PROJECT DIRECTOR GHOTKI (WAPDA) AND AUTHORITY, UNDER THE PAYMENT

SHAFIUR RAHMAN, J.---All these appeals raise a common question of law, whether the private respondents were employees of WAPDA and as such in the service of Pakistan and their grievances, if any, could be redressed by the Service Tribunal and not by the Commissioner Workmen's Compensation and Authority under Payment of Wages Act. Leave was granted to examine this question.

2. In order to control water logging and salinity various projects known as `Salinity, Control and Reclamation Project' (SCARP) were started at various places in Sindh. The respondents in the appeals who were over one thousand in all, were appointed as work-charge workmen in these projects till 1984 when on completion and successful running of projects these were handed over to the Government of Sindh along with the staff which opted for such transfer. The Government of Sindh took them to be fresh appointees regular in nature and the WAPDA took the transfer as termination of their appointment with it. In this background, by separate petitions, affected employees approached the Commissioner for Workmen's Compensation and Authority under the Payment of Wages Act claiming gratuity, pay in lieu of earned leave and notice pay. The question of jurisdiction was seriously raised but was repelled by the Commissioner Workmen's Compensation and Authority under the Payment of Wages Act and the necessary monetary reliefs were afforded to all these employees. Instead of getting redress in appeal against the decision, the appellants invoked the Constitutional jurisdiction of the High Court where it did not succeed. The High Court by the impugned judgment held as hereunder:- "We are of the view that private respondents in these petitions are not and were not employees of WAPDA for a variety of reasons stated below. Firstly section 17(1-B) excludes persons holding post under the Authority who are on deputation from any province from being considered as civil servants. Secondly even previously they were workmen in Irrigation Department and were initially appointed in WAPDA on project of temporary nature and after execution they were sent back in Irrigation Department as workmen. Thirdly Mr.Jatoi was not able to produce before us any documents in support of assertion that respondents were regular employees of WAPDA."

3.In appeal all the grounds given for rejecting the claim of the appellants have been challenged as factually incorrect.

4. After hearing the learned counsel for the appellants we find that certain facts forming the basis of the claim and the adjudication are not in dispute and cannot be seriously disputed. In the applications under section 12(6) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 read with sections 15 and 16 of the Payment of Wages Act filed with the Commissioner Workmen's Compensation and Authority under the Payment of Wages Act in paragraph 6 it was specifically stated by the affected employees "that being the employees of work-charged establishment, the applicants were excluded from the definition of civil servants and in the absence of any statutory rules of service and conduct, the terms and conditions of the service of the applicants were regulated and secured under the Labour Laws including the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968."

5.In reply to this assertion the WAPDA took up the plea as hereunder:-- "As the applicants were in WAPDA services upto 30-6-1981, hence they were governed by the WAPDA Act, hence it is denied that there are no statutory rules. Therefore, the provisions of Labour Laws including IRO, 1969 and Standing Orders Ordinance, 1968 are not applicable."

6. In the Constitution Petition (No.310/86) filed by the appellant in High Court in paragraph 6 the position taken was that they were workcharge employees as would appear from the following statement:- "That the respondent No.3 and other 499 employees were employed by WAPDA on the workcharge basis. Anyhow, the services of the above persons have been transferred to the Irrigation Department viz. Respondent No.2 where they are now permanent employees."

7.In the Memorandum of Appeal (No.156-K/89) in this Court the following stand was taken:-- "These 500 workers were given a stereotype appointment letter laying down their terms and conditions of service, inter alia, that their services were purely temporary and they were to be governed by Authority Rules as amended from time to time for work-charge establishment. The respondents 500 temporary employees were entitled to leave the job by giving 10 days' notice to the petitioner/ employer."

Similar stand was taken in Memorandum of Appeals (Nos.157-K and 158-K of 1989) before this Court.

8.The law applicable to the case is clause (1-B) of section 17 of the WAPDA Act, 1958 (as amended) which rcads as 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 purposes of the Service Tribunals Act, 1973."

9.In the position of workcharge establishment under the Authority the respondents would undoubtedly be treated as in the service of Pakistan but not everyone in the service of Pakistan is a civil servant for the purposes of the Service Tribunals Act. In the Service Tribunals Act itself and in the Civil Servants Act `civil servant' has been so defined as to exclude workmen. That apart, for the purposes of the Service Tribunals Act only such of the employees of the WAPDA could be treated as civil servants who were holding a post under the Authority. The workcharge establishment as such holds no post and hence they cannot for the purposes of Service Tribunals Act be treated as civil servants. In the absence of their being civil servants, the remedy lay before the forum other than the Service Tribunal. If they fell in the definition of `workmen' the authorities providing them the redress were the appropriate authorities and there was no exclusion of their jurisdiction in the case.

The reasons given in the impugned judgments of the High Court e.g. Their being on deputation may not be factually correct but the legal position which emerges does not show that the jurisdiction was lacking and the Commissioner Workmen's Compensation and the Authority under the Payment of Wages Act was excluded. For disputing the claim on merits and limitation the appellants had to seek redress in the appellate hierarchy and not by resorting to the I constitutional jurisdiction.

10. These appeals have no merit and are, therefore, dismissed with no order as to costs.