P L D 1995 Supreme Court 631 (PLP)

MUHAMMAD ILYAS, J.

Respondent No.2 in this civil petition for special leave to appeal, namely, Ch. Ghulam Muhammad was serving as Assistant with the petitioner, Water and Power Development Authority, when he was dismissed from service in consequence of his conviction by the Special Judge, Anti-Corruption. He challenged the order of his dismissal by making grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, but the same was dismissed by the Punjab Labour Court No.ly Lahore. He then filed an appeal before respondent No.l, Punjab Labour Appellate Tribunal which met with the same fate. Ultimately, he invoked the Constitutional jurisdiction of the Lahore High Court. The writ petition made _ by him in this regard was accepted and the matter was remanded to the Punjab Labour Court. After the remand order, the Punjab Labour Court ordered re instatement of respondent No.2 without back benefits. The petitioner as well as respondent No-.2 were not satisfied with the order of the Punjab Labour Court and, therefore, the same was challenged by them before respondent No.l, Punjab Labour Appellate Tribunal, by means of separate appeals. The appeal of the petitioner was dismissed but the appeal of, respondent No.2 was partly accepted inasmuch as he was allowed 50% of the back benefits. Order made by the learned Labour Appellate Tribunal was again impugned by the petitioner and respondent No.2 by means of separate writ petitions, the former seeking total dismissal of the grievance petition and the latter claiming full back benefits.

2. In the High Court, Mr. Justice lhsan-ul-Haq Chaudhry, decided the two writ petitions. He upheld the order of reinstatement of respondent No.2 but set aside the order with regard to the grant of 50% of the back benefits. Now, the petitioner seeks leave of this Court to challenge judgment of the learned Single Judge by means of an appeal.

3. It was, inter alia, contended by learned counsel for the petitioner that according to section 17(113) of the Water and Power Development Authority Act, 1958, respondent No.2 was a civil servant of the Federal Government and, therefore, the order by which he felt aggrieved could be assailed by him by filing appeal before the Federal Service Tribunal and not by making grievance petition before the Punjab Labour Court. He cited WAPDA and another v. Muhammad Arshad Qureshi (1986 SCMR 18) to support his argument. Learned counsel maintained that all the orders passed in favour of respondent No. 2 by the said learned Courts as well as the learned Labour Appellate Tribunal were without jurisdiction and deserved to be set aside. It was added by the learned counsel that the above plea was raised before the said learned forums but without success.

4. Order of the learned Single Judge in relation to the said argument of the learned counsel reads as under:-- "I - have given my anxious considerations to the arguments of the learned counsel. for the parties. The petitioner has failed to prove that the respondent No.2 is a civil servant of the Provincial Government. This was the factual controversy which was foreclosed by the concurrent findings of the learned two Courts below."

5. As already indicated, the ease of the petitioner is that respondent No.2 is a civil servant of the Federal Government by virtue of section 17 (iB) of the Water and Power Development Act and not that he is a civil servant of the Provincial Government. Also, the. point canvassed by the learned counsel was a question of law and not that of fact inasmuch as it was not denied that he was A an employee of the Water and Power Development Authority, set up under the said Act, and was governed by the provisions thereof, including section 17 (113). We, therefore, feel that it is a fit case for further consideration. Accordingly, special leave is granted to the petitioner to appeal against the judgment of the learned High Court.

6. At the end of his arguments, learned counsel for the petitioner prayed that operation of the order with regard to reinstatement of respondent No.2 may be suspended. He was not sure whether respondent No.2, has, by now actually taken over as Assistant in pursuance of the orders in his favour. In this state of affairs, we direct that if respondent No.2 has not so far resumed the post from which he was dismissed, he shall not do so till the disposal of the case in hand, but if the position is otherwise, there will be no stay order against him qua the relief of re-instatement obtained by him. AA ./W-147/S Leave granted.