1978 PLC 72 (PLP)

4. It has been contended that in consequence of this Ordinance, every person holding a post under the Authority shall be deemed to be a civil servant for the purposes of Service Tribunals Act, so that the Service Tribunal has now acquired jurisdiction in respect of matters relating to their terms and conditions of service, including disciplinary matters, according to sub‑section (2) of section 3.

5. It has been urged by the petitioner that he is employed in a factory, and Irrespective of the authority that administers the affairs of the factory, he is a workman who is governed by the Factories Act. He contends that the Industrial Relations Ordinance is applicable to workmen employed in a factory, whether it is owned by the Government, a corporation or a local authority, and that the establishment of the West Pakistan Water and Power Development Authority has been brought within the purview of the Essential Services (Maintenance) Act, which recognises the National Industrial Relations Commission as the specified authority to regulate his terms and conditions of employment. Thereby he concludes that by virtue of the factum of his being declared as civil servant for the purposes of the Services Tribunals Act of 1973, the authority specified under the Essential Services (Maintenance) Act, 1952, is not superseded.

6. The learned counsel for the respondent, however, argued that the Service Tribunals Act, being a special law of a later date excludes the jurisdic tion of the authority specified under the Essential Services (Maintenance) Act, which is of an earlier origin.

7. My attention has been drawn in passing that some learned Member of the Commission has since hold that the Service Tribunal has now acquired exclusive jurisdiction under the West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1975, and that the Essential Services Act, is no longer applicable to WAC`DA employee. This decision has not been shown to me. There is certainly no doubt that the employees of WAPDA are now deemed to be "Civil Servants" for the purposes of the Service Tribunals Act, 1973. However the term "Civil Servant" as definer in this Act, in clause (a) of section 2 thereof, means "a person who is, or has been, a civil servant within the meaning of the Civil Servants Act, 1973 (LXXI of 1973)."

8. We have thus to revert to tae definition of "Civil Servant" in the Civil Servants Act. Clause (b) of section 2 of the said Act, provides that the term does not include‑ "(iii) a person who is a worker" or "workman" as defined in the Factories Act, 1934 (XXY of 1934) or the Workmen's Compensation Act, 1923 (LIII of 1923)." There is no dispute that both these labour laws are applicable to the E & M Workshop. Thus workmen employed in this workshop, despite their employment under WAPDA, would stand excluded from the purview of the Service Tribunals Act, and would continue to be within the competence o A the Pakistan Essential Services (Maintenance) Act, 1952. However, only such Persons employed under WAPDA as are not workmen, shall be within the, competence of the Service Tribunals Act.

9. It is accordingly held that the National Industrial Relations Commission continues to be the specified authority, enjoying exclusive competence to regulate conditions of service of workmen in the E & M Workshop.

10. As regards the merits of the complaint, it is unfortunate that the learned Junior Labour Court had, after coming to the conclusion that it has no jurisdiction to adjudicate in the matter, chose to go into facts and give a decision beyond its competence. This obviously tends to create a prejudice against the petitioner. It is, therefore, necessary to completely ignore the conclusions drawn on facts and merits by the learned Presiding Officer of the Junior Labour Court.

11. There is of course, no direct documentary evidence to prove whether the post of Shift Incharge or Progress Incharge eras ever created. But the defence witness has himself admitted that the petitioner did work as Shift Incharge and Progress Incharge, but on his own pay and in his own pay scale. It is further in evidence that the Works Manager issued Office Order (Exh: C/4) about abolition of the post of Progress Incharge against which Sh. Bashir Ahmed was working. (There was typographical mistake of the name, which was later rectified to clarify that it related to Sh. Bashir, the petitioner. The abolition of the post presupposes its existence. The mere fact that relevant office file has not been brought before the various Courts or the Commission, is no justification for denial of the existence of the post. If it he correct that the Works Manager was not competent to appoint the Progress Incharge, or abolish this post, then the petitioner cannot be blamed for the lapse on the part of competent authority; and the petitioner would have never known that his Works Manager was acting without authority. The Junior Labour Court file (Exh: C/4) contains the Identity Card of the petitioner signed by his Works Manager on 23rd May 1956 (Exh: C/2) showing him as Shift Incharge. At page 61 of this file (Exh. C/4) is the statement of this Works Manager (Mr. Inayat Elahi) wherein he has testified that "Daily Wages employees were not required to be issued any appointment letter" before WAPDA took over the Workshop, and that "he (the petitioner) was given the task of noting the progress of the workers".

12. Reading this statement of the then Works Manager, in conjunction with his Officer Order (Exh: C/1) at page 75 of file (Exh. C/4) abolishing the post of Progress Incharge on 13th February, 1963, the irresistible conclusion would be that at the time the E & M Workshop was taken over by WAPDA on 16th August 1962, the petitioner Sh. Bashir Ahmed was working as Progress Incharge, may be in his own scale‑pay ant on his own pay. The abolition of the post of Progress Incharge without assigning reasons thereof, and without the order of the competent authority, has no locus standi. This order of abolition of the post does not amount to "transfer of duty" as captioned in the Office Order (Exh. C/1) in file (Exh. C/4). It is, therefore, held that WAPDA was bound to provide the petitioner Sh. Bashir Ahmed the same or equivalent job by the nature of duties and wages which the petitioner occupied on 16th August 1962, when it took over the E & T Workshop, t. e., of Progress Incharge. The petition is accepted to that extent.