MUHAMMAD NASEEN, J.- Mukhtar Ahmad Sahh and Rana Muhammad Hanif respondents No. 4 and 5 were the Foodgrains Inspectors who were proceeded against under the Punjab Civil Servants (Efficiency and Discipline) Rules. 1975 for committing mis-conduct etc. On the conclusion of the departmental proceedings both respondents No. 4 and 5 were dismissed from service who were also made to pay the monetary loss sustained by the Provincial Government due to their proved misconduct. Mukhtar Ahmad Shah respondent No. 4 did not file any departmental appeal nor challenged his dismissal from service as well as penalty of recovery of monetary loss before any forum. Court or Tribunal. He made partial payment of the amount imposed upon him. Rana Muhammad Hanif respondent No. 5 filed departmental appeal before the Director Food Punjab, Lahore (respondent No. 1) which was dismissed. Thereafter lie tiled Appeal No. 509/1992 before the Punjab Service Tribunal. Lahore calling in question the aforesaid original as well as Appellate Order which was pending. However. Mukhtar Ahmad Shah Hied petition under section 22-A(8) (g) of the Industrial Relations Ordinance. 1969 before Agha Saleem Khurshid. Member-I National Industrial Relations Commission. (NIRO Lahore. According to the petitioner without serving any notice upon the aforesaid parlies and in the absence of any comments the aforesaid Member-I. National Industrial Relations Commission. Lahore Bench. Lahore declared the order of dismissal from service of respondent No. 4 as well as that of recpverV of monetars loss to be without lawful authority and of no legal effect by reinstating him in service from the date of suspension with all back benefits.
The Member-I. National Industrial Relations Commission further held that the criminal proceedings case against Mukhtar Ahmad Shah respondent No. 4 be withdrawn by adding that there was nothing on record to arrive that respondent No. 4 had intentionall or wilfully embezzled the wheal from the storage etc. Rana Muhammad Hanif respondent No. 5 also tiled similar petition under section 22-A(8) (g) of the Industrial Relations Ordinance. 1969 before Agha Saleem Khurshid.
Member-I. National Industrial Relations Commission. Lahore Bench Lahore who proceeded to suspend theL&S.C 95 dismissal order dated 25.2.1988 and that of 1.3.1998 vide his order dated 7.5.1995. Thereafter Deputy Director Food.Multan Division,Multan (respondent No. 2) vid? His order each dated 21.5.1995 reinstated both Mukhtar Ahmad Shah and Rana Muhammad Hanif respondents No. 4 and 5 in obedience to the orders passed b\ Member-I/National Industrial Relations Commission. Both Akhtar Hussain and Mehr Zafar Iqbal petitioners were promoted as Foodgra'ins Inspectors during the year 1994 on their turn in the prescribed manner who were working as such under the subordination of the Deputy Director Food Multan Division, Multan (respondent No. 2). Consequent upon the said orders passe by the Member-I/National Industrial Relations Commission and thereafter the order dated 21.5.1995 passed by the Deputy Director Food, Multan Division; Multan (respondent No. 2), the petitioners were served with show-cause notices for reversion to the lower rank being junior most Foodgrains Inspectors Multan Division, Multan Feeling aggrieved the petitioners filed this writ petition to obtain the proposed desired and required relief that the aforesaid orders of Member-I, National Industrial Relations Commission, Lahore Bench, Lahore are patently and wholly illegal, oiram-non judice, nullity in law, without jurisdiction and void ab initio and that the resultant orders each dated 21.5.1995 passed by the Deputy Director Food Multan Division, Multan(resporident No. 2) in favour of respondents No. 4 and 5 about their re- instatement and show- cause notices against them(petitioners) are illegal, -ultra vires and without jurisdiction as well as mala fide. According to the petitioners respondents No. 4 and 5 are the Civil Servants under the Punjab Civil Servants Act, 1974 and the remedy provided to them against their dismissal from service was constitutionally entrusted to the Service Tribunal which had the exclusive jurisdiction under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973.
According to them in view of the ouster of jurisdiction of the Courts except the Service Tribunal Punjab and express bar, Member-I, National Industrial Relations Commission; Lahore Beach,Lahore could not assume and exercise the authority which did not vest in him who passed the orders dated 11.4.1995 and 7.-5.1995 in favour of respective respondents Nos. 4 and 5 illegally and without jurisdiction. The petitioners averred that the Food Department. Government of the Punjab and all its functionaries were holding civil posts performing their duties in the affair^ of the Province and thus neither the Food Department is an industry or such establishment to which the Industrial Relations Ordinance, 1969 is applicable and that each of respondents No. 4 and 5 was not "Workman" as defined in the Industrial Relations Ordinance, 1969 about whom Member-I, National Industrial Relations Commission, Lahore Bench, Lahore could not assume the jurisdiction. In this regard Article 175 of the Constitutional of Islamic Republic of Pakistan, 1973 was also referred to, according to which no Court can assume the jurisdiction unless it is specifically and expressly conferred upon it.
The petitioners maintained that under section 22-A(8) (g) of the Industrial Relations Ordinance, 1969 the jurisdiction to prevent the unfair labour practices as enumerated in section 15 of the above said Ordinance could be assumed and thus the scope of the Member-I, National Industrial Relations Commission was very limited which could not be extended to the case having no ultimate jurisdiction for the eventualities which had already occurred. According to them respondents No. 4 and 5 had practiced the fraud and the impugned orders could not be passed in their fa\our which are liable to be set aside.
2. The writ petition has been resisted by respondents No: 4 and 5 who took up the plea that the Member-I, National Industrial Relations Commission, Lahore Bench. Lahore was competent to entertain the petitions filed by them under section 22-A(8) (g) of the Industrial Relations Ordinance. l%9 who had passed the valid and legal orders which have been executed by the Deputy Director Food, Multan Division. Multan (respondent No. 2). They maintained that any person who works .With his hands comes within the definition of workman and that due to that they could agitate their matters before National Industrial Relations Commission. They refuted the contentions mentioned iii the writ petition and prayed for its dismissal. On 9.10.1995 Mehr Zafar Iqbal petitioner No. 2 got the writ as withdrawn to his extent.I have heard the learned counsel for the parties and gone through the record before me.
4. Leamed counsel for Akhtar Hussain petitioner referred to section 1(3) (b) of the Industrial Relations Ordinance, 1969 according to which the Ordinance shall not apply to any person employed in the aforesaid administration of the State other than those employed as workmen by the Railway, Posts,Telegraph and Telephone Departments. He referred to section 22-A (8) (g) of the said Ordinance according to which the National Industrial Relations Commissiok can assume the jurisdiction to deal with the cases of unfair labour practices specified in sections 15 and I6 of the Ordinance on the part of the employer and workmen/' trade unions. He also referred to section 15 of the Ordinance relating to unfair labour practices on the part of the employers and section I6 of the unfair practices on the part of the workmen. He maintained that none of the conditions/provisions of law was available to respondents No. 4 and 5 to make the Member-I, National Industrial Relations Commission. Lahore Bench, Lahore assume the jurisdiction. Learned counsel for the petitioner referred to section 2(1) (b) of the Punjab Civil Servants Act, 1974 whereby "Civil Servants" means a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province, He added that everybody who earns his livelihood by the dint of his hard labour cannot be termed as the workman except those mentioned in the Industrial Relations Ordinance, 1969 for the purposes of unfair practice. He specifically pointed that the Member-I, National Industrial Relations Commission, Lahore Bench, Lahore was not empowered and had no jurisdiction to entertain the petitions filed by respondents No. 4 and 5 and had no jurisdiction to pass the impugned orders. On the contrary leamed counsel for \respondents No. 4 and 5 laid the emphasis that each of respondent No. 4 and 5 was a workman as they did the manual work dufing the performance of their duties and that the Member-I, National Industrial Relations Commission. Lahore Bejich.Lahore was competent to decide the matter on the applications filed by them under section 22- A(8)(g) of the Industrial Relations Ordinance. 1969.
5. After going through the aforesaid provisions of law and making an analysis of the arguments addressed by the learned counsel for the parties.) am of the view that the reasoning expressed and adopted by the learned counsel for the petitioner has to prevail, lt would be convenient to reproduce as under the definition of "Workers" and "Workman" incorporated in section 2(xxviii) of the ^Industrial Relations Ordinance. 1969:- "(xxviii) "Worker" and "workman" means any person not falling within the definition of employer who is employed (including employment (as a supervisor or) as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of an\ proceeding under this Ordinance in relation to a industrial dispute includes a person who has been dismissed, discharged,, retrenched, laid- of or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-of, of removal has led -to that dispute (but does not include any person-fa) who is employed mainly in a managerial or administrative capacity, or(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him. Functions mainly of managerial nature)."
A cursory glance on the aforesaid wordings of relevant provisions has made me to interpret and express the view that the Foodgrains Inspectors of the Food Department,Government of the Punjab cannot be termed to be the "Workers" and/or the "Workmen". The only fact that respondents No. 4 and 5 did their work with their own hands, as pointed out by their learned counsel, would not make out that they are the "Workmen" within the purview- of the aforesaid provisions of law. Ln this respect suffice it to express that every person holding any office, doing any business or performing any duty to earn his livelihood or otherwise has to perform his duties withe his hands. This stand taken by the learned counsel for respondents No. 4 and 5 is simply conjectural hypothesis which cannot be given the legal weight to make me hold that both respondents No. 4 and 5 are the "Workmen" within the purview of the Industrial Relations Ordinance, 1969% 6. At this stage it would be convenient to refer to section 2(1) (be of the Punjab Civil Servants Act, 1974. A "Civil Servant" means a person who is a memberof a civil service of the Province or who holds a civil post in connection with the affairs of the Province, I have to express my view that the Food Department is a Government Department and the Foodgrains Inspectors are holding civil posts performing their duties in the affairs of the Province. It can safely be expressed that the f ood Department is not an industry. Each of respondents No. 4 and 5 is not a workman. The Foodgrains Inspectors are subject to such rules, laws and instructions as the Provincial Government may issue from the to the, ln case of misconduct they are amenable to the Punjab Civil Servants (Efficiency and Discipline) Rules.
1974. In the instant matter Mukhtar Ahmad Shah respondent No. 4 did not proceed in the matter by preferring the appeal(s) and remained inactive who accordingly submitted to the final decision made against him on the conclusion of the Departmental Enquiry. Rana Muhammad Hanif respondent No. 3 filed the departmental appeal which was dismissed who thereafter filed the appeal before the- Punjab Service Tribunal which was still sub-judice when he moved the Member-I. National Industrial Relations Commission Lahore Bench, Lahore. Both Mukhtar Ahmad Shah respondent No. 4 and Rana Muhammad Hanif respondent No. 5 are the Civil Servants and they could move the Punjab Service Tribunal against the order or their dismissal from service and determination of their liability to pay the monetary loss sustained by the Governmefit in view of Article 212(2) of the Constitution of the Islamic Republic <^f Pakistan, 1973 which cannot be violated and ignored by any authority in the country. Keeping in view these aspects of the matter I hold that the Member-I, National Industrial Relations Commission Lahore Bench, Lahore had no jurisdiction to entertain the petitions filed by respondents No. 4 and 5 and to decide the same on merits.
7. Last of all I have to express that a petition under section 22-A(8) (g) of the Industrial Relations Ordinance, I969 can be 1969 heard by the National Industrial Relations Commission to deal with the cases of unfair labour practices specified in sections 15 and I 6 of the Ordinance on the part of the employers and workmen/trade union. Section 15 relates to unfair practices on the part of the employers. The charge- sheet on the basis of which the Departmental Enquiry was held against each of respondents No.4 and 5 cannot be said to be unfair labour practice on the part of the superior officers/competent authority of respondents No. 4 and 5. Consequently it can safely be held that keeping in view the provisions of Section 22-A(8) (g) and Section 15 of the Industrial Relations Ordinance, I969, it was not the function of the National Industrial Relations Commission to deal with the petitions filed by respondents No. 4 and 5 against the orders of their dismissal and their liability to deposit the monetary amount regarding which the liability was fixed on the conclusion of the respective Departmental Enquiry. Keeping in view this aspect of the matter respondents No. 4 and 5 have no case.At this stage I am tempted to express that there are watertight compartments of jurisdiction. No Public Servant/Civil Servant can travel and at beyond the provisions of law, rules, regulation etc. Muss fuss is emanating about the destruction of the texture of the society. The same cannot be maintained without discipline. Under Article 175(2) of the Constitution of Islamic Republic of Pakistan. 1973 "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". As held above the Member -I, National Industrial Relations Commission Lahore Bench, Lahore had no jurisdiction to entertain and decide the petitions filed by respondents No. 4 and 5 under section 22- A(8) (g) of the Industrial Relations Ordinance, 1969. It is simply alarming that criminal proceedings have also been quashed by the Member-I, NIRC. I make bold in* expressing that it is a case of transgression of authority and power on the part of Member-I, National Industrial Relations Commission, Lahore Bench, Lahore who has worked and acted in an indisciplined and self-conceited manner to provide wrongful gain to Mukhtar Ahmad Shah and Rana Muhammad Hanif respondents No. 4 and 5. An indisciplined society cannot prosper and it is surprising that a Public Servant/Civil Servant holding a holding a high office of Member, NIRC had assumed the jurisdiction,not vested in him which is not only violative of law, the same also offends the ethics. The father of the nation has given the golden motto of discipline, faith and unity. It can safely be expressed that if there is no discipline there cannot be faith and unity in a nation. I hold that the writ petition has the merits and has to be accepted.
4. For what has been said above, I accept this writ petition and declare the impugned orders dated 11.4.1995 and 7.5.1995 passed by Member-I, of National Industrial Relation Commission, Lahore Bench, Lahore and resultant orders dated 21.5.1995 passed by the Deputy Director Food, Multan Division, Multan(respondent No. 2) pertaining to each of Mukhtar Ahmad Shah and Rana Muhammad Hanif respondents No. 4 and 5 about their reinstatement as well as order dated 29.5.1995 relating to the petitioner passed by respondent No. 2 as without jurisdiction, illegal, without lawful authority and of no legal effect which are set aside.
10. In view of the special facts of the dispute in hand at this stage I have to express and hold that the final orders passed against each of Mukhtar Ahmad Shah and Rana Muhammad Hanif respondents Nos. 4 and 5 on the conclusion of the respective Departmental Enquiry about dismissal from service and liability to pay monetary loss have to be implemented by the Director Food, Punjab Lahore as well as the Deputy Director Food Multan Division, Multan (respondents), if their departmental appeal(s) as well as the appeal(s) preferred before the Punjab Service Tribunal, Lahore have not been accepted. The orders passed by the Member Judicial- 1, NIRC, Lahore Bench, Lahore have been set aside. Thus they are liable to meet the penalty of dismissal from service and to face the liability about the deposit of the defalcated amount. This Constitutional Court has to issue the directions to be 100 L&S.C Key Law Reports 1996 combed with by the Deputy Director Food, Multan Division,' Multan am1 the Director Food Punjab Lahore (respondents No.2 and 3). The Additional Register Of this Court is directed to send a copy of this judgment to each of the aforesaid respondents No.2 and 3 with the direction of this Court to proceed further as directed above after ignoring the impugned orders passed by Agha Saleem Khurshd, Member-I. National Industrial Relations Commission, Lahore Bench, Lahore which have been set aside by this Court today being without jurisdiction and illegal. After all the interests of the Stale are to be watched by all of its functionaries. This direction shall be complied within a period of forty days by respondents No.2 and 3 under intimation to the Additional Registrar of this Court at Multan and the compliance report shall be placed before this Court on 22.4.19% positively by the Additional Registrar