Shujaat Ali Khan, J:- Through this single judgment I intend to decide the petitions mentioned in the following Schedules having commonality of law and facts: - Schedule-A Sr. #WP No.Date of consolidated decision of Labour CourtDate of decision of PLAT
1. 2282/2020 20.02.2019 25.04.2019
2. 2283/2020 20.02.2019 25.04.2019
3. 2284/2020 20.02.2019 25.04.2019 4 2291/2020 20.02.2019 25.04.2019 5 2292/2020 20.02.2019 25.04.2019 6 2293/2020 20.02.2019 25.04.2019 7 2294/2020 20.02.2019 25.04.2019 82296/2020 (this petition)20.02.2019 25.04.2019 9 2308/2020 20.02.2019 25.04.2019 10 2309/2020 20.02.2019 25.04.2019 11 2311/2020 20.02.2019 25.04.2019 12 2312/2020 20.02.2019 25.04.2019 13 2314/2020 20.02.2019 25.04.2019 14 2315/2020 20.02.2019 25.04.2019 15 2317/2020 20.02.2019 25.04.2019 16 2318/2020 20.02.2019 25.04.2019 17 2323/2020 20.02.2019 25.04.2019 18 2324/2020 20.02.2019 25.04.2019 19 2325/2020 20.02.2019 25.04.2019 20 2326/2020 20.02.2019 25.04.2019 21 2327/2020 20.02.2019 25.04.2019 22 2328/2020 20.02.2019 25.04.2019 23 2329/2020 20.02.2019 25.11.2019 24 2331/2020 20.02.2019 25.04.2019 25 2332/2020 20.02.2019 25.04.2019 26 2333/2020 20.02.2019 25.04.2019 27 2334/2020 20.02.2019 25.04.2019 28 2335/2020 20.02.2019 25.04.2019 29 2336/2020 20.02.2019 25.04.2019 30 2338/2020 20.02.2019 25.04.2019 31 2339/2020 20.02.2019 25.04.2019 32 2340/2020 20.02.2019 25.04.2019 Schedule-B Sr. # WP No.Date of decision of Labour CourtDate of decision of PLAT
1. 22374/2020 29.01.2019 25.04.2019
2. 22376/2020 04.09.2019 25.11.2019
3. 22379/2020 29.01.2019 25.04.2019
4. 22383/2020 29.01.2019 25.04.2019
5. 22386/2020 29.01.2019 25.04.2019
6. 22387/2020 16.01.2019 25.04.2019
2. Succinctly, pursuant to a publication, got published by the Director General (HR & Admn.), Gujranwala Power Electric Company Limited (petitioner-GEPCO), the private respondents applied against the post of Assistant Lineman. Upon completion of recruitment process, they were appointed on contract basis, for a period of one year. Since the services of private respondents, subject matter of Writ Petitions falling in Schedule-A, were not being regularized rather they were relieved of their duties upon completion of their contract period, they, after serving requisite Grievance Notices, approached Labour Court No.VII, Gujranwala (Labour Court) by filing Grievance Petitions with the prayers for their reinstatement and regularization in service on the ground that after satisfactory completion of nine months' service, they attained the status of permanent workmen.
3. Insofar as the factual narration of the petitions, mentioned in Schedule-B, is concerned, it has been observed that the private respondents were found involved in concealment of their over qualification, thus, their services were dispensed with by the competent authority. Being aggrieved of termination of their services, they approached the Labour Court seeking reinstatement and regularization.
4. The petitioner-GEPCO contested the said Grievance Petitions inter-alia on the point that since terms and conditions of the private respondents were governed under statutory rules, the Labour Court had no jurisdiction to adjudicate upon the matter and that since private respondents, in the Writ Petitions subject matter of Schedule-B, concealed their higher qualification, their termination was duly justified. The Labour Court accepted the Grievance Petitions filed by the private respondents and while ordering for their reinstatement, also directed the petitioner-GEPCO to treat them as permanent workmen. Being aggrieved of the decision of the Labour Court, the petitioner- GEPCO filed independent appeals, against the acceptance of the Grievance Petitions filed by the private respondents, but without any success as the same were dismissed by the Punjab Labour Appellate Tribunal (PLAT), Lahore. Being dissatisfied with decisions of the fora below, the petitioner- GEPCO has filed these petitions.
5. Learned counsel for the petitioner-GEPCO submits that after promulgation of the State-owned Enterprises (Governance and Operations) Act, 2023 (the Act, 2023) the governance of state-owned companies as well as its employees is to be regulated under the said enactment which fact escaped notice of the courts below; that as per section 4 of the Companies Act, 2017, the said enactment has over-riding effect over any other law for the time being in force, thus, the terms and conditions of service of the private respondents could not be governed under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (the Ordinance, 1968); that since indemnity has been catered for the employees of state-owned companies against any kind of proceedings, the Grievance Petitions filed by the private respondents before the Labour Court were not maintainable; that the Labour Court has no jurisdiction in the matters where terms and conditions of service of the employees are governed under statutory rules and since the private respondents were governed under The Pakistan Wapda Employees (Efficiency and Discipline)
Rules, 1978 (the Rules, 1978) their Grievance Petitions before the Labour Court were not maintainable; that according to section 17(1)(b) of the WAPDA Act, 1958 (the Act, 1958), the employees of WAPDA have been declared as civil servants, thus, they can approach the Federal Service Tribunal (FST) in the event of any grievance in relation to terms and conditions of their service; that according to section 27 of the Act, 2023, the Board of Directors (BoDs) has been given independence to decide the terms and conditions of service of the employees of the state-owned companies and private respondents cannot claim anything in violation of policy framed by the BoDs of the petitioner-GEPCO; that since no commercial activity is being undertaken by the petitioner-GEPCO, it did not fall within the definition of commercial establishment as defined under section 2(b) of the Ordinance, 1968 to attract jurisdiction of the Labour Court; that the employees of the petitioner-GEPCO cannot be equated with those of private concerns inasmuch as on the one hand they have to endanger their life while performing their duties and on the other they have to ensure supply of uninterrupted electricity to the citizens; that according to the Schedule annexed with the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution), electricity being federal subject, jurisdiction of the Labour Court was ousted; that supply of electricity to the citizens falls within basic right of the masses and if affairs of the petitioner-GEPCO are allowed to be governed in a hopscotch manner, by curtailing its powers to take action against the delinquent officers/officials, the administrative threadbare of the petitioner-GEPCO would destroy; that in the advertisement, pursuant whereto the private respondents were recruited, it was clarified that they were appointed for one year; that since the government does not permits the petitioner-GEPCO to recruit persons on permanent basis due to ban imposed by the government, the petitioner-GEPCO resorted to contract employment which did not create any vested right in favour of the appointees for regularization; that contract of those employees, whose performance was below the mark, was not extended and no law desists the petitioner-GEPCO from taking action against the shirkers; that since it was clarified in the appointment letters of the private respondents that they could not claim regularization, the impugned decisions, being violative of the terms and conditions of their appointment, are not justified; that though the petitioner-GEPCO is not under direct control of WAPDA yet it has to implement the policy decisions of the Federal Government in view of provisions of the Act, 2023; that Punjab Industrial Relations Act, 2010 (PIRA, 2010) being provincial law, was inapplicable to employees of the petitioner-GEPCO which is a federal entity and that even if the performance of the private respondents was satisfactory, they were not entitled to regularization rather at the most they could ask for extension in their period of contracts.
Relies on Messrs Rajby Industries Karachi and others v. Federation of Pakistan and others (2023 SCMR 1407), PESCO, WAPDA House through Chief Executive v. Ishaq Khan and others (2021 PLC 148) and LESCO v. Muhammad Shoaib and others (2020 PLC (C.S.) 654).
6. Mr. Khalid Ismail, Advocate, representing the private respondents in W.P. Nos.2309/2020, 2324/2020, 2332/2020 and 2284/2020, states that mere adoption of the Rules, 1978 does not render the status of the rules governing terms and conditions of the service of the private respondents as statutory; that the employees who were transferred from WAPDA to different distribution companies (DISCOs) were to be governed under the Rules, 1978, till framing of their independent rules by the company concerned, but since his clients were recruited in the year 2015 they were to be governed under the principle of master-and-servant; that since there are no service rules governing terms and conditions of service of the private respondents proviso to section 1(c) of the Ordinance, 1968 is not applicable to them; that the points raised before this Court, having not been agitated before the courts below, cannot be entertained at this stage; that when the petitioner- GEPCO admitted in its reply that the private respondents were recruited against posts of permanent nature, they cannot be termed as contract employees at the whims of the petitioner- GEPCO; that discriminatory attitude on the part of the petitioner-GEPCO is evident from the fact that though services of Sulman Rafique son of Muhammad Rafique, one of the co-employees of the private respondents have been regularized, vide Office Order bearing No.397/17551-551, dated 12.09.2023, but private respondents have been denied such relief despite the fact that there is no distinguishing feature in their cases and that it is matter of general knowledge that the petitioner- GEPCO undertakes commercial activities and receive bills in receipt of the electricity being supplied by it, thus, it falls within the definition of commercial establishment. To fortify his contentions, learned counsel has relied upon the cases reported as Pakistan Electric Power Company v. Syed Salahuddin and others (2022 SCMR 991), order, dated 25.11.2024, passed by the Apex Court of the country in CPLA No.1460-L/2024 and other allied matters, Kamran Ahmad v.
Chief Executive GEPCO and others (2017 PLC (C.S.) 900), Manzoor Ahmed v. Federation of Pakistan through Secretary, Ministry of Water and Power, Government of Pakistan and 4 others (2018 PLC (C.S.) 1224) and judgment, dated 04.06.2024, rendered by this Court in W.P. No.61325 of 2022, titled Water and Sanitation Agency (WASA) v. Hussain Shoukat etc. and allied matters.
7. Mr. Salman Riaz Ch., Advocate, representing the private respondents in W.P. Nos.2293/2020, 2314/2020 and 2338/2020, states that since section 17(1)(d) of the Act, 1958 relates to security staff the same cannot be made applicable to the private respondents to dub them as civil servants; that since the petitioner-GEPCO has independent status, the Rules, 1978 are not applicable to private respondents; that when an employee falls within the definition of a workman he can approach the Labour Court for redressal of his grievance; that since the private respondents have been performing duties of manual nature they were rightly treated as workmen by the fora below and their findings are unexceptionable; that according to recitals of appointment letters of the private respondents, they were placed on probation for initial 90-days and if their performance was not satisfactory, the petitioner-GEPCO could dispense with their services but when they are serving the petitioner-GEPCO till date, their status cannot be termed as contractual; that mala-fide on the part of the authorities, at the helm of affairs of the petitioner-GEPCO, is evident from the fact that upon expiry of contracts of the private respondents, they got published an advertisement for fresh recruitment but when they came to know about pendency of proceedings before this Court, they did not proceed further therewith and that concurrent findings of facts recorded by the courts below cannot be interfered with by this Court in these proceedings.
8. Mirza Aamer Baig, Advocate, representing the private respondents in Writ Petition Nos.22374/2020, 23376/2020, 22379/2020, 22383/2020 and 22387/2020 has adopted the arguments advanced by M/s Khalid Ismail and Salman Riaz Chaudhary, Advocates.
9. Mr. Saqib Mumtaz Advocate, representing the petitioner in W.P. No.22386/2020, in addition to adopting the arguments advanced by Mr. Khalid Ismail and Salman Riaz Chaudhary, Advocate, submits that no extra-ordinary circumstances have been disclosed by the petitioner-GEPCO while terminating services of his clients. Adds that both the courts below have given cogent reasons in support of their decisions, thus, the same are immune from interference by this Court.
10. Mr. Azfar Hakeem Awan, Advocate, representing the petitioners in W.P.Nos.2282/2020, 2283/2020, 2292/2020, 2294/2020, 2308/2020, 2311/2020, 2312/2020, 2315/2020, 2317/2020, 2318/2020, 2323/2020, 2327/2020, 2328/2020, 2333/2020, 2334/2020, 2335/2020 & 2336/2020 adopted the arguments, advanced by the learned counsel for the private respondents mentioned above.
11. Qazi Waqar Majeed, Advocate for respondent No.1. in Writ Petition Nos. 2291/2020, 2296/2020, 2325/2020, 2326/2020, 2329/2020, 2331/2020, 2339/2020 & 2340/2020 has also adopted the arguments advanced by the learned counsel for the private respondents in connected matters.
12. In exercise of his right of rebuttal, learned counsel for the petitioner-GEPCO argues that since the private respondents (subject matter of Schedule-B) concealed the fact that they were over qualified as compared to the maximum qualification, mentioned in the advertisement, their contracts were terminated and that when the impugned judgments have been passed against the provisions of the Act, 2023, same cannot be allowed to hold the field merely for the reason that they are concurrent in nature.
13. This Court, on 04.12.2024, after hearing learned counsel for the parties at length, formulated following points for further assistance by learned counsel for the parties: - i. As to whether GEPCO falls within the definition of commercial establishment as defined in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968? ii. As to whether the services of the private respondents can be regularized against their respective posts especially when the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 envisages the term "permanent workman"? iii. As to whether the provisions of Removal from Service (Special Powers) Ordinance, 2000 could be applied to the private respondents despite its repeal through the Removal from Service (Special Powers) (Repeal) Act, 2010? iv. As to whether the orders passed by the fora below can be validated in absence of any policy of the GEPCO or Federal Government regarding regularization of contract employees? v. As to whether mere adoption of rules/regulations applicable to WAPDA employees can be considered that services of the private respondents are governed under statutory rules to oust the jurisdiction of the Labour Court?
14. In reply to question No.i, Mr. Salman Riaz Chaudhry, Advocate, states that the Apex Court of the country, through its decision reported as Central Board of Revenue, Islamabad and another v.
WAPDA and another (PLD 2014 S.C. 766) has held that WAPDA is independent identity and it has nothing to do with the affairs of the Government and cannot be exempted in respect of tax/levy.
Adds that according to Office Memorandum, dated 29.01.2011, issued by the erstwhile Pakistan Electric Power Company (Pvt) Limited (PEPCO), the disciplinary proceedings initiated under the Rule 1978 were to be dealt with under the provisions of the Ordinance 1968. Further adds that according to the Distribution Licence bearing No.4/DL/2002, dated 23.04.2022, the petitioner-GEPCO is engaged in the distribution service and to make sales of electric power to the consumers in the Service Territory and the Concession Territory, thus, it falls within the definition of commercial establishment. Argues that article 240 and 260 of the Constitution of do not declare the petitioner- GEPCO as federal entity, thus it cannot be treated so at the whims of the learned counsel for the petitioner-GEPCO. Further argues that according to section 22 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, the petitioner-GEPCO is to be treated as commercial establishment. To conclude his arguments, learned counsel has relied upon Town Administration and another v. Mohammad Khalid and others (2024 SCMR 1852).
15. Mr. Khalid Ismail, Advocate, in response to the question, under discussion, while adopting the arguments, advanced by Mr. Salman Riaz Chaudhry, Advocate, submits that according to Section 2(bb) of the Ordinance 1968, electrical undertaking falls within the definition of construction industry, thus, the Labour Court rightly assumed jurisdiction in the matter of the private respondents. In support of his contentions, learned counsel has relied upon order, dated 13.05.2025, passed by the Hon'ble Supreme Court of Pakistan in C.P.L.A. No.1525-L/2024, Lahore Development Authority through D.G., Lahore and another v. Abdul Shafique and others (PLD 2000 S.C. 207), Agriculture Works' Union, Balochistan v. The Registrar of Trade Unions, Balochistan, Quetta and others (1997 SCMR 66), WAPDA v. Muhammad Ashraf Naeem (1997 SCMR 1128), National Electric Power Regulatory Authority v. Registrar of Trade Unions, NIRC and others (2015 PLC 148), Shaheen Airport Services v. National Industrial Relations Commission through Deputy Registrar and 2 others (2011 PLC 105), Bangalore Water Supply and Sewerage Board v. A. Rajappa and others (AIR 1978 S.C. 548) and judgment, dated 16.05.2024, passed by this Court in W.P.No.41779/2022.
16. Mirza Amer Baig, Advocate, in reply to the question under discussion, while adopting the arguments, advanced by the learned counsel for the private respondents in the above matters has referred to the judgment of the Hon'ble Supreme Court of Pakistan reported as Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others (2018 SCMR 802).
17. In reply to question No.ii supra, learned counsel, representing the private respondents unanimously submit that since the courts below have declared their clients as permanent workmen, there is no question of regularization of their services.
18. In response to question No.iii, learned counsel for the petitioner-GEPCO states that reference to the Removal from Service (Special Powers) Ordinance, 2000, in the appointment letters of private respondents, is superficial, thus, the said fact cannot be used in favour of the private respondents especially when their terms and conditions of service were to be governed under the Rules 1978.
19. While replying to question No. iv, learned counsel appearing on behalf of the private respondents, submit that since the terms and conditions of service of their clients were governed under the Ordinance 1968, they attained the status of permanent workmen upon completion of nine months service notwithstanding the fact as to whether there was any policy of the government or not. Add that policy of the government cannot be used to nullify the fact of an enactment.
20. While responding to question No.v supra, learned counsel for the petitioner-GEPCO contends that as the terms and conditions of service of the private respondents were to be governed under the Rules 1978, their status cannot be considered as that of workmen as argued by their counsel.
21. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition, as well as the case-law, cited at the bar.
22. Firstly, taking upon the objection of learned counsel for the petitioner-GEPCO that since the Act, 2023 has overriding effect over the Ordinance 1968, the Grievance Petitions, filed by the private respondents before the Labour Court were not maintainable, I am of the view that the scope and application of any enactment determines the area of its operation. Section 3 of the Act, 2023, deals with scope and application of said enactment, which for ready reference is reproduced herein below: - "3. Scope and application.--(1) Notwithstanding anything contained in any other law for the time being in force, this Act shall have application to all public sector companies as defined in subsection (54) of section 2 of the Companies Act, 2017 (XIX of 2017) and other corporate bodies which are owned and controlled by the Federal Government including those established under special enactments but shall not apply to--
(a) regulatory bodies which are empowered to issue licences, grant tariffs or undertake investigations and inquiries with regard to non-compliance of their statutory functions and powers;
(b) subject to sub-section (2), enterprises providing health and educational services and facilities; and
(c) subject to the criteria laid down in the state-owned enterprise ownership and management policy, any state-owned enterprise specifically excluded from the complete or partial application of this Act by the Federal Government for reasons to be recorded and by notification in the official Gazette, provided that such exclusion does not undermine the objectives and principles of this Act.
(2) The application of this Act may be extended by the Federal Government either completely or partly to any entity specified in Schedule-I, including without limitation to entities which the Federal Government does not have ownership in but exercises control thereon: Provided that the Federal Government shall have the power to amend Schedule-I"
From the above, it is more than clear that the Act, 2023 has been enforced for the smooth working of the state-owned companies with specific reference to the appointment of its Chief Executive and the Directors of the Board but nowhere in the entire Act, 2023 not a single reference has been made to the terms & conditions of the employees of state-owned companies, thus, same cannot unnecessarily be stretched to that extent at the whims of the petitioner-GEPCO.
23. Now taking up the plea of learned counsel for the petitioner-GEPCO that since indemnity against any kind of proceedings has been provided to the employees of the state-owned companies, the Grievance Petitions, filed by the private respondents before Labour Court were not maintainable, I am of the view that there is no cavil with the fact as per section 23 ibid indemnity has been given against filing of suit, prosecution or other legal proceedings in respect of their duties but the said indemnity is not applicable to proceedings filed by the private respondents for the reason that they sought declaration from the Labour Court regarding their permanent status after completion of nine months of satisfactory service.
Even otherwise, the sought for indemnity does not absolve the management of petitioner-GEPCO to discharge its duties with specific reference to the provisions of the Ordinance, 1968, especially when the same has been made applicable to the employees of Generation Companies(GENCOs) and DISCOs etc.
24. While assisting the Court, learned counsel for the petitioner-GEPCO put much emphasis on the fact that since as per section 17 of the Act 2023, the BoDs has the jurisdiction to determine the terms and conditions of the employment of private respondents, they could not seek regularization in violation of their terms and conditions of service contained in their respective letters of appointments. To appreciate the plea of the petitioner-GEPCO, I have gone through section 17 of the Act, 2023, which for ready reference is reproduced herein below: - "17. Independence of the Board. (1) The Board shall be given autonomy and independence in the discharge of its functions under this Act or any other applicable law in accordance with the adopted business plan and no administrative or standing instructions by any Division of the Federal Government shall be applicable to any state-owned enterprises unless prior approval of the Federal Government has been obtained and any such instructions already in field at the time of coming into effect of this Act shall require Federal Government ratification within a period of six months, failing which they shall be deemed to be rescinded.
(2) State-owned enterprises shall maintain independent procurement policies with the approval of the Federal Government, which comply with the Chartered Institute of Procurement and Supply's Global Standards of Procurement and Supply and shall only be responsible for compliance of the provisions of the Public Procurement Regulatory Authority Ordinance, 2002 (XXII of 2002) to such extent as may be directed by the Federal Government: Provided that until the procurement policy of state-owned enterprise is prepared and approved by the Federal Government, the Public Procurement Regulatory Authority Ordinance 2002, (XXII of 2002) apply mutatis mutandis to it."
A cursory glance over the above quoted provision shows that though independence of the BoDs has been ensured but the said independence has been confined to the policies relating to the functioning of the state-owned companies in particular appointment of the Chief Executives of the state-owned companies, in a transparent manner. In the given circumstances, the plea of learned counsel for the petitioner-GEPCO, being worthless, cannot be given any weightage.
25. While addressing the Court, learned counsel for the petitioner-GEPCO repeatedly urged that since his client did not fall within the definition of commercial establishment as defined under section 2(b) of the Ordinance 1968, the Grievance Petitions, filed by the private respondents were not maintainable before the Labour Court. On the face of it, the plea of learned counsel for the petitioner-GEPCO seems to be very convincing, however, when it is considered while putting in juxtaposition to section 1(4)(a) of the Ordinance, 1968, the said plea does not appeal to reason. The aforesaid provision reads as under: - "1. Short title, extent and commencement.- (1) This Ordinance may be called the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
(2) It extends to the whole of the Punjab.
(3) It shall come into force at once.
(4) It applies to-
(a) every industrial establishment or commercial establishment wherein twenty or more workmen are employed, directly or through any other person whether on behalf of himself or any other person, or were so employed on any day during the preceding twelve months;
(b) [* * * * * * * * * * *]
(c) such classes of the industrial and commercial establishments as Government may, from time to time, by notification in the official Gazette, specify in this behalf: Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein.
Provided further that the provisions of Standing Orders 10-B and 11, clauses (6) and (8) of Standing Order 12 and Standing Order 15 shall not apply, in the first instance, to any industrial establishment wherein not more than forty-nine persons were employed on any day during the preceding twelve months but Government may, by notification in the official Gazette, extend all or any of the said provisions to any such industrial establishment or any class of such establishments."
The above provision entertains no ambiguity to the effect that the provisions of the Ordinance, 1968, are not confined to the commercial establishment rather the industrial establishment is also covered under the said enactment in respect of terms & conditions of its employees.
26. The next question which boils down for determination by this Court is as to whether the petitioner-GEPCO falls within the definition of an industry or not. To find answer to the said question we have to go through section 2(bb) of the Ordinance, 1968, which for convenience of reference is reproduced herein below: - "2. Definitions.- In this Ordinance, unless there is anything repugnant in the subject or context- (a)...... (b)......
(bb) "construction industry" means an industry engaged in the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, dam, viaduct, sewer, drain, water work, well, telegraphic or telephonic installation, electrical undertaking, gas work, or other work of construction as well as the preparation for, or laying the foundations of, any such work or structure" (emphasis provided)
The above quoted provision clarifies that any entity which is involved in electrical undertakings falls within the definition of an industry. Insofar as the status of the petitioner-GEPCO is concerned, since its main role is distribution, service and sale of electric power, in my humble estimation, the same falls within the definition of an industry, thus, the provisions of the Ordinance, 1968, are applicable to its employees. The said observation of this Court also finds support from Office Memorandum, dated 29.01.2011, issued by the erstwhile PEPCO, whereby it was clarified that the Rules, 1978, are not applicable to its employees rather they are governed under the provisions of the Ordinance, 1968 and it was advised that all the proceedings initiated under the Rules, 1978, would be dealt with under the provisions of the Ordinance, 1968. Moreover, the Apex Court of the country, in the case of WAPDA (Supra), while dealing with a question as to whether the provisions of the Ordinance, 1968 are applicable to employees of WAPDA or not, has inter-alia held as under: - "11. As his remuneration was less than the prescribed one, the basic pay being only Rs.290, he qualifies as a workman and for that reason held entitled to the protection of the Standing Orders Ordinance. The law applicable to him has been correctly applied and no case is made out for our interference in the matter. The appeal is dismissed with costs."
Further, the Islamabad High Court in the case of National Electric Power Regulatory Authority (Supra) while dilating upon the question as to whether the DISCOs fall within the category of industry with reference to the Ordinance, 1968, has concluded as under: - "8. In order to fall within the definition of an industry, as defined under section 2(xvii), the employment or occupation must be for the production of goods or provision of services, and essentially having a nexus with a business or industry. A distribution or generation company would fall within the definition of an establishment or an industry as it produces electricity and thereafter distributes and supplies the same to the consumer, for which the latter pays according to the tariff determined by NEPRA. WAPDA, LESCO, IESCO, PESCO and other such power distribution companies or entities are undoubtedly engaged in business and are providing services and, therefore, in their case the provisions of the Act of 2012 apply. However, NEPRA is neither engaged in any business, or production or manufacture of goods, or the provision of services."
If the status of the petitioner-GEPCO is seen in the light of the afore-quoted judgments, it becomes crystal clear that since it deals with electrical undertaking, the same falls within the definition of industry in terms of the Ordinance, 1968.
27. Now, taking up the objection of the petitioner's side that since the terms & conditions of private respondents were governed under the service rules/regulations applicable to the WAPDA employees, the said rules being statutory in nature, private respondents could not approach the Labour Court, I am of the view that according to the second proviso to section 2 of the Ordinance, 1968, the provisions of the said enactment are not applicable to employees of the provincial or federal government departments whose terms & conditions of service are governed under the statutory rules which were duly notified in the Official Gazette. Insofar as the matters in hand are concerned, admittedly, private respondents were appointed against their respective posts on the following terms & conditions:- From the above imaged terms and conditions of service of the private respondents, it is evident that though under clause 5(i) it has been mentioned that certain service rules/regulations applicable to the WAPDA employees were also applied to the private respondents but said fact does not render the status of the rules governing the terms and conditions of service of private respondents as statutory as mere adoption of rules from another entity does not render them statutory in nature. Reliance in this regard can be placed on the case of Pakistan Electric Power Company (supra) wherein the Apex Court of the country responded the proposition, under discussion, in the following manner:- "10.**We find that in the first place, there was no ground to hold that the Respondents were governed by the statutory rules. Admittedly, the Respondents by their own choice had joined QESCO which is a distinct and separate legal entity having been incorporated in the erstwhile Companies Ordinance, 1984 and has its own Board of Directors. Just by reason of the fact that QESCO had adopted existing rules of WAPDA for its internal use does not make such rules statutory in the context of QESCO. It was clearly and categorically held by this Court in Pakistan Defence Officers Housing Authority (ibid), Pakistan Telecommunication Company Ltd. through its Chairman v. Iqbal Nasir and others (PLD 2011 SC 132) as well as Pakistan International Airlines Corporation and others v. Tanveer ur Rehman and others (PLD 2010 SC 676) that where conditions of service of employees of a statutory body are not regulated by rules/regulations framed under the Statute but only by rules or instructions issued for its internal use, any violation thereof could not normally be enforced through constitutional jurisdiction and they would be governed by the principle of "master and servant". The learned High Court appears to have not been assisted properly in the matter and therefore omitted to notice the said principle of law laid down in the aforenoted case and reiterated repeatedly in a number of subsequent judgments of this Court."
Moreover, Hon'ble Supreme Court of Pakistan in the aforesaid case, while dealing with the nature of service rules applicable to the employees of Quetta Electric Supply Company (enjoying same status as that of the petitioner-GEPCO) has inter alia held as under:- "11.* We are therefore in no manner of doubt that in view of the fact that QESCO does not have statutory rules governing the terms and conditions of service of its employees, the relationship between the Appellant-PEPCO and Respondents Nos.1 and 2 was governed by the principle of "master and servant" and the Respondents could not have invoked the constitutional jurisdictional of the High Court for redress of their grievances."
If the status of the rules applicable to the private respondents in respect of their employment are seen in the light of the afore-referred judgment of the august Supreme Court of Pakistan there leaves no doubt that since they were governed under non-statutory service rules, they were amenable to the principle of master-and-servant. It is well entrenched by now that when an employee is governed under the principle of master-and-servant and in case of any grievance in relation to his terms & conditions of service he can only approach the forums established under the Labour Laws, thus, the objection raised by the learned counsel representing the petitioner- GEPCO is accordingly spurned.
28. With a view to challenge the jurisdiction of the Labour Court to deal with the Grievance Petitions, filed by the private respondents, learned counsel for the petitioner-GEPCO referred to Article 175 of the Constitution and the Schedule annexed therewith to maintain that since electricity is federal subject, the Labour Court had no jurisdiction to deal with the Grievance Petitions, filed by the private respondents. There is no cavil with the fact that electricity falls within the category of federal subject but said fact cannot be used to deprive the Labour Court of its jurisdiction to try an issue between the employer and employee in relation to terms & conditions of the latter. A perusal of licence issued in favour of the petitioner-GEPCO shows that its prime duty is to supervise the distribution service and to make sales of the electricity to the consumers in the Service Territory and the Concession Territory. As per the licence of the petitioner-GEPCO the area of operation of the petitioner-GEPCO is confined to Gujranwala, Hafizabad, Sialkot, Narowal, Gujrat and Mandi Bahauddin districts, thus, it cannot be treated as a federal entity to oust the jurisdiction of the Labour Court. Moreover, the Apex Court of the country in the case of Messrs Sui Southern Gas Company Ltd. and others (Supra), while highlighting the principles of interpretation with regard to the Legislative Lists, inter-alia guided as under: - "14.*From the perusal of above case law, the following principles of Constitutional interpretation with regard to the Entries in the legislative lists emerge: -
(1) The entries in the Legislative Lists of the Constitution are not powers of legislation but only fields of legislative heads;
(2) In construing the words in an Entry conferring legislative power on a legislative authority, the most liberal construction should be put upon the words.
(3) While interpreting an Entry in a Legislative List it should be given widest possible meaning and should not be read in a narrow or restricted sense;
(4) Each general word in an entry should be considered to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it;
(5) If there appears to be apparent overlapping in respect of the subject-matter of a legislation, an effort has to be made to reconcile the Entries to give proper and pertinent meaning to them.
(6) A general power ought not to be so construed so as to make a particular power conferred by the same legislation and operating in the same field a nullity.
(7) Legislation under attack must be scrutinized in its entirety to determine its true character in pith and substance;
(8) After considering the legislation as a whole in pith and substance, it has to be seen as to with respect to which topic or category of legislation in the various fields, it deals substantially and directly and not whether it would in actual operation affect an item in the forbidden field in an indirect way.
15. In the light of the above principles, now we shall consider the vires of the Federal legislation i.e. IRA 2012. In this regard, the most important aspect of the matter is that there are two types of establishments/ organizations/industries; firstly, the industries, etc. functioning within the territorial limits of one Province only, and secondly, certain other establishments, etc. functioning within the territorial limits of more than one Province or even in all the four Provinces as well as the Federal Capital Territory. Now the moot question arises whether, notwithstanding the fact that the authority to legislate with regard to the matters concerning the trade unions and unfair labour practices vests with the Federal Legislature or not, a Provincial legislature can legislate with regard to the trade union/establishments functioning at trans-provincial level. In this regard it is to be noted that Article 97 of the Constitution provides that "subject to the Constitution, the executive authority of the Federation shall extend to the matters with respect to which the both Majlis-e- Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan". Under the said Article, the executive authority of the Federation is not restricted to the areas within Pakistan but also extended in relation to the areas outside Pakistan. However, as per proviso thereto, "the said authority shall not, save as expressly provided in the Constitution or in any law made by Majlis-e-Shoora (Parliament), extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws". Under Article 137 of the Constitution, "subject to the Constitution, the executive authority of the Province shall extend to the matters with respect to which the Provincial Assembly has power to make laws". As per proviso thereto, "in any matter with respect to which both Majlis-e-Shoora (Parliament) and the Provincial Assembly of a Province have power to make laws, the executive authority of the Province shall be subject to, and limited by, the executive authority expressly conferred by the Constitution or by law made by Majlis-e-Shoora (Parliament) upon the Federal Government or authorities thereof". Further, as per Article 141 of the Constitution, "subject to the Constitution, Majlis-e-Shoora (Parliament) may make laws (including laws having extra-territorial operation) for the whole or any part of Pakistan, and a Provincial Assembly may make laws for the Province or any part thereof". Under Article 142 of the Constitution, the Parliament has exclusive power to make laws with respect to (1) any matter in the FLL, (2) criminal law, criminal procedure and evidence and (3) all matters pertaining to such areas in the Federation as are not included in any Province; whereas, a Provincial Assembly has power to make laws with respect to (1) criminal law, criminal procedure and evidence and (2) any matter not enumerated in the FLL. Under Article 232(2) of the Constitution, in case of emergency, the Legislative authority of the Federation extends to enacting laws for a Province, or any part thereof, with respect to any matter not enumerated in the FLL. Thus, from the above provisions of the Constitution it is clear that the Federal Legislature has extra-territorial authority to legislate, but no such extra-territorial authority has been invested with the Provincial Legislature. Thus, the Provincial Legislature has no legislative competence to legislate law regulating the trade unions functioning at trans-provincial level. Needless to observe that to deal with such a matter, the Constitution itself has provided a mechanism i.e. entries Nos.58 and 59 in Part-I of FLL, whereby the Federal Legislature has been mandated to legislate in order to preserve and regulate a right, which in its exercise transcends provincial boundaries, especially one guaranteed under Article 17 of the Constitution. The scope of Entries Nos.58 and 59 shall be discussed in detail at the latter part of the judgment, considering the scope of the Entries in the FLL."
From the above, it is vividly clear that mere mentioning of a subject in the Legislative List in the Constitution does not determine the power of legislation rather the same shows that which government would deal with the said matter. Moreover, according to Article 175 of the Constitution, the government has the jurisdiction to establish courts for various subjects and since the Labour Courts have been established under the provisions of the Labour Laws enacted by the relevant government, the same cannot be denuded of their powers to deal with a matter covered under the provisions of the Ordinance, 1968.
29. It is important to observe over here that inconsistent attitude of the petitioner-GEPCO is evident from the fact that on the one hand it has showed itself as limited company and on the other, with a view to oust the jurisdiction of the labour fora, it has portrayed itself as federal entity.
30. Learned counsel for the petitioner-GEPCO took specific plea that if his client is not allowed to deal with the terms and conditions of the service of its employees independently, it would not be able to discharge its functions efficiently. There is no denying the fact that since supply of uninterrupted electricity is one of the fundamental rights of the citizens but at the same time, the employees, who are toiling day and night, for said purpose cannot be left at the mercy of the competent authority.
31. It is matter of record that during pendency of proceedings before the fora below the petitioner- GEPCO got issued an advertisement for hiring fresh recruitment against the posts being held by the private respondents despite the fact that their performance was gauged as satisfactory. Firstly, if the output of the private respondents was upto the mark, there was no justification for the petitioner-GEPCO to throw them out of service and secondly, if they completed the period of probation satisfactorily, they could not be fired from service without adopting due process provided under the Ordinance, 1968. It is beyond comprehension of a man of prudent mind that as to what was the logic with the management of the petitioner GEPCO to hire new persons while dispensing with the services of the private respondents. This fact alone is sufficient to manifest that the petitioner-GEPCO is all out to discriminate the private respondents by depriving them of their source of earning bread and butter. This Court has least sympathy with the private respondents insofar as the service discipline is concerned and if anyone of them is found involved in violation thereof the petitioner-GEPCO is justified to chuck him out of service while adopting the due process but at the same time it has no justification to pose their permanent status on hyper-technical grounds.
32. Mala fide conduct of the management of the petitioner-GEPCO is also evinced from the fact that on the one hand it has been mentioned in the appointment letters of the private-respondents that rules governing the terms and conditions of service of the WAPDA employees would be applicable to them but on the other it has been incorporated in clause 14(a) of the terms & conditions of appointment of the private-respondents that in respect of discipline of service they would be governed under the Removal from Service (Special Powers) Ordinance, 2000 (the Ordinance, 2000). It is very strange to note that though the Ordinance, 2000 was repealed through the Removal from Service (Special Powers) (Repeal) Act, 2010 (the Act,2010) but the same was made applicable to the private respondents by the appointing authority despite the fact that the said enactment was no more alive at that time. Moreover, through Office Memorandum bearing No.3/10/2010-R-II, dated 17.03.2010, issued by the Secretary to Government of Pakistan, Cabinet Secretariat, Establishment Division, Islamabad, it was clarified that the Ordinance, 2000 having been repealed, no proceedings could be initiated against government employees under the said enactment but GEPCO authorities, in utter violation of the Act, 2010 and the subsequent clarification, applied the provisions of the Ordinance, 2000 to the private respondents.
Though learned counsel representing the petitioner-GEPCO tried to argue that mentioning of Ordinance 2000 was superficial but has not been able to convince this Court as to how such blunder can be considered as just coincidence. On the one hand, learned counsel for the petitioner-GEPCO pleaded that the petitioner-GEPCO has been dealing with private respondents in a fair and transparent manner but on the other has not been able to defend the folly on the part of the management of the company regarding application of a repealed law to the private respondents.
33. Admittedly services of the private-respondents were hired by the petitioner-GEPCO in the year 2015 and they have been performing their duties to the entire satisfaction of the employer meaning thereby that they are discharging their duties against posts of permanent nature. It is trite law that when a person is hired against a permanent post and successfully completes nine months' service, he attains status of a permanent workman. The Apex Court of the country in the case of Town Administration and another (Supra), while dealing with the question as to what category of employees are entitled to permanent status, has inter-alia guided as under: - "11. The record reflects that both the respondent employees were performing their duties continuously and the length of their service, notwithstanding the fact that the petitioners were calling it temporary or on daily wages basis, exceed much more than the provided nine months' period and both were performing the job against a post of permanent nature. In fact, no plea was taken that the services were terminated due to the completion of a task or temporary project, or due to the abolition of such a post or work, or both positions became surplus because their assigned job no longer existed in the department to carry on in the future. To continue such arrangement for such a long time is nothing but a circumvention of labour laws and misuse of the category of temporary workman defined in the Standing Order 1 of the Ordinance 1968, wherein the employer is only permitted to engage workmen for the work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months; but here, it is proved beyond any shadow of doubt that the respondent employees performed their duties much beyond the period of nine months against the permanent posts, hence they were unlawfully terminated under the garb of so called daily wages engagement and rightly reinstated by the learned Labour Court.
12. In the case of Muhammad Yaqoob v. The Punjab Labour Court Nos. 1 and 5 and others (1990 SCMR 1539), this Court in clear terms has held that a permanent workman has been defined in the Standing Orders Ordinance by reference to the nature of the work on which he has been engaged or employed. If the work is not of a permanent nature, then howsoever long may be his employment, he cannot be taken to be a permanent workman. While in the case of Executive Engineer, Central Civil Division Pak. P.W.D. Quetta v. Abdul Aziz and others (PLD 1996 SC 610), this Court observed that the ratio of Muhammad Yaqoob (supra) seems to be that the period of employment is not the sole determining factor on the question as to whether a workman is a permanent workman or not but the nature of the work will be the main factor for deciding the above question. It was held that if the nature of work for which a person is employed is of a permanent nature, then he may become permanent upon the expiry of the period of nine months mentioned in terms of clause (b) of paragraph 1 of the Schedule to the Ordinance 1968, provided that he is covered by the definition of the term "worker" given in section 2 (i) thereof. But if the work is not of permanent nature and is not likely to last for more than nine months, then he is not covered by the above provision. This Court further observed that once it was proved that the respondents, without any interruption, remained employees between a period from two years to seven years, the burden of proof was on the appellant-department to have shown that the respondents were employed for the works which were not of permanent nature and which could not have lasted for more than nine months. Whereas, in the case of Government of Punjab and others v. Punjab Appellate Tribunal Lahore and others (2002 SCMR 878), this Court observed that the basic question for consideration is whether the private respondents became permanent workmen by efflux of time. There is a concurrent finding of fact by the Labour Court as well as the Labour Appellate Tribunal of exclusive jurisdiction that the private respondents continued in service for more than 90 days in the posts against which they were initially employed, which were permanent in nature. It was further held that the learned Judge in Chambers was right in upholding the findings recorded by the Labour Court as well as the Labour Appellate Tribunal that on expiry of the 90 days' period the private respondents assumed the status of permanent workmen not liable to be terminated without conforming with the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance No. IV of 1968."
If status of the private respondents is considered in the light of the afore-referred judgment of Hon'ble Supreme Court of Pakistan it becomes evident that they, having been appointed against posts of permanent nature, attained the status of permanent workmen upon expiry of nine months' satisfactory service, thus, no exception can be taken against the findings of the fora below.
34. Though, learned counsel for the petitioner-GEPCO, with a view to establish that the status of the private respondents did not change despite considerable length of service, argued that in view of the ban imposed by the federal government the petitioner-GEPCO resorted to hire services of the private respondents on contract basis but has not been able to give any plausible explanation as to how a person can be hired on contract basis against posts of permanent nature. Had the private respondents been hired for occasional work, the position might have been different.
35. While assisting the Court learned counsel for the private respondents specifically pleaded that since services of one of the co-selectees of their clients has already been regularized, it is case of clear discrimination. Though, learned counsel for the petitioner has addressed the Court at reasonable length but has not been able to justify such preferential treatment to the referred employee and denying said relief to the private respondents. Article 25 of the Constitution provides shield against any kind of discrimination and if any act of the executives is found tainted with mala-fide or discrimination, same cannot be allowed to continue. Hon'ble Supreme Court of Pakistan, in the case of Secretary to the Government of Pakistan Establishment Division Islamabad and another v Muhammad Ahmed Khan & others (2025 SCMR 434), while dealing with the discriminatory act of the departmental authorities in relation to terms & conditions of service of its subordinates, has inter-alia held as under: - "10.* Therefore, similar laws, rules, and policies should apply uniformly to all in similar situations, without any discrimination or distinction between one employee and another, within the sphere of legislation or policy, provided that their status is substantially equivalent and indistinguishable. Even in cases of classification or categorization, such distinctions must not be arbitrary but should be based on reasons, qualities, and characteristics that establish an intelligible differentia for those who have been left out of the arena or who have been excluded, with clarity regarding the objective sought to be achieved."
If the act of the petitioner-GEPCO towards non-grant of permanent status to the private respondents and obliging one of their co-selectees by regularizing his services is seen in the light of the afore-quoted decision of the Apex Court of the country, there leaves no ambiguity that the management of the petitioner-GEPCO acted discriminately, thus, the findings of the courts below to the extent of petitions mentioned in Schedule-A, cannot be upset by this Court in exercise of its constitutional jurisdiction, vested under Article 199 of the Constitution.
36. Now coming to cases mentioned in Schedule-B, I have observed that the recruitment against the posts, subject matter of these petitions, was undertaken pursuant to the advertisement got published by the Director General (HR & Admn.) GEPCO wherein a specific note was given (under vacancy of Assistant Line Man at serial No.5) to the effect that a person having higher qualification than Matriculation would be ineligible to apply and if at any time it was unearthed that somebody succeeded to get appointment while concealing higher qualification would be removed from service. The learned counsel representing private respondents in the said matters has not been able to dislodge the effect of said note inasmuch as neither the private respondents challenged the said note nor disclosed their higher qualification, thus, the courts below omitted to consider said important fact. It is well established by now that a person who is found involved in concealment of a fact, at the time of getting job against a particular post, is not entitled to any leniency. A learned Division Bench of Peshawar High Court, in the case of Dr. Mutaher Gul v.
Government of Khyber Pakhtunkhwa through Secretary Health and others (2025 MLD 36), while dealing with the fate of an order, got by concealing material facts, especially in respect of eligibility criteria, has inter-alia held as under: - "9. So far as plea of learned counsel for petitioner regarding acquisition of certain rights of petitioner on the basis of her earlier admission to the training program is concerned, it is clear that she had obtained earlier admission through concealment of relevant facts from concerned authorities. An order obtained by a party through active concealment of fact can be rescinded by the authority wherefrom such order has been obtained under section 21 of the General Clauses Act and such authority would not be deemed divested of locus-poenitentiae for the purpose. In this respect reliance may be placed on the case titled Pakistan through Secretary Ministry of Finance v. Mohammad Himayat Ullah Faruki (PLD 1969 SC 407). Further reliance may here be placed on case titled Government of the Punjab Education Department through Secretary v.
Mohammad Imran and others (2019 SCMR 643).
37. It is well settled by now that eligibility criteria for basis of public advertisement. Since the private respondents in the matters, under discussion, were possessing higher qualification than Matriculation they were ineligible to apply against the post of Assistant Lineman. Since the private respondents did not fulfill the eligibility criteria the appointment orders issued in their favour cannot be allowed to remain in field, thus, the fora below misdirected themselves while dealing with said matters.38. During the course of arguments, learned counsel appearing on behalf of the petitioner-GEPCO specifically pleaded that since there is no policy of the petitioner-GEPCO regarding regularization of contract employees, the findings of the courts below, being unwarranted at not sustainable. In this regard, I am of the view that when the Ordinance, 1968, mandates that on completion of nine months' satisfactory service, an employee would attain the status of permanent workman, the private respondents cannot be left at the mercy of the management of the petitioner-GEPCO awaiting any policy for regularization.
39. Now coming to the case-law referred by the learned counsel for the petitioner I am of the view that the same is inapplicable to the facts and circumstances of the present case inasmuch as in the case of Messrs Rajby Industries Karachi and others (Supra) the Apex Court of the country held that while interpreting provisions of a statute, non-obstante clause should be given due effect whereas in the cases in hand, as discussed earlier, in presence of the clear cut provisions of the Ordinance, 1968, the provisions of the Act, 2023 do not come to the rescue of the petitioner-GEPCO.
In the case of PESCO, WAPDA House through Chief Executive (Supra) the Apex Court of the country set aside the order of the Peshawar High Court on the ground that Grievance Petition regarding promotion policy of an organization/authority was not maintainable whereas in the matters, subject matter of Schedule-A, the private respondents approached the Labour Court seeking declaration to the effect that after completing nine months' satisfactory service they attained the status of a permanent workmen. So far as the case of LESCO (Supra) is concerned, though the same is applicable to the petitions subject matter of Schedule-B but the same cannot be applied to the matters falling in Schedule-A as none of the private respondents was deficient in respect of eligibility criteria.
40. For what has been discussed above, I have no hesitation Petitions falling in Schedule-A, are unexceptionable, consequently, the same are dismissed.
41. So far as findings of the courts below to the extent of Writ Petitions mentioned in Schedule-B are concerned, they on the face of it seems to erroneous, thus, same cannot be blessed with stamp of authenticity. Consequently, the petitions falling in Schedule-B are accepted and decisions of the courts below, assailed therein, are set aside. Resultantly, the Grievance Petitions filed by the private respondents, subject matter of Schedule-B, shall stand dismissed. No order as to costs.