, 273 of 1980. -The petitioner was appointed as Crane Helper on 10-11-1964 and he was Test Inspector when his services were terminated.
C. P. No, 274 of 1980. -The petitioner was appointed as Meter Reader on 22-9-1967 and he was Meter Inspector when his services were terminated.
3. The Petitioners were tried under section 40 of the Electricity Act by the Honorary and Special Magistrate, Quetta, who convicted and sentenced each of them to 3 months' R. I. Their mercy petitions were occepted by the Government of Baluchistan on 4-6-1977 and the unexpired portion of their sentences were remitted.
4. The services of all the petitioners were terminated on 24-5-1977.
5. The order of termination which is identical in all cases reads as under :- "In exercise of the powers conferred on it under section 17(1-A) of the West Pakistan WAPDA Act, 1958, the Authority has decided to remove Mr. Muhammad Shoib son of Malook Khan, Operator Grade-II, T. P. S. Quetta, from service, with immediate effect, without assigning ony reasons, by giving him 30 days' pay in lieu of 30 days' notice." The petitioners on 30-6-1977 sent grievance notices to respondent and thereafter filed application under section 25-A of I. R.
0. Before the Presiding Officer Labour Court for the redress of their grievances.
6. Martial Law Order No, 23 was made by the Chief Matial Law Administrator on 22-10-1977, whereby, a Review Board was constituted to consider the cases of those Government servants who were compulsorily removed from service. The petitioners sought permission of the Labour Court to withdraw the applications moved under section 25-A of I. R. O. The Permission was granted by the said Court on 1-11-1977. After the petitions had been withdrawn, the petitioners submitted applications before the Review Board under M. L. O.
23. The cases of the petitioners were considered by the Review Board and their applications were rejected on 21-3-1979. After the dismissal of their applications the petitioners again issued grievance notices to the respondent, and thereafter they again filed application under section 25- A of I. R.
0. Before the Presiding Officer, Labour Court, on 12-5-1979.
7. During the pendency of their applications, Water and Power Development Authority Amendment Ordinance was promulgated, by which an order of removal or termination of service passed by the authority in exercise of Powers conferred by section 17 (1-A) could not be called in question under I.
R.
0. Etc. The Presiding Officer Labour Court by his order dated 12-12-1980 dismissed the applications, of the petitioners in view of section 17 (1-C) of the Ordinance.
8. In these circumstances, the petitioners have approached this Court by filing these constitutional petitions.
9. The learned counsel for the petitioners has submitted that the petitioners are "workers," therefore, the Labour Court had the jurisdiction to dispose of the applications moved by the petitioners under section 25-A of I. R. O. ; but due to mistake advise the petitioners were compelled to withdraw their earlier applications from the Labour Court. The contention of the petitioners is not well founded.
They are not a workers and the provisions of Workmens' Compensation Act, 1953 and Factories Act, 1934 are not applicable to the petitioners. By means of West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1975 section 17 was amended and after subsection (1), the following subsections were inserted :- "(1-A) Notwithstanding anything contained in subsection (1) of any rules made, or 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, remove from its service any person without assigning any reason, after giving him not less than thirty days' notice or pay for the period by which such notice falls short of thirty days.
(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 purpose of the Service Tribunals Act, 1973 (LXX of 1973).
By means of section 17 (1-B), the service under the authority has been declared to be service of Pakistan and every person holding a post unde the Authority shall be deemed to be a civil servant for the purpose of Service Tribunals Act, 1973. The petitioners have been made civil servants under this law and therefore, the definition of "Civil Servant" as given in Civil Servant Act is not applicable to the cases of the petitioners. It is therefor not correct to contend that as the petitioners are not civil servant under the Civil Servant Act, therefore the provisions of Factories Act, or the Workmen'
Compensation Act shall apply. It is wrong to contend that the petitioners remedy was before the Labour Court. In fact the proper remedy for the petitioners was to move the Service Tribunal for the redress of their orievances.
10. The learned Advocate-General has stated that the petitoners had an alternate remedy by way of filing appeal before the Service Tribunal which they did not file, therefore, the present petitions are incompetent. The learned counsel for the petitioners has stated that the petitioners had no remedy before the Service Tribunal, because section 17 (1-C) has debarred any Court or Tribunal to examine any order of removal or termination passed by the authority in exercise of powers conferred by subsection (1-A). This subsection reads as under :- "(1-C) Any order of removal or termsnation of service passed by the Authority, in exercise of the powers 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 (LIII of 1952), or under any law for the time being in force, before any Court, Tribunal, or Commission after the thirtieth day of September 1975, and before the coming into force of the West 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."
' On the basis of subsecion (1-C) it is contended that neither the Labour Court nor the Service Tribunal had any jurisdiction, therefore, the only appropriate remedy available to the petitioners was to file the Constitutional Petitions. This argument has been stressed by referring to the Federal Laws (Revision and Delcaration) Ordinance, 1981 (Ordinance XXVII of 1981). By this Ordinance, the West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1979 was repealed. The learned counsel for the petitioners has submitted that section 17 (1-C) has been repealed in order to empower the Labour Court to hear the application under section 25-A of Industrial Relations Ordinance, 1969. We are unable to agree with this proposition. The learned Advocate-General has stated that section 17 (1-C) was inserted due to the reason that in spite of insertion of 17 (1-B) the Labour Courts continued entertaining applications under section 25-A of I. R.
O. And passed judgments against the WAPDA. The Government in order to stop the Labour Courts from passing illegal orders had to legislate section 17 (1-C). As it was a redundant piece of legislation, therefore, it has been repealed. The learned Advocate-General has stated at the bar that in spite of section 17(1-A) and (I -B) the Labour Courts were giving reliefs to WAPDA employee.
This contention has not been challenged. The learned Advocate-General has even referred to some of the cases. We do not agree that section 17 (1-C) had excluded the jurisdiction of Service Tribunal. The provisions of section 17 (1-B) and (1-C) are to be read together, and the proper conclusion would be that an employee of WAPDA being a civil servant, if aggrieved by any order of the authority, could seek relief b approaching Service Tribunal. This view has been taken in Muhamma Naseem v. Water and Power Development Authority and another Constitution Petition No, K-216 of 1979. In Water and Power Development Authority v. Presiding Officer, Labour Court VI, Hyderabad and others (1) it is held : "In view of the above amendment respondent No, 3 who admittedly was not on deputation with the petitioners from a Province, it deemed to be a civil servant for the purpose of Service Tribunals Act, 1973, and the appeal preferred by the petitioners before the Labour Court, was in my opinion rightly held to have abated." {{FOOT NOTE}}
(1) P L 13 1979 Kar. 95 {{FOOT NOTE}} ' The same view has been taken in :- Shabir Ahmed v. (1) Water and Power Development Authority; (2) The President of Islamic Republic of Pakistan, (Writ Petition No, 580 of 1980). ,4bdul Hamid Khan v. Water and Power Development authority and another 1981 SCMR 325.
Muhammad Salim Khan and others v. West Pakistan Water and Power Development Authority, Lahore and others PLD 1976 Lah.
429.
' The paramount consideration in legislating section 17(1-B) is to exclude the jurisdiction of Labour Courts. In such circumstances we have no option but to agree that section 17(1-C) was inserted specifically to exclude the jurisdiction of Labour Court, and the jurisdiction of the Service Tribunal was not taken away as it was given by section 17(1-B). The learned counsel for the petitioners has referred to Jahanzeb Khan v. Water and Power Development Authority (1), Ch. Inayat Ali and others v. W APDA etc. (2), Chairman, WAP DA, Lahore v. Muhammad Khan and others (3) and Water and Power Development Authority v. Commisnoner for Workmen's Compensation and Authority, Lahore and another (4) in support of his contention that the petitioners are not civil servants, but the authorities are inapt to the facts of the present case. The petitioners had the alternate remedy; which they did not c care to avail of and started moving applications in wrong forums. The petitions are liable to be dismissed on this ground alone. There is another aspect of case. Section 17(1-A) and (1-B) have been added on 28th September, 1975. The petitioners' services were terminated on 24-5-1977 but section 17(1-C) was enforced on 29th December, 1979. There facts clearly show that when cause of action accrued to the petitioners their cases were covered by section 17(1-B) as 17(1-C) was not in the field at that time.
11. The learned counsel for the petitioners next contended that the Review Board constituted under M. L.
0. 23 had no jurisdiction in the subject-matter of the present dispute and the petitioners filed application before the Review Board on a wrong advice. The substance of wrong advice has not been given. There is also no affidavit of any counsel that such advice was tendered by him. In the absence of any material the petitioners are not permitted to agitate this point. The petitioners themselves approached the Review Board. Their applications were considered by the competent authority, and it was not found possible to accept the petitions. The petitioners themselves submitted to the jurisdiction of Review Board constituted under M. L.
0.
23. It is now too to remote contend that the Board had no jurisdiction. The result would be that the plea of want of jurisdiction is not available to the petitioners. Some of the authorities on these points are : (I) Abdul Razzaq v. Ch. Sultan Muhammad Khan and others (5) wherein it is held : "The petitioner himself having invoked review jurisdiction cannot now turn round and be allowed to say that the jurisdiction was not available to the Settlement Commissioner."
(2) In Sardar Muhammad Ayub v. Pakistan through Secretary, Ministry of Re-settlement and Rehabilitation, Rawalpindi and others (6) it has been held :- "The petitioner after having submitted to the jurisdiction of the Settlement {{FOOT NOTE}}
(1) 1981 SCMR 1178 (2) 1980 PLC 480
(3) PLD 1978 Lair. 781 (4) PLD 1977 Lab. 1156
(5) 1975 SCMR 13 (6) 1969 SCMR 96 (2) {{FOOT NOTE}} ' Commissioner could not challenge his order to be without jurisdiction bacause it went against him."
(3) The same view was taken in Commissioner of Income-tax, North Zone, West Pakistan, Lahore v.
Mst. Fatima Bibi 1968 SCMR 21 and Sh. Muhammad Anwar v. Ch. Sultan Muhammad Khan and others 1974 SCMR 371.
12. The petitions have also been opposed on the ground of laches The services of the petitioners were terminated on 24-5-1977. The application from Labour Court was withdrawn on 1-11-1977 to file the Review Petition. No permission was sought from the Labour Court to file fresh application on the same cause of action. Second application under section 25-A of I. R.
0. Was filed by the petitioner on 12-5-1979. No fresh cause of action had accrued to the petitioners and they agitated the same grievance which had already been disposed of on 1-11-1977, when the petitioners had withrawn their petitions. The present petitions have been filed on 25-5-1980 i. e.
After the lapse of 3 years. There is no reasonable explanation for such delay. The petitioners have themselves approached the wrong forum for seeking their reliefs. The petitions are therefore, liable to dismissal on the ground of laches. The learned Advocate-General has referred to Wajdad and others v. Mir Muhammad and another (1) on the point of laches.
13. We have come to the conclusion that the petitioners are civil servants and they have a remedy before the Service Tribunal. It is new to be seen whether a petition be dismissed on technical ground and the petitioners be left to seek their remedy before the Service Tribunal. It is contended by the learned counsel for the petitioners that the procedure as contemplated in the Efficiency and Discipline Rules by WAPDA have not been complied with by the respondent, therefore, the services of the petitioners have not been terminated in accordance with law. This contention is without any substance. If the petitioners' services have been terminated under the Efficiency and Discipline Rules, then we would have left this question open to be decided by the Service Tribunal, but in the present case their service have been terminated under section 17(1-A) which had been produced in the earlier part of the judgment. Under this provision the WAPDA has the brute authority to dispense with the services of the petitioners. The respondent has exercised this arbitrary power and the services could be terminated without assigning any reason. Thus the constitutional protection is not available to the petitioners and they cannot move the Service Tribunal to question the legality of the order passed under section 17(1-A). We are supported in this view by the judgment of Supreme Court in Muhammad Nasim v. WAPDA Constitutional Petition No, K-216/79 referred to above and Shabir Ahmed v. WAPDA etc. Constitutional Petition No, 580/80. On this ground also the present petitions are not competent. The same stand dismissed with no order as to costs.