' ABDUL AZIZ MEMON (MEMBER).---This appeal is directed against order dated 15-4-1991 passed by Dr. Munir Ahmed Mughal, the learned Member, Lahore. It was heard under section 22-B(4) of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance) in the absence of Mr. Mahmood Ahmed, J.S. (Industries) who was not available.
2. Respondent No, 1 is employed as Meter Reader in GOR which is a Sub-Division of Civil Lines Electricity Division (E), WAPDA. He claims to be a member of Pakistan Hydro Electric Central Labour Union and Secretary of its Lahore Zone which pertains to Meter Readers and bill distributors.
3. It is alleged that the trade union activities of respondent No, 1 are not liked by his officers. On 4-11- 1990 Deputy Director Investigation, WAPDA, Lahore Region, Lahore is alleged to have called him to his office and asked him in presence of his other colleagues to give up his trade union activities but when he refused to oblige, he was threatened with transfer out of region on the basis of an anonymous complaint against him. Subsequently he came to know that the appellants were issuing order No, 303-08/MDP/E11/15/450, dated 3-1-1991 transferring him and second respondent herein to Quetta Region. Transfer of respondent No, 1 has been ordered on the basis of the inquiry held against him in the said anonymous complaint under pressure of rival union although he was neither charge-sheeted nor was a proper enquiry held against him. The transfer is also alleged to be against the rules and policy of the department in connection with transfers of low-paid employees. Therefore, he and the second respondent filed Petition No, 4A(38)/91-L. It was accompanied by Miscellaneous Application No, 24 (37)/91-L on which the learned Member passed an order directing the appellants to maintain status quo. This case was disposed of on 21-1-1991 as the order impugned in the petition was superseded by an order dated 17-1-1991.
4. On the same day i,e, 21-1-1991 respondents filed Petition No,4A(73)/91-L, challenging the fresh order dated 17-1-1991 whereby in supersession of the previous order they were transferred to Hyderabad Region. This petition was also accompanied by interlocutory Application No,24(72)/91-L upon which the learned Member, Lahore suspended the operation of the order impugned therein.
Later on respondent No, 2 withdrew from the proceedings as his transfer order was recalled.
5. In both these cases the appellant filed comments, in which jurisdiction of the Commission was challenged on the ground that the respondents being civil servants they are governed by the Civil Servants Act, 1973 and are as such amenable to the jurisdiction of Federal Service Tribunal only. On merits it was pleaded that respondent No, 1 was transferred out of Region as he was found to be involved in political activities in violation of WAPDA Employees Conduct Rules. It was admitted that an enquiry was held against him in connection with an anonymous complaint dated 2040-1990 alleging that he was exerting political influence upon officers of the appellant and blackmailing them. As regards the two orders of transfer out of region it was maintained that the earlier order was issued by clerical error. The respondents were to be transferred to Hyderabad region and not to Quetta region. It was further averred that the allegations of unfair labour practice being vague, indefinite and false the same did not give rise to any cause of action for filing the petition.
6. This case was disposed of by the learned Member on 14-44991 saying that with regard to the terms and conditions of service of WAPDA employees, Federal Service Tribunal had the exclusive jurisdiction, and that the respondent having impugned his transfer which constituted one of the terms of his service, the Commission had no jurisdiction to interfere. For this view he relied upon cases reported as WAPDA and another v. Muhammad Arshad 1986 SCMR 18, WAPDA v. Aftab Ahmed 1986 SCMR 678 and WAPDA and another v. Javed Ahmed 1989 SCMR 1068.
7. On the next day viz. 15-4-1991, the petitioner moved an application before the learned Member praying therein that the order of dismissal passed by him on 14-4-1991 be recalled as the learned Chairman had transferred all the abovementioned cases to his own file. This application was accepted and the learned Member recalled the said order saying that it was void ab initio and a nullity in the eye of law. This order is now impugned before us.
8. We have heard the learned counsel for the parties at length. It is contended by the learned counsel for the appellant that after dismissing the petition by his order dated 14-4-1991 the learned Member had become functus officio and as such he had been left with no jurisdiction to pass any further order in the matter, such an order would be coram non judice and nullity in the eye of law.
9. The learned counsel for the respondent has on the other hand taken objection to the maintainability of the appeal on three grounds. His first ground of attack is that the order appealed from is not a decision within the meaning of section 22-D of the Industrial Relations Ordinance, 1969 as it did not finally determine the case. His second submission is that two orders, one passed by the learned Senior Member (who was then performing functions of the Chairman) transferring the cases and the other passed by the learned Member, Lahore recalling his earlier order cannot be challenged by a single appeal as has been done in this case. The third objection is that the memo.
Of appeal has not been signed by the appellants themselves but by their Advocate who did not have such power or authority from the appellants. On merits he contended that under section 12(2) of the Code of Civil Procedure, every Court has the power to recall its own orders.
10. 'Decision' as pointed out in Saundcr's and quoted with approval by Supreme Court of Pakistan in the case of Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan 1987 SCMR 1107 implies the exercise of a judicial determination as the final and definite result of examining a question. In the instant case the order appealed from finally disposes of a plea raised in the application for recall of an earlier decision of the Court. We are therefore of the view that impugned order is appealable.
11. As to the objection relating to the maintainability of the appeal on the ground that it was directed against the two orders one passed by learned Acting Chairman transferring the case and the other passed by the learned Member recalling his order dated 14-4-1991, it may be pointed out that title of the appeal shows that it has been preferred against the order dated 15-4-1991 and not that of the learned Acting Chairman transferring the case. Merely because there is a mention in the prayer clause that the order of transfer is bad would not render the appeal incompetent. In PLD 1976 SC 785 Supreme Court of Pakistan laid down the principle that where a plaintiff claims a relief larger than that to which he is found to be entitled, the Court ought to grant the relief to which he is so found entitled and not to dismiss the suit. The same principle can be pressed into service in this case also.
12. Objection about want of signatures of the appellant on the memo. Of appeal is not supported by record. The appeal appears to have been signed by one of the appellants. The power of attorney in favour of the learned counsel for the appellant is signed by the Director (Legal), WAPDA who has been duly authorised by Resolution No, 441 of 1981 of the WAPDA passed on 3rd March, 1981.
13. There is no doubt in our mind that order of transfer of a case takes effect as soon as it is made.
In the case of Karam All and others v. Raja and others PLD 1949 Lah. 100 a Full Bench of Lahore High Court held that "upon transfer being ordered, the Court before which the matter was pending, ceases to have jurisdiction, as an order of transfer is effective the moment it is made and its effectiveness is not dependent upon its conveyance to the subordinate Court, and thereafter any proceedings before such Court will be without jurisdiction.
14. However, to justify an order of this nature it must be clearly established that the order of transfer preceded the order of subordinate Court,, but such a matter was not placed before the learned Member.
15. No doubt the learned counsel for the respondent did make a statement before us at the time of hearing of appeal that the order of transfer was made in the morning and the learned Member had dismissed the petition in the afternoon. This statement was not controverted by the learned counsel for appellant for the obvious reason that it was made in absence of the appellant.
However, neither there is evidence in support of this statement of the learned counsel in the record nor did the respondents care to file an affidavit to this effect.
16. Contention of the learned counsel for the respondents that the impugned order could have been passed under section 12(2), C.P.C. On the ground that the learned Member ceased to have jurisdiction after transfer of the case finds some support from a decision of Supreme Court of Pakistan in the case of The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) in which it was held that "a Court has inherent powers to set aside a judgment which it has delivered without jurisdiction and every Court and Tribunal possesses the jurisdiction to disregard its own order if it is without jurisdiction". Such an order, however, could have been passed only when evidence as indicated above was available on record.
17. For the reasons stated above we set aside the impugned order with the' result that the order of dismissal of the petition passed on 14-4-1991 would stand revived.
18. Although the respondent has not preferred an appeal against the order of dismissal of the petition but we entertain no doubt in our mind that it is patently wrong. And since we are cognizant of the case we would not allow the wrong to perpetuate. As an appeal is continuation of the original cause it is implied that an appellate Court can pass any order which the trial Court could 1 G have passed.
19. A cursory glance at the case reported as 1986 SCMR 18 will reveal that it does not lay down that NIRC has no jurisdiction in cases of unfair labour practice committed or apprehended to be committed by the WAPDA. The question before the Supreme Court of Pakistan was whether the Federal Service Tribunal established under the Federal Service Tribunal Act, 1973 has the jurisdiction to entertain an appeal of an employee of WAPDA whose services are terminated in accordance with the provisions of subsection (1-A) of section 17 of the WAPDA Act, 1958 (hereinafter referred to as the Act) notwithstanding the provisions of subsection (1-C) of the said section 17 which it was contended, ousted its jurisdiction.
20. These two provisions which were added to the Act by Ordinance, XVI of 1975 (made into Act LXXXIV of 1975) with effect from 30-9-1975, are reproduced hereunder for easy reference: "S.17(1-A).--Notwithstanding anything contained in subsection (1) or any rules made, or orders or instructions issued, by the Authority, or in 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.
"S. 17(1-C).--Any order of removal or termination of service passed by the Authority, in exercise of the powers conferred by subsection (1-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 in force, before any Court, Tribunal or Commission and any order passed by any Court, Tribunal or Commission after the thirtieth 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."
' Another provision relevant in the context is subsection (1-B) of section 17 which was added by the same Ordinance. It runs as under:- "S. 17(1-B).--Service under the authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Services Tribunals Act, 1973 (LXX of 1973)."
20-A. While examining these and some other provisions of the Act the Supreme Court observed: "It is clear from these provisions that the employment- in the Authority was declared to be service of Pakistan and remedy provided under Service Tribunal Act, 1973 was made available to such employees by deeming them to be civil servants under that Act. The two explanations subsequently added and "deemed always to have been so added" had the effect of bringing under purview of subsection (1-A), even the Provincial Civil Servants serving the authority under provisos to subsection (1). All employees, except those on deputation, were without qualification or limitation, declared to be civil servants for the purposes of Service Tribunals Act. All the terms and conditions of their service, be it statutory or contractual, were made the subject-matter of reference to Service Tribunals Act. Subsection (1-A) of the Act, as will be shown contained overriding terms and conditions of employment and provisions thereof could like any other terms and conditions of service be brought before the Service Tribunal for adjudication. Article 212(2) of the Constitution ousting the jurisdiction of all other Courts came into play and so did section 6 of the Service Tribunals Act, abating "all suits, appeals or application regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before".
' In conclusion the Supreme Court held that in view of subsection (1-B), the Service Tribunal alone had the jurisdiction to adjudicate with regard to the terms and conditions of WAPDA employees as from 30-9-1975 and jurisdiction of all other Courts, Tribunals, Commissions was affected by subsection (1-C) but not that of the Service Tribunai itself.
21. It would thus be seen that jurisdiction of this Commission with respect to the matters falling under subsection (1-A) of section 17 of the Act and those, relating to the terms and conditions of service of WAPDA employees as also any matter within the jurisdiction of Federal Service Tribunal is ousted. The case before the learned Member, however, was based on allegation of unfair labour practice.
22. The moot point therefore is whether jurisdiction of this Commission in matters of unfair labour practice in respect of WAPDA employees is ousted because they are civil servants in the service of Pakistan.
23. Relevant provision is contained in clause (b) of subsection 3 of section 1 of the I.R.O., 1969 which is to the following effect:- "Section 1(3). It shall not apply to any person employed--
(b) in the administration of State other than those employed as workmen by the Railway, Posts, Telegraph and Telephone Departments."
24. History of Labour Laws would show that the intention of the legislature is to confer benefits of Labour Laws on as many persons as would be covered by the definition of "workmen", but at the same time safeguard has also been provided against strikes and lock-out by persons employed in the services essential to the State as also by those employed in the "administration of State".
25. Keeping in view the intention of the legislature to confer the benefits of Labour Laws on as many persons as would be covered by the definition of "workmen", the phrase 'employed in the administration of State' must be strictly construed. The intention of those who framed subsection
(3) of section 1 of the Ordinance was not to deprive all Government Servants of the benefits of the Ordinance. Had it been so they would have said so in clear and unambiguous words. They did not, however, use the phrase "any person employed in the service of Government". The phrase "employed in the administration of State" must therefore be given a meaning other than "persons employed in the service of Government". If the legislature had intended by this expression to include not only every Government servant but also every employee of a statutory body performing functions on behalf of or as an agent of the Government, there was no reason to specifically exclude from the purview of the Ordinance, as has been done, persons employed in the police, the defence services and services or installations connected with the armed, forces, including Ordnance Factories maintained by the Central Government. The fact that as a special exception has been made in respect of the, above classes of persons would seem to suggest that the legislature was conscious that a possible view could be taken that such classes of persons may not be included in the expression "Persons employed in the administration of State".
26. Clauses (c) and (d) of subsection (viii) of section 2 of the Ordinance provide further intrinsic evidence which strengthens the view that the IRO applies to the "workmen" employed as civil servants and those employed under a local authority. Had it not been so it was unnecessary to insert the above clauses in the IRO which are to the following effect: "Employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes--
(c) in relation to an establishment run by or under the authority of any department of the (Federal Government or Provincial Government), the authority appointed in this behalf or, where no authority is appointed, the Head of the Department.
(d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf, or where no officer is so appointed, the Chief Executive of that authority."
27. This view is supported by a number of decisions of the Supreme Court of Pakistan. In the case of Employees Old-Age Benefits Institution v. N.I.R.C. (1988 SCMR 765) it was observed: "the State has multifarious functions to perform in different fields in discharge of its Constitutional responsibilities, affecting the citizens in almost all walks of life. For this reason it is the largest employer of manpower in the country. If all persons who are concerned with implementing Constitutional responsibilities of the State, are to be treated as employed in the administration of State within the meaning of clause (b) of section 1(3) of the Ordinance it will, as a consequence, effectively put the largest employer in the country beyond the reach of Labour Laws. This could hardly be the intention behind clause (b). It is to be noticed that certain categories of State employees, for example, those serving in defence forces and police, have been expressly excluded from the ambit of the Ordinance, even though they too discharge duties relatable to the Constitutional responsibilities of the State. If clause (b), ibid, was intended to cover all those who were employed in connection with the Constitutional responsibilities of the State it would have been unnecessary to specifically exclude certain categories of State employees by name. Quite obviously, the expression "administration of State" has been used in a limited sense in the said clause."
27-A. Similar view was taken by the Supreme Court of Pakistan in the case of Project Director Karkhana Allat-e-Zari, Bahawalpur v. Presiding Officer Labour Court and others PLD 1989 SC 152.
28. In a recent unreported judgment of Supreme Court of Pakistan in Civil Appeal No, 695/88 entitled Tahir Muhammad v. The Director of. National Savings, Multan Region delivered on 11-114991 it was again held: "All employees of the Government including those of attached departments are not ipso facto employed "in the administration of the State:" in terms of section (3)(b) of the Industrial Relations Ordinance."
29. In the case of Muhammad Ashiq v. Executive Engineer WAPDA (1985 PLC 488) repelling a similar contention a Full Bench of this Commission held: "This submission in our view is misconceived. WAPDA Authority has been established as an independent. Statutory Corporation under section 3(2) WAPDA Act, 1958. Service under the WAPDA has been declared to be service of Pakistan and its employees are civil servants only for the limited purposes of the Service Tribunals Act and are not Government servants or employed in the administration of the State. They are employed by the WAPDA in connection with its own business and are not performing functions of administration of the State".
30. This view was followed by other Full Benches of this Commission in the cases of Amir All v.
Ghulam Farid, Superintending Engineer, WAPDA 1988 PLC 884 and Rana Arshad and two others v.
Chairman WAPDA (Case No, 12(44)/91.
31. For the reasons stated above we set aside the order of the learned Member dated 14-4-1991, whereby he had dismissed the petition of appellant for want of jurisdiction and remand the case to him for disposal according to law after holding such inquiry as he deems fit.
32. This appeal was heard under section 22-B(4) of the I.R.O., 1969 in the absence of Mr. Mahmud Ahmad, J.S. Industries (Planning) who was not available.