1. The relevant facts are that Haji Bashir Hussain, respondent No. Who is an employee of VAPDA (hereinafter referred to as "the Authority") filed petition under section 22-A(8)(g) of the Industrial Relations Ordinance, 1969 before the National Industrial Relations Commission (N.I.R.C.) against the threatened dismissal, discharge, removal and transfer from the service on the ground that the orders impugned therein and the threats were being made due to his trade union activities as he was the office-bearer of the trade union. This petition came up for hearing before the learned Chairman of the (N.I.R.C.) who vide order dated 19-2-1996 suspended the operation of the orders dated 3-2-1996 and 4-2-1996. Finally on 18-11-1996, the learned Chairman accepted the petition and allowed respondent No.2 to continue with his present post.
2. 2.In this petition, it is contended that the orders which were impugned before the National Industrial Relations Commission related to terms and conditions of the service of respondent No.2 and the latter being an employee of WAPDA, the Federal Service Tribunal had the exclusive jurisdiction to adjudicate upon the matter and therefore, the orders passed by the National Industrial Relations Commission are without jurisdiction. On the contrary the learned counsel for the contesting respondent, while defending the orders impugned herein, submitted that these orders were competently passed by (N.I.R.C.) in exercise of the powers under section 22-A of N.I.R.C. He elaborated that the orders dated 3-2-1996 and 4-2-1996 issued by the Authority were mala fide and motivated on account of trade-union activities of respondent No.2 which amounted to unfair labour practices on behalf of the employer and were amenable to the jurisdiction of (N.I.R.C.) under section 22-A(8)(g) of I.R.O. Relying on the judgment of the Hon'ble Supreme Court in WAPDA v.
3. Muhammad Ashraf Naeem 1997 SCMR 1128 lie further contended that respondent No.2 is a workman and not a civil servant as contemplated under section 17(1-B) of the WAPDA Act, therefore, the (N.I.R.C.) passed the impugned orders competently.
4. 3.Learned counsel for the petitioner contended that the specific objection to the maint9inability of .The petition and jurisdiction of (N.I.R.C ) were taken in the written statement vide preliminary objection No. l wherein it was 'inter alia' stated that:-- "The petitioner is civil servant in term of sections 17(1-B) and 18 of WAPDA Act, 1958 the matter i.e. Reversion and transfer of a civil servant is the exigency of service and are the terms and conditions of the service. The matter is, therefore, within exclusive jurisdiction of the Federal Service Tribunal and this Honourable Commission has no jurisdiction to adjudicate upon the matter."
5. According to the learned counsel for the petitioner, (N.I.R.C.) had no jurisdiction in the matter which fell within the exclusive jurisdiction of the Federal Service Tribunal.
6. 4.Learned counsel for the petitioner referred to section 17(1-B) of the WAPDA Act, 1958 which is reproduced below:-- "(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 Service Tribunals Act, 1973. "
7. On the strength of section 17(1-B), ibid, learned counsel submitted that the legal position of the employees of the WAPDA is clear who under the law are treated as civil servants for the purposes of Federal Service Tribunal, therefore, the orders of the Authority could be challenged only the Federal Service Tribunal. In this context he also referred to section 4 of the Federal Service Tribunal Act, 1973 which gives exclusive jurisdiction to the Federal Service Tribunal to hear the appeals against the orders passed by the departmental authorities in respect of the terms and conditions of the civil servants. He also referred to the judgments of the Hon'ble Supreme Court in WAPDA and another v. Muhammad Arshad Qureshi (1986 SCMR 18); Pakistan Water and Power Development Authority v. Aftab Ahmad Warsi and 5 others (1986 SCMR 676) and Water and Power Development Authority v. Javaid Ahmad, Line Superintendent and another (1989 SCMR 1068) in support of the submissions that Service Tribunal alone has the exclusive jurisdiction to adjudicate upon the matters relating to the terms and conditions of service of the employees of the WAPDA.
8. 5.Admittedly, respondent No.2 is a Meter Reader employed under the Authority, therefore a civil servant in terms of section 17(1-B) of the WAPDA Act. On 3-2-1996, the Director (Admn.) for Chairman, (A&B) WAPDA, Lahore issued office order whereby the promotion order and grant of selection Grade of BS-13 to respondent No.2 was withdrawn and his seniority as Meter Reader with effect from 1-8-1982 was re-fixed and placed at serial No.369 of the seniority list. By another office order dated 4-2-1996 he was transferred and his service was placed at the disposal of the S.E., 4th Lahore Circle, Lahore with immediate effect. These to office orders were challenged before the N.I.R.C. Thereupon the learned Chairman accepting the petition of respondent No.2 observed as follows:-- "From the record it is evident that the various orders regarding his promotion from Meter Reader to Meter Supervisor Grade-II were passed by the competent Authority having the power to pass these orders and they were never challenged by anybody in the department nor they were challenged by the colleagues of the petitioner whose seniority may have been affected. They were absolutely proper party to raise the grievance of mistaken promotions of tote petitioner. It is only vide order dated 3-2-1996 that the respondents suddenly demoted the petitioner without any explanation or reasons. I am of the view that the promotion given by the competent Authority and not challenged by any person becomes his legal right. It is to be taken back from him, the due process of law should be followed. Respondents if they so desire that the wrong in the shape of promotion of the petitioner should be set right, they should have followed the due process and filed a suit against him in the proper Court of law, or issued a show-cause notice et- - 6.In WAPDA v. Muhammad Ashraf Naeem 1997 SCMR 1128 no doubt the Hon'ble Supreme Court while considering the case of the probationer under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 held that:-- "It appears that the respondent is excluded from the definition of "Civil Servant" being covered by the definition of 'workman' under the Workmen's Compensation Act, 1923 (clause (xix) to Schedule- II) whereby persons connected with the generation, transformation and supply of electricity are to be treated as workmen for the purpose of Workmen's Compensation Act."
9. However, subsequently in the case of Project Director Ghotki WAPDA v. Commissioner, Workmen's Compensation and Authority under Payment of Wages Act, Sukkur and 3 others (PLD 1992 SC 451) the same learned Judge of the Hon'ble Supreme Court who had authored the judgment in WAPDA v. Muhammad Ashraf Naeem, supra, clarified that:-- "That apart, for the purposes of the Service Tribunals Act only such of the employees of the WAPDA could be treated as civil servants who were holding a post under the Authority. The work-charge establishment as such holds no post and hence they cannot for the purposes of Service Tribunals Act be treated as civil servants. "
10. 7.It is not the case of respondent No. 2 that he was working on the work-charge basis. On the contrary he is a regular employee of the Authority and was promoted as Supervisor meter Reader in BS 13. Subsequently, in CPLA No. 1842-L of 1996, (Waseem Ahmad Khan v. WAPDA etc.), the Hon'ble Supreme Court in the context of the aforesaid judgments in WAPDA v. Muhammad Ashraf Naeem 1997 SCMR f 128 and Project Director, Ghotki (WAPDA) v. Commissioner PLD 1992 SC 451 observed as follows:-- "The to cases read together will show that even if a person, an employee of the Authority, is a workman, but if he holds a post under the Authority, he will be civil servant for the purposes of the Service Tribunals Act and notwithstanding the applicability of provisions of Standing Order 15 of the Standing Orders Ordinance, matters or grievances with regard to the terms and conditions of service are to be taken before the Federal Service Tribunal which by virtue of provisions of subsections (1-B) and (1-C) of section 17 of the WAPDA Act has the exclusive jurisdiction."
11. 8.Previously in the matters relating to the terms and conditions of service, the N.I.R.C. Had assumed jurisdiction and passed various orders concerning the employees of the Authority. These orders were challenged by the Authority in this Court through various writ petitions which were accepted by me by a single order dated 25-6-1996, also reported as Director Accounts, WAPDA, Lahore v: Member-I, National Industrial Relations Commission, Lahore (1997 PLC (C.S.) 189). This judgment was based upon the dictum of the Hon'ble Supreme Court of Pakistan in WAPDA v. Muhammad Arshad Qureshi (1986 SCMR 18) and "Pakistan Water and Power Development Authority v. Aftab Ahmad Warsi" (1986 SCMR 676). In the judgment of the Director Accounts, WAPDA, supra, it was held as follows:-- "In all the aforesaid writ petitions the orders passed by the N.I.R.C. Or learned member thereof in exercise of the powers under section 22 of the Industrial Relations Ordinance, 1969, have been challenged. These orders were passed although the specific objections were raised to the maintainability of the petitions before the National Industrial Relations Commission and its jurisdiction under section 22 of the I.R.O., 1969 with regard to the terms and conditions of service of the employees of WAPDA. Therefore, in the light of the above discussion, all the orders impugned in these writ petitions passed by the N.I.R.C. Or its learned member, whether final or interim order, relating to the terms and conditions of the service of the contesting respondents are declared to be without lawful authority and of no legal effect, accordingly all these writ petitions are accented "
12. This judgment was challenged before the Hon'ble Supreme Court in CPLA No. 1842-L of 1996 but the petition for leave to appeal was dismissed on 27-6-1997 and it was observed by the Hon'ble Supreme Court that:-- "It will, therefore, be seen that the order of removal or termination of service passed under section 17(1-A) of the WAPDA Act in respect of an employee of the Authority, cannot be called into question under Industrial Relations Ordinance, 1969 or the Essential Services (Maintenance) Act, 1952, or under any law for the the being in force, before any Court, Tribunal or Commission, as the Service Tribunals has been conferred exclusive jurisdiction in this respect. Such an order can be assailed only before the Service Tribunals. It will, therefore, be seen that the judgments in the case of Muhammad Ashraf Naeem (supra)-and Project Director, Ghotki (WAPDA), (supra) are in no way in conflict."
13. 9.In the light of the above discussion, this writ petition is accepted and the orders impugned herein, passed by the learned Chairman of the National Industrial Relations Commission, are declared to be without lawful authority and of no legal effect. However, there shall be no order as to costs.
14. Respondent No. 2, if so advised, may challenge the orders of the Authority by which he feels aggrieved, before the Federal Service Tribunal who shall take into consideration the period which he spent in prosecuting his cases before the National Industrial Relations Commission and in this Court, for the purposes of the question of limitation.