1989 PLP 894 (PLC)

Zawar Hussain Jafferi, AA.‑G. for Official Respondents (in all Petitions). Tauqeer Hasan for Respondents Nos. 1 to 4 (in C.P. No. 314 of 1986). Shaikh Amanullah for Respondents Nos. 1 to 14 (in Civil Petition No. D 267 of 1987). Dates of hearing: 17th, 18th, 19th and 24th April, 1989. SAJJAD ALI SHAH, J.‑‑On 24‑4‑1989 after hearing the counsel appearing in these petitions mentioned above we dismissed the same for reasons to be recorded later which follow now. We propose to dispose of these three petitions by single judgment for the reason that common questions of law and facts are involved in these petitions. In C.P. No. 310 of 1986 impugned order is, dated 16th October, 1986 passed by Commissioner Workmen's Compensation and Authority under the Payment of Wages Act at Sukkur (hereinafter to be referred as the Authority) whereby application of respondents Nos. 3 to 500 filed under section 15/16 of the Payment of Wages Act (hereinafter to be referred as the said Act) for delayed wages pertaining to the claim of gratuity, earned leave and notice pay is allowed for payment to the tune of Rs.17,95,995 including costs. In C.P. No. 314 of 1986 impugned is judgment, dated 7th October, 1986 of Labour Court No. VII Sukkur, whereby appeal of respondents Nos. 1 to 4 in this petition is allowed declaring them to be entitled to the payment of Rs.53,616 on account of gratuity and earned leave. In Civil Petition No. 267 of 1987 impugned is order, dated 12th September, 1987 passed by the Authority whereby claim of respondents 1 to 14 in this petition is allowed for payment to the extent of Rs.2,18,600 in connection with reliefs claimed by them. Dispute between the parties is that according to private respondents in these petitions they were employed by petitioner WAPDA on workcharge basis for the claim period and subsequently their services were transferred alongwith Project to their parent departments impleaded in these petitions as respondents. It is further claimed by these respondents that as long as they worked with petitioners, no service benefits were given to them and they were drawing salary of less than Rs.1,000 as such they were employees of workcharge establishment and were governed by Labour Laws including West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. As against this case of petitioners is that private respondents had worked with petitioners on the Project and after completion of project they have been transferred from WAPDA to Irrigation Department, Government of Sind. Claims of private respondents allowed by the Authority and in appeal by the Labour Court as stated above are disputed on the round that WAPDA having been declared as essential service, is governed by Pakistan Essential Services (Maintenance) Act of 1952 and as per section 17(1‑B) every person holding a post shall be deemed to be a civil servant for the purpose of Service Tribunals Act, 1973 including those who are on deputation to the Authority from any province. Claim of private respondents that they are governed by Labour Laws including West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is denied by the petitioners and even jurisdiction of the Authority and that of Labour Court in appeal is challenged by the petitioners. It appears from the impugned orders that keeping in view the divergent pleadings of the parties, four common issues were framed as under:‑‑ (1) Whether Commissioner's Court has jurisdiction? (2) Whether employees were civil servants? (3) Whether employees were not paid gratuity, earned leave and notice pay upto 30‑6‑1984 when they were transferred? (4) Whether employees were entitled to reliefs claimed by them" During the hearing of these petitions at the very outset objection was raised on behalf of private respondents that these petitions are liable to be dismissed on the short ground that against the order of the Authority appeal is allowed under section 17 of Payment of Wages Act before Labour Court but the same was not done and no appeal was filed. In fact such step was taken and appeal was filed in Civil Petition No. 314 of 1986 in which order/judgment is passed by Sind Labour Court No. VII, Sukkur. Mr. Jatoi appearing for petitioners stated that appeal was not filed by the petitioners but was filed by private respondents because their claim for gratuity and encashment of casual leave was disallowed by the Authority. Persual of the impugned judgment of the Labour Court shows that claim of private respondents was rejected on the ground that they were receiving salary of more than RS.1,

000. In this context attention of the Labour Court was drawn to the amendment made in subsection (6) of section 1 of Payment of Wages Act whereby "rupees one thousand" were substituted by "rupees one thousand five hundred". Furthermore, impugned judgment also shows that petitioner was represented by the counsel before the Labour Court. No objection as is now taken against the jurisdiction of the Authority was taken before the Labour Court in the same manner. Paragraph 8 of the impugned judgment which is relevant in the present context is reproduced as under: The respondents contested the above application and riled their reply statement. On behalf of WAPDA the contents of paras. 1 to 3 of the application under section 15 of the Payment of Wages Act were admitted. It was denied that the applicants were entitled for the encashment of earned leave as they could have enjoyed the earned leave during their tenure. It was further contended on behalf of WAPDA that the applicants are not legally entitled for gratuity, encashment of earned leave and one month's notice pay as they were borne on work-charge establishment and their transfer was on the same cadre. Besides this, it was also contended that the above applications were not in proper form and not maintainable in law. It was also contended that the applicants are appointed on work‑charge basis and their services with WAPDA are of casual nature and could be terminated at any time without any notice. Confronted with the situation as to why objection with regard to jurisdiction of Authority was not taken before the Labour Court as per observations made in the case of M. U. Malik v. WAPDA reporter in 1983 SCMR 663, as is stated in ground No. 2 in the memorandum of this Constitutional petition, Mr. Jatoi stated that order suffering from lack of jurisdiction could be challenged in the writ jurisdiction straightaway and in support of the contention he has put reliance upon the case of WAPDA v. Muhammad Arshad Qureshi reported in 1986 S C M R 18 in which it has been held that Service Tribunal alone has jurisdiction to adjudicate with regard to terms and conditions of WAPDA employees to the exclusion of jurisdiction of all other Courts, tribunals and commissions as is envisaged in section 17 of the WAPDA Act read with sections 4 and 6 of Service Tribunals Act, 1973. We shall take up this point further later for the reason that it is connected with common issue of Jurisdiction. 1n the common issues mentioned above issues Nos. 1 and 2 are interconnected and can he taken up together for the reason that issue No. 1 relates to jurisdiction of the Authority and issue No. 2 relates toy status of private respondents as to whether they are civil servants or not. On flu, point divergent stands have been taken. Mr. Jatoi on behalf of petitioners has submitted that private respondents being employees of WAPDA are Government servants while on the other hand counsel for private respondents have stated that private respondents, are not civil servants but are workmen. "Workman" as such is not defined in the Payment of Wages Act but in paragraph (vi) of section 2 "wages" is defined to mean all remuneration capable of being expressed in terms of money, which would, if terms of contract of employment, express or implied, are fulfilled, be payable, whether conditionally upon regular attendance, good work or conduct or other behaviour of the person employed or otherwise, to a person employed in respect of his employment or of work done in such employment and includes any bonus or other additional remuneration of the nature aforesaid which would he so payable and sum payable to such person by reason of termination of employment but doe‑, not include Section 15 of Payment of Wages Act provides for appointment of Commissioner for Workmen's Compensation to decide all claims arising out of wages or non‑payment of dues relating to provident fund or gratuity. Preamble of Payment of Wages Act is very clear and covers employees in industry and in factory. Section 2(n) of Workmen's Compensation Act, 1923 defines "workman" to mean any person (other than a person whose employment is of casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is (i) railway servant, not permanently employed in any administrative district or sub‑divisional office (ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in second schedule. It was submitted by the learned counsel of the petitioners that Payment of Wages Act is not applicable to WAPDA because WAPDA has special status and set up under special law and is not a factory or industry as contemplated under the Payment of Wages Act. In this respect our attention was drawn to the provisions of WAPDA Act, 1958. Section 17 of WAPDA Act empowers the authority set up thereunder to employ such officers and servants or appoint such experts or consultants as it may deem fit. Section further envisages that persons serving in connection with the affairs of Province in the Electricity and Irrigation Department shall be liable to serve under the Authority, if required to do so by the Government, on such terms and conditions as the Government may, in consultation with the Authority determine but shall not be entitled to any deputation allowance. Section 17(1‑B) provides that service under the Authority is service of Pakistan and every person holding a post under the Authority not being a person on deputation to the Authority from any Province, shall be deemed to be civil servant for the purpose of Service Tribunals Act, 1973. Mr. Jatoi then contended that private respondents in these petitions are employees of WAPDA, as such forum open to them for redress of their grievance is Service Tribunal in support relinace is placed by him on the case of WAPDA and another v. Muhammad Arshad Oureshi reported in 1986 S C M R

18. Most crucial question which arises for consideration is whether respondents in these petitions are employees of WAPDA as claimed by Mr. Jatoi or they are not regular employees and are excluded. It is held by the Supreme Court in the case mentioned above that Service Tribunal alone has jurisdiction to adjudicate with regard to the terms and conditions of WAPDA employees as from 30‑9‑1975 and that jurisdiction of all other Courts, Tribunals, Commission was affected by section 17(1‑C) but not that of Service Tribunal itself. We are of the view that private respondents in these petitions arc not and were not employees of WAPDA for a variety of reasons stated below. Firstly section 17(1)(1‑Bj 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. On the other hand documents produced by Mr. Jatoi refute his claim. Mr. Jatoi has produced the office order dated 31‑7‑1978 in respect of Muhammad Umar son of Fakir Muhammad who was appointed as tube-well operator on work‑charge establishment. In the conditions mentioned in the office order it is stated that his services arc purely temporary and can be terminated at any time without notice and further he will be governed by the Authority's Rules m force as amended from time to time for workcharge establishment and further that he would give 10 days notice in case he leaves the job else his pay will be forfeited. Fourthly some rules were produced by Mr. Jatoi before us but they arc rules regarding Pakistan WAPDA Pension Rules, 1977 and it is mentioned therein that these rules will not apply to WAPDA employees paid from contingency or who arc on work‑charge establishment. Mr. Jatoi also produced West Pakistan Workcharge WAPDA Leave Rules, 1972 and 1976. Plc also produced before us rules in respect of gratuity and family pension of regular WAPDA employees but could not produce any such rules for the benefit of employees on workcharge basis and m such circumstances we are of the view that Commissioner Workmen's Compensation and Authority had jurisdiction to deal with the claims of the respondents as contemplated under the Payment of Wages Act. Lastly reference can be made to the Notification of Government of Sind, Irrigation and Power Department, dated 17th May, 1984 which shows that Government of Sind was pleased to accept the transfer of the Administrative Control of three Projects from WAPDA with effect from 1st July, 1984 in respect of works executed which are specified therein. The projects were taken over under the administrative control of the Chief Engineer, Irrigation, Development Region, Hyderabad. All the documents mentioned above clearly show that private respondents in these petitions were workmen on workcharge establishment in the parent department as well as with WAPDA when they were there during the execution of projects. In such circumstances no exception can be taken to the orders which are impugned in these petitions on the ground of jurisdictional defect. Petitions merit dismissal and are dismissed as such. A.A./P‑109/K Petitions dismissed.