1998 PLP 9 (PLC)

Syed Iqbal Hussain Shah for Petitioner. Riaz Ahmed Chaudhry for Respondents. Date of hearing: 2nd December, 1996. This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question the series of orders passed by the learned Member, National Industrial Relations Commission, Lahore Bench at Lahore, respectively on 25-7-1996, 4-8-1996 and 12-8-1996 whereby the orders containing interchange transfer of petitioner and respondent No. 2 were initially suspended and the said suspending orders were subsequently ordered to be implemented.

2. The facts forming subject-matter of this petition are that the petitioner was posted as SSO-II, Daraban, Dera Ismail Khan while respondent No. 2 was posted as SSO-111 at 66 K.V. GSS Band Kurai when respondent No. 3 on 2-7-1996 issued posts swapping order thereby transferring the petitioner to the post of respondent No. 2 while respondent No.2 was transferred to the post of the petitioner. According' to the petitioner/respondent No. 2 absented from his duties while the petitioner joined at the post to which he was transferred. Respondent No. 2, however, proceeded to challenge the above said order before the N.I.R.C. by way of a petition which was entertained by respondent No. 1 being the Member to the said Commission, who proceeded to suspend the transfer order vide his order dated 25-7-1996. It was later on complained by respondent No. 2 that the suspending order is not being implemented with the result that respondent No.1 proceeded to pass two orders dated 4-8-1996 and 12-8-1996 thereby directing that the suspending order be implemented.

3. The petitioner being aggrieved of the abovesaid series of orders passed by respondent No. 1 has proceeded to challenge the same through the present Constitutional petition inter alia on the ground that the WAPDA employees having been declared to be civil servants vide section 17(1-B) of the WAPDA Act, 1958, the N.I.R.C. had no jurisdiction to entertain the grievance petition of respondent No. 2 and that the order entertaining the petition as also suspending the transfer order of the petitioner is wholly without jurisdiction. This petition was entertained to consider the question aforenoted. Respondent No. 2 having entered appearance has raised preliminary objections to the maintainability of this petition on the ground of territorial jurisdiction and that no Constitutional petition is maintainable against an interim order. As far the main question as to whether the WAPDA employees are civil servants or that some distinction has been made in regard to some of the employees of WAPDA, judgment of the Supreme Court rendered in WAPDA v. Muhammad Ashraf Naeem (Civil Appeal No. 305 of 1986) was relied to contend that the persons connected with the generation of energy were treated to be workmen within the meaning of the term defined under the Workmen's Compensation Act, 1923 (Clause XIX of Schedule 11 was specifically relied). Learned counsel for the petitioner in reply relied on sub-clause (111) of clause (b) of section 2 of the Civil Servants Act, 1973 to contend that the term "civil servant" as defined in the Civil Servants Act, 1973 did also include a worker or workman as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923).

4. This being a petition against the interim order, it was entertained to consider the limited question as to whether the employees of WAPDA were civil servants and as such not amenable to the jurisdiction of National Industrial Relations Commission. The exception pleaded and debated by the counsel for respondent No. 2 is dependent on one fact only as to whether the petitioner and respondent No. 2 are in any manner connected with the generation and transformation of energy or not. Since it was conceded by both the learned counsel for the parties that the petitioner and respondent No.2 are connected with generation and transformation of energy, therefore, the rule of law laid down in WAPDA v. Muhammad Ashraf Hassan (Civil Appeal No. 305 of 1986) is squarely applicable in the facts and circumstances of this case wherein it has been held that the case of the persons employed by WAPDA who were connected with the generation and transformation of energy were workers or workmen within the meanings oil the words as defined in Factories Act, 1934 or the Workmen's Compensation Act, 1923 and as such were amenable to the jurisdiction of N.I.R.C. if a proper case is made out under the law applicable thereto. This being the declared law and the learned counsel for the respondent having failed to present any judgment of the Supreme Court to the contrary, I respectfully follow the dictum of the Supreme Court to hold that the petitioner and respondent No. 2 are workers or workmen, therefore, their case is one o: exception and would not be covered by the definition of civil servants as contained in section 2 of the Civil Servants Act, 1973. This being so respondent No. 2 could invoke the jurisdiction of N.I.R.C. to seek redressal of his grievance. The allied question as to whether it was a case of any unfair labour practice or the other questions relating to the proceedings presently pending before the Member, N.I.R.C. shall of course be determined by respondent No. 1 during the course of hearing of the petition pending before him. I have specifically refrained myself from entering upon the controversy forming subject-matter of the abovesaid question because in doing so I may not inadvertently be usurping the jurisdiction of N. I.R.C.

5. For the reasons stated above this petition is found to be incompetent, therefore, the same is dismissed with no order as to costs. A.A./A-183/L Petition dismissed.