1999 PLP 1 (PLC)

The facts giving rise to the filing of the present writ petition, as they can be gathered from record, briefly stated, are that Rizwan Ali respondent was appointed as a cleaner in BPS‑l (920‑‑26‑‑1310), in the work‑charge establishment, by the writ petitioner, vide appointment order dated 14‑11‑1993, purely on temporary basis. He continued to perform his duties. His salary for the months of December, 1994 and January, 1995 was, however, withheld by the department on the plea that he was appointed for a specific period and against a specific work and after the funds had exhausted he was removed from service vide letter dated 1‑12‑1994 as per clause (2) of the appointment letter. The respondent, however, claimed in his petition under section 22‑A(8)(g) of the Industrial Relations Ordinance that the department disliked his activities because he was an active member of the work‑charge staff (C.B.A. Union) and had been taking keen interest in Trade Union activities and it was on that account that he was victimised. He claimed that he had become a permanent employee of the department by operation of law as he had put in more than nine months' service and, as such, the department had no authority to withhold his salary, which he had earned as wages particularly so, when the services of many other persons junior to him had been regularised and they had been confirmed, but a discriminatory treatment was given to him and his services were terminated along-with certain other work‑charge staff without giving him any show‑cause notice and an opportunity of being heard. He, therefore, prayed that he be allowed to perform his duty with all back benefits and the department be directed not to commit any further unfair labour practice.

2. In reply the department though admitted that the respondent had been appointed on purely temporary basis on 14‑11‑1993 and his services were terminated on 1‑12‑1994 yet maintained (i) that since the department was connected with the affairs of the State the Industrial Relations Ordinance was not applicable; (ii) that the respondent had no right/authority to file the petition as he was no more an employee; and (iii) that the work‑charge staff had no right to file the application.

3. Both the parties swore in their affidavits in evidence and after going through the record and hearing the arguments addressed at the Bar the learned Member of the Commission accented the petition and held that the department had no authority to withhold the wages of the petitioner and to terminate his services because he had become a permanent employee. Resultantly the order, dated 1‑12‑1994 was held illegal, nullity in the eye of law and was accordingly set aside with a direction to the department to re instate the employee with all back benefits.

4. This order dated 26‑4‑1997 was assailed by the department before the National Industrial Relations Commission by preferring an appeal but without success. The appeal was dismissed by the Commission on 21‑7‑1997.

5. The Executive Engineer, Pak. P.W.D. has in these circumstances filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for setting aside both these orders after declaring them illegal, without jurisdiction and without lawful authority, particularly in view of the amendment brought about in law by insertion of a new section i.e. section 2‑A in the Service Tribunals Act (No: LXX of 1973) which reads as under:‑‑ "2‑A. Service under certain corporations. etc. to be service of Pakistan. ‑‑‑Service under any authority, corporation, body or organisation established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organisation shall be deemed to be a civil servant for the purposes of this Act."

6. I have heard Mr. Yawar Ali Khan and Mr. Sher Zaman Khan learned Deputy Attorneys‑General for the petitioner and Mian Bilal Bashir, Advocate, counsel for respondent No. 3 Rizwan Ali at a considerable length. It has been urged on behalf of the petitioner that both the orders impugned in this writ petition passed by the learned Single Bench and Full Bench of the National Industrial Relations Commission have lost their efficacy and effect on account of their being illegal, having been passed without jurisdiction and without lawful authority and are liable to be declared as such in view of the fact that a change in the law was brought about through insertion of section 2‑A in Service Tribunals Act (No.LXX of 1973). The learned Deputy Attorneys‑General have substantiated their contention by placing reliance on a chain of authorities some of which are Abdus Sattar Khan Chaudhry v. Chief Election Commissioner of Pakistan and others (PLD 1968 Dacca 293), Muhammad Sharif v. (1) Sh. Muhammad Rafique, Settlement and Rehabilitation Commissioner, Lahore; (2) Settlement and Rehabilitation Commissioner, Multan Division, and (3) Khuda Bakhsh (PLD 1968 Lah. 263), Chittaranjan Cotton Mills Ltd. v. Staff Union (PLD 1971 SC 197), Sultan Ali v. Khushi Muhammad (PLD 1983 SC 243), I.S.G.A. Ltd. v. Mrs. Rift Fakhir (1985 CLC 364), Chaudhry Haq Nawaz Chohan v. Chaudhry Tariq Zaman and 43 others (1994 CLC 1530), Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.‑W.F.P. and another (PLD 1995 SC 66) and Waseem Ahmad Khan v. WAPDA and 3 others (1997 SCMR 2000).

7. The learned counsel for the respondent, on the other hand, tried to urge that the change in law had although been brought about through Act No.XVII of 1997 which was published in the Gazette of Pakistan dated June 10, 1997 and the impugned judgment by the Full Bench had been passed on 21‑7‑1997 yet since the department failed to point it out before the Full Bench they are now estopped from raising this plea in the writ petition. He has also relied on Executive Engineer, Central Civil Division, Pak P.W.D., Quetta v. Abdul Aziz and others (PLD 1996 SC 610) in which it was held that Pak P.W.D. is a construction industry and, as such, its employees have no nexus with the sovereign functions of the State and that the work‑charge employees fell within the definition of a worker and could invoke the jurisdiction of National Industrial Relations Commission, He has further urged that the mala fides and unfair labour practice of the department were clearly proved before the Single Bench as well as the Full Bench and the writ petitioner had himself admitted the fact that the respondent was a member of a union (before the Commission) and, as such, he was entitled to receive. a show‑cause notice and also have an opportunity of being heard.

8. While there can be no cavil with what has been laid down in the esteemed judgment of the Supreme Court (PLD 1996 SC 610), it has to be observed that this judgment had been passed when section 2‑A of the Service Tribunals Act had not yet come into existence. This judgment is, therefore, of no avail to the respondent for claiming that the learned Single Bench and the Full Bench of the National Industrial Relations Commission had both given him the relief sought, because a change in the relevant law has been brought about according to which the employees of Pak P.W.D. would now be deemed to be civil servants for the purposes of the Service Tribunals Act. It was held in PLD 1968 Dacca 293 that "where a law has named a particular Tribunal to try a particular dispute, it is that Tribunal alone that has jurisdiction to deal with the matter and none else". In a case having similar facts and circumstances (1997 SCMR 200) the services of an employee of WAPDA were terminated, Industrial Relations Commission, however, ordered his re‑instatement and the authority challenged order of Industrial Relations Commission before High Court wherein orders passed by National Industrial Relations Commission relating to terms and conditions of employee were declared to be without lawful authority and of no legal effect. It was held that employee could not rely on order of National Industrial Relations Commission, for order of termination challenged before the National Industrial Relations Commission was assailed by him before the High Court in Constitutional petition unsuccessfully, same having been dismissed. Although he had filed an intra‑Court appeal, yet he preferred to pursue a petition for leave to appeal before the Supreme Court and the learned apex Court observed that this act of the employee amounted to abandoning intra‑Court appeal with the consequence that the order passed by High Court (Single Bench) attained finality, in the circumstances. It was held in PLD 1995 Supreme Court 66 that question of jurisdiction being very important and fundamental in nature, the same could not be conferred upon a forum by consent of parties and the Court had to consider the question of jurisdiction, even though not raised by the parties. Reading this observation into the judgment passed by the Full Bench of the Commission, it shall have to be observed that it was the bounden duty of the Bench to see that the Bench ceased to have jurisdiction in the matter, after a change had been brought about in law. Doctrine of estoppel cannot be applied to defeat the provisions of statute or enactment affecting jurisdiction of the Court. It was held in PLD 1983 Supreme Court 243 and also in 1985 CLC 364 that absence of jurisdiction could never be waived by parties nor could an illegality in an order be cured by consent of parties. The same view was taken in 1994 CLC 1530 in which it was observed that parties to lis could not confer upon the Court/authority/person, jurisdiction even by their consent, which otherwise was inherently lacking.,

8. This discussion, thus, brings me to the conclusion that both the impugned orders cannot sustain having been passed without jurisdiction and' are accordingly declared to have been passed without lawful authority and have no legal effect. This writ petition succeeds and is accordingly disposed of with no order as to costs. A. A./E‑l0/L Petition accepted.