1997 PLP 142 (PLC)

Hafiz Muhammad Yunus, Representative for Petitioners. Syed Manzar Alain for Respondent.

1. This is a petition under section 22‑A(8)(g) of the I.R.O., 1969 wherein the petitioners contend that they are the employees of the establishment of WAPDA at Kunjah Sub‑Division, District Gujrat and are also active members of Executive Body of Pakistan WAPDA Hydro Electric Central Labour Union for Kunjah Sub‑Division. It was contended that they have been victimised by the respondent due to their lawful trade union activities and the respondents were bent upon terminating their services on false and fabricated grounds. Considering such averments interim injunction order was granted in favour of the petitioners on 5‑1‑1994.

2. The petition was strongly contested by the respondents by way of filing of written statement and rejoinder to the stay application wherein certain preliminary legal objections as to the maintainability of the petition were also raised. .

3. I have heard both the learned counsel for the parties and have considered the documents on record.

4. The main objection as to the maintainability of the petition raised by the learned counsel for the respondents is that the employees of the WAPDA have been declared as civil servants within the scope of section 17(1‑b) of WAPDA Act, 1958, therefore, Service Tribunal under Service Tribunals Act, 1973 has got exclusive jurisdiction and this Commission cannot entertain the petition in hand. The reliance was made to the case‑law i.e. Chairman, Area Electricity Board, WAPDA, Islamabad v. Dost Muhammad etc., reported in 1995 PLC page 289, wherein the learned Member, Labour Appellate Tribunal Punjab, mainly referred the law laid down by the Honourable Supreme Court of Pakistan in a reported case i.e. Government of Balochistan and others v. Shabbir Ahmad and others 1990 SCMR 1133 and the basic authority/case‑law in this behalf i.e. WAPDA and others v. Muhammad Arshad Qureshi and others reported in 1986 SCMR page

18. At this stage I would like to observe that although the Honourable Supreme Court of Pakistan while discussing the jurisdiction of the Service Tribunal under the Service Tribunals Act and in view of the scope of Articles 212 and 260 of the Constitution of Islamic Republic of Pakistan, 1973 has considered the effect of scope of section 17 of the WAPDA Act, 1958, but the scope of jurisdiction of this Commission under section 22‑A(8)(g) of the I.R.O., 1969 i.e. to deal with the cases of unfair labour practice within the meaning of sections 15 and 16 of the I.R.O., 1969, in case of a workman, who is also a Government servant, was never before the Supreme Court of Pakistan while discussing the said case i.e. reported in 1986 SCMR page

18. In my view a civil servant as defined under Service Tribunals Act, may also qualify the definition of workman/worker within the meaning of section 2 of the IRO, 1969, at the same time and the bar contained under Article 212 of the Constitution of Islamic Republic of, Pakistan, 1973 apply only in respect of the matters which are under the exclusive jurisdiction of the Service Tribunal, constituted under the Service Tribunals Act, 1973 and not with regard to the other matters which comes under the jurisdiction of this Commission, under the afore quoted provisions of the IRO, 1969. The definition of the workman as, defined by the provisions of section 2(xxviii) of the IRO, 1969 is necessary to be reproduced as under: "2(xxviii) 'worker' and 'workman' means any person not falling within the definition of employer who is employed (including Employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and, for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute but does not include any person‑‑ (a) who is employed mainly in managerial or administrative capacity, or (c) who, being employed in a supervisory capacity, draws wages exceeding eight hundred rupees per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. " After going through this provision, it is clear that there is nothing to create a bar upon a person even if he is employed by the Government i.e. as 8 civil servant, to qualify the definition of workman and therefore a civil servant may also be a "workman" at the same time. It is also necessary to observe that employees of WAPDA are also treated as workmen within the leaning of the said definition and their trade unions have also been registered and are functioning throughout the country. There is no bar obtained by any law for the time being in force in the country to debar a civil servant from becoming a "worker or workman" within the definition of section 2(xxviii) of the I.R.O., 1969. However, in view of the law, as interpreted by the Honourable Supreme Court of Pakistan in the said reported case i.e. 1986 SCMR page 18, it becomes clear that all the employees of the WAPDA have been declared as civil servants and therefore all the matters defined under the provision of Article 212 of the Constitution of the Islamic republic of Pakistan would definitely come within the jurisdiction of the Service Tribunal, constituted under Service. Tribunals Act, 1973 and there cannot be any exception to this proposition but at the same time, as discussed above, the employees of WAPDA if qualify to be a worker/workman under the provisions of clause (xxviii) of section 2 of the IRO, 1969 and is also a victim of unfair labour practice, within the meaning of sections 15 and 16 of the IRO, 1969, then he can invoke the jurisdiction of this Commission under the provision of section 22A(8)(g) of the IRO, 1969. In my view the test or criteria for the exercise of jurisdiction by this Commission in respect of employees of WAPDA under the provision of section 22A(8)(g) of the I.R.O., 1969 would be the "commission of unfair labour practice within the meaning of sections 15 and 16 of the I.R.O., 1969" which is otherwise one of the essential elements for the lawful exercise of jurisdiction by this' Commission under the provision of section 22A(8)(g) of the I.R.O., 1969. Therefore, in the present judicial system both the Special Courts i.e. Service Tribunal under the Service Tribunals Act, 1973 and this Commission constituted under provisions of I.R.O., 1969, are simultaneously exercising jurisdiction in the matters which are falling under their respective jurisdiction, in respect of the employees of WAPDA and therefore, when there is a case of unfair labour practice within the meaning of sections 15 and 16 of the I.R.O., 1969 in respect of the establishment of WAPDA i.e. employer or employees, this Commission has got jurisdiction under the provisions of section 22A(8)(g) of the I.R.O., 1969 to adjudicate upon. Neither such jurisdiction has been taken away by the Honourable Supreme Court of Pakistan in the said reported case‑law i.e. 1986 SCMR page 18 nor it could be. lawfully taken away. Therefore, the case‑laws referred in this behalf are distinguishable and it is held that in respect of all the cases of unfair labour practice defined under sections 15 and 16 of the I.R.O., 1969, this Commission has got exclusive jurisdiction under the provisions of section 22‑A(8)(g) of the I.R.O., 1969, but not with regard to the matters regarding the terms and conditions of service of the WAPDA employees as explained in detail by the Honourable Supreme Court of Pakistan in the said reported case i.e. 1986 SCMR page 18.

5. As a result of the above discussion the objection is overruled and the case is proceeded further. Separate order sheet is maintained. H.B.T.//278/NIRC?????????????????????????????????????????????????????????????????? ??????????? Order accordingly.