1. ABDUL QADEER CHAUDHRY, J.--This judgment would dispose of the above five petitions as common questions of facts and law are involved in these petitions. The facts of each petition are as under:- Civil petition No. D-1172/80: The petitioners were working in Thermal Power Station, Guddu since 1973. The petitioners Nos. 1 and 2 were Security Guards and petitioner No.3 a Fitter. In the WAPDA Weekly of September 21 and 28, 1977, issue a list of the workmen of WAPDA was issued notifying therein that the petitioners and other workmen were removed from service on charges of bad reputation and misconduct. On 30- 8-1977 the Deputy Secretary (Enquiries WAPD A issued letters of removal of the petitioners purported to have been issued under section 17 (1-A) of the West Pakistan WAPDA Act, 1958 removing the petitioners from service.
2. Civil Petition No. 1174/80: The petitioner was working as Junior Store Keeper in Thermal Power Station, Guddu since 1974. In the issue of 25th (day, 1977 of WAPDA Weekly published by the respondent No.1 that the petitioner and other employees were removed on charges of bad reputation and misconduct and on 18-5- 1977 orders of termination of the petitioner from service was issued purported to have been issued under section 17 (1-A) of the West Pakistan WAPDA Act, 1958.
3. Civil Petition No. 1175/80: The petitioners 1, 2 and 3 were working as Attendant while petitioner No.4 was working as Work Mistry in Thermal Power Station Guddu since 1973. In the WAPDA Weekly of September 21 and 28, 1977 issue list off workmen of WAPDA was issued notifying therein that the petitioners and other workmen were removed from service on charges of bad reputation and misconduct. Order of removal of the petitoners were issued on 30--8-1977 under section 17(1-A) of the West Pakistan WAPDA Act, 1958.
4. Civil Petition No. 1176/80: The petitioner No-1 was Operator, petitioner No.2 a Security Inspector, petitioner No. 3 a Security Guard and petitioner No.4 a driver and working in such capacity in Thermal Power Station Guddu since 1973. In the WAPDA Weekly of September 21 and 28, 1977 issue a list of the workmen of WAPDA was issued notifying therein that the petitioners and other workmen were removed from service on charges of bad reputation and misconduct. The orders of their removal have been issued on 30-8- 1977 under section 17 (1-A) of the West Pakistan WAPAD Act, 1958.
5. Civil Petition No. 1177 of 1980: The petitioner No-1 was appointed as s Peon on 3-10-1959. He was promoted as Junior Clerk on 25- 4-1967 and was finally promoted as Senior Clerk in July, 1973. In the WAPDA Weekly of September 20/28, 1977 issue the respondent No.1 got a news published notifying therein that the petitioner and other workmen were removed on charges of bad reputation and misconduct and on 30-8-1977 order of removal of the petitioner from service was issued under section 17 (1-A) of the West Pakistan WAPDA Act, 1958.
2. The petitioners being aggrieved of the orders of removal from service approached the Labour Court, Sukkur: Applications of the petitioners were allowed and the respondents 2 and 3 were directed by the Labour Court to re-instate the petitioners in service with back benefits by means of order dated 8-4-1978. The respondents challenged the order of the Labour Court before the Sind Labour Appellate Tribunal, Karachi, but their appeals were dismissed through order-dated 30-10- 1978. In consequence of the order of the Labour Court the petitioners were re-instated in service and they were paid their back wages. On 29-12-1979 the President of Pakistan promulgated Ordinance No. LXXII called as West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1979. Section Officer Enquiries WAPDA issued an Office Order on 2-10- 1980 stating therein that by virtue of subsection (1-C) of section 17 of the West Pakistan WAPDA Act, 1958 as amended, the order dated 30-10-1978 passed by the Sind Labour Appellate Tribunal, Karachi stood vacated and the petitioners were ordered to be relieved from their duties. The petitioners have challenged the order dated 2-1-1980 in these petitions.
3. Before considering the arguments of the learned counsel for the parties, we reproduce the order impugned in these petitions, which reads as under:-- "In pursuance of the provision of subsection (1-C) of section 17 of the West Pakistan WAPDA Act, 1958_, inserted by the West Pakistan Water and Power Development Authority (Amendment)
6. Ordinance (No.LXXII of 1979), the order dated 30-10-1978 passed by the Sind Labour Appellate Tribunal, Karachi, in compliance of which the petitioners (names and designations of the petitioners have been mentioned in the order) were re-instated in service stands vacated.
7. Consequently they are relieved of their duties with immediate effect."
4. The learned counsel for the petitioners has raised various pleas such as that the order of termination was without notice, that the petitioners' removal from service was mala fide Act, but the main controversy between the parties is whether the petitioners are civil servants or workmen.
8. Learned counsel for the petitioners has stated that the petitioners are workmen as they were drawing wages of less than Rs.1,000 per month and were subject to the provisions of Workmen Compensation Act. Reliance has been placed on PLD 1977 Lah. 1156, 1983 PLC (C S) 1070, 1983 PLC (C S) 1164, 1985 PLC 34, PLD 1985 Quetta 234, 1986 PLC 81 and PLD 1982 Kar. 205. In fact none of these authorities apply to the facts of the present case.
9. In order to resolve the controversy it is necessary to refer to the various provisions of the WAPDA Act itself. Section 17 of the Act as originally framed was in the following words:- "17. Employment of officers and servants.-- (1) The Authority may from time to time employ such officers and servants, or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit. .
(2) The Chairman, in case of urgency, may appoint such officers and servants on such terms and conditions as may be necessary: Provided that every appointment made under this subsection shall be reported to the Authority without unreasonable delay."
10. An amendment to this section was introduced by West Pakistan Ordinance XIII of 1959 which reads as under:- "Amendment of section 17, West Pakistan Act, XXXI of 1958.---In subsection (1) of section 17 of the Principal Act for the full-stop appearing at the end, a colon shall be substituted and the following provisos shall be added thereto, namely: 'Provided that all persons serving in connection with the affairs of the Province in the Electricity and Irrigation Department shall be liable to serve under the Authority, if required to do so by the Government, on such terms and conditions as the Government may, in consultation with the Authority, determine that shall not be entitled to any deputation allowance: Provided further that the Government may, in relation to any such person as aforesaid delegate such administrative, disciplinary and financial powers to the authority as the Government may deem fit: Provided also that the terms and conditions of service of any such person as aforesaid shall not be varied by the authority to his disadvantage'."
11. Then another amendment-was made by Ordinance XVI of 1975 enforced on 30th of September, 1975 whereby subsections (1-A) and (1-B) were added and these are as under: "(1-A) Notwithstanding anything contained in subsection (1) of any rules made, or orders or instructions issued, by the Authority, or in the terms and .Conditions of service of any person employed by, or serving under the Authority, the Authority may, at any time, remove from its service any person without assigning any reason, after giving him not less than thirty days notice or pay for the period by which such notice falls short of thirty days.
12. (1-B) Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not heir 8 a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purpose of the Service Tribunals Act, 1973 LXX of 1973)."
13. By another amendment introduced by Ordinance LXXII of 1979 two explanations were added after subsection (1-A) of section 17 of the Act and these explanations were added with the expressions that they are deemed always to have been so added.
14. "Explanation I.--For the purposes of this subsection, any person employed by, or serving under the Authority includes a person referred to in the provisos to subsection (1).
15. Explanation II.-- Any person referred to in the provisos subsection (1) who is removed or retired from service by the Authority under this subsection shall stand reverted to the Province to which he is allocated under the Province of West Pakistan (Dissolution) Order, 1970 (P.O. No.1 of 1970)."
16. By the same amending Act after subsection (I-B) a new subsection (1-C) was added in the following words:- ---(1-C)---any order of removal or termination of service passed by the Authority, in exercise of the powers conferred by subsection (I-A), 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 iv: force, before any Court, Tribunal or Commission and any order passed by any Court, Tribunal or Commission after the thirteenth day of September, 1975, and before the coming into force of the West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1979 setting aside or modifying or declaring any order of the Authority to be void and of no effect, shall stand vacated."
17. By section 17 (I-A) the authority may at any time remove from .3trviee any person without assigning any reasons after giving him not less than 30 days notice or pay for the period by which such notice falls short of thirty days. Originally the respondents had taken action under this provision and the petitioners have successfully challenged these orders before the Labour Courts.
18. Subsequently under subsection (I-C) of section 17 the legislature provided that an order or removal or termination of service passed by the Authority in exercise of the powers A conferred by subsection (1-A) shall not be 'called in question in any proceedings before any Tribunal or Court etc. And any order passed by a Tribunal or Commission after the coming into force of the West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1979, shall be void and of no effect. The respondent's have subsequently taken the action under this provision and this action of the respondents has now been challenged in this petition.
5. Learned counsel for the respondents has stated that the petitioners were civil servants and the Labour Court had no jurisdiction in the matter. It is further stated that the petitioners cannot assail the impugned orders in these Constitutional petitions under the constitutional jurisdiction of this Court, because under Article 212 of the Constitution the bar is complete On the other hand the learned counsel for the petitioners has stated that the petitioners were workmen and therefore, the Labour Court had the jurisdiction in the matter. If we accept the contention of the learned counsel for the petitioners that the petitioners were workmen then remedy before the Labour Court is provided under the law and the petitioners have not approached the Labour Court for such remedy. Learned counsel for the petitioners have stated that the orders of the respondents has been challenged in the Labour Court, the appeal filed by the respondents had been dismissed and the petitioners as a result of the orders in their favour had been reinstated by the respondents.
19. Thereafter fresh order has been passed nullifying the order passed by the Labour Appellate Tribunal which they could not do and as the order had already been passed therefore, there was no necessity in law to approach the Labour Court afresh. We see no substance in this contention.
20. After the dismissal of the appeal filed by the respondents before the Labour Appellate Tribunal the petitioners were re-instated. They were given the back benefits in compliance with the orders of the Labour Court and the Labour Appellate Tribunal and fresh order of termination of service had been passed. Therefore, a fresh cause of action had arisen in their favour and if the petitioners were aggrieved against that order then they should move the Labour Court for such relief. This observation is made In reply to the contention of the petitioners' counsel, otherwise the" correct legal position is that after I the amendment in law the petitioners became civil servants for all intents and purposes. Learned counsel for the petitioners has referred to the definition of civil servant as contained in Civil Servants Act, 1973 and according to section 2(b) 'civil servant' means a person who is a member of an All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include:----
(i) a person who is on deputation to the Federation from any Province or other authority;
(ii) a person who is employed on contract, or on work--charged basis or who is paid from contingencies; or
(iii) a person who is a "worker" or "workman" as defined in the Fectories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923).
21. It is contended that as the petitioners were drawing less than 86.1,000 as their pay therefore, they were workmen and as such the Labour Court had the jurisdiction.
22. We do not see any force in this contention because section 17 (1-B) is an overriding clause and under section 17 (1-C) the jurisdiction of the Tribunals, Courts, Commissions have been taken away and the legislature had set aside the orders passed by the Labour Court etc. The definition as interpreted in the Civil Servants Act would not apply to the present case. The learned counsel for the respondents has referred to Article 260 of the Constitution which reads as under:---- "Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a province, and includes an All Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman "Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate-General, Parlimentary Secretary or Chairman or Member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or member of a House of a Provincial Assembly;"
23. A perusal of this definition would show that any other service declared to be service of Pakistan by or under act of Parliament or of a Provincial Assembly shall be deemed to be a service of Pakistan.
24. In the instant case the legislature has in clear and unambigous words has declared service in the WAPDA to be service of Pakistan and a person who is on deputation to the Authority from any Province has been excluded from the definition of service of Pakistan. All other employees shall be deemed to be civil servants. Therefore, the definition of civil servant given under the Civil Servants Act, 1973 would not hold the field.
25. Learned counsel has referred to Civil Petition No.317-R of 1984 wherein the Supreme Court after considering the relevant provisions of law came to the conclusion that the employment in the Authority was declared to be service of Pakistan and remedy provided under Service Tribunals Act was made available to such employees by deeming them to be civil servants under the Act and Service Tribunal alone had the jurisdiction to adjudicate with regard to the terms' and conditions of WAPDA Employees from 30-9-1975. Similar view was taken in 1983 SCMR 663 and PLD 1977 Lah.
26. 1156.
27. Mr. Khalid M. Ishaque, learned counsel for the respondents has referred to certain decisions where the employees of WAPDA challenged the order in the constitutional petitions and those petitions have been dismissed, such as Writ Petition No. 1689 of 1980 decided by the Lahore High Court, Writ Petition No.2642 of 1976, decided by Mr. Justice Shafiur Rahman of Lahore High Court (as he then was), Writ Petition No.1670 of 1976 alao decided by the Lahore High Court, and Civil Petition No.K-246 of 1979, Muhammad Naseem v. Water and Power Development Authority and another. The last petition was dismissed by the Supreme Court on the ground that as the employees of WAPDA do not enjoy any constitutional protection conferred by the statute and they have been retired in exercise of the statutory powers, the service Tribunal was right in dismissing the appeal.
6. The overall conclusion from the above discussion is that the petitioners were civil servants and therefore, they could not approach this Court under Article 199 of the Constitution as there is specific bar provided under Article 212 of the Constitution. Their remedy lies E with the Service Tribunal as held in the cases cited above. Recently to 1986 SCMR 676 the Supreme Court reiterated that it is Service Tribunal alone to adjudicate all questions with regard to terms and conditions of WAPDA Employees as from 30-9-1976. The petitioners are not workers or workmen.
28. The petitions have no force and consequently they are dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.