JUSTICE SHAH ABDUR RASHID (CHAIRMAN).--This order will dispose of 'a common legal question involved in the present Appeal No. 206(R) of 1984 by Muhammad Latif Bhatti and Appal No. 208(R) of 1984 by Muhammad Siddiq.
Both the appellants were removed from service after having been proceeded against under the WAPDA (Efficiency & Discipline) Rules, 1978 (hereinafter referred to as the Rules). Although rule 11 of the said Rules provide for an appeal, the appellants instead of seeking that remedy and considering themselves to be workmen under the Industrial Relations Ordinance (XXIII of 1969)
(hereinafter referred to the Ordinance) served grievance notices under section 25-A of the Ordinance. Their grievance notices having not been attended to, they filed grievance petitions to the Labour Court. The Labour Court re-instated both the appellants by different orders, but finally the High Court in a writ petition filed by respondent WAPDA set aside the order of the Labour Court holding that the appellants having been declared civil servants under section 17 (1-B) of the WAPDA Act, could seek remedy only before the Service Tribunal. The appellants then filed the present appeals before us.
3. Proviso (a) to section 4(1) of the Service Tribunals Act (LXX of 1973), does not entitle a civil servant to approach the Tribunal direct without exhausting the departmental remedy, if provided for. On behalf of the respondent WAPDA, it has been argued that since the appellants did not file any appeal under rule 11 of the said Rules, their present appeals were incompetent. The appellants case on the other hand, is that since at the relevant time the law with respect to the status of the employees of WAPDA who were workmen under the Ordinance, was not clear, the grievance notices served on the employer should be treated as an appeal under rule 11 of the said Rules. This precise question had come up before different Benches of the Tribunal and there was a divergence of opinion. One view was that the grievance notice under section 25-A of the Ordinance would be deemed to have served the purpose required by rule 11 of the said Rules, while the other view was that such a notice not being within the ambit of the WAPDA (E&D) Rules did not absolve the aggrieved civil servants from exhausting the departmental remedy specifically provided for under rule 11 (ibid). To resolve the controversy, this Full Bench was constituted and we requested the Justice Division also to make available the services of a senior counsel to assist us in the disposal of the matter. Besides counsel for the parties, Mr, Muhammad Amir Akbar Khan, Advocate, nominated by the Justice Division also argued the case as an amicus curiae.
4. We have heard the learned counsel for the parties as also the learned amicus curiae. While counsel for the appellant insists that the view taken by the Tribunal that notice under section 25-A of the said Ordinance is a substitute for an appeal under rule 11 of the Rules, counsel for the respondent WAPDA and the amicus curiae held the other view.
5. Rule 11 of WAPDA (Efficiency & Discipline) Rules, 1978, reads as follows:
(1) An employee on whom a penalty is imposed, shall have a right to appeal to the authority competent to hear such appeals. The appellate authority may enhance, remit or reduce the penalty imposed by the competent authority. An employee on whom the appellate authority has imposed higher penalty than the one appealed against, shall have a right of further appeal to the next higher officer and, in the absence of the next higher officer, to the Authority.
(2) The appeal shall comply with the following requirements:--
(a) It shall contain all material statements and grounds relied upon, and shall be complete in itself.
(b) It shall specify the relief desired.
(c) It shall be submitted through proper channel.
(d) It shall be made within two, months of the date on which orders were passed under rule 5.
(3) The appeal shall be forwarded, as soon as possible, to the appellate authority with all relevant records and with the comments of the officer against whose order the appeal has been filed.
(4) The appellate authority shall consider:--
(a) Whether the facts on which the orders were based have been established?
(b) Whether the facts established afford sufficient ground for taking action?
(c) Whether the penalty imposed is excessive, adequate or inadequate? And
(d) There has been substantial compliance of these rules and after such consideration shall pass such orders as it thinks proper.
(5) Subject to the provisions of rule 12, an order passed on appeal shall be final.
The provisions of section 25-A of the said Ordinance are as under:-- Redress of individual grievances:-- (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or Collective Bargaining Agent within three months of the day on which cause of such grievance arises.
(2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker.
(3) Where a worker brings his grievance to the notice of his employer through his Shop Steward or Collective Bargaining Agent the employer shall within seven days of the grievance being brought to his notice, communicate his decision in writing to the Shop Steward or as the case may be, the Collective Bargaining Agent.
(4) If the employer fails to communicate a decision within the period specified in subsection (2) or as the case may be, subsection (3), or .If the worker is dissatisfied with such decision, the worker or Shop Steward may take the matter to his Collective Bargaining Agent or the Labour Court or, as the case may be, the Collective Bargaining Agent may take the matter to the Labour Court, and where the matter is taken to the Labour Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute: Provided that a worker who desires to so take the matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3) as the case may be.
(5) In adjudicating and determining a grievance under subsection (4), the Labour Court shall go into all the facts of the case and pass such orders as, may be just and proper in the circumstances of the case.
(6) and (7) deleted.
(8) If a decision under subsection (4) or an order under subsection (5) given by the Labour Court or a decision of the tribunal in an appeal against such a decision or order is not given effect to or complied with within a week or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees.
(9) No person shall be prosecuted. Under subsection (8) except on a complaint in writing:--
(a) by the workman if the order or decision in his favour is not implemented within the period specified therein, or
(b) by the Labour Court or Tribunal if an order or decision thereof is not complied with.
(10) For the purposes of this section, workers having common grievance arising out of common cause of action may make a joint application to the Labour Court.
6. There are some material differences in the provisions of rule 11 of the said Rules and section 25-A of the said Ordinance. Grievance can be brought under section 25-A of the Ordinance to the employer. Appeal under rule 11 of the Rules lies to the departmental authority. Time limit for grievance notice is three months, whereas for appeal it is two months. The appeal is to be submitted through proper channel by the agrieved employee. Grievance can be brought to the notice of the employer either by himself or through his Shop Steward or Collective Bargaining Agent. In the case of a grievance notice the employer is required to communicate his decision within 7 days. In the case of appeal, no such period is provided for. However, under section 4(1) (a) of the Service Tribunals Act (LXX of 1973), the aggrieved civil servant, in the absence of reply to the departmental appeal, can come to the Tribunal only after exhausting the waiting period of ninety days. In the scheme of the Efficiency and Discipline Rules, everything is to be done by the aggrieved civil servant himself. Section 25-A of the said Ordinance, on the other hand, gives vast power to the Shop Steward and Collective Bargaining Agent to bring the grievance. Again in the case of employer rejecting the claim, the employee or the Bargaining Agent is given two months to approach the Labour Court. A civil servant, however, affected by the Efficiency and Discipline Rules is bound to come to the Tribunal within 30 days of the communica--tion of the decision to him.
7. All the above differences go to the very root of the two proceedings which are basically different.
We are now, therefore, firmly of the view that grievance notice under section 25-A of the said Ordinance does not serve the purpose of appeal under rule 11 of the said Rules.
8. Since in these two cases, no departmental appeals under rule 11 of the said Rules have been made to the appellate authority, both the appeals are incompetent in view of proviso (a) to section 4(1) of the Service Tribunals Act (LXX of 1973) and are dismissed as such. Parties to be informed accordingly.
9. Rs.1,500 (Rupees one thousand and five hundred only) is fixed as fee to be paid by WAPDA to Sardar Muhammad Amir Akbar Khan, Advocate, amicus curiae. A copy of this order be sent to him also.
A.E.