This appeal arises from the decision, dated 16th January, 1979 passed by the learned Presiding Officer, Punjab Labour Court No. 7. Gujranwala, whereby the grievance petition of the respondent was accepted and he was directed to be re-instated in service with full back benefits.
2. The respondent was a Ledger Keeper/Bill Clerk. He is alleged to have made embezzlement of Rs.
19,512,70 and for that he was charge---sheeted on 6th November, 1977, copy of the charge-sheet is Exh. P-2 and the copy of its reply is Exh.
3. He was issued a show-cause notice Exh. P-4, reply to which is Exh. P-5. The order of compulsory retirement by way of punishment is Exh. P-5, dated 2nd March, 1978. Before coming to the Labour Court the respondent had preferred a departmental appeal, copy of which is Exh. P-7. It was rejected vide order, copy of which is Exh. P-8, dated 15th August, 1978
3. It has been argued that employees of WAPDA are civil servants and the Labour Courts had no jurisdiction. No doubt under section 17 (1-B) of WAPDA Act, the service of WAPDA has been declared a Service- of Pakistan and all employees, except deputationists, have been directed to be deemed as civil servants, but only those employees can be deemed to be civil servants who are covered by the definition of the term given in the Civil Servants Act, 1973. Section 17 (1-B) has not itself defined the term `civil servant' but has only excluded the deputationists from the term. If WAPDA Act had defined the term 'civil servant' itself excluding from it the exception from the definition given in the Civil Servants Act and according to the definition, the employees of WAPDA had been those civil servants who are intended by the definition of the term given in the Service Tribunals Act, of course it could be held that the Service Tribunal had jurisdiction -and that the jurisdiction of the Labour Court stood barred. When we look into the definition of civil servant given in the Civil Servants Act, we find that the employees who fall within the exceptions are not civil servants. The exceptions are that the employees who are covered by the definition of workman given in the Workmen's Compensation Act and the Factories Act are not civil servants. So not all the employees of WAPDA but only those who do not come within the exceptions are to be deemed to be civil servants.
So far as the respondent is concerned he was a Ledger Keeper/Bill Clerk, duty of which, according to the designation, was clerical and he being employed in the power wing is covered by clause
(xix) of Schedule-II appended to section 2 (n) of the Workmen's Compensation Act and thus is a Workman and stands excluded from the definition of civil servant. Previously clerks were excluded from clause (xix) supra, but by Act XIV of 1973 the words other than in a clerical capacity, were deleted from clause (xix), meaning that even the employees employed in clerical capacity in the generating, transforming or supplying of electrical energy were covered by the definition of workman. The words for the purposes of Service Tribunals Act, 1973, occurring in section 17 (1-B) are very significant. Much emphasis is being laid by WAPDA authorities on the words `every person holding a post under the authority' and according to them, these words mean that without any exception every employee under the Authority is to be deemed to be a civil servant. The purpose of Service Tribunals Act is to provide a forum for deciding the grievances of civil servants involving terms and conditions of service. It, therefore, means that the Service Tribunal has jurisdiction only in respect of those employee Who are civil servants according to the definition given in the Services Tribunals Act. The Service Tribunals Act has not itself defined the term but has borrowed the definition from the Civil Servants Act. Since for the purposes of the Service Tribunals Act the employees of WAPDA are to be deemed to be civil servants therefore, only those employees can be called civil servants who fall within the definition given in the Civil Servants Act. The meaning of section 17 (1-B), therefore, would be that 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 as defined in the Civil Servants Act. The significance does not lie in the words every person' but the words shall be deemed to be a civil servant for the purposes of Service Tribunals Act' are significant. Since the respondent comes within the exceptions of the definition of civil servant, he is a workman and thus not the Service Tribunal but the Labour Court has jurisdiction.
4. It has been further argued that WAPDA is neither `an industrial establishment nor commercial establishment, therefore, the Standing Orders Ordinance, 1968 is not applicable. Here also I cannot agree with the learned counsel. According to the definition of industrial establishment given in section 2 (f) of the Ordinance the term mean as defined in section 2 of the Payment of Wages Act or as defined in clause (i) of the Factories Act. The definition of the term given in section 2 is from subsections (a) to (g), which reads as under :- "Workshop or other establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale."
5. The other point is that Standing Orders Ordinance, 1968 is not applicable according to the proviso to section 1 (4) of the Ordinance I have already expressed opinion in several other cases that WAPDA is not working under the authority of the Government, but gets direct authority from the WAPDA Act and the mere fact that the Government interferes in the working of WAPDA in some manner would not be sufficient to say that the WAPDA is working under the direct authority of the Government. Interference and some kind of control does not mean authority. The establishment which have no statutory support for their existence may need the authority of some sovereign body but WAPDA having been found under a statute does not require any authority from any quarter and is independent in this respect. The mere fact that its big employees are appointed by the Government is not sufficient to show that it is working under the direct authority of the Government. The other con--ditions of the proviso is that the establishment to be exempted from the applicant of Standing Orders Ordinance should have its own statutory rules. Section 18 of WAPDA Act has authorised WAPDA to lay down the procedure for the appointment of employees and for taking action against them and under the authority of section 18 WAPDA has made Efficiency and Discipline Rules, but neither there is any provision in section 18 of WAPDA Act that they should be notified nor actually they have been notified in the official Gazette. Let us take the example of Wage Commission Award. The Chairman, Wage Com--mission is appointed under the Industrial Relations Ordinance, 1969 and the Wage Commission has been authorised by section 38 of the Ordinance to make rules for the nationalised banks and financial institutions and the same become effective when they are notified in the official Gazette. The decisions of the Wages Commission have the force of rules when they are notified in the official Gazette and not before that. In the same manner section 18 has authorised WAPDA to lay down the procedure but since 'the intention of the Legislature is not that the procedure to be laid down by WAPDA would be statutory rules, therefore, no provision is made in section 18 that they should be notified in the official Gazette. Section 18 does not say that the procedure laid down would have the character of statutory rules and that their notification in the official Gazette would not be necessary. Every law and rules having the force of law become effective and applicable after they are notified in the official Gazette. So where the intention of a particular Act is that any rules made thereunder should not be notified and', without being notified should have statutory character, it must make a specific provision to that effect. In my opinion, therefore, Efficiency and Discipline Rules framed by WAPDA cannot take the place of statutory rules and thus the conditions given in proviso to section 1. (4) of the Ordinance not being fulfilled,-WAPDA is not exempted from the applica--tion of Standing Orders Ordinance, 1968.
6. Since Standing Orders Ordinance, 1968 is applicable acid as admittedly no enquiry was made, the impugned order passed by WAPDA authority-was not sustainable and was rightly struck down by the learned trial Judge. The learned counsel for the appellant has lastly requested that permission be given for making enquiry, inasmuch as sufficient amount is alleged to have been embezzled by the respondent. This request appears to be reasonable and sound therefore, partly accept the appeal and maintaining, the impugned order of re-instatement of the respondent in service, allow the appellant to make an enquiry against him and redecide the question of his removal from service or his retention in service. The direction of 'the learned trial Judge for the payment of back benefits is also set aside. The question of back benefits will depend upon the result of the enquiry, if any made by the appellant. However, if no enquiry is started within one month from today, the respondent would be entitled to back benefits also as directed by the learned trial Judge.