1996 PLP 473 (PLC)

S. Rashid Abbas Kazmi for Respondent. This is a petition under section 22‑A(8)(g) of the IRO, 1969, wherein the petitioner contends that he, being an employee of the establishment of WAPDA as UDC WAPDA Sub‑Division, Taxila, is also an active member of Pakistan WAPDA Hydro Electric Labour Union. It is submitted that he contested the election on 24‑9‑1995. It is contended that due to his lawful trade union activities the respondents have victimised him by way of transfer order from Taxila Sub‑Division to Swan Sub‑Division vide 'order dated 30‑10‑1995. It was contended that this act constitutes unfair labour practice within the meaning of section 15(d) of the IRO, 1969. Considering such averments an interim injunction order was granted in favour of the petitioner on 2‑11‑1995. , 2. The petition was strongly contested by the respondents by way of filing of written statement and rejoinder to the stay application wherein certain preliminary legal objection as to the maintainability of the petition were also raised. 3. I have heard both the learned counsel considered the documents on record. 4. The main objection as to a maintainability of the petition raised by the learned counsel for the respondents is that the employees of the WAPDA have been declared as civil servants within the scope of section 17(1‑b) of WAPDA Act, 1958 therefore Service Tribunal under Service Tribunals Act, 1973 has got exclusive jurisdiction and this Commission cannot entertain the petition in hand, The reliance was made to the case‑law i.e. Chairman, Area Electricity Board WAPDA, Islamabad v. Dost Muhammad etc. reported in 1995 PLC page 289, wherein the learned Member, Labour Appellate Tribunal Punjab, mainly referred the law laid down by the Hon'ble Supreme Court of Pakistan in a reported case i.e. Government of Balochistan and others v. Shabbir Ahmad others reported in 1990 SCMR 1133 and the basic authority/case-law in behalf. i e WAPDA and others v. Muhammad Arshad Qureshi and others reported in 1996 SCMR page 18. 5. At this stage I would like to observe that although the Hon'ble Supreme Court of Pakistan while discussing the jurisdiction of the Service Tribunal under the Service Tribunals Act and in view of the scope of Articles 212 and 260 of the Constitution of Islamic Republic of Pakistan, 1973, has considered that effect of scope of section 17 of the WAPDA Act 1958, but the scope of jurisdiction of this Commission under section 22‑A(8)(g) of the IRO, 1969 i.e. to deal with the cases of unfair labour practice within the meaning of sections 15 and 16 of the IR6, 1969, was never before the Supreme Court of Pakistan' while discussing the said case i.e. reported in 1986 SCMR 18, In my view a civil servant as defined under Service Tribunals Act, may also qualify the definition of workman/worker within the meaning of section 2 of the IRO, 1969, at the same time and the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 apply only in respect of the matters which are under the exclusive jurisdiction of the Service Tribunal, constituted under the Service Tribunals Act, 1973 and. not with regard to the other matters which comes under the jurisdiction of this Commission, under the afore‑quoted provisions of the IRO, 1969. The definition of the workman as defined by the provision of section 2(xxviii) of the IRO, 1969 is necessary to be reproduced as under:‑‑ 2(xxviii) 'Worker' and 'workman' mean any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a ‑contractor whether the terms of employment be expressed or implied, and, for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal. discharge, retrenchment, lay off or removal has led to that dispute but does not include any person‑‑ (a) who is employed mainly in managerial or administrative capacity, or (b) who, being employed in a supervisory capacity, draws wages exceeding eight hundred rupees per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature." 6. After going through this provision it is clear that there is nothing to create a bar upon a person even if employee by the Government i.e. as civil servant, to qualify the definition and therefore a civil servant may also be a "workman" at the same time. It is also necessary to observe that employees of WAPDA are also treated as workmen within the meaning of the said definition and their trade unions have also been registered and are functioning, throughout the country. There is no bar contained by any law for the time being enforced in the country to debar a civil servant from becoming a "worker or workman" within the definition of section 2(xxviii) of the IRO, 1969. However, in view of the law as interpreted by the Hon'ble Supreme Court of Pakistan in the said reported case i.e. 1986 SCMR page 18, it becomes clear that all the employees of the WAPDA have been declared as civil servants arid therefore all the matters defined under the provisions of Article 212 of the Constitution of the Islamic Republic of Pakistan would definitely comes within the jurisdiction of the Service Tribunal constituted under Service Tribunals Act, 1973 and there cannot be any exception to this proposition but at the same time as discussed above the employees of WAPDA if qualify to be a worker/workman under the provision of clause (xxviii) or section 2 of the IRO, 1969 can invoke the jurisdiction of this Commission under the provision of section 22‑A(8)(g) of the IRO, 1969. In my view the test or criteria for the exercise of jurisdiction by this Commission in respect of employees of WAPDA under the provision of section 22‑A(8)(g) of the IRO, 1969 would be the "commission of unfair labour practice within the meaning of sections 15 and 16 of the IRO, 1969" which is otherwise one of the essential elements for the lawful exercise of jurisdiction by this Commission under the provisions of section 22‑A(8)(g) of the IRO, 1969. Therefore, in the present judicial system both the special Courts i.e. Service Tribunals Act, 1973 and this Commission constituted under provisions of IRO, 1969, are simultaneously exercising jurisdiction in the matters which are falling under their jurisdiction in respect of the employees of WAPDA and therefore, when there is a case of unfair labour practice within the meaning of sections 15 and 16 of the IRO, 1969 in respect of the establishment of WAPDA i.e. employer or employees, this Commission has got jurisdiction under the provision of section 22‑A(8)(g) of the IRO, 1969 to adjudicate upon. Neither such jurisdiction has been taken away by the Hon'ble Supreme Court of Pakistan in the said reported case law i.e. 1986 SCMR page 18 nor it could be lawfully taken away. Therefore, the case‑laws referred in this behalf are distinguishable and it is held that in respect of all the cases pf unfair labour practice defined under sections 15 and 16 of the IRO, 1969 this Commission has got exclusive jurisdiction under the provision of section 22‑A(8)(g) of the IRO, 1969, but not with regard to the matters regarding the terms and conditions of service of the WAPDA employees as explained in detail by the Hon'ble Supreme Court of Pakistan in the said reported case i.e. 1986 SCMR page 18. 7. Now diverting to the merits of the case I feel sorry to observe that there is nothing on record to establish that there are certain positive trade union activities on the part of the petitioner which may have ultimately become the causes of grievance for the alleged victimisation of the petitioner by the respondents. 'It is a well‑settled principle of law that the transfer of the employees is one of the fundamental right of the employer in the exigencies of service and also in the routine matters and this Commission will interfere only when there is a positive element of unfair labour practice within the meaning of section 15 of the IRO, 1969, on the part of the employer, which is lacking in the case in hand.‑Reference can be made to the reported cases‑law i.e. Muhammad Nawaz v. G.M.. WAPDA etc. reported in 1994 PLC page 140 and Employees' Union, MCB etc v. MCB etc. reported in 1995 PLC 191. 8. As a result of the above discussion the petition is dismissed without any orders as to costs. H.B.T./266/NIRC Petition dismissed.