' This is an appeal under section 37 of the Industrial Relations Ordinance, 1969, against the decision, dated 11-7-1998, passed by the learned Sindh Labour Court No,2, Karachi, in Application No,99 of 1997 under section 25-A, of I.R.O., 1969:
2. Mr. Irtiza Hussain, learned advocate for the appellant (K.D.A.) submits that the respondent Habib Ahmed Khan is an employee, in Grade 14, of K.D.A. Which is controlled by the Provincial Government.
By means of Grievance Petition bearing No,99 of 1997 under section 25-A, of I R.O., 1969, he prayed for allowing him Grade-17 and 33% of Selection Grade 18 with back benefits, as has already been allowed by the K.D.A. To Audit Account Assistants. The application was allowed by the learned Labour Court by his order, dated 11-7-1998, against which, K.D.A. Has filed the above appeal.
3. The first ground, urged by the learned counsel for K.D.A., is that the respondent, being an employee of Grade-14, does not fall within the category of a workman because as on the day of making an application he was admittedly a Divisional Account Officer. He, therefore, comes within the category of an officer. The remedy available to him, in law, was to make an application to the Director-General, K.D.A. And if he was not satisfied with the order passed by the Director-General, K.D.A., further remedy was to file an appeal before the Secretary, Housing and Town Planning, Government of Sindh; Karachi. In case he was again aggrieved by his decision the remedy available to him was to approach the Sindh Service Tribunal. Learned counsel, also made a reference to the Service Tribunals (Amendment) Act, 1994 (Sindh Act No,XXXI of 1994) published in the Sindh Government Gazette, dated 16-1-1995 and submitted that the learned Labour Court had no jurisdiction to entertain the application under section 25-A, of the I.R.O., 1969.
4. Learned Additional Advocate-General, Sindh, Mr. Muhammad Saleem Samo, on Court notice, submitted that the appeal has abated. In support of his plea he referred to Article 121 of President's Order No,5 of 1957 which, inter alia, provides that every member of the Governing Body, every officer and servant of the Authority, and every member, officer shall be deemed to be a Public Servant within the meaning of section 21 of the Pakistan Penal Code (Act XLV of 1860). Although the Karachi Development Authority came into being by Presiding's Order No,5 of 1957, he submitted that by virtue of the Karachi Development Authority (Amendment) Order. 1962 by President's Order No,6 of 1962, published in the Government Gazette on 27-3-1962, which embodies, among others, clause 11 under caption, "savings", which is reproduced as under:-- "11. Savings.---Any rule, order of appointment made, any notification issued, any sanction or direction given, any funds placed or any other thing done or any action taken or any proceedings commenced by the Central Government before the commencement of this order under any provision of the said Order, wherein for the words 'Central Government' the words 'Provincial Government' have been substituted by this Order, shall be deemed to have been made, issued, given, placed, done, taken or commenced by the Provincial Government under the said provision as amended by this Order and shall have effect accordingly."
' Thereafter, he referred to the following two amendments made in the Sindh Service Tribunals Act, 1973 and in the Federal Service Tribunals Act of 1973. The Sindh amendment was made on 16-1-1995 as published in the Sindh Government Gazette of even date. The relevant clause "(aa)" of section 2 reads that:-- "(aa) 'Corporation' means a Corporation or Institution set up or established by a provincial enactment."
' It is further provided under section 3-E that:-- "Notwithstanding anything contained in any law, service of Corporation is hereby declared to be the service of the Province and every person holding a post in the Corporation, not being a person who is on deputation to the Corporation shall, for the purpose of this Act, be deemed to be a civil servant."
' Reference was also made to section 3-F. The said subsection reads as under:-- "All suits, appeals or applications relating to the terms and conditions of service of a person holding a post in a Corporation pending in any Court immediately before the commencement of the Sindh Service Tribunals (Amendment) Act, 1994, shall abate: ' Provided that a party to such suit, appeal or application may within ninety days of the commencement of the Amending Act prefer an appeal to the Tribunal established under section 3."
' Similar amendment was inserted in the Federal Service Tribunals Act, 1973 by virtue of Service Tribunals (Amendment) Act, 1997, published in the Gazette of Pakistan on 10-6-1997 wherein section 2-A was added which, for the sake of convenience, is reproduced below:-- "3. Insertion of new section 2-A, Act LXX of 1973.---In the said Act, after section 2, the following new section shall be inserted, namely:- "2-A. Service under certain Corporation etc., 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 purposes of this Act."
' Mr. Saleem Samo, learned Additional Advocate-General submits that he has cited both the amendments to meet the situation that if it is asserted by the appellant that the Karachi Development Authority is a Corporation constituted by the President's Order No,5 of 1957 by the Federal Government, Federal Service Tribunals Act, 1973, as amended, will be applicable and if it is Sindh Service Tribunals Act, 1973, which holds the field, according to him, the matter ends. So, the amendments referred to in both the Acts, cuts both ways.
5. Mr. Ehsan 'Ellahi Khan, Representative for the respondent submits that admittedly the Karachi Development Authority was constituted by the President's Order No,5 of 1957. It is a Corporation, constituted by the Federal enactment. He further submitted that the amendment, made by the Provincial Government in the Sindh Service Tribunals Act, does not apply to the employees of Karachi Development Authority because the Corporation or Institution, as provided by subsection
(aa) of section 2 should be set up or established by the Provincial Statute. His second limb of argument is 'that, admittedly, the Karachi Development Authority is mainly controlled by the Provincial Government of Sindh, section 2-A, by virtue of Amendment Act, published on 16-1-1995, is not applicable. Mr. Ehsan Ellahi, on my querry whether there has been any decision on the point, by this Tribunal, submits that there was a bunch of 35 cases K.M.C. v. Mossa Khan and 34 'others. The other case, which he cited was K.D.A. v. Ghulam Haider. According to him both the cases were decided by the then learned Chairman Mr. Justice (Rtd.) Mushtak Ali Kazi. But the copies of the aforesaid two judgments were not readily available with him. Reference was also made by him to a case decided by a Division Bench of the Sindh High Court, reported as Muhammad Afzal Khan v.
Karachi Development Authority and 6 others (PLD 1984 Karachi 114) wherein it was, inter alia, held that an employee of Karachi Development Authority was not a civil servant for the purposes of Service Tribunals Act, 1973. Relying on the above said authority, his main emphasis was that Karachi Development Authority, undoubtedly, was an establishment set up by the Federal Government nevertheless, it is controlled by the Provincial Government and, therefore, the Federal Government has no jurisdiction as Karachi Development Authority's employees are not governed by the Federal Service Tribunals Act.
6. Mr. Ehsan Ellahi admits that out of two cases, already referred to, the first one was held to have abated by virtue of Sindh Service Tribunals (Amendment) Act, 1994, whereas the second case was silent on the point. A search was made for the cases, referred to by Mr. Ehsan Ellahi. But the second case file could not be traced out during the proceedings. However, another case viz. Mr. Izzat Hussain Hamidi v. Director-General, Karachi Development Authority (Appeal No KAR-43 of 1996) in which Mr. Ehsan Ellahi, Representative for the appellant side also appeared, has been made available to this Tribunal by the office. It is a decision, dated 7-4-1996 by the then learned Chairman Mr. Justice (Rtd.) Mushtak Ali Kazi, the relevant observations reads as under:-- "4. Under these circumstances the Service Tribunals Amendment Order would appear to be applicable to K.D.A. And the staff of K.D.A. Would be included in the definition of civil servants unless the exception regarding workman applies to it. Mr. Ehsan Elahi has not been able to show that the appellant falls within the definition of workman under the Workmen's Compensation Act, Schedule- II of section 2(1)(n). The Labour Court therefore, has no jurisdiction to deal with the case."
' Admittedly, on my query Mr. Ehsan Elahi candidly conceded that the respondent is not a workman within the ambit of Workmen's Compensation Act.
7. On the question of the non-applicability of section 2-A to the present case, the arguments of Mr. Ehsan Elahi, put forth before me, is quite fallacious (if not misleading). Perhaps he forgot the amendment made in Karachi Development Authority (Amendment) Order, 1962. Section 6 of 1962, clause 11 to which a reference has been made by the learned Additional Advocate-General, makes an employee of K.D.A. To be servant of the Provincial Government and wherein the words "civil servant" have been introduced in the President's Order No,5 on 13-12-1957. I am, therefore, of the firm view that the application, filed before the learned Labour Court, was not maintainable and so this appeal, filed much after the amendment made in the Sindh Service Tribunals Act, 1973. In case the application or appeal would have been filed before the amendment, then, it would have been the case for abatement, but since the application as well as the appeal, both, have been filed after the amendment, therefore, not only the application, but this appeal is also not maintainable for want of jurisdiction.
8. The Labour Court had no jurisdiction to entertain the application on 4-8-1997. The order passed thereon allowing the same, was wholly without jurisdiction and ab ihitio void and of not legal effect.
In result, the appeal before this Tribunal, too, is also not maintainable and is dismissed.