' This writ petition has been filed by an employee of the Electricity Department who was on deputation to WAPDA against the order of Labour Court whereby his application for re-instatement was dismissed.
2. Brief facts of the case are that the petitioner is a person who was originally employed in the Electricity Department of the Government of the Punjab. His services were lent to WAPDA, on 23rd March, 1959. Thereafter, the petitioner was involved in a criminal matter and consequently his services were terminated vide order, dated 9th November, 1980 which was changed into dismissal vide order, dated 13th January, 1981.
3. Aggrieved by these orders, he applied to the Labour Court by filing a grievance petition under section 25-A of the Industrial Relations Ordinance. The Labour Court partly accepted the petition to the extent of retrospectively of the removal of the petitioner vide order, dated 21st June, 1981. The petitioner then further assailed the matter in appeal before the Punjab Labour Appellate Tribunal who dismissed the appeal, on 17th January, 1983 on the ground that WAPDA employees were to be deemed to be civil servants hence the petition before a Labour Court was barred.
4. The learned counsel appearing in support of this writ petition has contended that in order to determine the status of the petitioner, the definition of a civil servant as given in Civil Servants Act has to be primarily looked at because otherwise section 17(1-B) of the WAPDA Act cannot be properly construed. Looked at in this manner, according to the learned counsel, it appears that it has not at all been appreciated that the petitioner was a person who was covered by the Workmen's Compensation Act and hence was outside the purview of the Civil Servants Act, therefore, corresponding provisions in the WAPDA Act were of no avail and thus the Labour Courts were not debarred from adjudication of the grievances of the petitioner.
5. It is next contended by the learned counsel for the petitioner that in order to throw out the petition on the ground of want of jurisdiction depending upon the status of the petitioner, no inquiry was held, no evidence was received nor the contentions raised on behalf of the opposite side were supported by any material, but just an inference has been drawn which was not warranted by the facts of the present case. According to him, this amounts to failure to exercise jurisdiction. He asserts that even where the question of jurisdiction is dependent upon certain facts, then those facts must be ascertained in objective manner and according to known norms for the determination of civil disputes. The case in hand is one in which this has not been done. So, this would be a case of failure to exercise jurisdiction in accordance with law.
6. None has turned up on behalf of WAPDA despite messages being sent to the office of Sh.
Najumul Hassan, Advocate, who had submitted parawise comments on behalf of respondent No, 1
1. e. WAPDA.
7. 1 find that the view taken by the learned Punjab Labour Appellate Tribunal to the effect that the petitioner has not been able to establish that he was a Provincial Government Employee on deputation to WAPDA and that throughout his stand has been that he has been a WAPDA employee simpliciter, speaking with due deference, runs contrary to the position obtaining on the record. The first thing to be noticed is that the petitioner in his grievance petition under section 25- A had duly mentioned that he was a Provincial Government employee. It is secondly submitted that during the suspension from service, relief was granted to him by Punjab Labour court N.o..1 vide order, dated 16th December, 1979 ordering his re-instatement. In the course of these proceedings, it has already been held by the Labour Court that the petitioner was a workman and thereafter jurisdiction was assumed and exercised. This order was not challenged any further and thus has attained finality in law. In the comments submitted by WAPDA before this Court, it is admitted that the petitioner is a Provincial Government employee on deputation to WAPDA. Next, it is submitted that in clause 'D' of the grounds of memorandum of appeal before the Punjab Labour Appellate Tribunal, a specific grievance had been made. It is also submitted that the service record of the petitioner was before the Labour Court but that was ignored from consideration for the purpose of determination of question whether the petitioner was a civil servant or not. Fourthly, it is submitted that the learned Chairman Punjab Labour Appellate Tribunal in para. 3 of the impugned judgment has himself held that the appellant was initially a Government servant being employed in the Electricity Department, but his services were transferred to WAPDA and according to the transfer order passed by the Punjab Government, he, after transfer was to be governed by WAPDA Act and Rules.
8. A plain reading of section 17(1-B) of the WAPDA Act, 1958 would show that 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 purpose of Service Tribunals Act, 1973. The petitioner happened to be a person who was on deputation to the Authority from the Province, therefore, section 17(1-B) would not cover the case of the petitioner. In such a situation, the matter would have to be examined in the light of Punjab Civil Servants Act and as per the definition of a civil servant, if the petitioner is a workman, he is outside the purview of Civil Servants Act.
9. The two Labour Tribunals do not appear to have examined the matter in the light of law governing the subject and moreover material aspects which went to the root of the matter seems to have been over- ." looked and thus affected the decision. This would, therefore, be a case of failure to exercise jurisdiction.
10. This writ petition is accordingly accepted, impugned orders are set aside and the case is remanded to the learned Punjab Labour Court No, 1 for determination afresh in accordance with law. It would be examined whether the petitioner is a workman after due inquiry. The parties are directed to appear before learned respondent No, 3, on 26th February, 1984. As none from amongst respondents has turned upto contest this matter, there shall be no order as to costs.