The WAPDA has invoked the Constitutional jurisdiction of this Court for challenging a decision of the Labour Court dated 3-1-1976 holding that the appeal pending before it had abated in view of the enforcement of Ordinance XVI of 1975.
2. The facts, in brief, are that Muhammad Khan, Assistant Accountant, in the Power Wing, moved the Junior Labour Court for pay as Assistant Accountant with effect from 4-1-1962 to 2-11-1970, and for the proper fixation of his seniority. The claim was allowed by the Junior Labour Court. An appeal was preferred against such a decision and one of the grounds of appeal contained in clause (d) was as follows : "Then it was also submitted before the learned lower Court that the petition had not been filed before a proper Court of law as the respondent being an employee of Electricity Department (Punjab Government) is still holding the status of Civil Servant and in view of the Service Tribunals Act, 1973 and Ministry of Law and Parliamentary Affairs (Law Division) Notification No. F-24 (3)
Ordinance No. (XVI of 1975) dated 28-9-1975, the respondent should have moved the Service Tribunal which had exclusive jurisdiction in respect of matters relating to the terms and conditions of Civil Servants, instead of the Junior Labour Court. Thus the impugned order having been passed without jurisdiction bad not force in the eyes of law and not sustainable and liable to be set aside." , It was this ground which was taken note of and section 6 of Service Tribunals Act was given effect to and the appeal was said to have abated. The petitioner, it appears, was interested in having set aside the order of the Junior Labour Court and as it was not done while disposing of the appeal, this grievance has been brought before this Court by resort to the Constitutional jurisdiction.
3. There are certain legal points involved and a clear answer to them would determine the nature of relief that the petitioner can claim. It was the case of the petitioner itself that even before the promulgation of Ordinance XVI of 1975, the respondent was a Civil Servant. The first such question is whether before the promulgation of Ordinance XVI of 1975 the respondent was in the service of Pakistan. The second is if he was already in service of Pakistan, whether the first part of subsection (1-B) of section 17 of the WAPDA Act made any difference to his status as such. The third question is whether the petitioner is governed by second portion of subsection (1-B) of section 17 of the WAPDA Act. The fourth is whether the respondent is a Civil Servant for the purposes of the Civil Servants Act and the Administrative Tribunals Act.
4. It does not appear to be in dispute as contended by the petitioner that the respondent was an employee of the Punjab Government since 1949. His status, therefore, as a person in the service of Pakistan stood established long before the promulgation of Ordinance XVI of 1975. His position as an employee of the Government of the Punjab was re-affirmed when three provisos were added to subsection (1) of section 17 of the WAPDA Act by Ordinance XIII of 1959. Clause (c) of Article 12 of the Province of West Pakistan (Dissolution) Order, 1970, would not apply because the appointment of the respondent at the hands of the Provincial Government had not taken place for the purposes of the WAPDA but for its own Electricity Department. Therefore, the respondent could come within the exclusion clause of the second part of subsection (1-B) of section 17 of the WAPDA Act, being a person on deputation to the Authority from the Province. On that view of the matter, a person who was already in the service of Pakistan could not be again made to be in the service of Pakistan.
Civil Servants Act has definition of a Civil Servant and excludes from that definition a person who is a worker or workman under the Workmen's Compensation Act. A reference to Workmen's Compensation Act, Schedule II, clause (xix) establishes that " person employed in the generating, transforming, or supplying of electrical every or in the generating or supplying of gas" is a workman." There is no actual determination on this point nor was this point ever considered by the Junior Labour Court or the Labour Court itself whether on the definition of Civil Servant in the Civil Servants Act the respondent falls into a category excluded. From the recitals in the petition it so appears hat his employment is concerning the generation and supply of electricity. On that view of the matter, he would appear to be a workman and not a Civil Servant on the definition of Civil Servant contained in that Act. Therefore, Ordinance XVI of 1975, would make no difference to his status or exclusion. On that view of the matter, the petition before the Junior Labour Court as well as the appeal before the Labour Court was competent jurisdictionally, the question of its maintainability apart, and there appears to have taken place a refusal to exercise jurisdiction by the Appellate Court when it directed that the appeal before it needed no adjudication for want of authority and had to be treated as having abated. This petition is therefore allowed. The appellate order is declared to be without lawful authority and of no legal effect with the result that the appeal shall be deemed to be pending to be dealt with in accordance with law. No order is made with regard to costs.