1. ' This order shall dispose of Constitutional petitions i,e, W.P. No,7931/95, W.P. No, 9438/95, W.P. No, 6536/95, W.P. No, 7517/95, W.P. No, 7518/95, W.P. No, 8176/95, W.P. No, 8769/95, W.P. No,9314/95, W.P.No, 9808/95, W.P. No, 9847/95, W.P. No, 9868/95, W.P. No,14117/95, W.P. No, 14743/95, W.P. No,.
2. 15465/95, W.P. No,17824/1995, as common questions of fact and law arise in all these petitions. In all these writ petitions the petitioners are the WAPDA or its officers and the contesting respondents are the employees of WAPDA.
3. Writ Petition No, 7931/95 ' In this writ petition Muhammad Zubair, respondent No, 2, was appointed as Accounts Clerk on 1-9- 1980 and on 23-7-1986 he was promoted to the post of Accounts Assistant. On the sudden death of the Divisional Accountant, Revenue Office, Okara, Muhammad Zubair, respondent No, 2 herein, was appointed as Divisional Accountant, Revenue Office, Okara, as a stop gap arrangement by the order of the Director Accountant, WAPDA, Lahore. The formal office order was issued on 31-5-1994 by the Director Accounts, AEB, WAPDA, Multan, according to which, "Muhammad Zubair, Accounts Assistant, was deputed to officiate as Divisional Accountant (E/C) in the Office of R.O. "(P), WAPDA, Okara, as a stop gap arrangement till further orders". However, this appointment was to be , finally approved by the General Manager, Finance (Power), WAPDA. On 6-2-1995, the Director Accounts, WAPDA" Multan, issued office order whereby the orders of Muhammad Zubair, respondent No, 2, and others appointing them as Divisional Accountants were cancelled vide Annexure 'C'.
4. Accordingly, respondent No, 2 Muhammad Zubair was reverted to his substantive post as Accounts Assistant. He submitted petition under section 22-A(8)(g) Hof the Industrial Relations Ordinance, 1969, before the National Industrial Relations Commission, Lahore, against the present petitioners challenging the order dated 6-2-1995 and seeking restoration to the post of Divisional Accountant.
5. On 13-6-1995, the following brief order was passed by Agha Saleem Khursheed, learned Member of National Industrial Relations Commission:-- "Counsel for the parties present. Arguments heard. Petition accepted. The detail order will be announced later on."
6. ' Writ Petition No, 9438/95 -Javed Sadiq, respondent No, 2, was working as Assistant Foreman in WAPDA. He obtained leave for one month from 10-3-1981. Since he did not resume his duty after expiry of his one month leave, the Executive Engineer, on 23-4-1981, issued letter directing respondent No, 2 to resume his duty otherwise departmental action was to be taken against him.
7. On 8-8-1981, the Superintendent Engineer, the present petitioner, issued charge-sheet to respondent No, 2 which was followed by show-cause notice issued on 30-11-1981 and 2-1-1982. By order dated 20-2-1982, respondent No, 2 was removed from his service. This order was challenged by respondent No,2 in departmental appeal after about 4 years as stated in writ petition but the same was rejected by the Chief Engineer, G.S.O., Lahore on 20-2-1986. His further appeal to the General Manager was sent to the Chief Engineer who again rejected the same on 25-3-1986. On 6- 4-1987, respondent No, 2 filed civil suit challenging his removal from the service but the suit was dismissed on 27-2-1989 on account of lack of jurisdiction. Subsequently, on 6-2-1995, respondent No,2 filed petition under section 22 of the Industrial Relations Ordinance, 1969, before the National Industrial Relations Commission (Annex. A). On 19-6-1995, Agha Saleem Khursheed, learned Member of the Commission, set aside the order dated 20-2-1982 and reinstated respondent No,2 in service with full back benefits.
8. ' Writ Petition No, 6536/95 ' Abbas Ahmad Gondal, respondent No,1, who was in the service of WAPDA in BPS-16 as Senior Research Assistant, filed the petition under section 22 of the I.R.O., 1969, before the National Industrial Relations Commission challenging his removal from service. This petition came up for hearing before Agha Saleem Khursheed, learned Member of the Commission. The order dated, 27- 1-1982 (Annex-A), passed by the Chief Engineer (AC&R) removing him from service on the basis of misconduct due to absence without leave in accordance with the WAPDA employees (E&D) Rules, 1978, with effect from 1-9-1981 when he absented from duty. On 164-1995, after more than 13 years, following order was passed by Agha Saleem Khursheed, learned Member of the Commission:-- "Counsel for the petitioner present. One M. Yousaf, Superintendent, for respondent present and told us that he is Superintendent. Respondent has failed to depute any responsible person to watch his interest in the Court. To come up on 21-6-1995. Meanwhile impugned order dated 27-1-1982 is suspended."
9. ' Writ Petition No, 7517/95 ' In this writ petition respondents Nos. 1 to 5 who were the employees of the WAPDA were removed from service in the year 1977. They claimed to have been reinstated by the Review Board but this order was not implemented by the petitioners. Respondents Nos. 1 to 5, therefore, filed petition under section 22 of I.R.O., 1969, before the N.I.R.C. The written reply on behalf of the present petitioner was submitted before the learned Commission, inter alia, raising the preliminary objections with regard to the jurisdiction of the learned Commission and that the petitioners had previously agitated these questions before the learned Federal Service Tribunal, Islamabad, and subsequently, before the Hon'ble Supreme Court of Pakistan, wherein, the dismissal from the service of respondents Nos. 1 to 5 and others was converted into retirement and they were allowed retiring benefits admissible under the law. Nevertheless in the aforesaid petition under section 22 of I.R.O. Agha Saleem Khursheed, learned Member of the Commission reinstated respondents Nos. 1 to 5 in service with full back benefits vide his order dated 18-5-1995 (Annex. C).
10. ' Writ Petition No, 7518/95 ' In this writ petition respondents Nos.1 to 3 who were the employees of the WAPDA were removed from the service on 30-8-1988. They challenged their removal/retirement from the service before the N.I.R.C. Under section 22 of I.R.O., 1969. The present petitioner filed written reply and, inter alia, raised preliminary objection regarding jurisdiction and authority, of the learned Commission. The present petitioners also pleaded that previously respondents Nos. 1 to 3 had filed appeal before the learned Federal Service Tribunal and before the Hon'ble Supreme Court of Pakistan, wherein, their removal of the service was changed into retirement of service. Nevertheless Agha Saleem Khursheed, learned Member of the Commission reinstated respondents Nos.1 to 3 with full back benefits.
11. ' Writ Petition No, 8176/95 ' Haji Ghulam Sarwar, respondent No,2 herein, was working as S.S.O.I at Shandara Power Station, Lahore. He statedly went on deputation to Saudi Arabia but when he reported back on duty he was told that on the basis of resignation his service was terminated. He filed representation before the Secretary, Government of Pakistan, Ministry of WAPDA and Power which was accepted and the Managing Director, Admn., WAPDA, Lahore, was directed to reinstate the respondent No,2. However, according to him this order was not implemented by the WAPDA. Respondent No,2, accordingly, filed Writ Petition No,6436/93 which was dismissed in limine by this Court observing that the grievance of the respondent No,2 related to the terms and conditions of his service an employee of WAPDA, therefore, the appropriate forum was the Federal Service Tribunal which has the exclusive jurisdiction. This order was challenged in I.C.A. No,36/94 which according to the writ petition is still pending. During the pendency of I.C.A., respondent No,2 filed petition under section 22 of the I.R.O., 1969, before the N.I.R.C., seeking direction to implement the order passed by the Secretary, Government of Pakistan, Ministry of WAPDA and Power. This petition was accepted by Agha Saleem Khursheed, learned Member of the Commission on 14-6-1995, directing the petitioners herein to allow respondent No,2 to resume his duty with full back benefits.
12. ' Writ Petition No, 8769/95 ' Muhammad Aslam, respondent No,2 herein, was initially appointed as Assistant Lineman. In the year 1981, he obtained leave and was to resume his duty on 2-5-1981 after availing his leave. Since he did not resume duty, his service was terminated on 27-2-1983 after appropriate inquiry. On 1-6- 1995, respondent No,2 filed petition under section 22 of I.R.O., 1969, before the learned N.I.R.C., after more than 12 years impugning his order of termination dated 27-2-1983. On 6-6-1995, Agha Saleem Khursheed, learned Member of the Commission, suspended the operation of the order dated 27-2- 1983, whereby service of respondent No,2 was terminated.
13. ' Writ Petition No, 9314/95 ' Abdul Rasheed, respondent No,2 herein, employee of the WAPDA, was dismissed from the service vide order dated 24-7-1990 on account of his absence without leave. This order was challenged by respondent No,2 before the Federal Service Tribunal but his appeal was dismissed. Subsequently, respondent No,2, filed petition under section 22 of the I.R.O., 1969 before the learned N.I.R.C. On 2-7- 1995, Agha Saleem Khursheed, learned Member of the Commission suspended the operation of the order dated 16-1-1990 and 24-7-1990.
14. ' Writ Petition No, 9808/95 ' Liaqat Ali, respondent No,2 herein, while working as Junior Clerk was dismissed from the service under Rule 4 of the WAPDA Employees (E&D) Rules, 1978, vide order dated 15-12-1982 (Annex. C).
15. However, in the year, 1995, after about 13 years, respondent No,2 challenged his dismissal from service under section 22 of I.R.O., 1969, before the learned N.I.R.C. On 3-7-1995, the petition of respondent No,2 was accepted and he was reinstated in service with full back benefits, setting aside the dismissal order dated 15-12-1982.
16. ' Writ Petition No, 9847/95 ' Najmul Hassan, respondent No,2 herein, was working as Sub-Engineer (Electrical) at Mangla when he was charge-sheeted on 25-10-1992 vide Annexure ' A'. After giving him final show-cause notice, respondent No,2 was dismissed from service of the WAPDA under Rule 4 of the WAPDA Employees (E&D) Rules, 1978 with immediate effect on proof of charges against him. In the departmental appeal, the Chief Engineer reduced, the penalty of dismissal from service to that of removal from service vide order dated 27-5-1995 (Annex. E). Respondent No,2 filed petition under section-22- A(8)(g) read with section 25-A of the I.R.O., 1969 before the learned N.I.R.C. On 25-6-1995, Agha Saleem Khursheed, learned Member of the Commission suspended the operation of the order dated 27-5-1995 and allowed respondent No,2 to continue in service.
17. ' Writ Petition No, 9868/95 ' Shafiq-ur-Rehman, respondent No,2, was working as Assistant Engineer at Layyah under WAPDA.
18. Respondent No,2 was charge-sheeted and F.I.R. Was also registered against him on account of granting illegal connection to one Nazar and causing loss to WAPDA. The case was also entrusted to the Court of learned Central Special Judge, vide order dated 17-5-1994, issued by the Chief Engineer, WAPDA, Multan. Respondent No,2 was placed under suspension with immediate effect vide Annexure' D'. Respondent No,2 filed petition under section 22 of the I.R.O., 1969 before the learned N.I.R.C., against his suspension, whereupon, the learned Member of the Commission passed the following order:- "The order of suspension is held in abeyance till the disposal of this petition. However, the inquiry should proceed against the petitioner and in case he is found guilty then all legal actions can be taken against him."
19. ' Writ Petition No, 14117/95 ' Irshad Ullah, respondent No,2 herein, was Lineman under the petitioners. On 26-12-1986, he was issued show-cause notice on the basis of misconduct and on 29-2-1988, he was removed from service. His departmental appeal was rejected by the Chairman, Area Electricity Board, Gujranwala on 28-5-1988 vide Annexure 'D'. On 5-4-1995, respondent No,2 filed petition under section 22 of I.R.O., 1969, seeking reinstatement in service with back benefits, before the learned N.I.R.C. Vide order dated 25-7-1995, Agha Saleem Khursheed, learned Member of the Commission, accepted the petition and reinstated respondent No,2 in service with effect from 29-2-1988 with full back benefits.
20. ' Writ Petition No, 14743/95 ' Mazhar Qayyum, respondent No,2 herein, filed petition before the learned N.I.R.C. Making grievance that he was working against the post of Site Engineer in BPS-17, which was a higher post, from 15-1- 1978 to 27-6-1989 but he was not paid salary of the Site Engineer in BPS-17. He, therefore, sought direction from the Commission to WAPDA for the payment of his dues from 30-1-1978 to 27-6-1989 of the post of Site Engineer in BPS-17, against which post he actually worked. On 26-6-1995, Agha Saleem Khursheed, learned Member of the Commission accepted the petition, allowed respondent No,2 to receive dues from the WAPDA of the post of Site-Engineer in BPS-17 from 30-1-1979 to 27-6- 1989 and dues of selection grade in BPS-16 from 1-12-1987.
21. ' Writ Petition No, 15465/95 ' Wasim Ahmad Khan, respondent No,2 herein, was Meter Reader in Sub-Division Akbari Gate, WAPDA, Lahore, but was dismissed from service with effect from 5-5-1981 on the basis of serious charges of misconduct and absence from duty. He challenged his dismissal before the Federal Service Tribunal. During the pendency of appeal it is alleged that respondent No,2 managed to get bogus office order dated 10-6-1984 reinstating him in service, whereupon, he withdrew the appeal from the Federal Service Tribunal. However, respondent No,2 filed petition under section 22 of I.R.O., before the learned N.I.R.C., praying that he be allowed to continue work at Akbari Gate, Sub-Division, WAPDA, Lahore. The present petitioners filed written reply raising preliminary objections, inter- alia, against jurisdiction of the learned Commission. However, vide order dated 29-6-1995, Agha Saleem Khursheed, learned Member of the Commission, accepted the petition set aside the order of termination.
22. ' Writ Petition No, 17824/95 ' Muhammad Izhar-ul-Hassan, respondent No,1, was working as Line Superintendent. The departmental inquiry was held against him under WAPDA (E&D) Rules, 1978, and after complying with the necessary formalities, he was compulsorily retired from the service vide office order dated 12-2-1987 (Annex. D). Respondent No,1 preferred departmental appeal before the General Manager, Power, Lahore, but the same was rejected vide order dated 14-11-1987. Another appeal was filed by him before the Managing Director, Power, which was also rejected by the order dated 23-5-1988.
23. Finally he filed appeal before the Federal Service Tribunal which was also dismissed on 3-9-1991.
24. After about 4 years, respondent No,1 filed petition under section 22 of the I.R.O., before the learned N.I.R.C. The present petitioners filed reply. Agha Saleem Khursheed, learned Member of the Commission vide order dated 5-1-1995 suspended the order of retirement. The appeal against this order was dismissed for non-prosecution by the learned Appellate Bench of the Commission on 12- 4-1995.
25. ' In all these writ petitions, common questions of law are involved, namely, that the employees of WAPDA are the civil servants for the purpose of Federal Service Tribunal and, therefore, any order passed against them by the departmental authorities touching the terms and conditions of their service can only be challenged before the Federal Service Tribunal which has exclusive jurisdiction.
26. Learned counsel for the petitioners have referred to section 17(1-A) of the WAPDA Act, 1958, which is as follows:--- "Notwithstanding anything contained in subsection (1) or any Rules made, or Orders or Instructions issued by the Authority, or in the terms and conditions of service of any person employed by or serving under the Authority, the Authority may at any time, retire or 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."
27. ' He also referred to subsection ( I-B) of section 17 of the WAPDA Act, 1958, which declares that:- "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."
28. ' Admittedly, the contesting respondents herein were in the service of the WAPDA and none of them are on deputation to the Authority from any Province, therefore, according to subsection (1-B) ibid they are deemed to be civil servants for the purpose of Federal Service Tribunals Act, 1973. Under section 4 of the Federal Service Tribunals Act, 1973, the Federal Service Tribunal has exclusive jurisdiction to hear appeals against the orders passed by any departmental authority in respect of the terms and conditions of a civil servant.
29. There is no cavil with the proposition that the dismissal, removal, termination, reduction in rank, suspension from service, transfers, and the payment or non-payment of emoluments relate to the terms and conditions of a civil servant, therefore, such orders can be challenged only before the Service Tribunal. Thus where the appeal lies under section 4 of the Federal Service Tribunals Act, 1973, jurisdiction of all Tribunals and Courts, other than the Service Tribunal, is barred in respect of the terms and conditions of service of a civil servant. By virtue of subsection (1-B) of section 17 of the WAPDA Act, 1958, the Legislature has declared that every person holding a post under the authority i,e, WAPDA, is a civil servant for the purposes of Federal Service Tribunals Act, 1973.
30. Therefore, in view of this provisions of Article 212 of the Constitution read with section 4 of the Federal Service Tribunals Act, 1973, the jurisdiction of all the Tribunals and Courts including that of National Industrial Relations Commission and its learned Members is barred, in so far as the order relates to the terms and conditions of service. This is so in particular reference with subsection (1- C) of section 17 of WAPDA Act, 1958, which reads as follows:--- "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 (III of 1952), or under any law for the time being in force, before any Court, Tribunal or commission and any order passed by an 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: ' Provided that every appointment made under this subsection shall be reported to the Authority without unreasonable delay."
31. ' Section 4 of the Service Tribunals Act, 1973 is also usefully reproduced hereunder:--- "Appeal to Tribunals.---(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal:"
32. ' Learned counsel for the petitioners has also referred to the judgment of the Hon'ble Supreme Court of Pakistan in WAPDA and another v. Muhammad Arshed Qureshi (1986 SCM R 18), and Pakistan Water and Power Development Authority v. Aftab Ahmad Warsi and 5 others (1986 SCM R 676). In the former case it was observed as follows:--- "It is clear from these provisions that the employment in the Authority was declared to be service of Pakistan and remedy provided under Service Tribunals Act, 1973 was made available to such employees by deeming them to be civil servants under that Act. The two explanations subsequently added had '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 or the purposes of Service Tribunals Act. All the terms and conditions of their service, be it statutory or contractual, was made the subject-matter of reference to Service Tribunal. 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 Tall suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before' ."
33. ' In the end of the judgment the following observations were made:-- "Our conclusion, therefore, is 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 that jurisdiction of all other Courts, Tribunals, Commissions was affected by section (1- C), but not that of the Service Tribunal itself."
34. ' In both these judgments the Hon'ble Supreme Court has held that it is Federal Service Tribunal alone which has jurisdiction to adjudicate all questions relating to the terms and conditions of service of WAPDA employees.
35. In all the aforesaid writ petitions the orders passed by the N.1.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 accepted.
36. However, in the peculiar circumstances of these cases, there shall be no order as to costs.