' IBRAHIM MAHMUD (CHAIRMAN).-- Certain workmen employed in WAPDA as Lineman, Assistant Linemen and Line Superintendent have filed complaints of unfair labour practice under section 53 read with section 15 of the Industrial Relations Ordinance, 1969 against the Executive Engineers (Electricity) of their Sub-Division and other Senior Officers of WAPDA. These cases No, 4(61)/83, No, 4(62)/83, No, 4(63)/ 83, No, 4(70)/83, No, 4(74)/83 and No, 4(82)/83 were being heard by a Single Bench of the Commission at the Camp office at Lahore. In their comments and the oral arguments, the respondent WAPDA raised a preliminary objection against the jurisdiction of the Commission to entertain cases in respect of WAPDA employees on the ground that all WAPDA employees have been declared to be in service of Pakistan and deemed to be civil servants for the purposes of the Service Tribunals Act, 1973, as is provided in section 17(1B) of the WAPDA Act, 1958 (as amended). It was contended that the Federal Services Tribunal alone had exclusive jurisdiction in these matters.
2. As this preliminary objection raised important question of law, a Full Bench of the Commission was constituted to consider this question at the request of the learned Single Bench. The Full Bench invited a few counsel residing in Rawalpindi, to address it as Amicus Curiae, but we note with disappointment that except for Mr. Tanveer Bashir Ansari, Advocate, none of the counsel cared to attend. We are grateful to Mr. Ansari for the pains he has taken. We have also heard Mr. Riaz Ahmed, Advocate for the complainants and Mr. Shahid Hussain Jillani who appeared in one case on behalf of WAPDA.
3. In the six cases abovementioned, the common allegations of unfair labour practice levelled against the concerned Executive Engineer (Electricity) and other Senior Officers of WAPDA, are that the latter are supporting and patronising the 'Pakistan Hydro-electric (Central) Labour Union' the existing CBA union, in connection with the coming referrendum and that they are hostile and inimical to the office-bearers and active members of the rival trade union 'Pakistan WAPDA Labour Union' in their respective sub-divisions. The complainants, who are office-bearers/active members of the rival union, allege that they have been victimised and punished for their trade union activities by their Executive Engineers (Electricity) who got orders passed against them either for their removal/termination from service under section 17(IB) of the WAPDA Act, 1958 (Cases No, 4(62)/83 and 4(70)/83) or have got them transferred to other Sub-Divisions (Cases No, 4(63)/83 and No, 4(82)/83) or have issued threats of removal or transfer, cases No, 4(61)/83 and No, 4(74)/83). The complainants, therefore, pray that the accused WAPDA officers may be prosecuted and tried for committing the offence of unfair labour practice under section 53 read with section 15 of the I.R.O., 1969 and that suitable punishment be awarded to them for committing the said offence.
4. Section 17(IB) of the WAPDA Act, 1958 (as amended in 1975) reads as follows:- "17(1B) Service under the Authority is hereby 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 purposes of the Service Tribunal Act."
5. Mr. Tanveer Bashir Ansari, learned Amicus Curiae referred to conflicting views of the Courts on the question of status of workmen employed in WAPDA as Civil Servants, under section 17(IB) of the WAPDA Act, 1958. One view is that a workman is not a person covered by the phrase "civil servant" as used in Services Tribunals Act, 1973. According to this view, since persons employed by WAPDA have been declared to be civil servants for the purposes of the Service Tribunals Act, 1973, the definition of "Civil Servant" appearing in section 2(a) of that Act, which incorporates the definition of "Civil Servant" appearing in section 2(b) of Civil Servants Act, 1973 will govern the cases of WAPDA employees, which excludes from the definition of Civil servant categories of workmen. This view was expressed by a Single Bench of the Commission, comprising the Chairman, in Aminuddin v.
WAPDA 1978 PLC 330. A similar view was adopted by the Punjab Labour Appellate Tribunal in WAPDA v. Muhammad Manzoor 1982 PLC 1025 and WAPDA v. Mian Mahmood Hussain 1982 PLC 1069. However, a contrary view has been held by the Lahore High Court in WAPDA v. Miss Akhter Rozeline 1983 PLC 895. According to the High Court, section 17(IB) of the WAPDA Act, 1958 itself contains an independent definition of Civil servant, which provides that every person, holding a post under the Authority except those on deputation, shall be deemed to be a civil servant for the purposes of Service Tribunals Act, 1973 and no exception has been made in the case of workmen employed by the Authority. Therefore, it is not necessary to refer to the definition of civil servant in other enactments. We respectfully adopt the view of the High Court laid down in that case. We are therefore, of the view that workmen employed in WAPDA are civil servants for the purposes of the Service Tribunals Act, 1973.
6. Therefore, it follows that if the subject-matter of the dispute between the workman and WAPDA is a matter relating to terms and conditions of service of the workmen and he is aggrieved by the final order dismissing him from service or imposing any penalty against him after disciplinary enquiry etc. Then, he may prefer an appeal to the Services Tribunal under section 4 of the Service Tribunals Act, 1973. The Tribunal will have exclusive jurisdiction to adjudicate in the matter by virtue of section 3(2) of the said Act, and no other Court or Tribunal shall entertain any proceedings in respect of such matter as is provided in Article 212(2) of the Constitution of 1973. Thus, it was held by the Lahore High Court in the case of WAPDA v. Miss Roseline Akhter and others abovementioned, that the Labour Courts have no jurisdiction to entertain petitions filed by workmen, employed by WAPDA, under section 25-A of the Industrial Relations Ordinance, 1969 challenging orders passed by WAPDA against them for their removal, transfer, reduction in rank and suspension pending final enquiry, on the ground that they, being civil servants under section 17(IB) of WAPDA Act, the Services Tribunal had exclusive jurisdiction in the said matters, which related to their terms and conditions of service. It may be noted that the petitions which were filed under section 25-A of I.R.O., 1969 were for enforcement of their rights of Service per se, purely and simply, and did not involve any case of unfair labour practice.
7. The position with regard to the six numbered complaints is however different. A mere reading of the complaints in the abovementioned six cases will show the different nature of their subject- matter. The subject-matters of the complaints are acts of unfair labour practice which the complainants allege have been committed by the accused Executive Engineer and other officers of WAPDA, in order to punish and victimise them on account of their trade union activities resulting in their dismissal and transfer. These acts if proved will constitute criminal offences triable under section 53 of I.R.Q., 1969 and punishable with imprisonment and/or fine. The complainants seek prosecution and punishment of the accused and do not claim any relief with regard to their own terms or conditions of service. The offence of unfair labour practice is cognizable and triable exclusively by the Commission under section 22-A(f) and by the Labour Court under section 64 of the Industrial Relations Ordinance, 1969.
8. However, an exception has to be made with regard to trial of cases of unfair labour practice in which it is alleged that the unfair labour practice has resulted in removal or termination of services of the complainants. These cases are No, 4(62)/83 Syed Ashraf Ali Shah v. Farzana Gul and others and No, 4(70)/83 Mohammad lqbal v. Khalid Siddiq and others. In view of subsection (IC) of section 17 of WAPDA. Act, 1958 which was enacted on 29 December, 1979 amending the main WAPDA Act, 1958, the jurisdiction of the Commission to call in question any order or removal or termination of services has been taken away. Section 17(IC) of the Act, 1958 reads as follows:- "(IC) Any order of removal or termination of service passed by the Authority, in exercise of the powers conferred by subsection (IA) shall not be called in question in any proceedings taken under the Industrial Relations Ordinance, 1969 (XXIII of 1969) or the Essential Services (Maintenance) Act, 1952 (LIII of 1952) or under any law for the time being in force, before any Court, Tribunal or Commission..........
Additionally, services under WAPDA having been declared as Essential Services under section 3 of the Pakistan Essential Service (Maintenance) Act, 1952, the only remedy available to the workman whose services have been discontinued by WAPDA without reasonable excuse is to adopt the procedure for prosecution laid down in section 7 of the said Act, as decided by the Hon'ble Supreme Court, recently in PLD 1982 SC 113, 'Karachi Electric Supply Corporation Ltd v. National Industrial Relations Commission and another. The trial of complaint case No, 4(62)/ 83, and 4(70)/83 by the Commission is therefore, barred and the Commission will have no jurisdiction.
However the other remaining four numbered cases 4(61)/83, No, 4(63)/83, No, 4(74)/83 and No, 4(82)/83, regarding unfair labour practice are cognizable by the Commission.
9. One other preliminary objection raised by counsel on behalf of WAPDA in their written statement in those complaints, which is of a general nature is that the whole of the Industrial Relations Ordinance, 1969 is not applicable to WAPDA employees on the ground that they are employed in the 'administration of the State' as is provided under section 1(3)(b) of the said Ordinance. It is contended that WAPDA employees are Government servants, as service under the Authority has been declared to be Service of Pakistan and they are deemed to be civil servants. This submission in our view is misconceived. WAPDA Authority has been established as an independent Statutory Corporation under section 3(2) WAPDA Act, 1958. Service under the WAPDA has been declared to be service of Pakistan and its employees are civil servants only for the limited purposes of the Service Tribunals Act and are not Government servants or employed in the Administration of the State.
They are employed by WAPDA in connection with its own business and are not performing functions of administration of the State. Moreover, the Industrial Relations Ordinance, 1969 has been functioning in WAPDA for many years and trade unions have been registered in the establishment and referrendum is also in process. The objection has therefore, no force.
10. For the foregoing reasons, we are of the view that, excepting cases Nos, 4(62)/83 and 4(70)/83, the remaining four above-mentioned complaints of unfair labour practice, pending hearing before the Single Bench of the Commission are cognizable by the Commission. These four ases are returned to the Single Bench for proceeding according to law.