WATER AND POWER DEVELOPMENT AUTHORITY Versus Mirza AKHLAQ AHMED
By this judgment I propose to dispose of Writ Petition No. 3648 of 1982 and Writ Petition No. 3941 of 1983 as common questions of law and fact are involved therein.
2. Akhlaq Ahmad, respondent No. 1 in these petitions was employed as Assistant Lineman and was working as such, when he was charge‑sheeted by the petitioner and thereafter on 24‑9‑1981 dismissed from service. He challenged the aforesaid order through a petition under section 25‑A of the Industrial Relations Ordinance, 1969 which was allowed by the Punjab Labour Court No. 3 on 17‑6‑1982 on the ground that he was not provided adequate opportunity of hearing before he was dismissed from service. The petition is directed against the aforesaid order, whereas W.F. No. 3941 of 1983 calls in question the validity of notice dated 5‑9‑1983 issued by the Commissioner for Workmen's Compensation and Authority under the Payment of Wages Act, Sheikhupura directing the petitioner to deposit Rs. 17,580 as arrears of salary payable to Akhlaq Ahmad, in pursuance of his re‑instatement in service as passed fired by the Punjab Labour Court.
3. ???????? Learned Counsel for the petitioners contended that by virtue of amended section 17(1‑B) of Water and Power Development Act 1958 all WAPDA employees have became civil servants for the purposes of Service Tribunals Act, A 1973 and the Labour Court had no jurisdiction to deal with service matters of WAPDA employees. In support of his submissions he relied on Water and Power Development Authority, WAPDA House, Lahore v. Miss. Akhter Roselina and another P L D 1983 Lah. 88 and Muhammad Duryab Yousuf Qureshi v. Punjab Labour Appellate Tribunal. Lah. P L D 1979 Lah. 406, it was contended that Labour Court had no jurisdiction to set aside the order of respondents, dismissal from service passed by the competent authority.
4. Learned counsel for respondent No. 1, on the other hand, submitted that the amendment introduced by section 17(1‑B) vide Ordinance XVI of 1973 treating WAPDA employees as civil servants for the purpose of Service Tribunals Act, borrowed by implication the definition of civil servant as given in the Civil Servants Act 1973 excluded from its purview the workmen as defined in Factories Act 1934 and Workmen's Compensation Act 1923. He relied on Water and Power Development Authority v. Commissioner for Workmen's Compensation and Authority, Lahore and another P L D 1977 Lah. 1155 in support of his submission. It was contended that respondent No. 1 being workman invoked the jurisdiction of the Labour Court in the matter and the latter rightly set aside the order of his dismissal from service. It was next submitted that the petitioner instead of availing alternative remedy by way of appeal against tile impugned order filed this petition to circumvent the period of limitation prescribed for appeal, which had already expired in this case. It was lastly stated that respondent No. 1 was not afforded adequate opportunity of hearing by the Inquiry Officer, and the order of his dismissal from service based on his report was not warranted under the law.
5. I have considered the contentions raised by the learned counsel for the parties. For determination of the first contention raised by learned counsel for the petitioner the provisions of section 17(1‑B) of WAPDA Act, 1958 are reproduced hereunder:‑‑
"Service under the Authority is hereby 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 purpose of the Service Tribunals Act, 1973."
The perusal of the aforesaid provision shows that every person holding a post under WAPDA except those who arc on deputation to it are civil Servants for the purposes of Service Tribunal Act, 1973. Precisely, this question had arisen in Water and Power Development Authority, WAPDA, House, Lahore v. Miss. Akhtar Roselina and another P L D 1983 Lah. 88 and this Court in para. 3 of the judgment, held: relevant to the extent is as follows:‑‑
"The definition of the civil servant given in the WAPDA Act is independent of any other definition of civil servant given in any other law and does not need to be tested by reference to any such law. It declares all persons holding a post under the Authority without any exception to be civil servants for the purposes of the Service Tribunals Act, 1973. Therefore, the exceptions made in tile delineation of the civil servants in the Civil Servants Act do not apply to the employees of WAPDA."
Similarly in Muhammad Salim Khan v. West Pakistan Water and Power Development Authority P L D 1976 Lah. 492 this provision came up for interpretation; relevant portion of judgment reads:‑‑
"This shows that a competent Legislature could declare any service to be a service of Pakistan. It is exactly what Ordinance XVI of 1975 has done in the instant case. It has made service of WAPDA for the limited purpose of the Service Tribunals Act, 1973, to be Civil Service. This will show that when a Tribunal is established with reference to Article 212 of the Constitution then according to clause (2) of that Article no other Court shall grant any injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such administrative Court or Tribunal extends. It means that this Court is now not to entertain any proceedings in respect of any matter which falls within the jurisdiction of the Service Tribunals. It is to be remembered that for the purpose of applying section 6 in the light of Article 212 all that is to be seen is whether at the time, when a Service Tribunal comes into being or is functioning, the subject matter in hand was such which if the petitioner had been a civil servant could be covered by that section. If the subject‑matter, for instance was regarding his terms and conditions of service then any proceedings pending in any other forum are to abate.
Similarly if the subject‑matter at that time is that of civil servant whose service has been categorized as service of Pakistan, and the dispute is also with respect to his terms and conditions of that very service, then his case squarely falls within section 6 of Article 212 ibid. In my opinion this is the only way in which the provisions of the law under examination should be construed and any other interpretation will simply defeat the object which was in view of the law‑maker while enacting Ordinance XVI of 1975."
This view was affirmed later on in Muhammad Duryab Yousuf Qureshi v. Punjab Labour Appellate Tribunal, Lahore and another P L D 1979 Lah. 406 and the case cited above by learned counsel for the petitioner was distinguished.
6. ???????? Respectfully relying on the above interpretation of the relevant provisions of section 17(1‑B) of WAPDA Act, it is held that the respondent No. 1 is a civil servant and he should have Died appeal against the order of his dismissal before the Service Tribunal rather than approached the Labour Court which had no jurisdiction in the matter.
7. As regards the other contention of the learned counsel that the petitioner had another alternative remedy of filing appeal before the Punjab Labour Appellate Tribunal against the impugned order: suffice it to say that the Order passed by the Punjab Labour Court having been held illegal and passed without lawful authority; this Court in writ jurisdiction cannot refuse relief to the D aggrieved party notwithstanding the availability of alternative remedy particularly when the Labour Appellate Tribunal also had no jurisdiction in the matter. So far as the contention of the learned counsel for the respondent regarding the point of limitation is concerned it is observed that the order passed by the Tribunal being void for want of jurisdiction: the bar of limitation cannot be I E pleaded for redress of grievance against the aforesaid order.
8. The last contention of the learned counsel that the respondent was condemned unheard by the Inquiry Officer cannot be decided by this Court at this stage as it touches the merits of the case. It goes without saying that the petitioner will be entitled to assail the impugned order on all available points before the Service Tribunal and the latter shall dispose of the same on merits.
9. The upshot: of the above discussion is that the order passed by the Labour Court, setting aside respondent's dismissal order, and his reinstatement iii service together with order of the Commissioner for workmen's Compensation and Authority under the Payment of Wages Act, directing payment of arrears of salary; as consequence of the aforementioned order is declared to be of no legal effect and the respondent held entitled to challenge the order of his dismissal from service before the Service Tribunal.
10. In the result these: petitions arc allowed with no order as to costs.
M.Y.H./2570/L ???????????
Petition allowed.