1978 PLP 330 (PLC)

The petitioner is an Attendant in the Natural Gas Power Station, Piran Ghaib Multan under the WAPDA. His services were terminated by order dated 11th August 1977, under section 17(1‑A) of the WAPDA Act, 1958. The order was to take effect on the expiry of 30 days of its receipt. The petitioner received the order on 16‑8‑77 and it was to take effect from 15‑9‑1977. He filed the present petition under section 6 of the Essential Services (Maintenance) Act, 1952 (hereinafter called the 'Act'), which came up for preliminary hearing before Kazi Masud Afzal Khan, learned Member of the Commission. Since it was a case to be dealt with by the Specified Authority under section 6 of the Act, he referred the case to me in my capacity as the Specified Authority. I passed an order on 10th September 1977, directing that the order of termination of the services of the petitioner shall be held in abeyance. I also ordered that the Chairman WAPDA, and Resident Engineer, Natural Gas Power Station, Multan, shall submit their comments before me on 13th September 1977.

2. In his comments, the Chairman, WAPDA, Lahore has inter alia raised a question of jurisdiction. The legal proposition canvassed by the learned counsel who appeared before me on 29‑9‑1977, was that the petitioner had been removed under section 17(1‑A) of WAPL)A Act, which was introduced in the WAPDA Act by amending Ordinance No. XVI of 1975 and the only remedy for him was to approach the Services Tribunal, because under subsection (1‑B) of section 17 service under WAPDA has been declared to be civil service of Pakistan. The learned counsel in this connection relied on the judgment of Mr. Bashir Ahmad Malik, Learned Member of the National Industrial Relations Commission, to Pakistan WAPDA Labour Union v. Chairman, WAPDA (P L D 1976 Tr. C. (Lah.) 398), wherein it was observed that service under WAPDA having been declared to be service of Pakistan every person holding a post in the WAPDA was to be deemed to be a Civil Servant, and the jurisdiction of the Chairman as Specified Authority to issue directions in respect of the terms and conditions of service of persons employed in the WAPDA was ousted. The learned Member held that the appropriate Service Tribunal alone bad the jurisdiction to adjudicate upon any dispute relating to the terms and conditions of service at the instance of aggrieved person. One of the reasons advanced by the learned Member for holding this, is that the Service Tribunals Act, 1973 was subsequent in time to the Essential‑ Service (Maintenance) Act, 1952 and the presumption, according to him, was that the Federal Legislature had the intention of taking away the cases of the Civil Servants :om the purview of the Act and to give exclusive jurisdiction to the Service Tribunals in respect of persons declared to be civil servants.

3. Having given my careful consideration to the submissions made by the learned counsel on the question of jurisdiction. I have come to the conclusion that it is not possible for me to agree with the learned counsel and the decision of Mr. Bashir Ahmad Malik in Pakistan WAPDA Labour Union v. Chairman, WAPDA, Lahore. It is true that in section 17(1‑A) the word used is "person", and ordinarily this word shall be given its natural meanings, but the petitioner is a workman, and the question that arises for determination at this stage, is whether he is a person covered by the phrase 'Civil Servant' as used in the Service Tribunals Act, 1973. The learned counsel stated that the Legislature had not made any distinction between a workman and a non‑workman, and, therefore, the Specified Authority should give effect to the plain meanings of the word 'person'. It becomes necessary to discover the exact connotation of the phrase 'Civil Service of Pakistan'. In section 2(a) of the Service Tribunals Act, 1973 it is stated that the phrase 'Civil Servant' shall have the same meanings as contained in the 'Civil Servant' shall have the same meanings as contained in the Civil Servants Act, 1973. Section 2, clause (b) of the Civil Servants Act, 1973, defines what a Civil Servant is, but specifically excludes from its application certain categories of employees including a person who is a worker or workman as defined in the Factories Act, 1934, or the Workmen's Compensation Act, 1923. Under sub‑clause (iii), of clause (b) of section 2 of the Civil Servants Act, a worker or workman has been excluded from the category of Civil, Servant. Subsection (1‑A) and (1‑B) of section 17 of the WAPDA Act, would not therefore, be applicable to the case of the petitioner who i admittedly a worker.

4. Even if WP PDA had not been declared to be an Essential Service, the workmen employee therein could have approached the National Industrial Relations Commission, under the Industrial Relations Ordinance, 1969 ir respective of what has been stated in subsections (1‑A) and (1‑B) of section 17 of the WAPDA Act. The fact, however, that WAPDA has been declared as an Essential Service creates a further difficulty in its way. Under section 6, of the Essential Service Act, the Chairman of the National Industrial Relations Commission, or any Member designated by him in this behalf, has been appointed as Specified Authority to deal with the determination of wages and terms and conditions of employees of such establishment. The phrase terms and conditions would include any benefit or disadvantage that attaches to the holding of an office (See Government of Pakistan v. S. Akhlaque Hussain (P L D 1976 Tr. C. (Lah.) 398) When by a notification issued under section 3 of the Act, an Establishment is brought within the purview of the Essential Services (Maintenance) Act, other laws have to give way to the provisions of the Act to the extent of inconsistency or repugnancy by force of section 7‑A of the Act which reads as under: "7‑A. The provisions of this Act shall have effect notwithstanding to the contrary contained in the Trade Unions Act, 1926 or the Industrial Disputes Ordinance, 1959, or any other law." After an Establishment has been declared to be an Essential Service, there is a complete change of jurisdiction so far as the question of terms and conditions of the employees are concerned, The provisions of other laws have to give way to section 7‑A of the Act. The jurisdiction in these matters then exclusively rests with the specified authority. Under clause (1) of subsection (1) of section 5 of the Act the discontinuation of employment of an employee without reasonable excuse is an offence. The authority dispensing with the services of an emplo3ee is to show that there was a reasonable excuse for discontinuation of the employment. The provisions of the Act would prevail as against the provisions of any law precedent or subsequent to it unless the Legislature by unambiguous terms, in its own wisdom chooses to repeal the provisions of the Act.

5. Of course, it is one of the relevant considerations for interpretation of a Statute to take note of the latest expression of the will of the Legislature on the subject. The learned Member of the Commission who decided the case Pakistan WAPDA Labour Union v. Chairman, WAPDA, Lahore completely overlooked the overriding effect of section 7‑A of the Act., nor did he go B into the question as to what was the definition of a Civil Servant as contained in the basic statute, f .e. Civil Servants Act, 1973. In my humble view, the precedent case was not correctly decided.

6. I, therefore, hold that there is no bar of jurisdiction against the specified authority to take cognizance of this matter, and that subsections (1‑A) and (1‑B) of section 17 of WAPDA Act do not apply to the present case for two reasons. The first reason being that the petitioner is a workman and not a Civil servant. The second reason is that WAPDA has been declared as an Essential Service, and section 7‑A of ~ the Act will have ascendancy over the provisions of section 17 of the WAPDA Act. As long as the Essential Services Act is applicable to WAPDA all its employees, irrespective of the fact whether they are workmen or not, can approach the specified authority In matters of wages and their terms and conditions including termination of service. The objection as to jurisdiction is therefore, overruled.

7. The learned counsel also addressed arguments on the question of violation of the rule of natural justice, and stated that under subsection (1‑A), of section 17 of WAPD k Act, the authority was not called upon to serve a show‑cause notice, a9 it had the power to dispense with the services of an employee without assigning any reason. In view of my finding that sub sections (1‑A) and (1‑B) of WAPDA Act are not applicable to the case of the petitioner, it seems unnecessary to examine this argument in detail. The case shall, therefore, proceed according to law. The parties shall appear before me on 17‑10‑1977 at Lahore.