' TALAAT QAYYUM QURESHI, J.---Gul Nabi Syed, the petitioner was appointed as 'Junior Engineer in WAPDA vide Letter No,10655-56/ MDP/Admn-II, dated 22-3-1990 by Chief Engineer (Admn) power.
While he was working as S.D.O. (E) Batagram, he was called upon to explain for misappropriation of store material worth Rs,12,98,416.61 by Mr. Roidad Khan Contractor because of his (petitioner's) improper vigilance over the drawal of material and its utilization at proper location. The said explanation was called vide letter, dated 24-3-2000 by respondent No, 1 . He submitted reply of the said letter, but being not satisfied with the exhaustive reply submitted by the petitioner, respondent No,1 served him with show-cause notice No,2781/ENQ/3243, dated 20-6-2000 as to why penalty of "Dismissal from service alongwith recovery of proportionate share of loss" be not imposed upon him. The petitioner through writ petition in hand has challenged the explanation letter, dated 24-3- 2000 and show-cause notice dated 20-6-2000 being void ab initio, coram-non-judice and without lawful authority.
2. Qazi Muhammad Jamil, the learned counsel representing the petitioner argued that respondent No,1. Chief Executive PESCO has no lawful authority to issue the impugned Notification as well as show-cause notice to the petitioner. The services of the petitioners, being WAPDA employee are governed by WAPDA (Efficiency and Discipline) Rules, 1978, and disciplinary action if any, could be only initiated under the said Rules because the petitioner is not employee of PESCO.
3. It was also argued that respondent No,1 being a "stranger" to the service of the petitioner could not be delegated with any power to initiate departmental proceedings against the petitioner and letter dated 11-5-1999, whereby powers were allegedly delegated to respondent No,1 to act as "competent authority/appellate authority" is also illegal, void and without lawful authority as under section 20 of the WAPDA Act, no power could be delegated to a person who was not Officer of the Authority (WAPDA). Reliance was also placed on Khurshid Anwar v. Chief Executive Pesco (Writ Petition No, 71 of 1999) decided on 2-5-2000.
4. On the other hand Mr. Said Reitman, Advocate representing the respondents argued that the writ petition in hand is not maintainable due contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. Petitioner is an employee of WAPDA and being a civil servant by virtue of section 17 (1-B) of WAPDA Act, 1958 could avail his remedy before the Federal Services Tribunal.
5. It was further argued that respondent No, 1 was authorised vide Office Order No, DG(S&GAD)/D(Rules)/07456/IV/16806-35, dated 11-5-1999 to act as "competent authority/appellate authority" and the action initiated by him against the petitioner was in accordance with law and Service Rules.
6. It was also argued that a Division Bench of this Court at D.I. Khan Circuit in Writ Petition No,74 of 2000 and another Division Bench at Circuit Bench Abbottabad have also dismissed similar writ petitions and directed the employees to knock at the door of Services Tribunal, which has the exclusive authority to resolve the controversy regarding their terms and conditions of service, therefore, this writ petition be also dismissed and petitioner be directed to seek his redress. From Federal Services Tribunal.
7. We have heard the learned counsel for the parties and perused the record.
8. PESCO a Power Distributing Company was formed under section 8(5)(b) of WAPDA Act, 1958. For N.-W.F.P. The rights, liabilities and properties of WAPDA comprising that Administrative Division known as Power Area Electricity Board of N.-W.F.P. Were also taken over with the object to expand and extend the business and activities of such Board or any part thereof including, without limitation, the business of a Public Electricity Distributor and Supplier. An agreement known as "Operation and Development" was executed by and between the WAPDA and PESCO on 21-6-1998 at Lahore, whereby it was agreed that the employees of WAPDA during the subsistence of the said agreement shall remain in the employment of WAPDA and were not in any manner be construed to establish employer-employee relations between the Company and the employees. There is no cavil with this proposition that the petitioner is still and employee of WAPDA and his services are regulated by WAPDA Employees (Efficiency and Discipline) Rules, 1978 and respondents have also taken the same stand in their reply/written -statement. In para. 2 of the preliminary objections it was admitted:- "That the petitioner is an employee of WAPDA and, thertfore, a civil servant by virtue of section 17 (1- B) of the WAPDA Act, 1958, and amendment of section 2 of the ServiceSr Tribunal Act affected by Act XVII of 1997, therefore, adequate remedy for the petitioner is available before Service Tribunal."
9. The only question which needs determination in this petition is as to whether the writ petition in hand is maintainable due to bar contained in Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973. The answer to this question is in negative. The employment under the authority (WAPDA) did not, prior to the declaration under subsection (1-B) of section 17 of the Act, qualify as service of Pakistan. In WAPDA and another v. Muhammad Arshad Qureshi (1986 SCM R 18) it was held:-- "It is clear from these provisions that the employment in the Authority was declared to be service of Pakistan and remedy provided under Service Tribunals Act, 1973 was made available to such employees by deeming them to be civil servants under that Act. The two explanations subsequently added and 'deemed always to have been so added' had the effect of bringing under purview of subsection (1-A) even the Provincial Civil Servants serving the authority under provisos to subsection (1) All employees, except those on deputation, were without qualification or limitation, declared to be civil servants for the purposes, of Service Tribunals Act. All the terms and conditions of their service, be it statutory or contractual, was made the subject-matter of reference to Service Tribunal. Subsection (1-A) of the Act, as will be shown contained overriding terms and conditions of employment and provisions thereof could like any other terms and conditions of service be brought before the Service Tribunal for adjudication. Article 212(2) of the Constitution ousting the jurisdiction of all other Courts came into play and so did section 6 of the Service Tribunals Act, abating 'all suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before' ."
' In the concluding paragraph, their Lordships again held:-- "Our conclusion, therefore, it that in view of subsection (1-B) 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, Commissions was affected by section (1- C) but not that of the Service Tribunal itself. Having answered the legal question, all the appeals and petitions shall be set down for hearing further in the light of this decision."
10. A Division Bench of this Court at D.I. Khan Circuit in Writ Petition No,74 of 2000 held:-- "In point of fact the learned counsel for the petitioner are conceded during the arguments that the petitioners are employees of WAPDA.
' Therefore, the petitioners are civil servants in view of amendment of section 2 of the Service Tribunals Act, 1973 effected by Act XVII of 1997. By this very Act section 4 of the Service Tribunals Act was also amended, with the result that now any order whether original or interlocutory can be challenged before the Service Tribunal. If any order has been passed by the respondents which the petitioners consider to be infringement of their terms and conditions of service they are to knock at the doors of the Service Tribunal which has the exclusive authority to resolve the controversy.
' Accordingly the writ petition stands dismissed in limine being misconceived."
11. This in Khurshid Anwar v. Chief Executive PESCO (Writ Petition No,71 of 1999) had in paragraph 11 held that the power vide office order, dated 11-5-1999 were delegated to the Chief Executive PESCO much after the service of the show-cause notice to the petitioners (Khurshid Anwar and another) and therefore, the explanation as well as show-cause notice issued by the Chief Executive PESCO were illegal and without lawful authority. It was also held that action against them under. WAPDA Employees (Efficiency and Discipline) Rules, 1978 could be initiated and we were informed at bar that after re-initiating proceedings against them under the said Rules, their services were terminated. They challenged the termination order through writ petition filed before Circuit Bench Abbottabad, which was dismissed with the observation that the writ petition was, not maintainable due to bar contained under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973.
12. In view of the dicta contained in the above cited judgments we are of the view that the writ petition in hand is not maintainable due to bar contained in Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973.
13. The learned counsel for the petitioner vehemently argued that respondent No,1 being stranger, could not be delegated with power under section 20 of WAPDA Act and office order, dated 11-5- 1999 is without lawful authority. No doubt respondent No, 1 has been authorised to act as (competent authority/appellate authority) vide office order, dated 11-5-1999, whereas the impugned explanation was issued on 24-3-2000 and show-cause notice on 20-6-2000 (Annexure IV), therefore, the action against the petitioner was initiated after respondent No,1 had been authorised to act a "competent authority/appellate authority". The question as to whether respondent No,1 who is a "stranger" (as per argument of the learned counsel for the petitioner) could be delegated with any powers to act as "competent authority/appellate authority" vide office order, dated 11-5-1999 cannot be gone into by this Court while exercising our Constitutional jurisdiction due to bar contained in Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973 and determination of said question would fall under the domain and jurisdiction of Federal Services Tribunal. In I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCM R 1041) it was held:-- "From the above-cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rules or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Inquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal." (underlining is ours)
Keeping in view the above mentioned discussion, we are of the view that the petitioner is in service of Pakistan and remedy provided under Service Tribunals Act, 1973 was available to him by deeming him to be civil servant under that Act. With the insertion of section (2-A) in Service C Tribunals Act effect by Act XVII of 1997, he is not required to wait for the final order and can approach the Tribunal against the impugned letter of explanation and show-cause notice and the writ petition filed by him is not maintainable. We, therefore, dismiss the same with no order as to costs.