' This petition has been submitted by the Mechanised Construction of Pakistan Central Employees Federation Faislabad under section 34 read with section 22-B (3) of the I. R.
0., 1969 against the Mechanised Construction of Pakistan Limited Lahore and Water and Power Development Authority Lahore. The Federation is a combination of different- registered trade Unions within the Mechanised Construction of Pakistan Limited and has been registered by the N. I.
R. C. And is certified as Collective Bargaining Agent for the entire establishment of M. C. P. The petitioner is, therefore, competent to look after the rights and interests of the workers as a whole as required under section 22 (12) of the I. R.
0. And can apply to the Commission under section 34 as well.
2. The petitioner has submitted that overwhelming majority of workers working in M. C. P. Were employed for 15 to 30 years in M. P.
0. Wing which was a permanent wing of the WAPDA and had a number of workshops in it. In the year 1974 the Government of Pakistan introduced a scheme whereby M. P. 0 WAPDA alongwith its total business was converted into a Limited Company with the name and style of M. C. P. Limited and all the assets and business of M. P.
0. WAPDA were transferred to the M. C. P. Alongwith all the employees. Lien of all the employees was kept with WAPDA and they were, therefore, entitled to have the same benefits of service in all respects as their other colleagues in the WAPDA. The respondent No, 1 M. C. P. Was to pay the contributions to the WAPDA in respect of the monitary benefits of the employees/deputationists serving in the M. C. P. These employees were subsequently asked by the respondents to exercise their option as to whether they wanted to keep their lien with the WAPDA or not. All the deputationists opted for their lien with WAPDA.
3. The WAPDA promulgated the pension rules for the WAPDA employees with effect from 19th February, 1977 and all the employees of WAPDA including the deputationists serving in the M.C.P, were again asked to exercise their option as to whether they wanted to avail the right of pension in terms of the pension rules. All the employees also opted for the pension rules and they were, therefore, entitled to avail the right of pension. The counting of the length of period of service for the purpose of pension was to be done in terms of paras. 3 (i) (ii) and (iii) and 4 (v) and (vi) of chapter 2 of WAPDA Pensioh Rules 1977 which provided that the temporary and officiating service shall count for pension as indicated below :
(i) temporary and officiating service subsequently declared regular shall count for pension or gratuity.
(ii) One half of the period of apprenticeship qualifies for pension ;
(iii) The service, of an employee on probation who is subsequently declared regular without interruption qualifies or pension.
4. The petitioner has pointed out that in the Award of the West Pakistan Industrial Court of 18th August, 1965 and reported is 1965 PLC 829 it was held that the workmen though placed in the workcharged cadre and working in power houses and workshops shall be made permanent after completing the probationary period of 3 months. It was further held that the employees other than the workcharge cadre are designated as regular employees after they had completed the probationary period which is stated in the offer of appointment as 6 months and one year.
According to the said Award there were only two categories of employees workcharged and regular. It has been submitted that this Award is still in operation and that all the employees who are now on deputation to M. C. P. Should have been made regular in terms of this award and are entitled to get full pension in terms of the pension rules. It has been pointed out that some of these employees have been repatriated by the M. C. P. To the WAPDA and were subsequently removed by WAPDA. These employees were denied the right of pension and other benefits by the respondents and the Secretary General of the petitioner federation made a representation in this connection but the respondent No, 2 did not accept the request of the petitioner. The respondent No, 1 has bifurcated the period of service of all the employees without any reasons whatsoever. It has, therefore, been prayed that the respondent may be directed that these employees ceased to be workcharged temporary or probationers after the expiry of their period of 3 months, 6 months and one year's service in terms of the Award, dated 18th August, 1965 and they are, therefore, permanent and regular and their whole period of continued service be counted till now for calculation/grant of full pension and other emoluments at the time of their retirement.
5. The Chief Engineer (Coordination) (W) WAPDA submitted parawise comments and raised preliminary objection to the effect that WAPDA employees have been declared as Civil Servants for the purposes of Services Tribunal Act, 1973 and as such the Commission had no jurisdiction to adjudicate upon the matter. He further submitted that the petitioner Federation cannot represent the cause of the employees of the WAPDA working on deputation with M. C. P. As the Federation is not the Bargaining Agent of WAPDA. The petition was, therefore, not maintainable before the Commission. It was further submitted that all WAPDA employees were considered on deputation from WAPDA to M. C. P. L. Vide copy of the General Manager (Admn.) Office Order, dated 15th November, 1974. He submitted that the options were invited from all regular M. P.
0. Employees working with M. C. P. L. Vide letter, dated 11th July, 1978 whether they would like to remain as WAPDA employees or become M. C. P. L. Employees. In response to this letter, M. P.
O./WAPDA employees working on deputation with M. C. P. L. Exercised their option to retain their lien in WAPDA while some of them preferred to become M. C. P. L. Employees. He further submitted that Pakistan WAPDA Pension Rules, 1977 were promulgated on 19th February, 1977 and these rules were applicable to the temporary Government Servants of the Provincial Governments who had been transferred enblock to WAPDA and had become WAPDA employees from the date of their transfer by virture of their having exercised option to become WAPDA employees under special permission granted by the Authority. These pension rules did not apply to the work charged employees. It was, therefore, submitted that the petition is unlawful and without jurisdiction and be rejected with costs.
6. The respondents Nos, 1 and 2 however undertook to fulfil and abide by the terms of any order passed by the Commission deciding the question of benefits towards pension contribution and or otherwise.
7. The learned counsel for the petitioner however submitted that the deputationists were now serving with the M. C. P. Which is renamed as a Private Company and all the business was handed over to it. Since none of the posts held by these employees is now in WAPDA, they cannot be treated as Civil Servants as only those employees of WAPDA who are holding any post in WAPDA can be treated as Civil Servants. He cited case law reported in 1972 PLC 190 in which a Division Bench held that the Awards and Settlements create the rights and obligations for the workers and employers and if any right secured under any award or settlement is infringed that can be enforced by means of an application under section 34 of the I. R.
0. He submitted that the Federation being the Collective Bargaining Agent has moved for enforcement of the Award and this case cannot be taken to the Services Tribunal. He pointed out that the Federation came into being on 11th July, 1973 that is prior to the establishment of M. C. P. L.
In 1974. This federation had been negotiating and submitting demands on WAPDA and was recognised by the WAPDA.
8. The WAPDA has raised preliminary objections that these employee were Civil Servants and they should, therefore, have sought redressal 0 their grievances from the Services Tribunal. I overrule this objection o the ground that these employees are on deputation with M. C. P. And for B all practical purposes they are employees of M. C. P. Since they have formed unions and have joined into a federation which was being recognised by WAPDA and subsequently by M. C. P. L., the employees cannot be treated as Civil Servants. They were entitled to come before the Commission under section 34 of the I. R.
0.
9. The second objection raised is to the effect that the federation had no authority to represent the cause of employees of WAPDA working on deputation with M. C. P. L. As it is not the Bargaining Agent of WAPDA. This objection is also overruled in view of the fact that the federation has already been certified as C. B. A. By the Commission and has been functioning as Bargaining Agent for M. C.
P. L. Employees. The federation could, therefore, come to the Commission for enforcement of any right guaranteed under any law,- award or settlement.
10. I have gone through the Award of the Industrial Court West Pakistan reported in 1965 PLC 829.
This award has not been modified or revoked so far. The Award is, therefore still in force. Although the Award was given under the Industrial Disputes Act which was in force at that time yet it was determination of an Industrial Dispute and continues to b in force unless it is revoked or modified by another award. Section 34 of.Th I. R. O. Provides that any C. B. A. Or any employer may apply to the Labour Court for enforcement of any right guaranteed or secured to it or him or under any law or any award or settlement. This implies that the right is guaranteed or secured to the C. B. A. Under any law other than the I. R.
0. Or under any award or settlement which may not necessarily be an award given under the I. R.
0. Or a settlement arrived under the same act.
11. The Chief Engineer (Coordination) (W) submitted comments on behalf of WAPDA and had enclosed a letter, dated 11th July, 1978 addressed to the Joint Secretary, Ministry of Water and Power Government of Pakistan conveying the decision of the Authority that WAPDA and M. C. P. L. Had jointly prepared a list of all regular employees on the date of transfer. This list should have been prepared by the WAPDA and M. C. P. L. In terms of the Award, dated 18th August 1965. It was also decided vide that letter that those who opted to remain WAPDA employees may be treated as on deputation from WAPDA to M. C. P. L. And WAPDA may post them any where else within WAPDA or their services may be terminated in terms their appointment letter. It is clear from this decision that WAPDA could post these employees anywhere else within WAPDA and their services can be terminated in terms of their appointment letter. Similarly M. C. P. L. Shall pay to WAPDA contribution in respect of leave salary and pension contribution and for welfare fund at the Government rate.
12. The learned counsel for the petitioner has enclosed a copy of the minutes of the meeting held between WAPDA and M. C. P. L. On 27th of September, 1981 to determine the status of WAPDA deputationists serving in M. C. P. L. And in this meeting M. C. P. L. Recognised their liabilities towards leave salary, pension contributions and E. P. F. In respect of deputationists of WAPDA with M. C. P. L.
In that meeting Mr. Tajamal Murad Executive Director, Planning and Administration M. C. P. L.
Informed that details were being worked out between him and Manager Finance (Coordination)
WAPDA to determine the amount involved and the mode of payment. This decision was taken in September, 1981 and it is hoped that by now necessary details must have been worked out by the M. C. P. L. And WAPDA.
13. It has been submitted on behalf of WAPDA that Pakista WAPDA Pension Rules, 1977 were promulgated by WAPDA from 19th February, 1977. These rules applied to the regular employees of the Authority and that these rules did not apply to the workcharged employed as laid down in Rule 4 of WAPDA Pension Rules, 1977. As I have held above the Award of the Industrial Court, dated 18th August, 1965 is still applicable and in that Award certain principles for coverting the work-charged establishment into permanent have been laid down. I, therefore, direct that all M. C. P. L. Employees who have opted to be the employees of WAPDA should be regularised in terms of the Award given in Industria Dispute No, 39 of 1965 decided on 18th August, 1965 and paid pension an other benefits in accordance with the WAPDA Pension Rules, 1977.