KHALIL-UR-REHMAN KHAN, J.---Waseem Ahmad Khan, petitioner, an employee of Pakistan Water and Power Development Authority (hereinafter referred to as the Authority) seeks leave to appeal against the judgment dated 25-6-1996 whereby the Constitution petition filed by respondents Nos.
1 to 3/Authority and its officers against the petitioner and Member-I, National Industrial Relations Commission (hereinafter referred to as the N.I.R.C.), assailing the order dated 29-6-1995 whereby the order of termination from service was set aside and the respondents/Authority and its officers were directed to restrain from acts of unfair labour practice against the petitioner, was accepted and the order of the learned Member, N.I.R.C. Was declared to be without lawful authority and of no legal effect.
2. The facts necessary for appreciating the questions requiring determination in this petition for leave to appeal are that the services of the petitioner who was employed as a Meter Reader in the Authority were terminated vide order dated 27-2-1995. The petitioner, on 28-2-1995, submitted a petition under section 22-A(8)(g) read with section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance) before the N.I.R.C., Lahore Branch, Lahore, with the pleas that the petitioner is an active member of Hydro-Electric Central Labour Union/C.B.A. And he is being threatened of dire consequences including termination from service, transfer/suspension etc. In case he does not leave the said Union and join the Pakistan WAPDA Labour Union. He prayed that the respondents be directed not to commit unfair labour practice and he be allowed to continue to work at Akbari Gate Sub-Division, WAPDA, Lahore. This petition was resisted by the Authority and its officers by controverting the aforesaid pleas with the additional plea that the N.I.R.C. Had no jurisdiction in the matter, the petitioner being Authority's employee is a civil servant and grievance, if any, can only be agitated before the Federal Service Tribunal. The plea that the petitioner is a workman, was also denied in the reply filed before the N.I.R.C. By the Authority.
3. Learned Member of the N.I.R.C. Noticing that the services of the petitioner had been terminated vide order dated 27-2-1995, a day prior to the filing of the petition before the N.I.R.C., treated the said petition against order of termination from service dated 27-2-1995 and accepted the same observing that the respondents had punished the petitioner for alleged misconduct, without giving him opportunity of defence.
4. The aforesaid order passed by the learned Member, N.I.R.C. Was challenged by the Authority and its officers/respondents in the Lahore High Court, Lahore by filing a Constitution petition and the same was accepted alongwith other connected petitions by a learned Judge of the High Court vide impugned judgment dated 25-6-1996. Consequently all the orders impugned in these petitions, passed by the N.I.R.C. Or its Member, whether final or interim, relating to the terms and conditions of service of the employees of the Authority were declared to be without lawful authority and of no legal effect. This conclusion was reached on examination of the provisions contained in section 17(1-A) of the WAPDA Act, 1958 as interpreted in the judgments of this Court in WAPDA and another v. Muhammad Arshad Qureshi (1986 SCM R 18) and Pakistan WAPDA v. Aftab Ahmad Warsi and 5 others (1986 SCM R 676).
5. The petitioner, then filed present petition for leave to appeal against the judgment dated 25-6- 1996 whereby the Writ Petition No. 15465 of 1995 filed by Authority was accepted alongwith other connected petitions.
6. Before proceeding further it will be pertinent to point out certain material facts brought to our notice by the learned counsel for the respondents/Authority. These facts are that the order of termination from service dated 27-2-1995 was challenged by the petitioner by filing a Constitution petition (Writ Petition No. 17581 of 1995) on 10-12-1995 despite the fact that learned Member, N.I.R.C.
Had passed an order setting aside the order of his termination from service vide order dated 29-6- 1995. No explanation was offered by the learned counsel for filing the aforesaid Writ Petition No. 17581 by the petitioner on 10-12-1995. This Writ Petition was disposed of by a learned Judge of the High Court as not maintainable vide order dated 17-12-1995 observing that the High Court has no jurisdiction in view of the provisions of Article 212 of the Constitution and the matter falls within exclusive jurisdiction of the Service Tribunal under the Service Tribunals Act, 1973. Feeling aggrieved, the petitioner filed Intra --Court Appeal No.2 of 1996 which stands admitted and is pending.
7. Learned counsel for the petitioner did not contradict the a forenoted facts. It is apparent that the very question raised in this petition is also subject of adjudication in the High Court in the Intra- Court Appeal filed by the petitioner. Learned counsel, despite this preferred to seek a decision of this petition. We, therefore, proceeded to hear this petition.
8. Learned counsel for the petitioner argued that the officers of the Authority had committed unfair labour practice by pressurising the petitioner to leave the Hydro Electric Central Labour Union and join its rival Union and as such the petitioner was justified in seeking remedy against the unlawful at of these respondents and consequently the petition under section 22-A(8)(g) of the Ordinance was competent and the consequential order of termination of service passed on 27-2-1995 was justifiably set aside by the N.I.R.C. Learned counsel added that the petitioner, though was employee of the Authority, but was a workman as defined in the Labour Laws and as such, the petitioner was entitled to seek relief against acts of unfair labour practice committed by officers of the Authority and learned Member of N. I.R.C. Had the authority to set aside the consequential order of termination of service. In support of his this plea, he referred to the case of WAPDA v. Muhammad Ashraf Naeem (1997 SCM R 1128).
9. We have given serious consideration to the contention raised but find the same without merit.
Firstly, except for the bald assertion in the Memorandum of Appeal that the petitioner is a workman, no material/facts in support of the said assertion have been provided what to say of placing on record supporting material/documents. Secondly, even the learned Member, N.I.R.C. In the impugned order has neither referred to any material on the basis of which the petitioner could be held to be a workman nor any substantive evidence to support the plea that respondents/officers had committed acts of unfair labour practice is available on record. No finding in this respect was recorded. Moreover, the case of Muhammad Ashraf Naeem (supra) does not advance the case of the petitioner as in that case Muhammad Ashraf Naeem had challenged the order of termination before the Labour Court which allowed the claim and ordered his reinstatement holding that the Standing Orders Ordinance was applicable and so he was entitled to the protection thereof. An appeal was taken to the Labour Appellate Tribunal which upheld the order of Labour Court. The Authority then invoked the Constitutional jurisdiction of the High Court and the petition was accepted holding that the jurisdiction of the labour Court in the matter was barred and it was for the Service Tribunal to deal with the grievances of the Authority's employees. Muhammad Ashraf Naeem thereafter approached the Federal Service Tribunal which ordered reinstatement holding that Standing Orders Ordinance was applicable to the employees of the Authority and that application of any other rule framed by the Authority is not valid and legally enforceable. As a corollary to this it has to be conceded that an employee of Authority who qualified to be treated as a permanent workman under Standing Order 1(b) can be removed only in accordance with the provisions of the relevant Standing Order which provides that if services of an employee are to be terminated for any reason other than misconduct one month's notice is necessary and if be is to be removed for unsatisfactory work the procedure laid down in Standing Order 15 would apply. This order of the Federal Service Tribunal was not interfered with by this Court. Thus, what has been held is that the Standing Orders Ordinance would be applicable to the employees of the Authority notwithstanding the proviso to section 1(4)(c) of the Standing Orders Ordinance, as he said proviso does no cover the Authority which is a statutory corporation and not an extension or a limb of the executive authority of the Federation. The service under the Authority has been declared to be the service of Pakistan and the result is that employees of the Authority holding post under the Authority would be deemed to be in service of Pakistan and jurisdiction of Labour Court in the matters pertaining to terms and conditions of service stands barred and it was for the Federal Service Tribunal to deal with the grievances of the Authority's employees.
In this precedent, to distinctive features of section 17(1-B) pointed out and to understand the said distinction the subjection interpretation given is quoted hereunder:-- Section 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 Service Tribunals Act, 1973 (LXX of 1973)."
Interpretation given: "This provision of law is in to parts. By the first, service under the Authority has been declared to be a service of Pakistan. The second part, which is distinct from the first is that every person holding a post under the Authority of the type ascribed shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973. The result of this bifurcation is that the employee shall be deemed to be in service of Pakistan but not necessarily a civil servant as defined in the Civil Servants Act. If the respondent stands excluded from the definition of the civil servant as contained in the Civil Servants Act, then the statutory provision made for the 'civil servants will not apply."
10. The same learned Judge (Justice Shafiur Rahman), as a member of the Bench comprising Mr. Justice Muhammad Afzal Zullah, the then Chief Justice and Justice Saleem Akhtar in Project Director, Ghotki (WAPDA) v. Commissioner, Workmen's Compensation and Authority under the Payment of Wages Act, Sukkur and Jacobabad at Sukkur (PLD 1992 SC 451), decided on 21-11-1991 reiterated the same view as taken in Muhammad Ashraf Naeem's case (which was decided on 5th May, 1991) by pointing out the distinction as under:-- "In the position of work-charge establishment under the Authority the respondents would undoubtedly be treated as in the service of Pakistan by not everyone in the service of Pakistan is a civil servant for the purposes of the Service Tribunals Act. In the Service Tribunals Act itself and in the Civil Servants Act 'civil servant' has been so defined as to exclude workmen. 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 purpose of Service Tribunals Act be treated as civil servants. In the absence of their being civil servants, the remedy lay before the forum other than the Service Tribunal. If they fell in the definition of 'workmen' the authorities providing them the redress were the appropriate authorities arid there was no exclusion of their jurisdiction in the case.
The reasons given in the impugned judgments of the High Court e.g. Their being on deputation may not be factually correct but the legal position which emerges does not show that the jurisdiction was lacking and the Commissioner Workmen's Compensation and the Authority under the Payment of Wages Act was excluded. For disputing the claim on merits and limitation the appellants had to seek redress in the appellate hierarchy and not by resorting to the Constitutional jurisdiction."
11. 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. Subsection (I-C) added to section 17, by Ordinance No. LXXII of 1979, reads as under:-- "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 (XXII of 1969), or the Essential Services (Maintenance) Act, 1952 (111 of 1952), or under any law for the the 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."
This provision came up for consideration in the case of WAPDA v. Muhammad Arshad Qureshi (1986 SCM R 18) and Mr. Justice Shafiur Rahman explained the effect and interaction of subsections (1-B) and (I-C) as follows:-- "The exclusiveness of the jurisdiction conferred on the Service Tribunal by subsection (1-B) itself operated as from 30-9-1975, the date of its introduction as ouster of the jurisdiction of all other Courts under Article 212(2) of the Constitution. This ouster was complete and total, on the strength of the Constitutional provision itself. Subsection (1-C) declares this legal ouster of jurisdiction and give effect to it by nullifying the decisions rendered by all such other Court, Tribunal, or Commission. There are a number of indications to support this conclusion. In the first place a new jurisdiction having Constitutional backing and statutory force was made available to the employees of the Authority by subsection (1-B) for seeking redress of grievances concerning the terms and conditions of their service. It put such employees at par with other employees of Provincial Governments on deputation with Authority who were even before such amendment civil servants. Secondly, there is no non obstante clause in subsection (1-C) to give an indication that a material departure from the special provision made in subsection (I-B) was intended. Thirdly, in view of the strict legal effect of enacting subsection (1-B) reference to industrial Relations Ordinance or Essential Services (Maintenance) Act was out of place if all what was intended was to oust the jurisdiction of the Service Tribunal, which alone had the jurisdiction after enactment of subsection (1-B) as from 30-9-1975"---------.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, Commission was affected by section (1-C) but not that of the Service Tribunal itself. "
12. 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 Tribunal has been conferred exclusive jurisdiction in this respect. Such an order can be assailed only before the Service Tribunal. 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. Reference may also be made to WA PDA v. Javaid Ahmad, Line Superintendent and another (1989 SCM R 1068) and F.U. Malik v. WAPDA and another (1983 SCM R 663)wherein services of employees of the Authority were held to be service of Pakistan and employees were considered civil servants for the purposes of seeking remedy by way of appeal before the Federal Service Tribunal.
14. There is yet another reason on account of which the petitioner cannot succeed in this petition.
The petitioner, precisely, cannot rely on the order dated 29-6-1995 passed by the learned Member, N.I.R.C. As the order of termination dated 27-2-1995 challenged before the N.I.R.C. Was assailed by him before the High Court in Writ Petition No. 17581 of 1995 unsuccessfully, said petition having been dismissed on 17-12-1995. Moreover, he filed an Intra-Court Appeal and the same is pending, yet he preferred to pursue this petition before this Court. This at amounts to abandoning the said appeal pending before the High Court with the consequence that the said order passed by the High Court attains finality.
15. This petition is without merit. Leave to appeal is refused and the petition is dismissed.