2003 PLP (C (PLC(CS))

Mahmood Hussain for Respondents. The brief facts out of which the present writ petition arises are that the respondent No.2 filed a petition before respondent No. 1 and secured a restraining order from respondent No.

1. The petitioner being aggrieved filed this writ petition.

2. The learned counsel of the petitioner submits that respondent No. 1 has no jurisdiction to take the cognizance of the matter by virtue of section 17(1-B) WAPDA Act, 1958 read with section 2‑A of the Federal Services Tribunals Act, 1973. In support of his contention, he relied upon the following judgments:‑‑ WAPDA v. Muhammad Zubair and 1997 others PLC (C.S.) 189; Wasim Ahmad Khan v. WAPDA (1997 SCMR 2000); Zahir Ullah v. Chairman WAPDA Lahore. (2000 SCMR 826); WAPDA v. Aga Nazim Ali (1986 SCMR 574); WAPDA v. Javaid Ahmad Line Superintendent (1989 SCMR 1068); Syed Zahid Hussain v. U.B.L. (2000 PLC (C.S) 927); WAPDA v. Member N.I.R.C. Lahore (2002 PLC (C.S) 1199); Kot Addu Power Company Limited v. Muhammad Bashir (2001 SCMR 1898); and Muhammad Ibrahim Mangrio v. Chairman WAPDA (2001 SCMR 848). He further submits that petitioner filed a petition before respondent No.1 as the competent forum is not functioning.

3. The learned counsel for the respondent submits that petitioner has no lawful authority to transfer the respondent No.2 from Cheechawatni to Quetta as the respondent No.2 is Lineman‑II, in violation of the transfer policy of the petitioners which is attached with the report and parawise comments. He further submits that order of transfer was passed by an incompetent authority, therefore, the impugned order of the petitioners is not sustainable in the eyes of law. He further submits that respondent No.2 ceased to be an employee of the WAPDA from 1‑4‑2002, therefore, petitioners have no lawful authority absorbed in Multan Electric Power Company, therefore, the impugned order of the transfer of respondent No.2 from Multan Electric Power Company to Quetta has become infructuous. He further submits that when the basic order is without lawful authority, then the superstructure shall have to fall on the ground automatically. In support of his contentions, he relied upon the case of Province of the Punjab v. Dr.S. Muhammad Zafar Bukhari (PLD 1997 SC 351). He further submits that writ petition is not maintainable against the interim order. In support of his contentions, he relied upon the case of Mian Ghulam Dastgir Bari v. Rai Salahuddin and 3 others (PLD 1987 Lah. 39).

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. After addition of section 2‑A in the Service Tribunals Act, the petition filed by the respondent No.2 before respondent No.1 has abated automatically in view of the law laid down by the Honourable Supreme Court in K..irachi Development Authority v. Messrs Makhdoom Bilawal Cooperative Housing Society and others (2001 SCMR 1277) and Kot Addu Power Company Limited v. Muhammad Bashir (2001 SCMR 1898).

6. In view of what has been discussed above, this writ petition is accepted. However, respondent No.2 is well within his right to avail the proper remedy before the competent authority/competent forum within ten days from today. Petitioners are restrained to take any action against respondent No.2 to enable respondent No.2 to avail the proper remedy before the competent authority/competent forum. H.B.T./M‑1628/L Petition accepted.