1984 PLP 5 (PLC)

As the law points raised in the two appeals captioned above are the same and there is a little difference on the factual side, they are being decided together through this single judgment,

2. The appeal titled as `WAPDA' v. Usman Khalid' arises from the decision dated 14th September, 1982 and the appeal titled as WAPDA v. Shafiq-ur-Rehman emanates from the decision dated 29th November, 1981 passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore, thereby the grievance petitions of the respondents were accepted and Shafiq ur-Rehman, respondent was directed to be re-instated in service with full back benefits and in respect of Usman Khalid, respondent it was declared that the action of the appellant delivering fresh charge-sheet (calling the explanation) was illegal and void.

3. Usman Khalid, respondent, was SSO-1 in Grid I Station-11, Lahore. . He was delivered a charge-sheet and on 28th January, 1981 was awarded two punishments namely (1) censure and warning to remain careful in future in the performance of his duties; and (2) he was reduced in pay by one stage with future effect. The said respondent challenged the order dated 26th January, 1981, in his grievance petition, which was accepted and the punishments were declared as illegal and void. The learned lower Court vide order dated 10th September, 1981. further directed as under: - "This order will, however, not debar the respondent to hold fresh enquiry, if so desired. The parties are left to bear their own costs: The previous charge-sheet dated 14th December, 1980 was withdrawn by office order dated 5th October, 1981. The previous enquiry report and the order dated 28th January, 1981 and the fresh charge-sheet copy of which is Exh. P 3 dated 5th October, 1981 were delivered to the said respondent on 10th November, 1981. The charge-sheet was objected to by Usman Khalid, respondent, vide his reply Exh. P.

4. He after serving a grievance notice, copy of which is Exh. P. 5 brought fresh grievance petition under section 25-A, from the decision of which the present appeal arises. The appellant did not treat Exh. P. 4 dated 14th November, 1981 as reply to the fresh charge-sheet and passed an order of censure on 5th December, 1981 copy of which is Exh. P. 7 during the pendency of the grievance petition brought by the said respondent. The learned lower Court has held that since in Exh. P. 4, which is a reply to the second charge-sheet. Usman Khalid, respondent, had raised a technical objection such as that the charge- sheet was time-barred and had also denied the allegations made therein, it was obligatory on the part of the appellant to make enquiry and to allow the said respondent a chance of defending himself. He has also observed that even if it be said that no reply to the fresh charge-sheet was given by the said respondent, even then it was necessary to make ex parte enquiry.

4. So far as the case of Shafiq-ur-Rehman, respondent, is concerned, the facts are that he was working as Chowkidar in Delhi Gate Sub-Division of WAPDA, Lahore. The allegation against him was that he had remained absent from 1st December, 1980 to 6th December, 1980. Vide order dated 21st December, 1980 copy of which is Exh. P. 4, the said respondent was dismissed from service. He after serving a grievance notice brought a grievance petition, from the decision of which the present appeal arises. Before recording the order of dismissal show-cause notice was given to the said respondent, but no enquiry was held. It was contended on behalf of the appellant before the lower Court that opportunity of personal hearing was afforded to the respondent therefore, the latter's plea that he was con demned unheard is groundless. On behalf of the appellant it was also con tended that the grievance .petition was time-barred. Reply to the grievance notice is dated 5th April, 1.981.

5. The first point raised by the learned counsel for the appellants is that the decisions of the High Court are binding upon this Tribunal, in asmuch as the Constitution is fountainhead, which confers jurisdiction upon the Courts. He also says that the High Court is the Court of pre cedent according to Article 201 of the Constitution of 1973 read with Article 2 of the Provisional Constitution Order, 1981 and thus the deci sions of the High Court are binding upon the forums subordinate to it. He also says that the Labour Courts and this Tribunal are subordinate to the High Court since under Article 9 of the Provisional Constitution Order, 1981 a writ can be made to the High Court against their orders. I cannot agree with the learned counsel to his arguments advanced on the point. The mere fact that orders passed by this Tribunal can be challenged before the High Court in writ petition is not sufficient to show that this Tribunal is subordinate to the High Court. The Courts under the administrative control of the High Court are subordinate to the High Court. Likewise the Courts which are under the supervisory powers of the High Court are subordinate to the High Court. The High Court exercises supervisory powers on those Courts which are under its appellate or revisional jurisdiction. The orders passed by the Labour Court and this Tribunal are not subject to appeal before the High Court therefore it cannot be said that the High Court has supervisory jurisdiction over them. Not only the orders passed by the Labour Court and this Tribunal are challenged in the writ petitions before the High Court but the said Court has writ jurisdiction over all persons who are performing within its territo rial jurisdiction functions in connection with the affairs of the federation, a province or a local body as is evident from Article 9-A (c) (d) of the Pro visional Constitution Order, 1981. So far as the Constitution of 1973 is con cerned relevant Article in this respect is

199. If the argument of the learn ed counsel for the appellants is accepted it would mean that every func tionary in Pakistan, which is empowered to perform functions in connection with the affairs of the federation or a province, or a local authority would he subordinate to the High Court but this is not the position. If every functionary including the Labour Courts and this Tribunal had been under the supervision or control of the High Court for the simple reason that the orders passed by them can be challenged in the High Courts under latter's writ jurisdiction, then there would have been no necessity of impleading such functionaries as party to the writ petitions. Since such functionaries are not under the control of general supervision of the High Court there fore, in order to find their (sic) of the orders passed by the High Court in writ petitions they are irnpleaded as party. Moreover, the High Court can exercise its jurisdiction only on the application of an aggrieved party. If the party bringing the writ petition does not face to be aggrieved of any order passed by any functionary, the High Court would refuse to entertain the application. Since only on an application of the aggrieved person the High Court can exercise writ jurisdiction the order passed in writ petition will be binding upon persons who are party to the writ petition and not in other cases. The decisions of the High Court have persuasive effect but are not binding upon this Tribunal. A serving or a retired Judge' of the High Court can be appointed as Chairman of Labour Appellate', Tribunal and on such appointment he is to be taken at par with the Judge of the High Court. The decisions of the Judges of the High Court are not binding upon the other Judges of the High Court and have only persua sive value. In the same manner, the Chairman of Labour Appellate Tribunal who either being a serving Judge of the High Court or being a retired Judge of the High Court is appointed as Chairman is not bound by the decisions of his brother Judges. On the basis of the persuasive value of the decisions of the High Court, they must be followed by the Chairman if he agrees with the observations made in the writ petition. The intention of the Constitution is not that the decisions of the High Court delivered in writ petitions, would be binding upon the Labour Appellate Tribunal because no such provision has been made therein. However the intention of the Constitution is that the decisions of the Supreme Court should be binding on all Courts functioning in Pakistan and. therefore Article 189 was inserted in the Constitution of 1973. The Article reads as under :- "Any decision of the Supreme Court shall, to the extent it decides a question of law, or is based upon, or enunciates a principle of law, be binding on all other Courts in Pakistan." In Chapter III of the said Constitution, which deals with the High Courts no such provision can be found. It is thus clear that if the intention had been that the decisions of the High Court determining questions of law or enunciating the principle of law, would be binding on all other Courts functioning in Pakistan, a similar provision as made in Article 189 would have been included in Chapter-III. Article 201 of the Constitution of 1973 does not say that the decisions of the High Court determining any question of law, or enunciating any principle of law, will be binding on all Courts in Pakistan, but rather it says that such decisions would be binding on all Courts subordinate to the High Court. Article 203 says that each High Court shall supervise and control all Courts subordinate to it. This Tribunal not being subordinate to the High Court cannot be deemed to be under the supervision and control of the High Court. I, therefore, hold that the decisions of the High Court passed in writ petitions are binding upon this Tribunal only in the case in which the decision has been made and but not in all cases and this Tribunal is free to disagree with the decisions giving its own reasons.

6. The other point argued by the learned counsel is that the jurisdic tion of the Labour Courts is barred under section 17 (1-C) of the WAPDA Act, inasmuch as Service of WAPDA has been declared as Service of Pakistan and all its employees, except the deputationists, are civil servants. In support of his argument he has made reference to Writ Petitions Nos. 1670/ S/1976, 2642/S/1976 and 3647 of 1979. He also relied upon P L D 1976 Lab. 492, P L D 1979 Lab. 406 and P L D 1979 Kar.

95. Writ Petition No. 264 of 1976 was decided by my learned brother Mr. Justice Shafi-ur-Rehman one of the prominent Judges of the High Court and now Judge of Supreme Court. Various portions of the copy of the decision are not decipherable, but this thing is clear that the order was passed by WAPDA under section 17(1-A), although the question of WAPDA employees being civil servants was also under consideration. It has been observed that for limited purposes the employees were deemed to be civil servants. It has been said that the protection afforded to a civil servant in the Civil Servants Act is not available because the law making him a civil servant provides that for the purposes of the Service Tribunal Act he shall be deemed to be a civil servant. Since the copy is not decipherable, it cannot be clearly understood what were the points which were argued before his Lordship. It appears that the protection afforded to a civil servant by the Civil Servants Act was sought in the case for saying that the order passed under section 17 (1-A) was not legal. It appears that it was observed that since for limited purposes i. e. only for the purposes of the Services Tribunals Act, the employee concerned was deemed to be a civil servant therefore he was not protected from the clutches of section 17 (1-A) and his services could be terminated by the Authority under the said section. The result is that the decision delivered in the said writ petition is distin guishable from the facts of the present case. Writ Petition No. 1670/S%1976 was decided by my learned brother Mr. Justice Shafiur Rahman. It was held that all WAPDA employees are to be deemed to be civil servants. The observations made are :- "It has to be noticed that it is on the strength of a deeming clause that every person holding a post under the Authority except depu tationists from the Government is made a civil servant. There is no other condition imposed with regard to their eligibility to be civil servants. Therefore, on the strength of such a legislation by refer ence the qualifications or restrictions contained in the definition in Civil Servants Act, could not directly be attracted to the case." Copy of the decision delivered in I. C. A. No. 150/ 1976 has also been brought. The said I.-C. A. arose from the decision delivered by his Lordship Mr. Justice Shafiur Rahman in Writ Petition No. 2642/S/1976. I have already observed while dealing with the said judgment delivered in Writ Petition No. 2642/S/1976 that the services of the employees were terminated under section 17 (1-A) as it appears that since he was deemed to be a civil servant under section 17 (1-B), therefore he sought protection available to civil servants but it was observed that he was deemed to be a civil servant for limited purposes of the Services Tribunals Act and thus the protection available to a regular civil servant was not available to him. So the copy of the judgment delivered in I. C. A. No. 150/1976 is not helpful to the appellants. In Writ Petition No. 3647 of 1979 my learned brother Mr. Justice Zafar Shah has gone to the extent of saying that the definition of civil servant has not been borrowed in section 17 (I-B) but rather the section has itself defined the term. I have already discussed this writ petition while deciding the case of WAPDA few months back. With great respect I differ from the view that section 17 (1-B) has itself defined the term `civil servant'. For ready reference I reproduce the section as under :- "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 Services Tribunals Act, 1973." It is clear from the section that only the deputationists to the Authority from any Province have been excluded from being deemed to be civil servants but otherwise the term `civil servant' has not been defined. It is, therefore, necessary to see what is meant by the term `civil servant'. Without giving any meaning to the term, it cannot be understood who is a civil servant and who is not. If without defining any term, the disputes between the parties and the cases could be decided then there would have been no necessity of inserting the definition clauses in the Act. So the definitions are not without any purpose. My learned brother Mr. Justice Shafiur Rahman has in Writ Petition No. 1670/S/1976 said :- "There is no further condition, imposed with regard to their eligibility to be civil servants." With great respect first of all we have to see what is meant by the term `civil servant' and then the question of imposition of any condition would arise. If a term is defined without imposing any condition, no condition will be considered and where certain conditions are imposed, the definition would be understood subject to those conditions, but defining of the term is necessary. Merely saying that a particular kind of service will be excluded from the term does not amount to defining term itself. Section 17 (1-B) has only excluded the deputationists from the term civil servant' but it has not defined it. The intention of the Legislature was not that the term `civil servant' used in section 17 (1-B) would be different from the one defined in the Civil Servants Act. The Legislature was aware of the fact that the term `civil servant' being used m section 17 (1-B) had already been defined in the Services Tribunals Act and the Civil Servants Act. If the intention had been to define the term differently and independently, the term would have been defined in section 1.7 (1-B), or if the intention had been that the exceptions given under the definition of civil servant in Civil Servants Act should not apply the definition of the term given in the said Act could have been adopted with a proviso that the exceptions would not apply. Instead of doing so, it was provided that every employee of WAPDA would be deemed to be a civil servant for the purposes of the Services Tribunals Act. The words for the purposes of Services Tribunals Act, 1973 are very significant. Since a forum to decide the dispute of WAPDA employees was to be supplied and the intention was that the employees of WAPDA, who were included in the definition of civil servant could get their difference in respect of service conditions decided from the Services Tribunal, therefore, the above-mentioned words were incorporated in section 17 (1-B). The intention, therefore, was that the definition of the term would be the same as defined in section 2 of the Civil Servants Act. The Service Tribunals Act, 1973 provides the forum of Service Tribunal only to those civil servants who come within the definition of the term. Since Service Tribunals Act has adopted the definition of civil servant given in the Civil Servants Act, therefore, only those persons can go to the Services Tribunal, who are covered by the definition of civil servant and the ones who come within the exception stated are excluded from definition and thus they cannot go to the Service Tribunal and forum for him would a different one. The-deeming clause has been inserted in section 17 (1-B) not with a view that without looking into the definition of the term `civil servant' the employees of WAPDA would become civil servants but for the limited purpose of providing a forum to get their disputes decided and to deny to them that protection which is enjoyed by the regular civil servants. Section 17(1-B) has then inserted if the employees of WAPDA are to be declared as full-fledge civil servants they would have been entitled to all those protections which are open to regular civil servants. But since the intention was not this, therefore only for the purposes of pro viding the forum of Services Tribunal, the deeming clause was introduced. So the forum of Service Tribunal will be available only to those WAPDA employees who do not come within the exceptions given in the definition of civil servant and the remaining employees of WAPDA will seek for their redress some other forums The employees who are covered by the definition of workman given in the Industrial Relations Ordinance, 1969 or the Standing Orders Ordinance, 1968 can get relief from the Labour Courts but the ones who do not fall within the definition of workman given in the said laws they may seek their remedy from some other forum.

7. So far as P L D 1979 Kar. 95 and P L D 1979 Lah. 406 are concerned, they support the argument of the learned counsel for the appel lants but with great respect I do not find myself in agreement with the views expressed in the said authorities. P L D 1917 Lah. 1 156 goes against the appellant. So far as P

1. D 1976 Lah. 492 is concerned, the point whether the employees of WAPDA were civil servants or not was not disputed but rather it was conceded that the persons whose cases were pending in the High Court were civil servants Since the point was not disputed therefore, it cannot be said that a different view was taken in the authority. From the following quotation it is clear that the persons involved in the cases from which the authority arose did not dispute the question of civil servants : - "it is a common ground between the parties that the petitioners have now become civil servants with effect from 30th September, 1975 in view of the amendment brought about by Ordinance XVI of 1975 Act for all but for limited purposes of Act LXX of 1973." I have already held in many cases that the employees who come within the exceptions given in the definition of civil servant in the Civil Servants Act, stand excluded from the definition of civil servant. In these cases P L D 1977 Lah. 1156 was not cited and I was ignorant of this case. The ground given by me in these judgments are the same which are given in the authority cited above. The reasonings given in this authority are very sound. We cannot ignore the definition of civil servant while! deciding whether a particular employee of WAPDA is or is not a civil servant. I cannot agree with this view that without looking into the definition of civil servant. every employee of WAPDA is to be deemed as civil servant.

8. The other point argued by the learned counsel for the appellant is that Standing Orders Ordinance, 1968 is not applicable to WAPDA. He has argued that W APDA is working under the authority of the Government and that its rules had been framed under section 18 of the WAPDA Act, 1968 therefore, both the conditions given in proviso to section 1 (9) (c) of the Ordinance stand fulfilled. He has made reference to sections 3(2), 4, 5 6, 3 (1), 3(3), 8(4), 9(1), 9(2), 10-A. 11 (I) to (S), 15, 16, (2), 22 (2), 27 and 28 of WAPDA Act, 1958. Section 3 (2) reads as under :- "The Authority shall be a body corporate, shall be entitled to require and hold property, shall have perpetual succession and a Courts seal and shall by the said name sue and be sued. Obviously by being a body corporate and being entitled to acquire property and having perpetual succession and entitled to sue and to be sued in the said name, WAPDA cannot be said to be working by or under the authority of the Government. But rather section 3(2) contrarily shows that WAPDA is an independent body and can acquire property and can sue in its own name without taking any authority from the Government. Section 4 shows only this much that the Chairman and the members would be appointed by the Government and the Government can extend the period after the expiry of the term for which they were initially appointed. The Resignation of the Chairman or the member cannot take effect unless accepted by the Government. Section 5 deals with the salary and service conditions of the Chairman and the members which are to be prescribed by the Government but the duties are to be performed by them as assigned by the Act or by the Regulations framed by the Authority. Under section 6, the Government can remove the Chairman or any member by means of a notification, subject to the conditions enumerated in clauses (a) to (d) of the said section. It is clear from sections 4 and 5 that the appointment and removal of the Chairman and members can be made by the Government, but with regard to their duties the Government has no connection and the duties are to be assigned under the WAPDA Act or the Regula tions framed by WAPDA. So far as the working of WAPDA is concerned it is independent and it has not to seek any authority from the Govern ment. According to section 3 (1), comprehensive plan for the development and utilization of water and power resources of Pakistan on a unified and multipurpose basis is to be prepared by WAPDA for the approval of the Government. The scheme is to be prepared by WAPDA under section 3(2), which according to subsection (3). is to be submitted to the Govern ment for approval. The Government has discretion under clause (4) of section 8 to sanction or refuse to sanction the Scheme or to return it for further details or information. If the estimated costs of a scheme exceed the amount prescribed by the Government, the scheme is to be submitted to the Government and the Government has to pass orders as contemplated by section 8(4). Under section 9 (2) the Authority can with the approval of the Government undertake the execution of any scheme, or exercise technical supervisions and administrative and financial control over the execution of the scheme framed or sponsored by any agency in respect of the matters enumerated in section 3(2). It is clear that to start with the scheme the Government interferes but after the scheme has been passed WAPDA is independent to work on that scheme and, thereafter the Government has nothing to do with it. If any scheme is sponsored by the Provincial Government or any agency under the control of the Provincial Government, WAPDA can exercise technical supervision and administrative and financial control over the execution of such scheme on terms and conditions agreed upon on one hand, by the Authority and, on the other, by the Provincial Government or agency in consultation with the Provincial Government, as provided by in section 9-A. This provision has been made so that the Government may have power to interfere with the execution of the scheme which has been sponsored by it. But the other scheme where the Government has not made any investment only initial approval of the Government is necessary, but thereafter, the Government neither can control, nor interfere with the working of the scheme and WAPDA is independent. According to section 11(1) the Authority has excessive control over all underground water resources of any region in the province and over the operation of all power houses and grids including such ancillary work, as may be considered necessary for their proper opera tion. WAPDA can make recommendations to the Government under section 11 (1)(i) for prescribing standard for the operation and maintenance of all irrigation works and maintenance of power houses and grids. It can also make recommendations to the Government for promoting simplification of methods of charge for supplies of electricity and standardisation of the system of supply. Merely by making recommendations to the Government to prescribe standards for the operation and maintenance of irrigation, WAPDA cannot come under the authority of the Government. All irrigation works being Government property, therefore, only the Government can prescribe standards for their operation and maintenance. Since electrical energy is prepared with the help of some irrigation works, therefore, recommendations are to be made by WAPDA to the Government for the proper maintenance of power houses and grids run with the help of said irrigation works. Since all waters existing in the country belong to the Government, therefore, while putting these works at the disposal of WAPDA, provision was made for making recommendations to the Government for their maintenance and working, bat it cannot be assumed that the WAPDA comes under the authority of the Government by making such recom mendations. Likewise by making recommendations to the Government for promoting simplification of methods charge for supply of electri city and standardization of the system of supply WAPDA does not in any manner come under the Government. Clause (4) provides that with the prior approval of the Government and on payment of reasonable compensation, WAPDA may declare any power generating section belonging to a Licensee to be a controlled station and exercise power to regulate production from such station. Since WAPDA was authorised by the Act to declare any power generating station to be a controlled station and to regulate the production from that station therefore taking of approval of the Govern ment was made necessary. Only the Government can declare any private or licensed power house to be a controlled station and since such a power was given by the Act to WAPDA, the provision of taking approval from the Government was made. For the same reason further provisions enumerated in sub-clauses (a) to (c) of clause (5) have been made for fixing the rates of the energy supplied to the grids or to any power generated at the station by WAPDA. The licensee or owner of the controlled station being arrayed with WAPDA, therefore, it was provided that the rates would be determined by the Government. Clause (g) of section 13 makes a provision that WAPDA may seek advice and assistance in the preparation or execution of a scheme from any local body or agency of the Government and WAPDA would be liable to pay costs of the advice and assistance if the local body or the agency incurred any expenditure in giving advice and assistance. I am at a loss to understand how the Government by extending a-helping hand of giving advice or assistance brings WAPDA under its authority. By no stretch of imagination it can be said that by taking assistance or advice from the Government, the WAPDA comes under the authority of the Government. Section 15 provides only this much that if the scheme framed and sanctioned under the WAPDA Act is amended or modified by WAPDA, previous sanction of the Government would be obtained, provided some material change is brought about in the scheme. I have already mentioned above that at the time WAPDA came into existence and had to start functioning the Government interfered but later on for all purposes WAPDA was independent, except in cases where the Government sponsored any scheme or made any advances or grants. Subsection (2) of section 16 gives powers to Government to direct the Authority to hand over any scheme other than a power scheme or the power part of a multi-purpose scheme carried on by it to any agency or the Government, or a local body. Firstly, since no power scheme of power part of a multi-purpose scheme can be handed over by WAPDA to any local body, such a provision has no adverse effect upon W APDA so far as its independent working is concerned with regard to the production, consumption, and sale of electrical energy and secondly, the Authority is entitled to receive credit from the local body to whom the scheme is transferred to the extent of audited expenditure incurred by it. Section 21 makes the Authority liable to submit to the Government after the end of every financial year, but before 1st day of September next following report on conduct of its affairs for that year. By the submission of the reports referred to in section 21 WAPDA cannot in any manner come under the direct authority of the Government. Every person running the business has to submit income-tax returns to the Income-tax Department for the assess ment of income-tax but it does not mean that the businessman can be said to be doing business under the authority of the Income Tax Department. If the Government wants to watch the working of WAPDA, it does not mean that WAPDA is working by or under the authority of the Government. Subsection (2) of section 22 deals with the funds of the authority and the funds include grants made by the Government loans obtained from the Government, grants made by local bodies as required by the Government sale-proceeds of bonds issued under the authority of the Government, loans obtained by the Authority with a special or general sanction of the Govern ment, foreign aid and loans obtained from the International Bank of Reconstruction and Development or otherwise with the sanction of and on such terms and conditions, as may be approved by the Government. If the Government has made any grant or advance to WAPDA it would not mean that WAPDA is under the direct authority of the Government. But rather the reason for which the Government wishes to have some kind of control over WAPDA is due to the reason that the Government has made grants and loans to WAPDA. By having control over the working of WAPDA, the latter cannot come under the direct authority of the Government. Rather if WAPDA had been functioning by or under the direct authority of the Government, there would have been no need of making provision in the WAPDA Act for interference by the Government and for the Government control. Section 27 makes provisions for the submission of annual statements of accounts to the Government in respect of receipts and expenditure for the next financial year. Section 28 makes a provision that accounts of the Authority shall be audited every year by the Auditor-General of Pakistan in the manner prescribed by the Government. It also provides that the Authority shall carry out any direction issued by the Government for the rectification of an audit objection. This provision rather makes it further clear that WAPDA is not functioning under the authority of the Government otherwise there was no necessity of making a provision that the Auditor-General would inspect the accounts of the Authority. The audit department without any direction from the Government is duty bound to audit every department of the Government which deals with income and expenditure and the department under inspection has to rectify all audit objections made by the auditors. In nutshell the provisions made in the sections referred to by the learned counsel for the appellant rather conversely show that WAPDA is neither being run by the Government, nor under the authority of the Government and is independent. Since WAPDA is working independently for the public interest, the Government is duty bound to watch its working. If the working of WAPDA is not watched by the Government and if it fails, the public will be put to great inconvenience inasmuch as all other power houses where electrical energy was generated, have been stopped and electrical energy is being supplied by the grids of WAPDA so much so that even water is being supplied to big cities by the water works propelled by electrical energy. The learned counsel for the appellant has cited 1982 P L C (C. S.) 613 in support of his arguments. The observations made in this ruling are :- "It is contended by the learned counsel that the petitioner is a civil servant under section 17 (1-B) and therefore, he had a right to be heard before any action was taken against him. It may, however, be noted that under section 17 (1-A) the services of the petitioner could be terminated without assigning any reason. This being a specific provision for a particular category of employee must prevail on the Civil Servants Act particularly when the above provisions had been incorporated by an amendment on 13th September, 1975. In the same sequence it has been further observed :-- "The learned counsel then submitted that the petitioner had a right of hearing under Standing Order 15 of the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It is claimed that thereunder the petitioner had a right of being heard. Even the above provision is of general nature and is of a date prior to the amendment in WAPDA Act referred to above. Consequently the same shall not be operative in favour of the petitioner as he is to be governed by the particular Act under which he is working. In any case section 1(4) (c) of W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 does not apply to the petitioner as he is an employee of a statutory corporation. Reference be made to the case of National Shipping Corporation v. Sind Labour Appellate Tribunal 1975 P L C 1 ;

1. C. P. .Employees Front v. Presiding Officer P L D 1976 Kar. 1176." The employee who was party to the case from which the authority arose had been terminated under section 17 (1-A) and if otherwise the order of termination was competent and covered by section 17(1-A) no question of the application of W. P. Industrial and Commercial Employ ment (Standing Orders) Ordinance, 1968 could arise. When WAPDA Act itself provides that the services of an employee can be terminated by the Authority itself without assigning any reason no question arises that the person concerned was not heard and was not given any chance of production of defence. The question of application of W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 arises in cases not dealt with under section 17 (1-A). It has not been observed in this authority that WAPDA is working by or under the Authority -of the Government or that its rules enjoy the character of statutory rules. So the authority is not helpful. No other ruling has been cited by the learn ed counsel in support of his arguments. The other condition given in proviso to section 1(4) of W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 also does not stand fulfilled. The procedure laid down by WAPDA under section 18 of WAPDA Act does not amount to statutory rules. The mere fact that section 18 empowers the Authority to lay down procedure. for appointment and for laying down the terms and conditions of service is not sufficient to give the character of statutory rules to the said procedure. This is note worth that section 18 does not empower the Authority to frame Efficiency and Discipline Rules. It empowers the Authority only to prescribe a procedure for appointment and for laying down the terms and conditions of service of its officers and servants. This section further says that the Authority shall be competent to take disciplinary action against its officers and servants. In the terms and conditions of service it may be provided how the disciplinary action could be taken but if those terms and conditions are against the provisions of any law which governs the employees of WAPDA then terms and conditions would not be applicable and action can be taken according to the legal provisions. Whatever the case may be, this is clear that section 18 has not empowered the Autho rity to frame Efficiency and Discipline Rules, section 29 empowers the Authority to frame such regulations as it may consider necessary and ex pedient with the approval of the Government. It is not clear from section 29 what kind of regulations can be made and it has been left at the discretion of the Authority to frame regulations as it may consider necessary and expedient. Again section 29 does no'. say that the regulations will be noti fied in the official Gazette. It also does, not say that disciplinary action would be taken according to the regulations framed by the Authority with the approval of the Government. After reading sections 18 and 29 it appears that the intention of the Legislature is not that WAPDA should have its own Efficiency and Discipline Rules for taking action against its employees. If the intention had been that the Efficiency and Discipline Rules be framed by WAPDA, such a provision would have been made in section 18 or in section

29. Needless to say that terms and conditions of service cannot be called statutory rules. Since section 18 does not authorise the Authority to frame Efficiency and Discipline Rules, West Pakistan WAPDA Employees Efficiency and Discipline Rules, 1978 cannot be said to have been framed under the said section. Rules of 1978 cannot be said to be the regulations framed under section 29 because the regulations can be from with the approval of the Government, but the rules of 1978 do not show that the approval of the Government had been obtained. The opening paragraph of the rules clearly shows that there is no mention of the fact that the approval of the Government was taken. The paragraph reads as under :- "In exercise of the powers conferred by section 18 of the West Pakistan Water and Power Development Authority Act, 1958 (West Pakistan Act No. XXXI of 1958) the West Pakistan Water and Power Develop ment Authority is pleased to make the following rules namely." As a matter of fact since these rules had not been framed under section 29, therefore, no question of the approval of the Government arises and only to consider whether these rules can be said to have been framed under sec tion 29, it has been said that since the approval from the Government was not obtained, they cannot be said to be the regulations framed under sec. tion.29. Whatever the case may be, the Efficiency and Discipline Rules of 1978 neither can be said to have been framed and section 18 for the said section does not authorise for the framing of such rules, nor they can be said to be regulations framed under section 29 since the approval of the Government was not obtained. These rules, therefore, have no legal effect. The result is that both the conditions laid down in proviso to section 1(4)(c) of the Standing Orders Ordinance, 1968 do not stand fulfilled and thus WAPDA is not exempted from the application of the said Ordinance.

9. The next point argued by the learned counsel for the appellant is that WAPDA -is, not an industry or industrial establishment. In the alter native it has been argued that the whole of WAPDA cannot be said to be as industrial establishment and only those premises come under the defini tion within the precincts of which articles are manufactured, adapted or repaired. In the same manner it has been argued that WAPDA is not a factory, or at least only that part is covered by the definition of factory where manufacturing process is carried on. I cannot agree with the learned counsel to his arguments that WAPDA is neither an industry, nor a factory, nor an industrial establishment. Of course this question needs examination whether the whole of WAPDA can be called a factory, or an industry or only that portion is a factory where actually manufacturing process is. being carried on. Industry has been defined in section 2(xiv) and it reads as under "Industry means any business, trade, manufacture, calling, service, employment or occupation." The term `industry' is very wide, inasmch as besides business, trade and manu facture even calling, service and employment have also been included in it. Since calling, service and employment have been put in the same thread with business; trade and manufacture, it means that calling service and employment should have the character of business. Accruing of profit, however, is not necessary. The real intention is to be found out. if the intention was to do business then every kind of work even if that amounts to a calling service or employment, it would be covered by the definition of industry. The existence of relationship between. capital and labour is the foremost condition. In WAPDA the condition of relationship between capital and labour is present. Although profit is not a necessary element yet it is present in the case of WAPDA. With a business point of view no work is being done in WAPDA. So far as power wing is concerned electrical energy is produced with the co-operation and co-ordination of employer and workmen and the energy is sold on the basis of profit. Establishment has been defined in clause (ix) of sec' lion 2 of the Industrial Relations Ordinance, 1969, according to which, any office, firm industrial unit, undertaking, shops or premises in which workmen are employed for the purpose of carrying on any industry means establishment. To find out whether WAPDA comes within the definition of industry, the whole of the establishment is to be considered and no part of it can be detached from the other, with the result that the whole of WAPDA would come within the definition of industry. The wings where actually no business, trade or manufacture is carried on are connected and inter-woven with those portions where actually business, trade. manufacture etc. is carried on. The portions where actually no business is done is meant for those portions where actually business, trade and manufacture is carried on and they exist on account of the existence of the main wings where business or trade is being carried on. In the definition of industry there is no restriction that only that part would be included in the definition of industry where actually business, trade, manufacture is being carried on or service is being rendered. Every employee of WAPDA therefore, would be taken to have been employed in the industry since WAPDA is an industry and its offices, industrial unit and undertaking come within the definition of establishment, WAPDA can be-said to be industrial establishment so far the Industrial Relations Ordinance, 1969 is concerned. WAPDA being a industry, Industrial Relations Ordinance; 1969 applies to it.

10. Now the question arises whether WAPDA falls within the definition of industrial or commercial establishment as defined in Standing Orders Ordinance, 1968. Since Standing Orders Ordinance, 1968 can be made applicable as the conditions given in proviso to section 1(4) (c) are not fulfilled, it is necessary to see whether WAPDA is covered by the definition of industrial or commercial establishment. If it falls within the said definition. Standing Orders Ordinance, 1968 would, be applicable but other= wise not. The term `Industrial Establishment' is defined in clause (f) of section 2 of the Standing Orders Ordinance, 1968. The material part of the definition reads as under :- "industrial establishment means. (i) an industrial establishment as defined in clause (ii) of section 2 of the Payment of Wages Act, 1936 (IV of 1936) ; or (ii) a factory as defined in clause (i) of section 2 of Factories Act, 1934 (XXV of 1934) ; or (iii) .." The relevant portion of the definition of the term given in section 2 of the Payment of Wages Act is as under :- "(f) workshop or other establishments in which articles are produced, adapted or manufactured with a view to their use, transport or sale." Admittedly WAPDA is maintaining workshops and such establishments in which articles .such as wires, transformers, polls etc., are produced. adapt or manufactured and they are used by WAPDA to carry on its business. The carry on of business is not necessary ingredient of the definition and it is sufficient that the articles are produced, adapted or manufactured with a view that they be used. Those workshops and other establishments in which articles are produced are covered by the definition of industrial establishment as given in the Payment of Wages Act. If WAPDA comes under the definition of factory as given in the Factories Act, 1934, it will be covered by the definition of industrial establishment as given in the Standing Orders Ordinance, 1968. A factory has been defined in the Factories Act as under :- "factory means any premises, including the precincts thereof, whereon en or more workers are working or were so working on any day of the preceding 12 months, and in any part of which a manufacturing process is being carried on or is ordinarily carried on, with or with out the aid of power, but does not include a mine subject to the opera tion of the Mines Act of 1925". Since carrying on manufacturing process is a necessary ingredient of the definition of factory it is necessary to see what is meant by the term `manu facturing process'. The term has been defined in clause (g) of section 2 of the Factories Act and it reads as under :- "manufacturing process" means any process (i) for making, altering, repairing, ornamenting, finishing or .packing or otherwise treating any article or substance with a view to its use, ` sale, transport, delivery or disposal ; or (ii) for pumping oil, water or6sewage; or . (iii) for generating, transforming or transmitting power". Since wires, transformers, polls etc., are made and repaired in the Factories and workshops maintained by WAPDA and those articles are used and as pumping of water is done and electrical energy is generated; transformed to step down potentiality and is transmitted in other words distributed, it can be said that manufacturing process is being done by WAPDA. Thus WAPDA comes under the definition of. factory. Now it is to. be seen whether whole of WAPDA would be covered by the definition of factory or only some of its portions. The places which come under the definition of factory are only the premises including the precincts thereof would be covered by the definition of factory, but not the places situated outside the premises. But the places where manufacturing process is being carried on, such as pumping of oil or water and generation, transformation and trans mission or power, the whole of thing mentioned for the purpose would be covered by the definition of manufacturing process. So far as generation and transformation is concerned, the places where generators are installed and transformers are fixed, they may be surrounded by four corners and it may be said that no generation and transformation is being carried on outside those places. but so far as the distribution or in other words trans mission of electrical energy is concerned, no place can be bounded by four corners. Not only in cities but even in rural areas there arse transmission lines therefore, it is impracticable to fix the precincts of a factory. The result is that so far as power wing of W APDA is concerned the whole of the wing is a factory. . In the present case we are concerned with the power wing only, therefore, needless to discuss the point in relation to the other wings. How ever, the workshops and other installations which can be bounded by four corners and where articles are being manufactured, repaired with a view to their being used, only those premises will be -covered by the factory and not the places out of them. The clerical departments situated outside the precincts of the factory would not be covered by the definition, but Standing Orders Ordinance is applicable to them because they come within the defini tion of commercial establishment. The term is defined in clause (b) of section 2 of the Standing Orders Ordinance, 1968 and it reads as under :- "commercial establishment" means an establishment in which business of advertising commission of forwarding is conducted, or which is commercial agency, and includes a clerical department of a factory, or of an industry, or commercial undertaking " No factory can carry on its business without the clerical department and where clerical department is not situated within the precincts of the premises of the factory the departments would be covered by the definition of com mercial establishment and thus would be governed by the Standing Orders Ordinance, 1968.

11. On the factual side it has been argued that so far Usman Khalid, respondent is concerned that he is not covered by the definition of workman given in the Industrial Relations 'Ordinance, 1969, inasmuch as he was Incharge of the two grid stations and his duty was supervisory. His basic pay, according to bill of December, 1980 was Rs. 660 plus dearness allowance of Rs. 55 and special pay of Rs. 150 totalling Rs.

865. There is no duty roster on the lower Court file but the uncertified copy of the duty roster marked `A' is on the appellate file, which has been referred to by the learned counsel for the appellant in his arguments. Although this is an unattested copy, yet since the appellant relies upon it, disproves his case, and it doe not prejudice the case of the respondent, but helps him it can be looked into. The duties enumerated in this document are as under: - "The details of the duties which are to be carried out by SSO incharge are as follows :- (1) Shift Duty SSO incharge is supposed to give 3 shift duties in a week to give weekly rest, to each of the SSOs posted in this grid station, (2) Daily, General Inspection of equipment installed in the yard and control room including, (a) Checking oaf oil levels of all the equipment. (b) Up-keep-of D. C. supply and ensuring its healthiness. (c) Safety of seals of KWH meters and other equipment. (d) Check electrolyt level and to top up distilled water in the cells of the trip battery. (e) Check oil level and top up oil, if required in main compressors. (f) Drain moisture from air, tanks and air pipes. (g) Check that rectifier elements are not running too hot and rectifier is not overloaded. (h) See that all earth connections of all the requirement are intact. (i) Record readings of counters of lighting arresters. (j) Maintain correct of clock in the control room at least once a day. (k) Check any loose connections of bus bar connectors, jumpers and droppers in the yard during night after putting off yard lights. (l) Note transformer temperature for Danger Limit. (3) Weekly (a) Check and record voltage and specific gravity of all the cells of the station battery. (b) General cleanings of all the equipment upto date, including shining of Brass parts. (4) Monthly (a) Check terminal connecting of battery and clean and lubricate terminal with white jelly. (b) Lubricate all bearing of fan motor, pump motor and tap changer gear wherever available. (5) Quarterly (a) Vermin proofing on H. V. and L. V. panels. (b) Clean lubricate and attend to operating mechanism and contacts for smooth working of isolator. (c) Clean, lubrication and attend to operating mechanism to H. V. breakers. (6) Half-yearly: Checking and cleaning of 11 KV bus bar chambers insulators and spouts cable boxes. C. Ts., etc., inspection of insulation of 11 KV bus bar including outdoor 1I KV bus. (7) Yearly (a) Replacement of auction and delivery valves of all the com pressors. (b) Paint all the air pipes and other equipments wherever necessary. (8) Non-Schedule (a) Clean gauge glasses thoroughly and remove any spots oil marks and dust particles inside gauge glasses. (b) Check and tighten all nuts and bolts and terminal connection of all the equipment and gantrics. (c) Attending motor oil leakages from power transformers and other -- equipments. (d) Re-conditioning of silica jelly of breaker of power transformers and auxiliary transformer. (e) Replacement of mobile oil of compressors after limit of running hours as prescribed by manufacturers. (f) Replacement of time limit buses for A. C. Protection, wher ever installed with proper capacity ones including rewiring of fuses. (g) Replacement of liquid fuses with proper capacity pipe at the time of their blowing and assessment of cause. (h) Replacement of fuses indication lamps. (i) Clean section filter of compressor wherever necessary especially daily during stormy days, (j) Replacement of oil in 11 KV breakers as prescribed, and to replace/ dress up contacts when necessary. . B-1: Various charts and statements as per list enforced by Head Office shall be submitted by SSO incharge to GSD GSO by the 1st of the following months HC: (a) 11 KV tripping statement. (b) Units received and sent out. (c) Maximum load return. (d) Maintenance Report of electrical equipment. (e) Tripping reports on 66 KV and above for below and above 20 minutes. B-2: Following registers shall be maintained by the Station Operator incharge :- (a) Register of assets. (b) T & P register. (c) Material at site account register. (d) Lamp register. (e) Permanent fixture register. (f) Quarter allot and register. (g) Dismentlement register. (h) Drawings register. (i) Stamps register. (j) Tree register. (k) Building register. (l) Incident register. (m) Literature register. (n) Casual ledger register. (o) Equipment maintenance register. (p) Inspection register. (q) All drawings, literature. The above include sending of various returns and preparation of various charts for display in grid stations. (9). General Duties: Maintenance of emergency stores to watch and ward staff, lightening of the compound, general cleaning water supply arrangement etc." It is clear from the duties given in document 'A' that Usman Khalid, respondent had not to supervise the work of any person at the grid station where he was employed. He had to check implements and the machinery which was a manual work to be done -by him. It is not mentioned in this document that the said respondent had to get this work done by some other Person under his supervision, but rather it shows that he had to do this work himself. Besides doing manual work the said respondent had to prepare charts and statements mentioned in paragraph B-1 and to maintain registers mentioned in Paragraph B-2. He had to send various returns and had to prepare various charts for being displayed at the grid station. He, therefore, had no supervisory duties. Even though his pay exceeded Rs. 80 yet he does not fall within exception (b) of clause (xxviii) of section 2 and does not stand excluded from the definition of workman. He is covered by the definition of workman given in section 2(i) of the Standing Orders Ordinance, 1968 also since his duties were as mentioned above, manual as well as clerical.

12. It has also been argued that Usman Khalid, respondent, was a civil servant. This argument is also devoid of force. The said respon dent was employed in the power wing and is covered by the definition of workman given in section 2(n) read with clause (xix) of Schedule-.II of the Workmen's Compensation Act. According to the definition of civil servant, given in the Civil Servants Act, the employees who come within the defini tion of workman given in section 2(n) read with Schedule-II of the Work men's Compensation Act or within the definition of worker given in the Factories Act are excluded from the definition of civil servant. So far as this point is concerned that it is necessary to look into the definition of civil servant before deciding whether a particular person is or is not a civil in servant, I have already discussed in the earlier paragraphs of this judgment. I therefore, hold that Usman Khali d, respondent, was not a civil servant but a workman.

13. The learned counsel has argued that the allegations made against Usman Khalid respondent did not amount to misconduct, therefore, even if it be assumed that Standing Orders Ordinance, 1968 applies, making of enquiry under Standing Order 15(4) was not necessary. The allegations contained in the charge-sheet are as under:- "(1) The control room and shades were full of cobwebs. (2) The bath room was not cleaned regularly. (3) The tripping charts were not maintained day to day and there was no indication to show after which tripping the oil was checked and tested. (4) The voltage and specific gravity readings of the battery cells were fictitious and only a perfunctory record was maintained. (5). One of the trolleys could not be taken out smoothly and this defect was neither noticed nor attended to." It is further mentioned in the charge-sheet:- "If the above allegations are proved you will be guilty of misconduct/inefficiency etc. etc. under the rules referred to above and will render yourself liable to all or any of the penalties described in rule 4 ibid." So far as items Nos. 1 and 2 are concerned, it shows that it was the duty of some other person to clean the control room and the shades and the bath room and he was not performing his duties. The fault of Usman Khalid was that he did not report against the said employee. The duty roster does not show that the said respondent had been given any power to take action himself against the defaulter, there fore; he could only report the matter to the higher authorities. Failure on his part to report the higher authority did not amount to misconduct. So far as item No. 3 is concerned, the allegation is not that oil was never checked and tested, but the allegation is that tripping charts were not maintained day to day and there was no indication to show after which tripping the oil was checked. It is clear that the charts were not properly maintained which did not amount to misconduct. However, Item No. 4 shows that the said respondent was guilty of misconduct. The allegation was that the voltage gravity reading of the battery cells were fictitious and the perfunctory record was maintained. It means that neither voltages were checked nor gravity of the mixture was observed and fictitious record was maintained. It amounts to firstly neglect of duty and secondly prepara tion of false record and thus the allegation amounted to misconduct. The allegations contained in item No. 5 did not amount to misconduct. The trolley was found to be defective and the matter was not reported to the higher authorities for its replacement or repair. Standing Order 15(4) of the Standing Orders Ordinance, 1968 says that no order of dismissal shall be passed unless the workman concerned in writing of the alleged miscon duct within one month of the misconduct, or within one month of the knowledge of the commission of such misconduct, and is given an oppor tunity to explain the circumstances alleged against him. It further provides that the approval of the employer shall be required in every case of dismissal and the employer shall institute independent enquiries before dealing with the charges against the workman. This is apparent that only in cases where order of dismissal is to be passed, the procedure laid down in Standing Order 15(4) is to be followed. According to Standing Order 12(5), even the order of termination of service cannot be passed on the ground of mis conduct, without following the procedure contained in Standing Order 15 in the present case neither Usman Khalid was dismissed, nor his services were terminated, but he was only censured. So although the allegation was of misconduct; yet Standing Order 15(4) was not applicable and the punishment awarded was not hit by any provisions of Standing Orders Ordinance, 1968.

14. So far as the case of Shaflq-ur-Rehman is concerned, it has been argued that he was not a workman, inasmuch as he was a Chowkidar. No such objection was raised in the written statement; therefore, now it is too late for the appellant to raise the question of fact. Since no such point was raised, therefore, none of the parties produced evidence oral or documentary regarding the duties. Every kind of Chowkidar cannot be said to be not covered by the definition of workman, but only on account of the duties it can be said whether he is covered by the definition or not. Certain Chowkidars discharge clerical duties also such as Chowkidar/gate keeper of a factory. They check passes and make entries in the relevant registers. They also check goods going out of the factory and make entries in the relevant gate register. There are certain Chowkidars who do manual work and thus can be covered by the definition of workman. Some Chowkidars have not to do even manual work, therefore, they cannot be said to be workmen. Since in the present case no plea was taken, the respondent did not lead evidence on this point. The objection, therefore, is overruled.

15. The charge against Shafiq-ur-Rehman was that he was absent from 1st December, 1980 to 6th December, 1980. According to the Standing Order 15(3xe), absence for more than ten days amounts to misconduct, for which the punishment of dismissal can be awarded, Shafiq-ur-Rehman remained absent for six days and not for more than ten days, therefore, his absence did not amount to misconduct. 1 have observed above that Standing Orders Ordinance, 1969 is applicable and that there are no statutory rules of WAPDA. As no misconduct was committed by the said respon dent, he could not be dismissed.

16. It has also been argued that Shafiq-ur-Rehman was a civil servant and, therefore, the Labour Court had no jurisdiction. The respondent was employed in the power wing and thus is covered by the definition of work man given in section 2(n) read with clause (.vi-Y) of Schedule-II of the Work men's Compensation Act and therefore was not a civil servant. As observed above, the clerical departments of factories come within the definition of commercial establishment and that Standing Orders Ordinance, 1968 is applicable in case of Shafiq-ur-Rehman, respondent. Even otherwise the distribution of electrical energy is made from the sub-stations whereby means of step down transformers the high tension is decreased to low tension i. e. 440 or 220, therefore, it can be said that the respondent was employed in the distribution of electrical energy which work can be done not only within the precincts of any premises, but is done upto the places where electrical energy is distributed or supplied. The respondent, therefore, stands ousted from the definition of civil servant.

17. As a result of the observations made above, the appeal brought against Usman Khalid, respondent, is accepted, the impugned decision- of the learned lower Court set aside and the punishment of censure is restored. The appeal brought against Shafiq-ur-Rehman, respondent, has no merits and is dismissed, A. E, Appeal dismissed