' Respondent No,2 was employed as Line Superintendant with the petitioner. He was convicted by the Summary Military Court No,65, Faisalabad and was sentenced to six months R.I. On 23-10-1980.
He was then removed from service on 6-12-1980. On 2-4-1995, he filed a petition under section 22- A(8)(g), read with sections 15 and 25-K of the Industrial Relations Ordinance before the National Industrial Relations Commission alleging victimization on account of trade union activities and affiliation. It was on 16-10-1996 that Agha Saleem Khurshaeed, Member of the Commission, proceeded to pass the impugned order accepting the petition of respondent No,2 and setting aside order of his dismissal. Same has been challenged through this petition.
2. It is contended by the learned counsel that respondent No,2 was a civil servant whose petition before respondent No,1 did not lie in view of Article 212 of the Constitution; it is contended that such an objection had been raised before respondent No,1 in the written reply, filed by the petitioner, but it was not adverted to and through a brief non-speaking order the petition of respondent No,2 was accepted. According to him, the assumption of jurisdiction by respondent No,1 in the matter was unwarranted by law and the impugned order has been passed without jurisdiction. Reference has been made to WAPDA and another v. Muhammad Arshad Qureshi (1986 SCM R 18), Water And Power Development Authority v. Agha Nazim Ali (1986 SCM R 574), WAPDA v. Muhammad Zubair, and others (NLR 1996 Labour 89), Waseem Ahmed Khan v. WAPDA and 3 others (1997 SCM R 2000), Zahir Ullah and 13 others v. Chairman WAPDA, Lahore and others (2000 SCM R 826), and Malik Mumtaz Ahmed and others v. Federal Service Tribunal and others (2000 SCM R 832). None has appeared on behalf of respondent No,2 despite the fact that the names of the learned counsel duly appear in the cause list and the matter was kept in' waiting till after the interval.
3. It may be observed that the petitioner had submitted written reply to the complaint, filed by respondent No,2 before respondent No,1, wherein a specific objection to the jurisdiction of the learned Commission was taken that respondent No,2 being a civil servant, the jurisdiction of the Commission was barred in view of Article 212 of the Constitution of Islamic Republic of Pakistan. It was also pleaded that the petitioner was dismissed from service due to his involvement in corruption cases and conviction by the Military Court. Be that as it may, respondent No,1 assumed the jurisdiction despite an objection to the same had been raised by the petitioner, without even adverting or adjudicating the same respondent No,1 was obliged to first determine as to whether respondent No,2 was not a civil servant. He could only assume jurisdiction or proceed with the matter if finding to that effect had been recorded by him. He, however, chose to accept the petition, filed by respondent No,2 without adverting to the essential issue going to the very root of the matter and his jurisdiction. In Muhammad Zubaris's case (supra) a learned Single Judge of this Court held that "every person holding a post under the authority i,e, WAPDA, is a Civil Servant for the purposes of Federal Service Tribunal Act, 1973. Therefore, in view of the provisions of Article 212 of the Constitution read with section 4 of the Federal Service Tribunals Act, 1973 the jurisdiction of all the Tribunals and Courts including that of National Industrial Relations Commission and its learned Members is barred, in so far as the order relates to the terms and conditions of service." The said judgment was upheld by the Hon'ble Supreme Court in Waseem Ahmed Khan's case (supra). It was thus abundantly clear that petition of respondent No,2 before respondent No,1 was not maintainable. The assumption of jurisdiction in the matter by the National Industrial Relations Commission was wholly illegal and unwarranted. The impugned order was passed by respondent No,1 without any lawful authority which is not sustainable in law.
' As a result of the above, this petition is accepted declaring order dated 16-10-1996, passed by respondent No,1 as without lawful authority and of no legal effect. No order as to costs.