' This petition is directed against the order, dated 3-11-1996 passed by respondent No,1 .
Commissioner for Workmen's Compensation and Authority under the Payment of Wages Act on the application of respondent No,2 Barkat Ali.
2. Briefly the facts of the case are that respondent No,2 was appointed as Assistant Lineman in Shalimar Sub-Division, WAPDA, Lahore on 28-7-1962. Subsequently he was involved in a criminal case under section 302/34, P.P.C. Consequently was suspended from duty on 11-7-1972. Respondent No,2 was convicted by the trial Court but acquitted by the High Court in appeal. Services of respondent No,2 were terminated on 2-3-1976 and after acquittal by the High Court he reported for duty to the petitioners, however, due to his termination from service his reinstatement was under consideration before the petitioners and no order was passed for his reinstatement to resume the duty. Meanwhile respondent No,2 filed a petition under section 25-A of the Industrial Relations Ordinance, 1969 before the Punjab Labour Court No,1 which was accepted and the petitioners were directed to reinstate respondent No,2. Back benefits were- allowed to him with effect from 3-5- 1978, the date on which he reported for duty. Back benefits for previous period were not allowed.
Respondent No,2 applied for L.P.R. w,e,f, 1-1-1992 to 31-12-1992 which was accepted by the petitioners and he was allowed to proceed on L.P.R. After about six months, of his retirement he approached the petitioners asking for his resuming charge which was refused. He thereafter filed a petition under section 15(2) of the Payment of Wages Act before respondent No,1 claiming a sum of Rs,2,45,496 with ten times compensation total Rs,24,54,960. Petitioners submitted reply before respondent No,1 challenging its jurisdiction to entertain the petition of respondent No,2 but the objection of the petitioners was turned down, the application of respondent No,2 was accepted, the operative part of the order is as under:-- "In view of the above discussion I hold that the petitioner is entitled to the sum of Rs,2,45,496. The petitioner has suffered hardships for a considerable long time and as such is also entitled to the compensation to the reasonable amount. I, therefore, award for four times compensation. The respondents are directed to deposit a total sum of Rs,12,27,430 with this Court within 30 days for onward disbursement to the petitioner."
' Petitioners thereafter instituted this petition in which the comments have been received from respondent No,1.
3. Learned counsel for the petitioners submits that respondent No,1 had no jurisdiction to entertain application of respondent No,2 by mainly relying upon WAPDA v. Muhammad Naeem (1997 SCMR 1128).
4. Learned counsel for respondent No,2 has supported the impugned order and submitted that the petitioner had not raised the objection of jurisdiction before the labour Court wherefrom he was reinstated.
Moreover, appeal is maintainable against the impugned order and the adequate remedy of appeal having not availed, this petition is not maintainable. Respondent No,1 has the jurisdiction to adjudicate upon the dispute raised in the application.
5. Heard. Record perused. Admittedly the petitioner was an Assistant Lineman: In the case WAPDA v.
Muhammad Zubair and others (1997 PLC (C.S) 189) Sharif Hussain Bokhari the then learned Judge of this Court held that jurisdiction of all Tribunals or Courts other than Service Tribunal, is barred where appeal in respect of terms and conditions of service of civil servant lies to Service Tribunal Order of dismissal, removal, termination, reduction in rank, suspension in rank, transfer, payment or non-payment Of emoluments relate to terms and conditions of a civil servant. These orders can be challenged only before Service Tribunal. In Writ Petition No,8769 of 1995 respondent No,2, therein was an Assistant Lineman on whose application under I.R.O., 1969 Agah Salim Khurshid learned Member of the Commission suspended the operation of the order, dated 27-2-1983 whereby his services were terminated.. Similarly in Writ Petition No,14117 of 1995 irsand Ullah respondent No,2 therein was a lineman. He was issued show-cause notice on the basis of misconduct on 29-2-1988.
He was removed from service. After dismissal of his departmental appeal he filed petition under section 22 of I.R.O., 1969 seeking reinstatement with back benefits and vide order, dated 25-7-1995, learned Member of the Commission accepted his petition and reinstated him in service with effect from 29-2-1988 with back benefits. The petition filed "by WAPDA was accepted wherein it was held that every person holding a posting under WAPDA is a civil servant. Jurisdiction of all Tribunals and Courts including that of N.I.R.C., and its members is barred in so far as the order relates to the terms and conditions of service. All orders passed by the Member, N.I.R.C., in exercise of his jurisdiction under section 22 of the I.R.O., 1969 whether final or interim which relate to terms and conditions of service of WAPDA employees were struck down by the High Court being without lawful authority and of no legal effect. The aforesaid judgment was challenged in the Supreme Court by Wasim Ahmad Khan one of the respondents therein and the Supreme Court in its judgment Waseem Ahraad Khan v. WAPDA and 3 others (1997 SCMR 2000) examined the entire case-law, the judgments of the Supreme Court on the subject and held that the service under the Authority has been declared to be the service of Pakistan and the result is that the 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 grievance of the Authority employees. In paras. 11 and 12 it was laid down as trader:- "11. The two cases react 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 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 provisionl, of subsections (1B) and (1C) of section 17 of the WAPDA Act has the exclusive jurisdiction. Subsection (1C) 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 (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 any Court, Tribunal or Commission after the thirtieth day of September, 1975, 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 SCMR 18) and Mr. Justice Shafiur Rehman explained the effect and interaction of subsections (1B) and (1C) as follows:-- "The exclusiveness of the jurisdiction conferred on the Service Tribunal by subsection (1B) 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 (IC) declares this legal ouster of jurisdiction and gives 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 (1B) 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 (1C) to give an indication that a material departure from the special provision made in subsection (1B) was intended. Thirdly in view of the strict legal effect of enacting subsection (1B) 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 (1B) as from 30-6-1975 Our conclusion, therefore, is that in view of subsection (1B) 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 subsection (1C) 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, nor under any law for the time 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."
6. The Supreme Court upheld the judgment of the High Court whereby 15 writ petitions filed by WAPDA were accepted. One of the respondents in the High Court was Assistant Lineman and another was Lineman. The interim orders entertaining the petitions were challenged in some of the petitions. High Court held that under section 22 of the I.R.O., 1969 jurisdiction of the Commission was barred and the only remedy available to respondent in the writ petition was to approach Service Tribunal. It was further held that no other Authority except the Service Tribunal could examine the matters relating to the terms and conditions of service of an employee of the Authority in view of.
WAPDA Act (XXXI of 1958), sections 17(1A), 17(1B), 17(1C) read with Article 212 of the Constitution of Pakistan, 1973 and Federal Service Tribunals Act, 1973. Respondent No,1 in view of the aforesaid judgment had no jurisdiction to entertain and adjudicate upon the application of respondent No,2 under Workmen's Compensation Act, 1923 as held by the Supreme Court.
7. The objection of the respondent that right of appeal is available, therefore, the writ petition is not maintainable is misconceived. Firstly the respondent No,1 had no jurisdiction to entertain the application of respondent No,2, secondly, even interim orders were declared without lawful authority by my learned brother Sharif Hussain Bokhari, J. (as then he was) in the judgment supra and thirdly when the order is wholly without jurisdiction, the availability of other remedy does not disentitle an aggrieved party to invoke writ jurisdiction as laid down in the case Muhammad Akram Khan v. Payment of Wages Act Authority/Compensation Commissioner, Faisalabad and another (NLR 1982 Labour 129). In that ease also it was urged that under section 17 of the Payment of Wages Act against the order passed under section 15, was appealable, therefore, the writ petition was not maintainable. By repelling the arguments of the respondent the writ petition was accepted holding that submission to the jurisdiction of the authority under Act XXXVI does not disentitle an aggrieved party to invoke writ jurisdiction if impugned order is found to be not covered by the Act itself. It was further held Hyderi Ship Breaking Industries Ltd. v. Sindh Government and others (NLR 1982 Tax 65) by a Division Bench of the High Court of Sindh that where writ petition not involving any investigation into disputed facts, petition capable of decision on basis of admitted facts. Alternate remedy--High Court would not invariably decline to exercise its jurisdiction on the ground that an alternate remedy by way of appeal or otherwise is available to petitioner Mere availability of an alternate remedy does not debar High Court from exercising writ jurisdiction. In cases of total lack or absence of jurisdiction or authority or apparent excess of jurisdiction, High Court in general would not hesitate much in entertaining writ petition although an alternate remedy may well be available.
8. For the reasons stated above although the right of, appeal is available against the impugned order but the impugned order being without jurisdiction is nullity in the eyes of law, therefore, the writ petition cannot be refused on mere ground that the right of appeal has not been availed of by the petitioner.
9. Consequently writ petition is allowed, impugned order is declared without lawful authority and of no legal effect. Respondents may avail the remedy available under the law before the Service Tribunal as held by the Supreme Court.