' This appeal arises from the decision, dated 19th December, 1978 passed by the learned Presiding Officer, Punjab Labour Court No, 1, Lahore, whereby the grievance petition of the respondent was accepted and he was directed to be re-instated in service with back benefits.
2. Initially the allegation against the respondent was that cycle provided to him by the appellant had been stolen while in his custody. He was charge-sheeted, but he did not give any reply nor appealed in the enquiry. More charges were added in the charge-sheet framed on 21st June, 1976.
They were nine in number. The charge-sheet reads as under :- I, M. A. A. Nomani, Project Director P. C. Pole Plants, WAPDA Lahore hereby charge you Mr. Sarwar Khan, Peon of this Directorate as under -
(1) While working as Mail Peon, you on 23rd April, 1976 informed in writing to the office that office bicycle No, C1167141-D was stolen from outside WAPDA House on the same day where you claimed to have gone to delivery the official mail.
(2) As per record, there was no outgoing mail meant for any office housed in the WAPDA House on 23rd April, 1976.
(3) It is unconceivable as to why you had parked the office bicycle at a place other than the two authorised cycle stands where the safety of cycle is ensured.
(4) An Inquiry Committee as WAPDA rules comprising Mr. M. Saleem Khan, XEN, P. C. Pole Plants, Lahore and Mr. R. A. Khan, Assistant Accountant P. C. Pole Plants, Lahore was accordingly constituted to probe into the matter and to submit its finding to the undersigned.
(5) In utter disregard to the office discipline and decorum you had flatly refused to appear before the Inquiry Committee and instead tried to side track the issue and raised irrelevant points vide your application, dated 22nd June, 1976.
(6) In your application dated 22nd June, 1976 you had tried to save your skin by saying that the theft of bicycle took place on 24th April, 1976 instead of 23rd April, 1976 as per your original statement and in support thereof you submitted a photo copy of the F. I. R.
(7)On getting the photostat copy of the F. I. R. Verified from the Police record it has been established that the F. I. R. Was actually lodged on 14th May, 1976 indicating that the theft occurred on the same day. But the dates of lodging the report and occurrence of the theft have been interpolated in the photo copy supplied by you to cover you earlier statement.
' Your statements dated 23rd April, 1976 and 22nd May, 1976 are inconsistent.
(8)If the above allegations are proved you will be guilty of misconduct, insubordination, misstatement, negligence in duty and forgery in official documents under West Pakistan WAPDA (5)Employees (E & D) Rules applicable to you and you will render yourself liable to all or any of the penalties described in rule 4 of the said Rules.
(19) You are, therefore, hereby required to show cause in writing within 14 days of the receipt of the charge-sheet, stating reasons within the said period as to why disciplinary action as aforesaid would not be taken against you.
' You may state in your written defence as to whether you wish to be heard in person.
' Your explanation should reach the undersigned within the aforesaid period failing which it shall be presumed that you have declined to offer the same and ex parte proceedings shall have to be initiated against you.
' The respondent filed reply on 5th June, 1976 denying all the allegations. He however did not join the enquiry for the reason that he had no faith in the Enquiry Committee. He was found guilty and ultimately was dismissed on 23rd March, 1977. Prior to that the respondent had been suspended and he had challenged the order before the lower Court which had no jurisdiction, the petition was dismissed. When he challenged the order of his dismissal in the Labour Court, plea was raised on behalf of the appellant that previously the respondent had been declared as civil servant by the Labour Court, therefore, that decision was res judicata and he was debarred from, raising the same point again. The learned trial Judge held that the previous application was against the suspension order, whereas by the dismissal order the respondent get fresh cause of action and that since the previous decision on the point was erroneous it did not serve as res judicata. The learned trial Judge, therefore, found that the respondent was not civil servant. Before coming to the Labour Court the respondent has challenged the order of his dismissal before the Service Tribunal also in appeal, where he failed and thereafter be brought the grievance petition before the Labour Court.
A writ against the decision of the Service Tribunal is also said to have been brought in the High Court but the same was dismissed in default. The respondent was bound by the decision of the Labour Court which had held that he was a civil servant and had dismissed his application made against his suspension. Unless that order is not set aside he cannot turn round and say that he is not a civil servant and that the Labour Court had jurisdiction. The view of the Labour Court may be erroneous but the learned trial Judge was not competent to set aside the decision of his predecessor or B to hold that the said decision was incorrect. Since the respondent went to the Service Tribunal contending that he was a civil servant and his appeal was dismissed he was debarred from coming to the Labour Court unless the decision of the Service Tribunal had been set aside by the High Court. Even the writ petition according to the respondent was dismissed in default on 20th November, 1978. If the writ petition had been accepted the order of the Service Tribunal be set aside and the respondent declared as workman and not a civil servant the respondent could have again brought the matter in the Labour Court. His counsel has cited PLD 1978 Lah. 781 on the point of civil servant but the ruling is not helpful in the peculiar circumstances of the present case. No doubt in the authority cited by the learned counsel it has been observed that a person who is employed in the generation, supplying and transformation of electrical energy is covered by clause (xix) of Schedule II of section 2 (n) of the Workmen's Compensation Act and stands excluded from the definition of civil servant, but since the respondent himself took the position before the Services Tribunal that he was a civil servant and challenged the order of his dismissal before the said forum he is debarred from saying that he is not a civil servant and in the subsistance of the order of the Services Tribunal. He is also debarred by the earlier order of the Labour Court which was passed I his grievance petition in which he had challenged the order of hi suspension. If those orders had been set aside by a competent authorit of course the respondent could say that he was not a civil servant and C could again bring the matter in the Labour Court.
He is estopped from saying that he is not a civil servant and that the Labour Court has jurisdiction.
The Labour Court and this Tribunal have no jurisdiction to challenge the order of the Service Tribunal.
3. The respondent while before the petition the final order brought two more authorities. One is PLD 1977 Lah. 442 and the other PLD 1961 Kar.
317. In the first mentioned authority the observations made are :- "His order dated 13th February, 1975 looked at from any angle was thus without lawful authority and a nullity, and when he confirmed the same on 27th February, 1975 the status of that order did not improve because a nullity even when confirmed remains a nullity as laid down in Yousaf All v.
Muhammad A slam Zia PLD 1958 SC (Pak.) 104."
' The observations made in the second ruling are :- "In my opinion also the appellant in this case also misled by conflicting decisions in this Court and the practice that had developed. I also consider this as sufficient, because to condone the delay and extend the time of appeal."
' It is apparent from the above quotations that the authorities cited by the respondent are not relevant to the point and thus are not helpful to him. The order of the Services Tribunal unless set aside is binding and the respondent cannot challenge it in the Labour Court which are not competent to set aside the said order. The order of the Services Tribunal may be right or wrong, but it is binding upon the respondent. As mentioned above he himself went to the said Tribunal asserting that the said Tribunal had jurisdiction. Now he cannot turn round and say that the order is without jurisdiction without challenging it in the superior Court. He did challenge the order in the writ petition but the same was dismissed in default in 1978 and the matter came to an end.
4. As a result of the observations made above I accept the appeal and setting aside the impugned decision of the learned lower Court, dismiss the grievance petition of the respondent.