1984 PLP 297 (PLC)

The written statement was filed on 23rd September, 1978 wherein the preliminary objection has been raised to the effect that the petitioner ,is a civil servant and is serving in the Government of North‑West Frontier Province, in the Buildings and Roads Department as Road Inspector and the matter therefore falls within the exclusive jurisdiction of the Service Tribunal and this Court has got no jurisdiction. The detailed written statement was filed on 4th September, 1978 wherein the reply to the facts alleged in the petition were also made. On factual side it has been stated that the petitioner was charge= sheeted by the respondent and was charge‑sheeted by Superintending Engineer (H. Q.), in the Office of the Chief Engineer, Buildings and Roads Department who is the authorised officer, in respect of the Government servant in Grade 1 to

15. This charge‑sheet was served through S. D. O., concerned. The enquiry was held. Show‑cause notice was issued, the reply to which was found unsatisfactory and the petitioner was dismissed from service. Evidence of the parties has been recorded, arguments heard and record perused. In the beginning we shall dispose all the preliminary objections as to the jurisdiction of this Court. The learned counsel for the respondent establishment has contended ‑that the petitioner who is employee of the P. W. D. Building and Road, is governed by his service rules and is civil servant working in connection with the affairs of the Provincial Govern ment. He has further contended that section 1, subsection (3) of the I.R.O. has categorically excluded the application of the I. R. O., to any person employed in the administration of the State ‑other than those employed as workman by railways, posts and telephone and telegraph department which means that with the exception of the above‑mentioned department, the I. R. O., would not be applicable to any other employee who is busy in connection with the affairs of the administration of the State. The learned counsel for the respondent relied on the authority P L D 1976 Pesh. 469, wherein even the 'Mali' has been held to be the holding of civil post and he had to go to seek his remedy before the relevant Service Tribunal for the redress of his grievance. The learned counsel for the petitioner has in contradistinction to the above contention referred this Court to the Constitution in force in the country before the Constitution of 1973 was promulgated and to the provision of Constitution of 1973. His contention is that the referred authority has been based on the provision of the. Constitution holding field in the country prior to the promulgation of the Constitution of 1973. The deviation made in the Constitution of 1973 is in Article 212 and I quote. "

212. Administrative Courts Tribunals.‑(1) Notwithstanding anything hereinbefore contained appropriate Legislature may by act establish one or more administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of :‑ (a) matters relating to the terms and conditions of persons in the service of Pakistan including disciplinary matters. (b) ... ... ... ... ... ... ... ... ... (c) ... ... ... ... ... ... ... ... ... This provision of 1973, Constitution paves the ways for establishment of Tribunals and Courts other than the conventional Courts already functioning in the country for the adjudication of the rights arising out of terms and conditions of service of Government employees which means that the Labour Court, which owes its establishment to this particular provisions of the Constitution can deal with the terms and conditions of the servant employed in the affairs of the State if their cases do not specifically fall within the ambit of the relevant Services Tribunals. Section 2, subsection (1) of the North‑West Frontier Province Service Tribunals Act, 1974, defines that the servant as one who is member of the civil service of the province, or who holds posts in connection with the affairs of the province or other authority but does not include the person who is employed on contract or on work‑charge bases or who is paid from the contingencies. This definition of civil servant in the said act confines the applicability of this act to those servants to whom it has been made applicable according to the definition above but if a person, through civil servant but is paid from the contingencies or is employed on contract or on work‑charge bases then to such employees the provision of the act would not be applicable which in term means that if any statute provides vides him any other legal remedy then, ,this act would not, be bar in his way. The learned counsel for the petitioner has referred to statement o Mr. Ashraf Khan R. W. 2 Assistant, Office of the Chief Engineer who ha stated that the petitioner was work‑charged staff and therefore by virtue of the above discussion the case of the petitioner can be adjudicated by this Court. So I agree with the contention of the learned counsel for the petitioner that in such circumstances the petitioner could seek his remedy from the Court, When this case was being argued the learned counsel for the respon dent produced Notification No. SOII(E)/PWD/17‑3/73, dated 24th June, 1974 on the basis of which all the work‑charged employees were made regular Government Servant: and by virtue of list in document, photostat copy bearing No. 76089/7‑E;, dated 3rd September, 1974 the petitioner has become a Regular Government Servant. Therefore under the given circumstances when the services of the petitioner have been regularized in Government service then by virtue of authority P L D 1976 Pesh. 469 the petitioner could seek his remedy before this Provincial Service Tribunal alone. Before parting with the case ands returning the petition to the petitioner for presentations before a proper forum, I must point out that till the evidence of the respondent was recorded in this case the petitioner was kept under the impression by the respondent establishment, that he was a work‑charged employee and that he was not a regular Government servant. This fact is apparent from the evidence of the respondent on the file. Hence the petitioner was under this impression prosecuting the present petition in this Court in good faith. The petition is returned to the petitioner for presentation before a proper forum. A. E. Order accordingly.