1997 SCMR 1128 (PLP)

2. The respondent, Muhammad Ashraf Naeem was selected by the applicant for appointment as L.D.C. (Motor Roader) on a pay of Rs.290 per month in the revised consolidated scale of Rs.290‑‑10‑‑350/12‑‑

180. His probation period was expressed to be one year in the first instance, during which his services was liable to be dispensed with without any notice. This order is dated 14‑9‑1980. The order of termination of his service is not placed on record but it appears that it was passed on 10‑6‑1981 and is to the following effect:‑‑ "His services are dispensed with immediate effect in terms of clause 2 of the offer of appointment issued to him vide this office Memo. Rs.2,463 dated 14‑9‑1980."

3. The respondent approached the Labour Court which allowed the claim and ordered his reinstatement on 30‑11‑1981. It was held that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was applicable, under which, having worked there for nine months, he was entitled to all the protections available under the Ordinance. It was further held that the ground of his being a probationer in the context was, therefore, no ground at all and there had taken place non‑compliance with Standing Orders 12(2) and 12(3). It ordered the appellant to reinstate him with full back benefits.

4. An appeal was taken to the Labour Appellate Tribunal which upheld the order of the Labour Court. The appellant then invoked the Constitutional jurisdiction of the High Court and succeeded for the reason that the jurisdiction of the Labour Court in the matter was barred and it was for the Service Tribunal to deal with the grievances of the WAPDA employees.

5. The respondent, thereafter, approached the Federal Service Tribunal which too reached the same conclusions as were arrived by the Labour Courts. The Tribunal held as hereunder:‑‑ "In view of the above provisions of law, we are compelled to accept the contention of the appellant that the West Pakistan Standing Orders Ordinance, 1968 is applicable to the employees of WAPDA and that application of any other rule framed by the Authority is not valid and legally enforceable. As a corollary to this it has to be conceded that an employee of WAPDA who qualified to be treated as a permanent workman under Standing Order 1(b) can be removed only in accordance with the provisions of the relevant Standing Order. If his services are to be terminated for any reason other than misconduct one month's notice is necessary. If he is to be removed for unsatisfactory work the procedure laid down in Standing Order 15 would, apply." 5‑A. Maulvi Sirajul Haq, Senior Advocate, the learned counsel for the Appellant contended that in view of section 17(1‑B) of the West Pakistan Water and Power Development Authority Act, 1958 (hereinafter referred to as the WAPDA Act), the service under the appellant has been declared to be service of Pakistan. The appellant has framed statutory rules of Efficiency and Discipline and for Recruitment. The appellant is a statutory corporation functioning under the Authority of the Federal Government. For these reasons, proviso to Standing Order 1(4)(c) was attracted and the applicability of the provisions of the Standing Orders Ordinance was altogether excluded.

6. The proviso relied upon by the learned counsel for the appellant reads as hereunder:‑‑ "Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authotiry of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein."

7. WAPDA is a statutory Corporation and not an extension or a limb of the executive authority of the' Federation or of the Province. Besides on the strength of decisions in Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi (PLD 1984 SC 170) and Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD k984 SC 194) this Court has already taken the view in the case of Abdul Ghaffar v. WAPDA through its Chairman and another (1990 SCMR 1462) that the rules of the WAPDA are not statutory in character. These two factors negate the applicability of the proviso relied upon by the learned counsel for the appellant.

8. As regards the applicability of section 17(1‑B) of the WAPDA Act, it is reproduced hereunder:‑‑ "Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Service 'Tribunals Act, 1973 (LXX of 1973)."

9. This provision of law is in two parts. By the first, service under the Authority has been declared to be a service of Pakistan. The second part, which is distinct from the first is that every person holding a post under the Authority of the type described shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973. The result of this bifurcation is that the employee shall be deemed to be in service of Pakistan but not necessarily a civil servant as defined in the Civil Servants Act. If the respondent stands excluded from the definition of the civil servant as contained in the Civil Servants Act, then the statutory provision made for the civil servants will not apply. In the case in hand, it appears that the respondent is excluded from the definition of 'civil servant' being covered by the definition of employee under the Workmen's Compensation Act, 1923 clause (xix) to Sehedule 11) whereby persons connected with the generation, transformation and supply of electricity are to be treated as workmen for the purposes of Workmen's Compensation Act.

10. The Civil Servants Act provides as hereunder:‑‑ "civil servant' means a person who is a member of an All‑Pakistan Service or of a Civil Service of the Federation, or who holds A civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include‑:" (i) ............ (ii)........... (iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act 1923 (VIII of 1923)."

11. As his remuneration was less than the prescribed one, the basic pay being only Rs.290, he qualifies as a workman and for that reason held entitled to the protection of the Standing Orders Ordinance. The law applicable to him has been correctly applied and no case is made out for our interference in the matter. The appeal is dismissed with costs. A.A./W.159/S Appeal dismissed.