DECISION ' The petitioner's case is that he was recruited directly as a Fitter in 1954 on daily wages basis like all other employees in E&M Workshop. In December same year all the employees were declared temporary. From 1st Janaury, 1955 night shift was introduced as an independent shift, and he was appointed Shift Incharge from that very day, on his own pay and scale, while other Fitters were appointed as Foremen and given the scale of pay prescribed for the post of Foreman. The petitioner has alleged that he continued performing the duties of Shift Incharge, and later from 1954 as Progress Incharge and at the same time struggled for acceptance of his appeals for prescribed pay-scale which remained undecided till WAPDA took over the Workshop in August, 1962. The petitioner has mainly relied on the Office Order signed by the Works Manager (Exb. C/1), communicating that the post of Progress Incharge was abolished on 12th March, 1963. He has prayed that WAPDA be required to adjust him as Progress Incharge or in an equivalent post according to the Policy decision in force.
2. On the other hand, the respondent has argued that Sh. Bashir Ahmad was holding the post of Fitter in the E&M Workshop, and because of various reasons it was not possible to utilise him in his own job which called to continued concentration, and the then Works Manager was obliged to entrust him the unscheduled work of supervising the progress of work. His contention is that no post of Progress Incharge was created, but Sh. Bashir Ahmad was given this assignment against his own post of Fitter, and in his own pay-scale, and on his own pay. The conclusion drawn thereby is that any informal arrangement that may have been worked out prior to the workshop being taken over by WAPDA did not place WAPDA under any obligation to create the post of Progress Incharge or give Sh. Bashir Ahmad any job equivalent to Progress Incharge. It was thus that WAPDA has no option but to appoint Sh. Bashir Ahmad as Fitter in the sanctioned scale from the day it took over the workshop. It however, remains a fact that no evidence has been led in support of the above reasoning.
3. Before proceeding with the case the learned counsel for the respondent brought to notice that the West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1975 had been promulgated been 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).
4. It has been contended that in consequence of this Ordinance, every person holding a post under the Authority shall be deemed to be a civil servant for the purposes of Service Tribunals Act, so that the Service Tribunal has now acquired jurisdiction in respect of matters relating to their terms and conditions of service, including disciplinary matters, according to subsection (2) of section 3.
5. It has been urged by the petitioner that ho is employed in a factory, and irrespective of the authority that administers the affairs of the factory, he is a workman, who is governed by the Factories Act. He contends that the Industrial Relations Ordnance is applicable to workmen employed in a factory, whether it is owned by the Government, a corporation or a local authority, and that the establishment of the West Pakistan Water and Power Development Authoriy has been brought within the pi.Rvie at of the Essential Services (Maintenance) Act, which recognises the National Industrial Relations Commission as the specified authority to regulate his terms and conditions of employment. Thereby be concludes that by virtue of the factum of his being declared as civil servant for the purposes of the Services Tribunals Act of 1973. The authority specified under the Essential Services (Maintenance) Act, 1952, is not superseded.
6. The learned counsel for the respondent, however, argued that the Service Tribunals Act, being a special law of a later date, excludes the jurisdiction of the authority specified under the Essential Services (Maintenance) Act, which is of an earlier origin.
7. My attention has been drawn in passing that some learned Member of the Commission has since held that the Service Tribunal has now acquired exclusive jurisdiction under the West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1975, and that the Essential Services Act, is no longer applicable to WAPDA employees. This decision has not been shown to me. There is certainly no doubt that the employees of WAPDA are now deemed to be "Civil Servants" for the purposes of the Service Tribunals Act, 1973. However the term "Civil Servant" as defined in this Act, in clause (a) of section 2 thereof, means - "a person who is, or has been, a civil servant within the meaning of the Civil Servants Act, 1973 (LXXI of 1973)."
8. We have thus to revert to the definition of "Civil Servant" in the Civil Servants Act. Clause (b) of section 2 of the said Act, provides that the term does not include- "(iii) a person who is a worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (LIII of 1923)."
There is no dispute that both these labour laws are applicable to the E & M Workshop. Thus workmen employed in this workshop, despite their err ployment under WAPDA, would stand excluded from the purview of the Service Tribunals Act, and would continue to be within the competence of the Pakistan Essential Services (Maintenance) Act, 1952. However, only such persons employed under WAPDA as are not workmen, shall be within the competence of the Service Tribunals Act.
9. It is accordingly held that the National Industrial Relations Commission continues to be the specified authority, enjoying exclusive competence to regulate conditions of service of workmen in the E & M Workshop.
10. As regards the merits of the complaint, it is unfortunate that the learned Junior Labour Court had, after coming to the conclusion that it has no jurisdiction to adjudicate in the matter, chose to go into facts and give a decision beyond its competence. This obviously tends to create a prejudice against the petitioner. It is, therefore, necessary to completely ignore the conclusions drawn on facts and merits by the learned Presiding Officer of the Junior Labour Court.
11. There is of course, no direct documentary evidence to prove whether the post of Shift Incharge or Progress Incharge was ever created. But the defence witness has himself admitted that the petitioner did work as Shift Incharge and Progress Incharge, but on his own pay and in his own pay scale. It is further in evidence that the Works Manager issued Office Order (Exh : C/4) about abolition of the post of Progress Incharge against which Sh. Bashir Ahmed was working. (There was typographical mistake of the name, which was later rectified to clarify that it related to Sh. Bashir, the petitioner!. The abolition of the post presupposes its existence. The mere fact that relevant office file has not been brought before the various Courts or the Commission, is no justification for denial of the existence of the post. If it he correct that the Works Manager was not competent to appoint the Progress Incharge, or abolish this past, then the petitioner cannot be blamed for the lapse on the part of competent authority ; and the petitioner would have never known that his Works Manager was acting without authority. The Junior Labour Court file (Exh : C/4) contains the Identity Card of the petitioner signed by his Works Manager on 23rd May 1056 (Exh : C/2) showing him as Shift Incharge. At page 61 of this file (Exh. C/4) is the statement of this Works Manager (Mr. Inayat Elahi wherein he has testified that "Daily Wages employees were not required to be issued any appointment letter" before WAPDA took over the Workshop, and that "he (the petitioner) was given the task of noting the progress of the workers".
12. Reading this statement of the then Works Manager, in conjunction with his Officer Order (Exh.
C/l) at page 75 of file (Exh. C/4) abolishing the post of Progress Incharge on 13th February, 1963, the irresistible conclusion would be that at the time the E & M Workshop was taken over by WAPDA on 16th August 1962, the petitioner Sh. Bashir Ahmed was working as Progress Incharge, may be in his own scale-pay an on his own pay. The abolition of the post of Progress Incharge without assigning reasons thereof, and without the order of the competent authority, has no locus stand!. This order of abolition of the post does not amount to "transfer of duty" as captioned in the Office Order (Exh.
C/1) in file (Exh. C/4).
'It is, therefore, held that WAPDA was bound to provide the petitioner Sh. Bashir Ahmed the same or equivalent job by the nature of duties and wages which the petitioner occupied on 16th August 1952, when it took over the E & T Workshop, f. e., of Progress Incharge. The petition is accepted to that extent.