SH. AMJAD ALI, J-- This judgment shall dispose three Constitutional petitions, namely Writ Petition No. 571 of 1998, Writ Petition No. 635 of 1998 and Writ Petition No. 646 of 1998, all entitled as Nisar Abbas v. Abdul Rashid Khan and another, as these involve common questions of law and facts.
2. Briefly, the facts leading to these petitions are that the petitioner is the Zonal Manager of the House Building Finance Corporation established under the House Building Finance Corporation Act, 1952, while respondents cited as respondent No. 2 in all the three petitions are employees of the said Corporation. In Writ Petition No. 571 of 1998, pursuant to a complaint against Ch. Munir Ahmad, Superintendent, Zonal Office of the Corporation at Islamabad (respondent No. 2), for delay in return of organizations established by or under a Federal law or which arc owned or controlled by the Federal Government or in which the Federal Government has a controlling share of interest are entitled to approach the Service Tribunal for redress of their grievances against any order passed by the employer in the same manner as a civil servant is entitled to move to the Service Tribunal for redress of his service grievance. Hence, by virtue of the provisions of Article 212(2) of the Constitution the jurisdiction of any other Court or Tribunal shall be specifically barred. In this context, the learned counsel for the petitioner has rightly placed reliance upon in the cases of Managing Director, WAPDA and others v. NIRC and Sheikh Muhammad Javed v. Karachi Electric Supply Corporation (supra). Similar view was taken in Haider Abbas r. Pakistan (1998 PLC (C.S)
627). Wherein it was held by the Division Bench of the High Court of Sindh that under the newly inserted Section 2A all' exclusions, such as being on deputation employed on contract or work- chared basis or being paid from contingencies or being a worker or workman, as defined in the Factories Act, 1934, or the Workmens Compensation Act, 1923. Disappear in the face of the Section 22A(8) (g) of the Industrial Relations Ordinance. 1969. Before National Industrial Relations Commission, claiming his transfer to be the result of an unfair labour practice and also prayed for restraining the petitioner from taking part in the trade union activities. The learned Single Member of the Commission (respondent No. 1) by his order, dated 16.3.1998. Admitted the petition for hearing and suspended aforesaid transfer order of 13.3.1998. By another order, dated 27.3.1998, the learned Single Member on a complaint made by respondent No. 2 under Section 22C of the Industrial Relations Ordinance. 1969. Also directed that respondent No. 2 be posted at his original position.
4, In the third petition. Writ Petition (646/1998) Mr, Shakeel Ahmad (respondent No. 2) who is a Sub- Manager and was posted at the District Office, Islamabad, by order, dated 12.1.1998, by the Corporation Zonal Office transferred him to District Office Murree. The respondent No. 2 being aggrieved of the said transfer moved a petition under Section 22A (8) (g) of the Industrial Relations Ordinance, 1969. In this case, as well, the learned Single Member of the National Industrial Relations Commission, by his order, dated 7.3.1998. Admitted the petition and directed the Corporation that no adverse order should be passed against respondent No. 2.
5. All these orders passed by the learned Single Member of the National Industrial Relations Commission have been challenged in this-Court through the aforesaid Constitutional petitions on the ground that the Commission had no jurisdiction to entertain the grievance petitions filed by the employees of the House Building Corporation, it being a Statutory Corporation owned and controlled by the Federal Government. In particular, after amendment of the Service Tribunals Act, 1973, and insertion of Section 2A therein, the grievances of the employees of statutory corporations are to be dealt with by the Service Tribunals and thereby no other Court or Tribunal shall have the jurisdiction to entertain any matter relating to the terms and conditions of service of the employees of such Corporations.
6. These petitions were not contested on behalf of the National Industrial Relations Commission, but respondent No. 2 in all the three Writ Petitions vehemently opposed the same, inter alia, on the ground that the petitions were premature as these matters had not yet finally been disposed of by the Commission. Further the desired relief could be obtained by filing appeal against the order of the learned Single Member before the Full Bench of the Commission.
7. Mr. Mansoor Ahmad, Advocate, the learned counsel representing respondent No. 2 in all the three petitions, contended that where a person is a worker' of 'workman' within the definition of the Industrial Relations Ordinance, 1969, or where it is alleged that an employee is victimized or the employer is exercising unfair labour practices in order to restrain him from taking part in lawful trade union activities, such worker or employee can approach the National Industrial Relations Commission for the relief. In this regard, for determination of the jurisdiction of the Commission, an inquiry has to be held as to whether an aggrieved employee is a worker or is he being subjected to unfair labour practice. Meaning thereby that issue regarding jurisdiction of the Commission is a mixed question of law and facts and unless a proper inquiry is held, the issue regarding jurisdiction of the Commission cannot be determined. In this regard, he referred to Raja Khurshid Ali v. Dr. Abdul Malik (1991 SCMR 1944). In the said case, it was held by the honourable Supreme Court that the 'jurisdiction of a Court is determined initially by what is recited in the plaint which is presented before the Court. If ex facie, without recording any further finding and assuming the facts stated therein to be correct a case of jurisdiction of the Civil Court is made out, then the suit becomes entertainable notwithstanding the defence that is taken. If the defence taken controverts the jurisdictional tact, in this case, the facts, whether the tenancy was agricultural or non-agricultural; whether the subject-matter of tenancy was land or an industrial concern, an enquiry has to be conducted and a finding of fact on jurisdictional facts has to be recorded namely, whether factually the case is to be grounded as to invest jurisdiction in the Court which has been approached.' The learned counsel, therefore, urged that before the question of jurisdiction of National Industrial Relations Commission is determined, the Commission should have been allowed to conduct inquiry in the matter.
8. It was also contended that since alternate and adequate remedy was available to the petitioner to challenge the final orders of the learned Single Member of the Commission before the Full Bench thereof, the present Constitutional petitions were not maintainable. In this respect, reliance was placed on All Dost v. Muhammad Alam (PLD 1987 Quetta 235). There is no cavil to this proposition, but it is well settled that where an order is ah initio void and without jurisdiction, the High Court can entertain a Constitutional petition at the initial stage. Even in Allah Dost case (supra), the Division Bench of the Baluchistan High Court relying upon various decisions of the Supreme Court, including Murree Brewery Co. Ltd. v. Pakistan (PLD 1972 SC 279) Nagina Silk Mill v. The Income Tax Officer (PLD 1963 SC 322). Anjuman-e-Ahmadia. Sargodha v. Deputy Commissioner (PLD 1966 SC 639) and Sindh Employees' Social Security v. Dr. Mumtaz Ali Taj PLD 1975 SC 450) had upheld the principle that the jurisdiction of the High Court was not barred simply because an alternate remedy was available, in this connection, it will be pertinent to reproduce the relevant extract of the said judgment:- "it may be observed that generally question of adequacy is not a rule of law, barring or limiting juries diction of High Court, rather it controls and regulates the same. Therefore, mere availability of an alternate remedy does not ipso facto debar an aggrieved party from invoking Constitutional jurisdiction of this Court. Thus, question whether writ may be entertained in spite of alternate remedy is always within the discretion of High Court depending upon the type of grievance, nature of other remedy available to aggrieved party, expense, speed, convenience, impact or extent of damage which may be caused by the act or omission. However, by now it is well-settled that when an order, act or omission of the functionary appears to be autocratic, capricious, or tends to defy mandatory precondition for the exercise of authority, or suffers from total lack of jurisdiction, or indicates exercise or assumption of authority which evidently does not vest in or reflects patent illegality whereby alternate remedy does not seem to be effective or efficacious the writ jurisdiction could be legitimately exercised."
9. A similar objection was raised in Pakistan Tele-Communication Trade Union v. NIRC (1998 TD (Labour) 4) that instead of invoking the Constitutional jurisdiction of the High Court the petitioner should have sought the requisite relief from the Full Bench of the Commission, it was held by this Court that notwithstanding in the cases where appeal of revision is provided, the High Court had interfered in exercise of its Constitutional jurisdiction where a jurisdictional defect is found in the order of the Tribunal or the law has not been followed or if the judgment impugned therein is found to be perverse or without jurisdiction.
10. Syed Naeem Bokhari, Advocate, the learned counsel for the petitioner relying upon Managing Director (P) WAPDA and 4 others v. National Industrial Relations Commission (1997 FLC (C.S) 1195) and Sheikh Muhammad Javed r. Karachi Electric Supply Corporation (1997 PLC (C.S) 1220) contended that where a tribunal or authority assumes jurisdiction which is, on the face of it. Not available to it. The High Court can even at the initial stage entertain a petition by invoking the provisions of Article 199 of the Constitution. In the instant case, it was urged that after amendment of Service Tribunals Act, 1973. And in particular addition ot Section 2A there in. The jurisdiction of any other tribunal or forum other than the Service Tribunal to entertain grievances relating to terms and conditions of service of the employees of Corporation like the petitioners stands excluded.
11. By virtue of Service Tribunal (Amendment) Act, 1997, which had come into force from the 10th June, 1997, an amendment was made in clause (a) of section 2 of the Service Tribunals Act, 1973. To extend the scope of the definition of the term 'civil servant' to bring in its fold the employees of statutory corporations and Government controlled organisations. Thus the scope of this definition has been enlarged to include all those persons who will deemed to be civil servants under the newly added section 2A. Likewise, through amendment in sub-section (1) of section 4 of the said Act, the word final' has been omitted whereby the civil servants aggrieved of not only the final orders whether original or appellant, made by authority in respect of any term and condition, but can also challenge the interim orders of the authority before the Service Tribunal. In. This respect, it will be pertinent to reproduce the newly added section 2A as under:- "2 A. Service under certain Corporations, to be service of Pakistan.
Service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purpose of this Act."
12. These amendments and in particular the addition of section 2A ibid entitle the employees of all authorities, corporations, bodies, or organizations established by or under a Federal law or which are owned or controlled by the Federal Government or in which the Federal Government has a controlling share of interest are entitled to approach the Service Tribunal for redress of their grievances against any order passed by the employer in the same manner as a civil servant is entitled to move to the Service Tribunal for redress of his service grievance. Hence, by virtue of the provisions of Article 212(2) of the Constitution the jurisdiction of any other Court or Tribunal shall be specifically barred. In this context, the learned counsel for the petitioner has rightly placed reliance upon in the cases of Managing Director, WAPDA and others v. NIRC and Sheikh Muhammad Javed v. Karachi Electric Supply Corporation (supra). Similar view was taken in Haider Abbas v, Pakistan (1998 PLC (C.S) 627), wherein it was held by the Division Bench of the High Court of Sindh that under the newly inserted section 2A all exclusions, such as being on deputation, employed on contract or work-charged basis or being paid from contingencies or being a worker or workman, as defined in the Factories Act, 1934. Or the Workmens Compensation Act, 1923, disappear in the face of the deeming provision. The effect, accordingly, was that, every person who was in the employment of such institutions, as were included in section 2-A, would be deemed to be a civil servant who would, if aggrieved, seek his remedies from the Service Tribunal."
13. In 1973, a provision identical to section 2A of the Service Tribunals Act was added in section 17 of the Water and Power Development Authority Act, 1958. Entitling the employees of WAPDA to approach the Service Tribunal in respect of their service grievances. In this respect, sub-section (1- B) of section 17 ibid 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 (LXX of 1973)."
14. Likewise, sub-section (1-C) of section 17 ibid further provided that no other forum than the Service Tribunal, including National Industrial Relations Commission, shall have the jurisdiction to entertain petitions against termination or removal of WAPDA employees.
15. Since the insertion of sub-sections (1-A), (1-B) and (1-C) in the said, section 17, it is the consistent view of the superior Courts that the disputes relating to the terms and conditions of employees of WAPDA lie with the Service Tribunal and not with the National Industrial Relations Commission. The learned counsel for the petitioner in this respect referred to various decisions, including WAPDA v.
Muhammad Ashraf Naeem (1997 SCMR 1128), M.D (P) WAPDA v. NIRC, Etc. (NLR 1997 Labour 81) and The Director Accounts, WAPDA v. Member 1, N I.R.C. (1997 PLC (C.S) 189).
16. The learned counsel representing respondent No. 2, however, referring to para 8 of the judgment of the Supreme Court in Waseem Ahmed Khan v. WAPDA (1997 SCMR 2000) claimed that,, since the employees of the Authority fall within the definition of workman', they were entitled to seek relief against acts of unfair labour practices committed by the officers of the WAPDA and thus the National Industrial Relations Commission was duly empowered to interfere in such matters. It may.
However, be seen that para 8 referred to by the learned counsel, pertains to the contentions of the learned counsel for the petitioner in the petition to leave to appeal before the Supreme Court. In fact, ratio decidendi of the said judgment is contained in para 12 thereof which is reproduced as under: - "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 time being in force, before my Court, tribunal or commission, as the Services Tribunal has been conferred exclusive jurisdiction in this respect. Such an order can be assailed only before the Services 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."
17. The matter stands finally settled by the Supreme Court in Civil Petition No. 1305-K of 1997 (Syed Aftab Ahmed v. K.E.S.C.) and several similar petitions filed by the employees of the Karachi Electric Supply Corporation, National Bank of Pakistan, Telephone Industries of Pakistan, Civil Aviation Authority, Pakistan International Airlines Corporation, Pakistan Central Cotton Mills, Habib Bank Limited, Sui Gas Company Limited, Pakistan Steel- Mills Corporation, Agricultural Development Bank of Pakistan, and Employees' Old age Benefits Institutions, wherein it has been laid down that section 2A of the Service Tribunals Act, 1973, is retrospective in operation and the employees of these Corporations, authorities, bodies, and organizations shall be deemed to be in civil service for the purposes of the said Act.
18. It is clear from the above discussion that respondent No. 3 in all the three writ petitions who are employees of the House Building Finance Corporation has the status of a Statutory Corporation having came into being under the House Building Finance Corporation Act, 1952. It is controlled by the Federal Government which also appoints its Managing Director and Directors. The employees of the said Corporation are, therefore, directly fall within the ambit of section 2A of Service Tribunals Act, 1973, and every person holding the post thereunder shall be deemed to be a civil servant for the purpose of Service Tribunals Act, 1973. Meaning thereby that for redress of their service grievances, employees of the Corporation shall have to approach the Service Tribunal and the jurisdiction of every other forum shall be barred. Consequently, the learned Single Member of the National Industrial Relations Commission had no jurisdiction to take cognizance of the service disputes brought by the respondent No. 2 in all three writ petitions.
19. In view thereof, the order, dated 14.3.1998. Passed in respect of respondent No. 2 in Writ Petition No. 571/98. And orders, dated 16.3.1998 and 27.3.1998 and in Writ Petition No. 635/98 and order, dated 7.3.1998 passed in respect of respondent No. 2 in Writ Petition No. 646/98. By the learned Single Member of the National Industrial Relations Commission are declared to be without jurisdiction and lawful authority. In view' of the clear bar as contained in Article 212(2) of the Constitution, as the service dispute between the petitioner and respondent No. 2 in all the three petitions fall within the exclusive jurisdiction of the Service Tribunal, the learned Member of the Commission is also restrained from taking further action in respect of such disputes pending with him. The Writ Petitions are allowed accordingly without any order as to costs.