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Petitioner: WAPDA VS Respondent: SHAFIQ-UR-REHMAN /
Court Name: Labour Appellate Tribunal Judge(s): Sardar Muhammad Abdul Ghafoor Khan Lodhi Title: WAPDA vs SHAFIQ-UR-REHMAN / Case No.:Writ Petitions Nos. 1670/S, 2642/S of 1976 and 3647 of 1979 Writ Petitions
JUDGMENT
Reported As: 1984 PLC 5 Result: Appeal dismissed Judgment JUDGMENT JUDGMENT JUDatintiVtli ruo13 jzt.;ilikaq ,acs-P4i/4, -4er r, lo 11:Inc t4if7 Asthirlivrvoints raised in the tWcyippeais cnptKineda0pve are the same grio and there-iiaa ',Iittle3,differonce,On illp-).44404ist49.46,fice being decided "if' together thrOnglitbis.Single judgment,;! Ju 2. The appealiViled as WAPilee, ;#00"46salid' arises from the decision dated 14th September, 1982 t4..;iippeat titled as WA.PDA v. Shafiq-ur-Rehman emanates from the decision dat6d 29th November, 1981 passed by the learned.Presidi08.0fficeK,Puniab Labo4r Cogrt4". 1* Lahore, -rr thereby the grievancopOtiOnSzOfthe respondents were acqePte4alick-Shafiqnc:ur-Rehinan, respondent was ,difected to be re-instated iniierviepWith full -V5(back benefits and in respect of lima') Khalid, respondent .n was declared rit that the action of du appellant-,delivering fresh 'charge-Sheet (Calling the f,--+xplanation) was illegal and void. - " 3.. Usmiur'Khalid,respondeitc: WitA SSQ-1: in Grid Station-II, e'''tahore. He Wairdelivered, a charge- shell Vit 28th January, 1981 !IC' was awardeir"&b' Puniahafeatilsnaniely tette-re; and warning to '.-remain careful in 'future lirthefierforniitite Of hiefdtities; and (2) he was Oc reduced in pay by one stagelWith'-'future effiscVl;The said - respondent toy which challenged the order dated-16th- lanuary, - 1981 in:AU 'grievance petition, The learned lower Court rielCI tact dated 10th September,
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1981 further was accepted and thi plinithitients were declared - and void. Directed as under :- dhui AI to 3',0sliefromb-, "This order will, however, not debar ths respondent hold fresh 12, eiiqniry, if so desired. The parties atsi1ep to be their own to.;.!--4O81s;s;.., 51 4kOtkitd* ichare.Theet dated 14th December, 1980 was withdrawn , *:14i.fftoditid3t1i 1981. The previous enquiry report and 51S dried 12Ittikliihiary7i198i and the fresh tharge-sheet copy of ~which Eich.".11.=.:13dated-Sth tictehellcf981 *ore:delivered to the ,said respondent\\\ {{BLUR PAGE}} ' on 10th November, 1981. The charge-sheet was objected to by Usman Khalid, respondent, vide his reply Exh. P. 4. He after serving a grievance notice, copy of which is Exh. P. 5, brought fresh grievance petition under section 25-A, from the decision of which the present appeal arises. The appellant did not treat Exh. P. 4 dated 1 I th November, 1981 as reply to the fresh charge-sheet and passed an order of censure on 5th December, 1981 copy of which is Exh. P. 7 during the pendency of the grievance petition brought by the said respondent. The learned lower Court has held that since in Exh. P. 4, which is a reply to the second charge-sheet, Usman Khalid, respondent, had raised a technical objection such as that the charge-sheet was time-barred and had also denied the allegations made therein, it was obligatory on the part of the appellant to make enquiry and to allow the said respondent a chance of defending himself. He has also observed that even if it be said that no reply to the fresh charge-sheet was given by the said respondent, even then it was necessary to make ex parte enquiry. 4. So far as the case of Shafiq-ur-Rehman, respondent, is concerned, the facts are that he was working as Chowkidar in Delhi Gate Sub-Division of WAPDA, Lahore. The allegation against him was that he had remained absent from 1st December, 1980 to 6th December, 1980. Vide order dated 21st December, 1980 copy of which is Exh. P. 4, the said respondent was dismissed from service. He after serving a grievance notice brought a grievance petition, from the decision of which the present appeal arises. Before recording the order of dismissal show-cause notice was given to the said respondent, but no enquiry was held. It was contended on behalf of the appellant before the lower Court that opportunity of personal hearing was afforded to the respondent therefore, the latter's plea that he was condemned unheard is groundless. On behalf of the appellant it was also contended that the grievance petition was time-barred. Reply to the grievance notice is dated 5th April, 1981. 5. The first point raised by the learned counsel for the appellants is that the decisions of the High Court are binding upon this Tribunal, inasmuch as the Constitution is fountainhead, which confers jurisdiction upon the Courts. He also says that the High Court is the Court of precedent according to Article 201 of the Constitution of 1973 read with Article 2 of the Provisional Constitution Order, 1981 and thus the decisions of the High Court are binding upon the forums subordinate to it. He also says that the Labour Courts and this Tribunal are subordinate to the High Court since under Article 9 of the Provisional Constitution Order, 1981 a writ can be made to the High Court against their orders. I cannot agree with the learned counsel to his arguments advanced on the point. The mere fact that orders passed by this Tribunal can be challenged before the High Court in writ petition is not sufficient to show that this Tribunal is subordinate to the High Court. The Courts under the administrative control of the High Court are subordinate to the High Court. Likewise the Courts which are under the supervisory powers of the High Court are subordinate to the High Court. The 'His Court exercises supervisory powers on those Courts which are under its appellate or provisional jurisdiction. The orders passed by the Labour Courtly and this Tribunal are not subject to appeal
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before the High Court therefore it cannot be said that the High Court has supervisory jurisdiction over them. Not only the orders passed by the Labour Court and this Tribunal are challenged in the writ petitions before the High Court but the said Court has writ jurisdiction over all persons who are performing within its territorial jurisdiction functions in connection with the affairs of the federation a province or a local body as is evident from Article 9-A (c) (d) of the Provisional Constitution Order, 1981. So far as the Constitution of 1973 is concerned relevant Article in this respect is 199. If the argument of the learned counsel for the appellants is accepted it would mean that every functionary in Pakistan, which is empowered to perform functions in connection with the affairs of the federation or a province, or a local authority would be subordinate to the High Court but this is not the position. If every functionary including the Labour Courts and this Tribunal had been under the supervision or control of the High Court for the simple reason that the orders passed by them can be challenged in the High Courts under latter's writ jurisdiction, then there would have been no necessity of impleading such functionaries as party to the writ petitions. Since such functionaries are not under the control of general supervision of the High Court therefore, in order to find their (sic) of the orders passed by the High Court in writ petitions they are impleaded as party. Moreover, the High Court can exercise its jurisdiction only on the application of an aggrieved party. If the party bringing the writ petition does not face to be aggrieved of any order passed by any functionary, the High Court would refuse to entertain the application. Since only on an application, of the aggrieved person the High Court can exercise writ jurisdiction the order passed in writ petition will be binding upon persons who are party to the writ petition and not in other cases. The decisions of the High Court have persuasive effect but are not binding upon this Tribunal. A serving or a retired Judge of the High Court can be appointed as Chairman of Labour Appellate Tribunal and on such appointment he is to be taken at par with the Judge of the High Court. The decisions of the Judges of the High Court are not binding upon the other Judges of the High Court and have only persuasive value. In the same manner, the Chairman of Labour Appellate Tribunal who either being a serving Judge of the High Court or being a retired Judge of the High Court is appointed as Chairman is not bound by the decisions of his brother Judges. On the basis of the persuasive value of the decisions of the High Court, they must be followed by the Chairman, if he agrees with the observations made in the writ petition. The intention of the Constitution is not that the decisions of the High Court delivered in writ petitions, would be binding upon the Labour Appellate Tribunal because no such provision has been made therein. However, the intention of the Constitution is that the decisions of the Supreme Court should be binding on all Courts functioning in Pakistan and, therefore Article 189 was inserted in the Constitution of 1973. The Article reads as under :- "Any decision of the Supreme Court shall, to the extent it decides a question of law, or is based upon, or enunciates a principle of law, be binding on all other Courts in Pakistan.' ' In Chapter III of the said Constitution, which deals with the High Courts no such provision can be found. It is thus clear that if the intention had been that the decisions of the High Court determining questions of law or enunciating the principle of law, would be binding on all other Courts functioning in Pakistan, a similar provision as made in Article 189 would have been included in Chapter-III. Article 201 of the Constitution of 1973 does not say that the decisions of the High Court determining any question of law, or enunciating any principle of law, will be binding on all Courts in Pakistan, but rather it says that such decisions would be binding on all Courts subordinate to the High Court. Article 203 says that each High Court shall supervise and control all Courts subordinate to it. This Tribunal not being subordinate to the High Court cannot be deemed to be under the supervision and control of the High Court. 1, therefore hold that the decisions of the High Court passed in writ petitions are binding upon this Tribunal only in the case in which the decision has been made and but not in all cases and this Tribunal is free to disagree with the, decisions giving its own reasons.
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6. The other point argued by the learned counsel is that the jurisdiction of the Labour Courts is barred under section 17 (1-C) of the WAPDA Act, inasmuch as Service of WAPDA has been declared as Service of Pakistan and all its employees, except the deputations are civil servants. In support of his argument he has made reference to Writ Petitions Nos. 1670/ S/1976, 2642/S/1976 and 3647 of 1979. He also relied upon PLD 1976 Lah. 492, PLD 1979 Lah. 406 and PLD 1979 Kar. 95. Writ Petition No, 264 of 1976 was decided by my learned brother Mr. Justice Shafi-ur-Rehman one of the prominent Judges of the High Court and now Judge of Supreme Court. Various portions of the copy of the decision are not decipherable, but this thing is clear that the order was passed by WAPDA under section 17(1-A), although the question of WAPDA employees being civil servants was also under consideration. It has been observed that for limited purposes the employees were deemed to be civil servants. It has been said that the protection afforded to a civil servant in the Civil Servants Act is not available because the law making him a civil servant provides that for the purposes of the Service Tribunal Act he shall be deemed to be a civil servant. Since the copy is not decipherable, it cannot be clearly understood what were the points which were argued before his Lordship. It appears that the protection afforded to a civil servant by the Civil Servants Act was sought in the case for saying that the order passed under section 17 (1-A) was not legal. It appears that it was observed that since for limited purposes i. e. Only for the purposes of the Services Tribunals Act, the employee concerned was deemed to be a civil servant therefore he was not protected from the clutches of section 17 (1-A) and his services could be terminated by the Authority under the said section. The result is that the decision delivered in the said writ petition is distinguishable from the facts of the present case. Writ Petition No, 1670/S/1976 was decided by my learned brother Mr. Justice Shafiur Rahman. It was held that all WAPDA employees are to be deemed to be civil servants. The observations made are :- "It has to be noticed that it is on the strength of a deeming clause that every person holding a post under the Authority except deputationists from the Government is made a civil servant. There is no other condition imposed with regard to their eligibility to be civil servants. Therefore, on the strength of such a legislation by reference the qualifications or restrictions contained in the definition in Civil Servants Act, could not directly be attracted to the case." ' Copy of the decision delivered in I. C. A. No, 150/1976 has also been brought. The said I.-C. A. Arose from the decision delivered by his Lordship Mr. Justice Shafiur Rahman in Writ Petition No, 2642/S/1976. I have already observed while dealing with the said judgment delivered in Writ Petition No, 2642/S/1976 that the services of the employees were terminated under section 17 (1-A) as it appears that since he was deemed to be a civil servant under section 17 (1-B), therefore he sought protection available to civil servants but it was observed that he was deemed to be a civil servant for limited purposes of the Services Tribunals Act and thus the protection available to a regular civil servant was not available to him. So the copy of the judgment delivered in I. C. A. No, 150/1976 is not helpful to the appellants. In Writ Petition No, 3647 of 1979 my learned brother Mr. Justice Zafar Shah has gone to the extent of saying that the definition of civil servant has not been borrowed in section 17 (1-B) but rather the section has itself defined the term. I have already discussed this writ petition while deciding the case of WAPDA few months back. With great respect I differ from the view that section 17 (1-B) has itself defined the term 'civil servant'. For ready reference I reproduce the section as under :- "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 Services Tribunals Act, 1973." ' It is clear from the section that only the deputationists to the Authority from any Province have been excluded from being deemed to be civil servants but otherwise the term 'civil servant' has not been defined. It is, therefore, necessary to see what is meant by the term 'civil servant'. Without
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giving any meaning to the term, it cannot be understood who is a civil servant and who is not. If without defining any term, the disputes between the parties and the cases could be decided then there would have been no necessity of inserting the definition clauses in the Act. So the definitions are not without any purpose. My learned brother Mr. Justice Shafiur Rahman has in Writ Petition No, 1670/S/1976 said :- "There is no further condition, imposed with regard to their eligibility to be civil servants." With great respect first of all we have to see what is meant by the term `civil servant' and then the question of imposition of any condition would arise. If a term is defined without imposing any condition, no condition will be considered and where certain conditions are imposed, the definition would be understood subject to those conditions, but defining of the term is necessary. Merely saying that a particular kind of service will be excluded from the term does not amount to defining term itself. Section 17 (1-B) has only excluded the deputationists from the term civil servant' but it has not defined it. The intention of the Legislature was not that the term `civil servant' used in section 17 (1-B) would be different from the one defined in the Civil Servants Act. The Legislature was aware of the fact that the term 'civil servant' being used in section 17 (1-B) had already been defined in the Services Tribunals Act and the Civil Servants Act. If the intention had been to define the term differently and independently, the term would have been defined in section 17 (1-B), or if the intention had been that the exceptions given under the definition of civil servant in Civil Servants Act should not apply the definition of the term given in the said Act could have been adopted with a proviso that the exceptions would not apply. Instead of doing so, it was provided that every employee of WAPDA would be deemed to be a civil servant for the purposes of the Services Tribunals Act. The words for the purposes of Services Tribunals Act, 1973 are very significant. Since a forum to decide the dispute of WAPDA employees was to be supplied and the intention was that the employees of WAPDA, who were included in the definition of civil servant could get their difference in respect of service conditions decided from the Services Tribunal, therefore, the above-mentioned words were incorporated in section 17 (1-B). The intention, therefore, was that the definition of the term would be the same as defined in section 2 of the Civil Servants Act. The Service Tribunals Act, 1973 'provides the forum of Service Tribunal only to those civil servants who come within the definition of the term. Since Service Tribunals Act has adopted the definition of civil servant given in the Civil Servants Act, therefore, only those persons can go to the Services Tribunal, who are covered by the definition of civil servant and the ones who come within the exception stated are excluded from definition and thus they cannot go to the Service Tribunal and forum for him would a different one. The deeming clause has been inserted in section 17 (1-B) not with a view that without looking into the-definition of the term 'civil servant' the employees of WAPDA would become civil servants but for the limited purpose of providing a forum to get their disputes decided and to deny to them that protection which is enjoyed by the regular civil servants. Section 17(1-B) has then inserted if the employees of WAPDA are to be declared as full-fledge civil servants they would have been entitled to all those protections which are open to regular civil servants. But since the intention was not this, therefore only for the purposes of providing the forum of Services Tribunal, the deeming clause was introduced. So the forum of Service Tribunal will be available only to those WAPDA employees who do not come within the exceptions given in the definition of civil servant and the remaining employees of WAPDA will seek for their redress some other forums. The employees who are covered by the definition of workman given in the Industrial Relations Ordinance, 1969 or the Standing Orders Ordinance, 1968 can get relief from the Labour Courts but the ones who do not fall within the definition of workman given in the said laws they may seek their remedy from some other forum. 7. So far as PLD 1979 Kar. 95 and PLD 1979 Lah. 406 are concerned, they support the argument of the learned counsel for the appellants but with great respect I do not find myself in agreement with
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the views expressed in the said authorities. PLD 1977 Lah. 1156 goes against the appellant. So far as PLD 1976 Lah. 492 is concerned, the point whether the employees of WAPDA were civil servants or not was not disputed but rather it was conceded that the persons whose cases were pending in the High Court were civil servants. Since the point was not disputed therefore, it cannot be said that a different view was taken in the authority. From the following quotation it is clear that the persons involved in the cases from which the authority arose did not dispute the question of civil servants : - "It is a common ground between the parties that the petitioners have now become civil servants with effect from 30th September, 1975 in view of the amendment brought about by Ordinance XVI of 1975 Act for all but for limited purposes of Act LXX of 1973." I have already held in many cases that the employees who come within the exceptions given in the definition of civil servant in the Civil Servants Act, stand excluded from the definition of civil servant. In these cases PL DE 1977 Lah. 1156 was not cited and I was ignorant of this case. The ground given by me in these judgments are the same which are given in the authority cited above. The reasonings given in this authority are very sound. We cannot ignore the definition of civil servant while! Deciding whether a particular employee of WAPDA is or is not a civil; servant. I cannot agree with this view that without looking into the defini-tion of civil servant. Every employee of WAPDA is to be deemed as civil) servant. 8. The other point argued by the learned counsel for the appellant is that Standing Orders Ordinance, 1968 is not applicable to WAPDA. He has argued that WAPDA is working under the authority of the Government and that its rules had been framed under section 18 of the WAPDA Act, 1968 therefore, both the conditions given in proviso to section 1 (9) (c) of the Ordinance stand fulfilled. He has made reference to sections 3(2), 4, 5, 6, 3 (1), 3(3), 8(4), 9(l), 9(2), 10-A. 11 (1) to (i), 15, 16, (2), 22 (2), 27 and 28 of WAPDA Act, 1958. Section 3 (2) reads as under :-- "The Authority shall be a body corporate, shall be entitled to require and hold property, shall have perpetual succession and a Courts seal and shall by the said name sue and be sued. ' Obviously by being a body corporate and being entitled to acquire property and having perpetual succession and entitled to sue and to be sued in the said name, WAPDA cannot be said to be working by or under the authority of the Government. But rather section 3(2) contrarily shows that WAPDA is an independent body and can acquire property and can sue in its own name without taking any authority from the Government. Section 4 shows only this much that the Chairman and the members would be appointed by the Government and the Government can extend the period after the expiry of the term for which they were initially appointed. The Resignation of the Chairman or the member cannot take effect unless accepted by the Government. Section 5 deals with the salary and service conditions of the Chairman and the members which are to be prescribed by the Government but the duties are to be performed by them as assigned by the Act or by the Regulations framed by the Authority. Under section 6, the Government can remove the Chairman or any member by means of a notification, subject to the conditions enumerated in clauses (a) to (d) of the said section. It is clear from sections 4 and 5 that the appointment and removal of the Chairman and members can be made by the Government, but with regard to their duties the Government has no connection and the duties are to be assigned under the WAPDA Act or the Regulations framed by WAPDA. So far as the working of WAPDA is concerned it is independent and it has not to seek any authority from the Government. According to section 3 (1), comprehensive plan for the development and utilization of water and power resources of Pakistan on a unified and multipurpose basis is to be prepared by WAPDA for the approval of the Government, The scheme is to be prepared by WAPDA under section 3(2), which according to subsection (3). Is to be submitted to the Government for approval. The Government has discretion under clause (4) of section 8 to sanction or refuse to sanction the Scheme or to return it for further details or information. If the
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estimated costs of a scheme exceed the amount prescribed by the Government, the scheme is to be submitted to the Government and the Government has to pass orders as contemplated by section 8(4). Under section 9 (2) the Authority can with the approval of the Government undertake the execution of any scheme, or exercise technical supervisions and administrate and financial control over the execution of the scheme framed or s snored by any agency in respect of the matters enumerated in section 3(2). Is clear that to start with the scheme the Government interferes but after the scheme has been passed WAPDA is independent to work on that scheme and, thereafter the Government has nothing to do with it. If any scheme is sponsored by the Provincial Government or any agency under the control of the Provincial Government, WAPDA can exercise technical supervision and administrative and financial control over the execution of…
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