1. CH. HASAN NAWAZ (MEMBER).--The appellant has challenged the validity of order of his dismissal (Anexure-E) passed by respondent-1 in onsequence of proceedings under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, on 4-7-1984, when he was working as Time- keeper with the Mechanised Construction of Pakistan Limited, in the present appeal under section 4 of the Service Tribunals Act, 1973 filed in the background of the following facts.
2. Although the appellant claims to have been appointed as Accounts Clerk in the Machinery Pool Organisation (MPO) on 23-11-1961, the respondents' case is that he was appointed in the first instance on work charged establishment and then brought on to the regular cadre with effect from 1-10-1970 through letter No, PF/104/1985 of 1971 when he was working as Time-keeper in compliance with the direction of Chief Engineer, MPO, WAPDA (Annexure-II with the written statement). Anyway his services were transferred to the Mechanised Construction of Pakistan Limited with effect from 1- 9-1974.
3. While he was working as Time-keeper in MCP (Equipment Workshop), Faisalabad, the appellant was served with charge-sheet, dated 30-8-1983 (Annexure-A), accompanied by the following statement of allegations: "While posted as Time-keeper MCP Equipment Workshop, Faisalabad for the period from 23-4-1961 to date Mr. Muhammad Nawaz son of Ahmad Khan, Time-keeper committed the following irregularities: (1)After preparation of pay-rolls of shops/sections/offices he failed to compile the Grand Summary of the pay rolls and seek pass order from the competent authority.
2. (2)He distributed pay envelopes in advance to the employees although these were required to be delivered by the Cashier in the presence of incharge concerned to the employees and obtain receipts thereof.
3. (3)He used to change the amount in the pay-roll sheets for Rs,2,000 or 3,000 each month and simultaneously increase the totals of summary sheets of the pay-rolls. Thus he had misappropriated MCP's funds each month to this extent which added to Rs,44,500.
4. (4)He confessed the allegations of misappropriation before local Enquiry Committee and refunded the amount of Rs,44,500 misappropriated by him through fraudulent means as per details given in the charge-sheet."
5. 4.Because of its importance in the decision of this appeal, the explanation submitted by the appellant (Annexure-B) in response to the charge-sheet deserves a detailed address. It is to the following effect: "The Chief Engineer (Coordn.), WAPDA, Wapda House, Lahore.
6. Through Paper Channel: Subject: CHARGE-SHEET The reply to charge-sheet dated 30-8-1983 is given below received with Manager (WW), MCP, Faisalabad's letter No, MCP/M (WW)/Inq/1157, dated 22-11-1983:-- (1)The grand summary of the pay-roll was prepared as per practice due to late receipts of attendance/leave order etc. and because of lost movement charges in the pay-rolls due to Labour pressure.
7. (2)The pay envelopes were handed over to the concerned incharge on the pay day as per previous practice and never delivered in advance.
8. (3)I have already admitted misappropriation and refunded the amount in full, even excess amount has been deposited by me, which may kindly be refunded to me after similar adjustment if any during the following months, no misappropriation has been made:-- Month Deposited amountActual amount 1/80 Rs, 2,000 Nil 9/81 Rs, 4,500 3,000 1/82 Rs, 500 Nil It is therefore requested that the amount of Rs,4,000 may please be refunded to me.
4. I have already admitted and deposited the amount.
9. 2-5. I am a WAPDA employee, transferred en bloc to MCP which is a commercial organisation. I am a manual worker for the purpose of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which is applicable to WAPDA as per PLJ Tribunal Cases, 1980 page 57--Paragraph 2 read with PLC 1975. In accordance with the provision of the above referred, the charge-sheet was required to be served upon me within one month whereas the same has been served after a lapse of more than one year even after the refund of said amount. The charge sheet, therefore, is null & void in the eyes of law as has been held by the Honourable Courts vide PLC 1978 page 201, 256, 374, 479, 480, PLJ 1979, PLJ 1981 and therefore, no action is to be taken on the basis of above charge-sheets. It is, therefore, requested that the charge-sheet may kindly be withdrawn and I may be apologised.
5. An inquiry into the matter was held by the WAPDA's Inquiry Officer who found in his report (Annexure-I with the written statement) that all the allegations against the appellant had been established on the basis of evidence recorded by him; whereafter, he was served with notice dated 25-3-1984 (Annexure-C) by respondent No, 1, under Rule 5(v) of the Rules calling upon him to show cause within a period of 14 days from the date of receipt of the notice, why provisionally determined penalty of dismissal of service should not be imposed against him.
6. The appellant's explanation in writing addressed to respondent No, 1 (Annexure-D) in response to the aforementioned final show-cause notice is equally important. It makes the following reading: "Humbly I submit the few lines for your sympathetic reconsideration, as the penalty provisionally proposed is higher/major which may please be converted into lesser/minor, keeping in view the following facts:-- (1)the enquiry proceedings have not been processed according to the procedure, because the charge-sheet was served after lapse of one year from the first formal explanation. As such the action was time-barred and should be treated as null and void as per Standing Orders contained in section 4 of Standing Order 15 of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 and constantly held by the Honourable Courts vide PLC 1978 page 201, 256, 374, 479, 480, 1979 PLC 446 and 1981 PLC 219. This fact had already been enumerated but the Enquiry Officer has not given his verdict in this connection.
10. (2)The Enquiry Officer has also not given his tentative conclusion regarding the exact recoverable amount. The amount worked out for recovery was Rs,40,500 but the total amount deposited by me was Rs,44,500. The excess amount of Rs,4,000 may please be refunded to me or the same amount may please be forfeited as a penalty by deducting the proposed penalty in lieu of it.
11. (3)In the light of the above facts, when there are several defects in the enquiry procedure and when the whole loss of the authority has been indemnified, it is earnestly requested that the major punishment proposed as dismissal from service, may please be re-assessed by converting into minor penalty other than dismissal/removal from service, enabling me to feed my big family, in the name of 'Allah' and Islamic Republic State.
12. (4)Lastly, it is requested that I may very kindly be permitted to be heard in person to elaborate the circumstances in my defence please."
7. As already noticed, respondent No, 1 passed the impugned order of dismissal dated 4-7-1984 (Annexure-E) after due consideration of the report of the Inquiry Officer, the appellant's explanation in writing and what he said in defence during personal hearing. He came to the Tribunal with the present appeal after an unsuccessful departmental appeal under Rule 11 of the Efficiency and Discipline Rules.
8. Cancellation of the impugned order is being sought on the following grounds:
(a) The allegations made against the appellant in the charge-sheet have not been proved.
13. (b)The appellant being an employee in NPS-7, respondent No, 1 was not competent to hold disciplinary proceedings and pass the impugned order, which consequently was without lawful authority.
14. (c)The impugned order is void ab initio, because the charge-sheet was served after one month of the date of alleged misconduct in violation of the mandatory provisions of Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
9. In defence, it has been pleaded that respondent No, 1 was competent to initiate disciplinary proceedings and pass the impugned order, which was the result of lawful and regular disciplinary proceedings during which the appellant confessed having misappropriated a sum of Rs,40,500. It was further pleaded that the provisions of Standing Order 15(4) of the West Paistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were not applicable to this case.
15. 10.It is abundantly clear from the statement of facts that on merits, the appellant does not have even semblance of a case. To say nothing of other material on the record including the report of the Inquiry Officer where the allegations against him were held to have been established, he stated in his explanation to the charge-sheet (Annexure-B) that he already made confession of misappropriation and that the misappropriated amount had been paid by him to the authority. He also said in his explanation that a sum of Rs,4,000 had been paid in excess of the misappropriated amount and he asked for its refund. Even in his explanation (Annexure-D) to the final show-cause notice, he made a mention of the fact that he had deposited an amount of Rs,44,500 with the authority and that an amount of Rs,4,000 had been paid in excess, which should be paid to him.
16. Although there is no mention of a confession in this explanation, but it does cause an impression that he deposited a sum of Rs,44,500 in acknowledgement of criminal misappropriation of money.
17. 11.We may make a reference to the allegations made in paragraph 4 of the departmental appeal, where it was said that the Inquiry Officer forced him "to make a preliminary statement on 22-2- 1984, before the prosecution evidence in the presence of prosecution witnesses" and that "the mode of inquiry procedure adopted by the Inquiry Officer was apparently illegal". These allegations were repeated in the grounds of appeal. There is, however, no substance in the assertion that the appellant was forced to make any statement by the Inquiry Officer. The record shows that he voluntarily made confession of his guilt and that the charge of criminal misappropriation was established against him beyond all reasonable doubt.
18. 12.We might as well make a reference to paragraph 8(b) of the grounds of appeal where it is pleaded that "all the allegations levelled in the charge-sheet have not been proved, inasmuch as the duties of the appellant were such which could not be resulted into the commission of such misconduct". It was further stated that "the appellant could not be held responsible for the commission of such misconduct as the appellant was not responsible nor the appellant have performed such duties which have been levelled against the appellant in the charge-sheet".
19. 13.In the first place, it is incorrect to say that all the allegations made in the charge-sheet had not been established. As we see from the report, the Inquiry Officer has clearly held that he is proved to have been guilty of all the charges levelled against him. While separately dealing with the four charges, he held that the appellant was guilty. This apart, we are constrained to observe that the averments made in paragraph 8(b) of the grounds of appeal hardly make any sense. It is pleaded that "all the allegations levelled in the charge-sheet have not been proved inasmuch as duties of the appellant were such which could not be resulted into the commission of such misconduct." It is extremely difficult to understand what exactly was meant to be conveyed by these pleadings. The statement that the allegations have not been proved because of the nature of the appellant's duties, hardly conveys any sense. Likewise, other pleadings in this paragraph lead us to the same conclusion. Whether a particular charge has or has not been proved, can either be ascertained from the report of the Inquiry Officer or determined on the basis of material on record and it has got nothing to do with the nature of appellant's duties. Some straining of mind may probably reveal that what the appellant wanted to plead was that the allegations mentioned in the charge- sheet could not have possibly been made against him because what he is alleged to have done was beyond the scope of his duties and that he could not possibly have committed the offences mentioned in the charge-sheet. Even if this be the intention or the message to be conveyed by these pleadings, we are inclined to hold that this does not promote his case in the presence of a voluntary confession of misappropriation of amounts belonging to the Authority. It is, therefore, factually incorrect that the allegations in the charge-sheet did not pertain to his duties. This apart, we feel inclined to say that pleadings in paragraph 8(b) of the grounds of appeal are rather evasive in nature and that they tend to establish that the appellant had been guilty of the allegations made against him; for instead of side track, he could have plainly said that he never made any misappropriation and that the charge against him was false. That he did not do so, is a convincing circumstantial evidence to show that he has been guilty of the offence of misappropriation.
20. 14.The other point which requires determination is whether Chief Engineer, Coordination (Water)
21. WAPDA (respondent No, 1) was not competent to initiate the disciplinary proceedings and pass the impugned order against the appellant. In paragraph 5 of the grounds of appeal, it was pleaded that since the appellant was drawing pay in NPS-7, the Chief Engineer Coordination was not competent to undertake disciplinary proceedings against him. The examination of this point requires an address to the definition of competent authority in the Efficiency and Discipline Rules.
22. Under Rule 2(3), "competent authority" means the Authority or the appointing authority, or an officer to whom the appointing authority is subordinate, or an officer designated by the Authority to exercise powers of the competent authority. In view of this definition, the aforementioned pleadings appear to be without any substance. It has not been stated as to who was the appointing authority of the appellant. Nor is there any mention of the fact as to how Chief Engineer Coordination (respondent No, 1) could not be the competent authority. It was stated at the Bar by the respondent's learned counsel that Superintending Engineer was the appointing authority of employees of BPS-7. If this be so, and there is no reason why it should not be believed as the correct position, respondent No, 1 would evidently be the competent authority in view of the aforementioned definition in Rule 2 of the Rules, considering that the Superintending Engineer is an Officer subordinate to the Chief Engineer.
23. 15.In his arguments in writing, however, the appellant's learned counsel set up a different case. It was contended that the appellant was appointed as Accounts Clerk by the then Chief Accountant WAPDA, which post has been renamed as General Manager, Finance (Water) and that his terms and conditions of service are regulated by the provisions of Accounts Service Rules, 1966 and that respondent No, 1 was not, therefore, competent to pass the impugned order. It was further contended that the appellant was not working under any Authority subordinate to respondent No, 1, which could have made him competent to pass the impugned order in accordance with the definition of "competent authority" contained in the Rules.
24. 16.We have noticed that the letter of appellant's appointment has not been produced. In the absence of this document, we do not find it possible to hold that he was appointed as Accounts Clerk by the Chief Accountant. As already seen, the respondent's case is that he was appointed as Accounts Clerk on workcharged establishment (MPO) in the first instance on 23-11-1961 and that he was subsequently brought on to regular cadre with effect from 1-10-1970 in compliance with the Chief Engineer's instructions given through letter No,PF/104/1585 of 1971 (Annexure II). In the presence of these pleadings, it was the appellant's duty to have produced either the letter of his appointment or any other evidence to show that he has been appointed as Accounts Clerk by the then Chief Accountant, WAPDA. No such evidence, however, has been produced and we are, therefore, obliged to hold that there is no basis for the contention that his terms and conditions are regulated by the provisions of Accounts Service Rules, 1966. Even the contention regarding re- designation of Chief Accountant as General Manager. Finance (Water) would be irrelevant and meaningless in the absence of the proof of the fact that he was appointed by the Chief Accountant, WAPDA. Further, we feel that the learned counsel's arguments in writing are rather vague and by no means convincing in their own right, to show that respondent No, 1 was not the Authority, competent to initiate the disciplinary proceedings and pass the impugned order, especially in the face of respondent's contention that he was employed in the first instance on workcharged establishment, which post was not borne on any cadre and that the post of Time keeper was borne on the executive cadre rather than the Accounts cadre. We may add to it the fact that the aforementioned letter Annexure-II, conveying the information that he had been brought on to regular cadre as Time-keeper, was issued by one Muhammad Aslam Arain of Workshop Office which according to the respondent's contention was under the administrative control of Chief Engineer Coordination, WAPDA who has now been designated as Chief Engineer Administration (Water), WAPDA.
25. 17.We might as well make a reference to letter No, Aii(Admn) MFC/MCP/7364, dated 25-8-1983 addressed by Manager Finance (Coordination) to the Chief Engineer (Coordination) Water, WAPDA, on the subject of disciplinary action against the appellant. The following paragraph of this letter is material: "Mr. Muhammad Nawaz, Time-keeper is not borne on accounting cadre. He is an employee of the executive cadre and as such it has been decided by G.M. (Admn.) vide his remarks in the margin of para. 3(c) and para.8 of the attached noting that charge-sheet in respect of Mr. Muhammad Nawaz, Time-keeper, MCP, be served by C.E. (Coord.) (Water). A charge-sheet alongwith statement of allegations in respect of Mr. Muhammad Nawaz, Time-keeper, MCP Equipment Workshop, Faisalabad duly vetted by MCP is, therefore, enclosed herewith for arranging its submission to the Managing Director, MCP, for further action duly signed by the competent authority."
18. It is thus abundantly clear that the appellant was borne on the executive cadre and that respondent No, 1 was competent to pass the impugned order. There was nothing legally wrong either with the service of charge-sheet or the show-cause notices, which ultimately led respondent No, I to the passage of the order of appellant's dismissal from service. We have not been able to lay our hands on anything from the record, which could have made it possible to assail respondent No, l's competency on any ground.
26. 19.After having been seen that the impugned order of dismissal from service was competent and justified on merits, the only other point which requires examination is whether the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are applicable to WAPDA employees. It was formulated during the course of arguments in writing by the appellant's learned counsel on the basis of allegations made in paragraph 8 of the grounds of appeal which are that the disciplinary proceedings against the appellant resulting in the order of his dismissal from service are a nullity, because the charge-sheet was not served within one month of the date of alleged misconduct or from the date of knowledge of that misconduct, in accordance with the "mandatory provisions of Standing Order 15(4) of the Ordinance". It may be noticed that the question dealt with by the appellant's learned counsel in the arguments in writing is wider in scope than the point raised in the grounds of appeal which pertained only to the provisions of Standing Order 15(4) of the Ordinance. We will examine the significance of this circumstance after having dealt with the main question raised in the arguments.
27. 20.The basic consideration for determination of the question is provided by section 1(4)(a) of the Ordinance under which it applies to every Industrial establishment or Commercial establishment wherein twenty or more workmen are employed, directly or through any other person, whether on behalf of himself or any other person, or were so employed on any day during the preceding twelve months; provided that nothing in the Ordinance shall apply to Industrial and Commercial establishments carried on by or under the Authority of Federal or any Provincial Government, where statutory rules of service, conduct, or discipline are applicable to the workmen employed therein.
28. 21.A meticulous application to the proviso would justify the conclusion that the provisions of the Ordinance are not applicable to the employees of WAPDA. The manner in which it has been drafted leads us to a special point of view. It lays down, we repeat for the sake of emphasis, that nothing in the Ordinance shall apply to Industrial and Commercial establishments carried on by or under the authority of the Federal or any Provincial Government where statutory rules of service, conduct, or discipline are applicable to the workmen employed therein. We underscore the point that the entire expression in the proviso is to be read as a whole and that the first part of the sentence regarding industrial and commercial establishments is not to be read after detaching it from the second part of the sentence in respect of statutory rules of service. As we discern, the expression "industrial and commercial establishments carried on by or under the authority of the Federal Government" is immediately followed by the phrase "where statutory rules of service, conduct or discipline are applicable". It is implicitly suggestive of the fact that the stress is not as much on the character of establishment as on the existence of statutory rules of service, conduct and discipline applicable to the employers of that establishment. We do not mean that the character of the establishment or the extent of Federal Government's control and authority are wholly irrelevant. What we intend to convey, in the context of manner of drafting the proviso, is that the existence of such rules is one of the main features of an establishment controlled by the Government, which is to say the least. We might say that these rules are a sine qua non of such an establishment. To say nothing of other considerations, therefore, the mere fact that the WAPDA has framed its own Efficiency and Discipline Rules under section 18 of the WAPDA Act, prescribing terms and conditions of service of its employees and providing for disciplinary proceedings, would be enough, in its own right, not only to ensure the elimination of all other rules, but also to constitute a collateral circumstance to lend support to the proposition that it is carried on under the authority of the Government. In other words, the existence of such rules would, amongst other things, have a bearing on the issue regarding character of the establishment.
22. It will be worthwhile to take a detailed notice of the provisions of section 18 of the WAPDA Act, 1958. It provides that the authority shall prescribe the procedure for appointment and terms and conditions of service of its officers and servants and shall be competent to take disciplinary action against them. It is in exercise of powers under this section that the authority made the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978; which by virtue of this circumstance alone, are undoubtedly statutory rules of service, conduct or discipline applicable to its employees, as would fulfil the requirement of proviso to section 1(4)(a) of the Ordinance. The purpose of these provisions is served by the mere fact that the rules framed by the Authority under section 18 of the Act go by the nomenclature and description of statutory rules. Leaving this aspect of the matter aside, a closer examination of the provisions of section 18 of the Act, would indicate that the rules framed by the authority were meant to exclude the application of all other rules. The section spells out a clear intention to invest the Authority with exclusive powers to prescribe the procedure for appointment and terms and conditions of service of its officers and servants. Therefore, what necessarily follows is that the procedure prescribed by the authority was to be to the exclusion of other procedures and rules, amounting to terms and conditions of service. We hold that other rules regarding terms and conditions, even if applicable to WAPDA employees, were repealed by implication, by the Efficiency and Discipline Rules framed by the Authority under section 18 of the Act.
23. We may also take notice of the provisions in this section which lay down that the Authority shall be competent to take disciplinary action against its officers and servants. It should ordinarily be understood from these provisions that it shall be so competent in accordance with the procedure laid down by itself in the statutory rules framed by it and not in accordance with other laws and rules. The Authority's powers to prescribe procedure for appointment and terms and conditions of service of its officers and servants is necessarily militant against such procedure prescribed by any other Authority under any other law. There was clearly a purpose in conferring this power on the Authority and we understand that this purpose was with reference to the nature of its functions and the results to be produced by it. It is concerned, as we get from the preamble, with the unified and coordinated development of Water and Power resources of the country and the Legislature seems to have intended to invest it with powers, sufficient to exercise adequate control over its employees to bring about the efficiency required in the production of those results and the performance of its functions. Therefore, in the context of these considerations, we can ill-afford to hold that terms and conditions laid down by any other law can possibly be forced on the Authority and incorporated in the terms and conditions laid down by it. Any other interpretation would take away what has been conferred on the Authority by section 18 of the Act and we cannot ascribe an intention to the Legislature which would reduce the provisions of section 18 of the Act to nonenity. The competency of the Authority to take action against its employees has to be in accordance with the procedure prescribed by it and no other procedure including that laid down in Standing Order 15(4) of the Ordinance is relevant.
29. 24.There is another aspect of the matter. As we see from the provisions of section 18 of the Act, it is undoubtedly the Authority's mandatory obligation to prescribe for appointment and terms and conditions of its employees and it is competent to take disciplinary action against them. It is quite significant that the exercise of rule-making power has not been left to the discretion of the Authority. If this be so, as it is, there will be no room for the prescription and introduction of terms and conditions made under any other law. If we were to hold that the terms and conditions laid down in the Standing Orders Ordinance of 1968 are applicable to WAPDA employees, this would amount to divesting the Authority "of its statutory powers under section 18 of the Act, particularly when the terms and conditions laid down in the Standing Orders are inconsistent with those made by the Authority. The provisions of section 18 of the Act will become redundant, in case we acknowledge the existence of a parallel power of prescribing terms and conditions of its employees. Under settled rules of interpretation, we have to interpret the provisions of section 18 of the Act, as also those of the Standing Orders in a manner, as would make it possible to give effect to them, rather than making them superfluous. The crux of the matter is that when the Authority has prescribed the terms and conditions of its officers and servants in discharge of this statutory obligation, there would be no justification for adopting the terms and conditions laid down under any other law and those prescribed by the Authority shall hold the field.
30. 25.It is contended by appellant's learned counsel that Pakistan WAPDA (Efficiency and Discipline)
31. Rules, 1978 are not statutory rules of service, conduct or discipline, within the meaning of proviso to section 1(4)(a) of the Ordinance. Reliance in support has mainly been placed on the judgment of Labour Appellate Tribunal Punjab, delivered in the case of WAPDA v. Shafiq-ur-Rehman, with 1984 PLC 5 as citation. The learned Member of the Tribunal expressed himself on the point in the following words: "The other condition given in proviso to section 1(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 also does not stand fulfilled. The procedure laid down by WAPDA under section 18 of WAPDA Act does not amount to statutory rules. The mere fact that section 18 empowers the Authority to lay down procedure for appointment and for laying down the terms and conditions of service is not sufficient to give the character of statutory rules to the said procedure. This is noteworthy that section 18 does not empower the Authority to frame Efficiency and Discipline Rules. It empowers the Authority only to prescribe a procedure for appointment and for laying down the terms and conditions of service of its officers and servants.
32. This section further says that the Authority shall be competent to take disciplinary action against its officers and servants. In the terms and conditions of service it may be provided how the disciplinary action could be taken but if those terms and conditions are against the provisions of any law which governs the employees of WAPDA then terms and conditions would not be applicable and action can be taken according to the legal provisions. Whatever the case may be, this is clear that section 18 has not empowered the Authority to frame Efficiency and Discipline Rules After reading sections 18 and 29 it appears that the intention of the Legislature is not that WAPDA should have its own Efficiency and Discipline Rules for taking action against its employees.
33. If the intention had been that the Efficiency and Discipline Rules be framed by WAPDA, such a provision would have been made in section 18 or in section 29. Needless to say that terms and conditions of service cannot be called statutory rules. Since section 18 does not authorise the Authority to frame Efficiency and Discipline Rules, West Pakistan WAPDA Employees Efficiency and Discipline Rules, 1978 cannot be said to have been framed under the said section."
34. 26.We are respectfully in disagreement with the learned Member. What appears to have mainly weighed with him is that section 18 does not, in so many words, empower the Authority to frame Efficiency and Discipline Rules. It has been observed that it empowers the Authority only to prescribe a procedure for appointment and for laying down the terms and conditions of service of its officers and servants. It is respectfully pointed out that this view is contradicted by the learned Member himself in what follows in the next two sentences. The first is that "this section further says that the Authority shall be competent to take disciplinary action against its officers and servants".
35. The second is that "in terms and conditions of service it may be provided how the disciplinary action could be taken but if those terms and conditions are against the provisions of any law which governs the employees of WAPDA, then those terms and conditions would not be applicable and action can be taken according to the legal provisions". We may point out that the learned Member seems to have conceded to the Authority the powers of providing the mode of disciplinary action in the terms and conditions of service, which it is admittedly authorised to prescribe. Although this power has been qualified with the observation that those terms and conditions should not be against the provisions of any other law governing the employees of WAPDA, the fact remains that according to observation of the learned Member himself, the power to prescribe mode of disciplinary action can be spelled out from the provisions of section 18 of the Act.
36. 27.We may also make a reference to the observation that the mere fact that section 18 empowers the Authority to lay down procedure for appointment and terms and conditions of service of its employees is not sufficient to give character of statutory rules to the said procedure. All we can say, with utmost respect, is that the learned Member has not given any reason in support of his view and in spite of straining of mind, we have not been able to appreciate the logic behind it.
37. 28.Reference is also made to the observation that "needless to say that terms and conditions of service cannot be called statutory rules". Here again, we say with respect that no reason has been given in support of this view. Further, it has been stated that "if the intention had been that Efficiency and Discipline Rules be framed by WAPDA, such a provision would have been made in section 18 of the Act" and that "since section 18 does not authorise the Authority to frame Efficiency and Discipline Rules, Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 cannot be said to have been framed under the said section". As we have already pointed out, the power to frame such rules can be spelled out, not only from section itself, but also from the observations of the learned Member himself. In addition to conferment of powers on the Authority to prescribe the procedure for appointment and terms and conditions of service, section 18 of the Act declares in unambiguous terms that it shall be competent to take disciplinary action against its officers and servants. The competency to take disciplinary action could be exercised only in the presence of Efficiency and Discipline Rules. This provision in the Act leads us to the irresistible conclusion, as already pointed out, that the Authority was placed under a statutory obligation to make such rules.
38. No escape being possible from the aforementioned provisions of section 18, it will have to be laid down that the Authority was not only competent but rather bound to make disciplinary rules to carry out the purposes of section 18 of the Act. We are of the view that conferment of such powers need not have been specifically mentioned in the section and it was enough to say that the Authority shall be competent to take disciplinary action against its officers and servants. We would rather say that the section has been drafted in such a manner, as would lead to the inference of a power in the Authority to frame the Efficiency and Discipline Rules. Any other interpretation would obviously render a part of the provisions of the section absolutely redundant, which could not have been the intention of the Legislature.
29. These considerations apart, we are in no doubt that these rules are statutory in nature, mostly because of the fact that they have been framed in exercise of powers derived from a statute. The word "statutory" has been defined at page 1266 of Black's Law Dictionary (5th Edition) as relating to a statute; created or defined by statute; required by a statute or conforming to a statute." This definition in view, the rules framed under a statute would undoubtedly be regarded as statutory in nature within the meaning of proviso to section 1(4)(a) of the Ordinance.
30. We may now proceed to deal with the question whether WAPDA is an establishment carried on by or under the authority of the Federal Government. In accordance with its definition in the Concise Oxford Dictionary, the word "authority" means power or right to enforce obedience. It is synonymous and interchangeable with the word "control", which has been defined at page 298 of Black's Law Dictionary (5th Edition) as a power or authority to manage, direct, superintend, restrict, regulate, govern, or oversee. According to Ballentine's Law Dictionary (page 267 of 3rd Edition) the word 'control" means to check, restrain, govern, have under command and authority. In addition, as we see from volume 9 of Words and Phrases (permanent Edition), the word "control" is synonymous with superintendence or management, or authority to direct, restrict or regulate.
39. 31.After having seen the import of word "Authority", we now propose to examine the relevant provisions of WAPDA Act, in the light of these definitions to determine the question. Section 3 of the Act provides for the constitution of the Authority. Under subsection (2) of this section, it was to be a body corporate with entitlement to acquire and hold property and to have perpetual succession and common seal. Under section 4, the Chairman and Member are appointed by the Federal Government. Their remunerations, terms and conditions of service and duties are to be prescribed by the Government. Its power of removal of Chairman and Members is unfettered. Section 8 of the Act makes the Authority responsible for certain duties, primary one being the preparation of comprehensive plan of development and utilization of Water and Power resources on a unified and multi-purpose basis for approval of the Government, which may sanction or refuse to sanction or may return for re-consideration any scheme submitted to it under this section, or may call for such further details or information about the scheme, or may direct its further examination, as it may consider necessary. Under section 9(2), the Authority can undertake, with the approval of the Government, execution of any scheme or exercise technical supervision and administrative and final control over the execution of any scheme, framed or sponsored by any agency in respect of the matters enumerated in subsection (2) of section 8 of the Act.
40. 32.Under section 10-A, all assets including land, works, machinery, apparatus, material and plants vested in the Electricity department of the Government, shall vest in the Authority and all liabilities in respect of said assets shall be the liability of the Authority. Section 11 of the Act, empowers the Authority to have control over water resources, operation of Power-Houses, operation and maintenance of all Irrigation Works, and maintenance of Power-Houses and Grids. Before, however, the Authority can exercise any control, the area over which and the extent to which this control is intended to be exercised, shall be agreed to and notified by the Government in the official Gazette.
41. Section 15 provides that a scheme framed and sanctioned under the Act may be amended or modified by the Authority at any time, but if a material change is made in the scheme, previous sanction of the Government shall be obtained. Section 16 provides for an arrangement by the Authority with a local body or other agency to take over and maintain any of the works and services in that area. If it fails to obtain the assent of such a local body or other agency, it may refer the matter to the Provincial Government which may give such direction to that body or agency as it may deem fit. Under subsection 2 of this section, the Government may direct the Authority to hand over any scheme other than a power scheme or power part of a multi-purpose scheme carried out by it to any agency of the Government or a local body.
42. 33.Because of its bearing on the issue, section 21 requires a special reference. Under this section, the Authority is required to submit yearly report on the conduct of its affairs to the Government, which places it before the National Assembly to be referred to its Committee on Public Accounts for scrutiny and examination. Under subsection (2-A) of this section, the Committee on Public Accounts shall scrutinise and examine this report in the same manner and shall in respect thereof perform the same functions and exercise the same powers as are required by it to be performed and exercised in respect of appropriation accounts of the Federal Government and the report of the Auditor-General of Pakistan thereon. Further, under subsection (3) of the same section, the Government may require the Authority to provide it with any return, statement, estimate, statistics or other information regarding any matter under the control of the Authority; or a report of any such matter or a copy of any document in the charge of the Authority and the Authority is bound to comply with any such requisition.
43. 34.The provisions of sections 27 and 28 are also important for determination of the point in dispute. Section 27 provides that in the month of January each year, the Authority shall submit to the Government for approval, a statement of estimated receipts and expenditure in respect of next financial year. Section 28 is to the effect that the accounts of the Authority shall be audited every year by the Auditor-General of Pakistan in such manner as may be prescribed by the Government.
44. Copies of the Audit report shall be sent to the Authority and with the comments of the Authority, to the Government and shall also be available for inspection. The Authority shall carry out any directive issued by the Government for rectification of an audit objection.
45. 35.This examination of the provisions of WAPDA Act makes it abundantly clear that the Government has complete control over the finances and administrative affairs of the Authority, with the only exception that certain powers have been conferred on it to carry out the purposes of the Act. A bare reading of the provisions of the Act leaves no doubt about the fact that it is under the management of the Government which supervises and controls its operations. The Chairman and Members of the Authority are appointed by the Government and their resignations have also to be accepted by it. The powers of removal of the Chairman and the Members are also with the Federal Government. Further, the main function of the Authority is to prepare a comprehensive plan for the development and utilization of the Water and Power resources of the country on a unified and multi-purpose basis to be placed for approval before the Government who has got the power to refuse or sanction any such scheme and direct its further examination as it may consider necessary. Further, as we have already noticed, yearly reports and returns are also submitted to the Government for scrutiny and examination by the National Assembly Committee on Public Accounts. The Authority's annual Budget statement is also approved by the Government and its accounts are audited every year by the Auditor General of Pakistan in the manner prescribed by the Government. We are of the opinion that nothing else is required to establish that the Authority is under the complete control of the Federal Government in all administrative and financial matters and that in the event of any financial malfeasance, it is answerable to the elected represantatives through the Public Accounts Committee. The provisions of the Act lead us to the unmistakeable conclusion that the Authority is an establishment carried on under the control and authority of the Federal Government within the meaning of proviso to section 1(4)(a) of the Ordinance, as would exclude the application of Standing Orders to its employees.
46. 36.In support of his case, the appellant's learned counsel relied upon 1980 PLC 480 Labour Cases (Inayat Ali v. WAPDA), PLJ 1980 Tr.C. 57 (WAPDA v. Inayat Ali), 1982 PLC 1025 (WAPDA v. Mohammad Manzoor), 1981 PLC (C.S.) 777 (Bashir Ahmad v. Superintending Engineer, IV Lahore Circle 1984 PLC 1003 (WAPDA v. Ashraf Ali) and 1985 PLC (C.S.) 390 (Mohammad Ashraf Naeem v. XEN. Cantt.)
47. 37.In Mohammad Ashraf Naeem v. Executive Engineer, Cantt: Division (E) WAPDA, Lahore, 1985 PLC
(CS) 390 which was decided by this Tribunal, it was held that an employee of WAPDA is a workman, because he is a person employed, in an industrial-cum-commercial establishment to do clerical work for hire or reward, in accordance with the definition of "workman" in section 2 of the West Pakistan (Standing Orders) Ordinance, 1968. It was further held that WAPDA is an industrial as well as a commercial establsihment, on the basis of definition of these expressions, in section 2 (ii) (f) of the Payment and Wages Act, 1936 and section 2, clause (b) of the Ordinance of 1968. On the strength of these findings, the view taken by the learned Tribunal was that the Ordinance is applicable to the employees of WAPDA and that application of any other rule framed by the Authority is not valid and legally enforceable. After taking into consideration the relevant provisions of law and the authorities on this point, we do not find it possible to agree with the view expressed by the learned Tribunal. It may be pointed out that the issue involved for determination in that case was not examined by the learned Tribunal in the light of proviso to section 1 (4) (a) of the Ordinance which lays down that nothing in the Ordinance, shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any provincial Government where statutory rules of service, conduct, or discipline are applicable to the workmen employed therein. Therefore, the learned Tribunal's judgment in Mohammad Ashraf Naeem's case was without any finding as to whether WAPDA was an industrial or commercial establishment carried on by or under the authority of the Federal Government with its own statutory rules of service.
48. 38.In Ch. Inayat Ali's case, the view taken by the learned Presiding Officer of the Labour Court was that WAPDA is a statutory corporation like National Shipping Corporation and according to the judgment of the Karachi High Court, it was not being run by or under the control of the Government.
49. It may be stated that while deciding this case, the learned Presiding Officers did not compare the provisions of National Shipping Corporation Ordinance, 1963 with those of the WAPDA Act, 1958. In the appeal filed by WAPDA against this judgment (PLJ 1980 Tr. C. 57) the learned Member of the Labour Appellate Tribunal endorsed the decision of the Labour Court, while following the National Shipping Corporation's case (1975 PLC 1). Here again, the provisions of both the legislations were not compared to reveal proper examination of the matter. .39. We have gone through the facts of the cases which caused other authorities cited by the appellant's learned counsel in support of his contention. Details are unnecessary and what seems to have mainly influenced the learned Presiding Officers of the Courts and Tribunals to the rulings in those cases was the fact that under section 3 (2) of the Act, the Authority is a body corporate entitled to acquire and hold property with perpetual succession and a common seal and competent to sue and be sued in its own name. We hold, on the basis of various authorities, to be mentioned in the paragraphs to follow that in spite of its status under section 3 (2) of the Act, the Authority can be under the control of the Federal Government, with its own statutory rules of service to fulfil the requirements of the proviso. What we wish to convey is that the fact of WAPDA being an establishment carried on under the control of the Federal Government with its own statutory rules of service, is not necessarily inconsistent with the fact of its being a body corporate entitled to acquire and hold property with perpetual succession and common seal. We are of the view that both the circumstances can co-exist, as we find it in the present case.
50. 40.In National Shipping Corporation cases v. Sind Appellate Tribunal PLD 1975 Kar. 274 it was held by the Karachi High Court that National Shipping Corporation was not an establishment carried on by or under the authority of the Federal Government and that it did not have its statutory rules.
51. Similar view was taken by the same High Court in the ICP Employees v. Presiding Officers, Labour Court (PLD 1976 Karachi 1176). The High Court arrived at the same conclusion in both the judgments, on the question in dispute namely the applicability of Standing Orders on the basis of the fact that the provisions of National Shipping Corporation Ordinance, 1963 and the Investment Corporation Ordinance, 1966 are in para materia. We however hold, with respect, that the rulings in those cases are the result of legislations which are different in basic characteristics from the WAPDA Act, 1958. Neither the National Shipping Corporation nor the Investment Corporation is under the control of the Federal Government in financial as well as administrative matters as we find in the case of WAPDA which is under the total control of the Government as is apparent from the provisions of WAPDA Act, especially those which have been mentioned in sections 4, 21, 27 and 28 of the Act.
52. 41.Without intending to derogate anything from the importance and value of the authorities relied upon by the appellant's learned counsel, the point we make out is that the question whether WAPDA is an establishment carried on by or under the authority of the Federal Government, is necessarily and basically that of fact, which has to be decided with reference to the provisions of the WAPDA Act, 1958 and by making a comparative study of the relevant laws. It may be stated, for brevity's sake, that the provisions of the National Shipping Corporation Ordinance, 1963, the Investment Corporation of Pakistan Ordinance, 1966, are almost identical in material particulars.
53. The WAPDA Act, 1958, however, bestows on the Authority an altogether different status and places it on entirely different footing. In the case of Corporations established under these laws, the authorised share capital, value of each share with number of shares paid up and authorised share Capital were declared by the Legislature in these Ordinances, whereas this was not so in the case of the Authority whose funds were to consist of grants made by and the loans obtained from the Government, grants made by the local bodies as required by the Government, sale proceeds of bonds issued under the authority of the Government, loans obtained by the authority with the special or general sanction of the Government, foreign aid and loans obtained from the International Bank for Reconstruction and Development or otherwise, with the sanction of, and on such terms and conditions as may be approved by the Government and all other sums received by the Authority. The general direction and superintendence of the affairs and business of these Corporations vests in the Board of Directors. This is not so in the case of the Authority. The Board consists of nine Directors in each case, about half of which are elected by the shareholders whose terms of office are fixed and who are not under the control of the Government. On the other hand, the entire management of the Authority is under the control of the Government. In addition, as we have already noticed, under section 21 of the Act, the direction and superintendence of the affairs of the Authority, is also under the complete control of the Government and the elected representatives who exercise it by scrutiny and examination of its annual reports on the conduct of those affairs. No such thing is there in the case of Corporations. Then, under section 21, a statement of the estimated receipts and expenditure in respect of new financial year is submitted by the Authority for approval of the Government. They do not have to do it there in the Corporations.
54. Finally, under section 28 of the Act, the accounts of the Authority are audited by the Auditor- General of Pakistan in such manner as prescribed by the Government, whereas in the case of Corporations, the accounts are audited by not less than two chartered accountants within the meaning of the Chartered Accountants Ordinance, 1961. It is thus clear that the Scheme of WAPDA Act, 1958 is entirely different in complex and salient features. There is no similarity in material particulars and relationship of the Corporations with the Government is by no means identical with that of the Authority. We are, therefore, constrained to hold that the ratio of Karachi High Court's rulings and the judgments given by other Courts and Tribunals on the basis of these Ordinances, is not attracted to the facts of the present case.
42. Even on this point namely whether WAPDA is an establishment carried on under the authority of the Federal Government, main reliance of the appellant's learned counsel was on the case of WAPDA v. Sahafiq-ur-Rehman (1984 PLC 5). It was observed by the learned Member in this case that "obviously by being a body corporate and entitled to acquire property and having perpetual succession and entitled to sue and be sued in the said name, WAPDA cannot be said to be working by or under the authority of the Government. But rather section 3 (2) contrarily shows that WAPDA is an independent body and can acquire property and issue notice in its own name without taking any authority from the Government." We have already expressed our view about this aspect of the matter and we reiterate that WAPDA can be under the control and authority of the Government in spite of being in enjoyment of the status of a corporate body with perpetual succession and common seal.
43. After examination of the relevant provisions of the WAPDA Act, the learned Presiding Officer of the Appellate Tribunal expressed the view that there was nothing in them to establish that the Authority is under the control of the Federal Government to exclude the application of Standing Orders to its employees. It would not be necessary to go into the details of reasons given by the learned Presiding Officer and we hold, with utmost respect, that they are not convincing. While dealing with the provisions of section 21 of the Act, he observed that the submission of report under that section was not sufficient to bring WAPDA under the direct authority of the Government. It was further observed that "every person running the business has to submit income tax returns to the Income Tax Department for the assessment of income tax but it does not mean that the businessm an can be said to be doing business under the authority of the Income Tax Department."
55. Here again, all we can say with respect is that this reasoning is not convincing and the submission of return to the Income Tax Department for assessment of income tax, is certainly not the same as submission of reports by WAPDA to the Government under section 21 of the WAPDA Act. Since the appellant's learned counsel has adopted the reasoning given by the learned Presiding Officer in this judgment, a reference to the observation made in respect of the provisions of sections 27 and 28 would also be worthwhile. He expressed himself in the following manner: "Section 27 makes provisions for the submission of annual statements of accounts to the Government in respect of receipts and expenditure for the next financial year. Section 28 makes a provision that accounts of the Authority shall be audited every year by the Auditor-General of Pakistan in the manner prescribed by the Government. It also provides that the Authority shall carry out any direction issued by the Government for the rectification of an audit objection. This provision rather makes it further clear that WAPDA is not functioning under the authority of the Government otherwise there was no necessity of making a provision that the Auditor-General would inspect the accounts of the Authority. The audit department without any direction from the Government is duty bound to audit every department of the Government which deals with income and expenditure and the department under inspection has to rectify all audit objections made by the auditors."
56. We would refrain from making any comment on these observations except that we are in respectful disagreement with the view expressed by the learned Presiding Officer. As already mentioned before, we hold the view that these provisions establish beyond doubt that WAPDA is under the complete financial control of the Federal Government, as would make it an establishment carried on under the authority of the Government for the purpose of proviso to section 1(4)(a) of the Ordinance.
57. 44.The question wether WAPDA is performing functions in connection with the affairs of the Government, came up for consideration in Malik Abdur Razzak v. WAPDA (PLD 1973 Lah. 188) where it was sought to establish that relationship of WAPDA employees with the employer is that of Master and Servant. This contention was repelled with the following observations: "It can hardly be denied that WAPDA is not statutory public corporation performing functions in connection with the affairs of the Provinces as well as the Centre. It has been created by WAPDA Act, 1958, (b) all its functions are related to the provisions of a public utility service, (c) the Members of the Authority are appointed and removed exclusively by the Government and (d) the capital employed by the Authority is provided either from Government funds or from aid received through the Government of Pakistan from foreign countries. It cannot, therefore, be urged with any amount of success that it is a private corporation or that it is not performing functions of the Government."
58. 45.We might as well mention that the question was examined by this Tribunal in Khalil Akhtar's case 1986 PLC (C.S.)
5. It was held that since WAPDA is an establishment carried on by or under the authority of the Federal Government and has its own statutory rules, proviso to section 1(4)(a) of the Ordinance excludes the employees of WAPDA from its purview. Similar view was taken by the Labour Tribunal in WAPDA v. Syed Farrukh Hussain (1976 PLC 305 (2)).
59. 46.After going through various judgments on this issue, we are inclined to say that the Standing Orders basically cater only for those employees (workmen) in public and private sectors where their relationship with the employer is governed by the principle of Master and Servant; and therefore the class for which the Ordinance was intended would have no remedy for the redress of their grievances except the provisions of this Ordinance. The remedies and protection provided by it to the workmen were absolutely essential to ensure industrial peace and discipline, necessary for augmentation of production and industrial progress. Conversely, it clearly intended to exclude from its operation, the public sector undertakings where the relationship of employer with his employees is statutory in nature and the employer's discretion is controlled by will of the Legislature, as we find in the case of WAPDA employees.
60. 47.There is another aspect of the matter. The Standing Orders Ordinance of 1968 was placed on the statute book, to amend and consolidate the law relating to industrial employment. Standing Order 12 deals with termination of employment. Paragraph (1) of this Order provides that for terminating employment of a permanent workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workmen, and one month wages calculated on the basis of average wages earned by the workmen during last three months shall be paid in lieu of notice. Paragraph (2) is to the effect that no temporary workman whether monthly-rated, weekly-rated, daily-rated or piece-rated and no probational or `badli' shall be entitled to any notice if his services are terminated by the employer, nor shall any such workman be required to give any notice or paid any wages in lieu thereof to the employer if he leaves employment of his own accord. Paragraph (3) of the Order provides that the services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reasons for the action taken. It further provides that in case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance.
61. 48.Standing Order 15 is in respect of punishments, and what constitutes misconduct, in addition to certain procedural matters. Paragraph (4) of this Order dictates that no order of dismissal shall he made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and the employer shall institute independent inquiry before dealing with the charges against a workman: provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the inquiry to assist the workman proceeded against and shall not deduct his wages if the inquiry is held during his duty hours.
62. 49.The provisions regarding termination of employment, punishment, mode of inquiry and what constitutes misconduct in Standing Orders Nos, 12 and 15 seem to be self-sufficient and a complete Code in themselves. Therefore, they will have to be applied to the case of a workman as a whole and there would be no justification for pick and choose. If the provisions of these orders are applicable to a particular case, they will then have to be applied as a whole and pot to the disregard of certain provisions, allowing the aggrieved person to pick up those which are favourable. We have however noticed, and we feel that this is a pertinent circumstance, that reliance in this case has been placed on Standing Order 15(4), whereas there is no mention of the other provisions of this Order and those of Standing Order 12 of the Ordinance; which means that the impugned order in this case is being assailed on the ground that the appellant had not been informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct came to the notice of the respondents. There is neither any reference to the other provisions of this Order, nor to those of Standing Order 12 which omission is certainly beyond our understanding.
63. 50.The provisions of Standing Orders Nos, 12 and 15 present us with another point of view. As already noticed, they are not meant for the employees of WAPDA. The Standing Orders and other provisions of the Ordinance have been laid down in the context of Labour Laws which are not applicable to those employees; more so when the terms and conditions of their service are within the exclusive domain of the Authority. They are governed by their own disciplinary rules and there is no room for the introduction of terms provided in these Standing Orders. This is also clear from Standing Order 12(3) which gives an aggrieved workman the right of challenging the validity of an order passed against him, under section 25-A of the Industrial Relation Ordinance, 1969. It is now settled law that the employees of WAPDA have only the right to file departmental appeal under Rule 11 of their Efficiency and Discipline Rules and petitions under section 25-A of the Industrial Relations Ordinance, 1969 are not competent in their case to fulfil the jurisdictional requirement of section 4(1)(a) of the Service Tribunals Act, 1973. Therefore, these provisions make it abundantly clear that they have no relevance with disciplinary proceedings against the employees of the Authority.
64. 51.Reliance has also been placed by the appellant's learned counsel on section 17(1D) of the WAPDA Act in support of his case. It provides that nothing contained in the Industrial Relations Ordinance 1969 shall apply to or in relation to any person employed as a member of the Security Staff of the Authority for the protection of the installations and establishments of the Authority. The argument is that insertion of this section is an ample proof of the fact that the provisions of Industrial Relations Ordinance, 1969 were ordinarily applicable to WAPDA employees. It is contended that had it not been so, there would have not been any need for the addition of this subsection to section 17 of the Act. We, however, feel that the circumstance pointed out by the learned counsel does not promote his case, for the subsection mentions only Industrial Relations Ordinance, 1969 and not the Standing Orders Ordinance, 1968, which would justify the inference that the provisions of this Ordinance are not applicable and the Legislature did not think it necessary to exclude the application of its provisions.
65. 52.Another point raised by the learned counsel for the appellant is that WAPDA itself applied to the Provincial Government for exemption of its installations of Power Houses and Workshops from the application of Standing Orders Ordinance, 1968 and that it was in consequence of this application that Provincial Government exempted those installations from the application of the Ordinance in exercise of powers under section 8 of this Ordinance, through Notification published in the Punjab Gazette of 24-8-1977. It is contended as to why WAPDA thought it necessary to seek exemption from the provisions of the Ordinance, if it was not applicable to its employees.
66. 53.In the first instance, we feel, that if an application was made by WAPDA, resulting in the issuance of aforementioned notification regarding exemption, it should not be allowed to serve as estoppel against the determination of the question in dispute. A misconceived application would not debar the Authority from pleading that the Ordinance has no application to its employees. The question involved is that of law and irrespective of the aforesaid application resulting in the issuance of Notification dated 24-8-1977, the Authority is still within its rights to contend that its employees are outside the scope of the Ordinance. What is really of importance is the fact that correct legal position is to be ascertained and determined with reference to the provisions of WAPDA Act and the Ordinance, 1968, and not on the basis of WAPDA's application for exemption; for it certainly does not provide us with any justification for holding that the provisions of the Ordinance could be attracted to the case of an employee of the Authority. WAPDA's application for exemption can possibly be the result of some misunderstanding of the legal position, which can be declared as misconceived.
67. 54.We do hold the opinion expressed in the preceding paragraph. However, without intending to derogate anything from that opinion, it would be worthwhile to point out another circumstance.
68. This will require a reference to the case of West Pakistan WAPDA Employees Central Union (Registered) v. WAPDA, cited at the Bar as 1965 PLC 829. There in that case it was conceded by the WAPDA's representative that the Standing Orders Ordinance applied to Power Houses and Workshops provided fifty or more workmen were employed there; which he seems to have done on the assumption that they were, prima facie, permanent units. This shows that in accordance with the Authority's opinion, be it correct or erroneous, the provisions of Standing Orders Ordinance, 1968 was applicable to the employees of Power Houses and Workshops, even at that time. In spite of this concession, however, the learned Members of the Industrial Court which was seized of the matter, had grave doubts if the Standing Orders Ordinance was applicable generally to all the employees of WAPDA. This obliged them to examine whether it was either an industrial or commercial establishment within the meaning of section 1(4)(a) of the Ordinance. After due consideration of the definitions of Industrial Establishment and Commercial Establishment in the relevant laws, the learned Court came to the conclusion that units other than Power Houses and Workshops were neither industrial nor commercial establishments and that the provisions of Standing Orders Ordinance, 1968 were not applicable to their employees and they were consequently governed by the terms and conditions of their service.
69. 55.Reference to this ruling was intended to serve two purposes: First was to support the opinion that WAPDA is not an industrial or commercial establishment as could be covered by section 1(4)
(a) of the Ordinance. The second was to show that the arguments of the appellant's learned counsel regarding WAPDA's application for exemption of Power Houses and Workshops from the application of the Ordinance did not represent the correct factual position. Even though unintentional, the submissions on the point misled us to the impression as if the WAPDA conceded that the provisions of the Ordinance were applicable to all its employees and that otherwise they would not have made this application for exemption. The aforementioned authority clearly established that this in faeaas never been the case and that the circumstance of Authority's application for exemption of Power Houses and Workshops, would not necessarily lead us to the conclusion that this amounted to concession of the fact that the Ordinance was applicable to all its employees. As a matter of fact, as would appear from the facts of aforementioned case, the Authority distinguished between Power Houses and Workshops and other units of the establishment.
56. For the aforementioned reasons, we hold that WAPDA is an establishment carried on under the authority of the Federal Government where statutory rules of service, conduct and discipline are applicable to its employees and that the provisions of the Standing Orders mentioned in the schedule of the Ordinance are not applicable to them. This being the legal position and there being no merits in the appeal, it is dismissed without any order as to costs under the circumstances.
70. 57.Parties to be informed.