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Petitioner: WATER AND POWER DEVELOPMENT AUTHORITY VS Respondent: MEMBER NATIONAL INDUSTRIAL RELATIONS COMMISSION, LAHORE
2002 P L C (C
2002 P L C (C. S.) 1199
[Lahore High Court]
Before Saved Zahid Hussain, J
WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, W APDA House Lahore and another
Versus
MEMBER NATIONAL INDUSTRIAL RELATIONS COMMISSION, LAHORE and another
Writ Petition No.21104 of 1996, heard on 25th February, 2002.
Industrial Relations Ordinance (XXIII of 1969)‑‑‑
‑‑‑‑Ss. 15, 22‑A(8)(g) & 25‑K‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Constitutional petition‑‑‑Petition before National Industrial Relation's Commission‑‑‑Competency‑‑‑Employee of Water And Power Development Authority serving as Line Superintendent, was removed from service as he was convicted and sentenced by Summary Military Court‑‑‑Employee filed petition before National Industrial Relations Commission under Ss.15, 22‑A(8)(g) & 25‑K, Industrial Relations Ordinance, 1969 against his removal from service alleging that he had been victimized on account of his trade union activities‑‑‑National Industrial Relations Commission accepted petition and set aside the order passed against employee‑‑‑Validity‑‑‑Employee serving in Water And Power Development Authority being a civil servant, his petition before National Industrial Relations Commission did not lie in view of Art. 212 of Constitution of Pakistan (1973)‑‑‑Objection with regard to jurisdiction was raised before National Industrial Relations Commission, but it was not adverted to by the Commission and through a brief and non -speaking order petition was accepted‑‑‑Assumption of, jurisdiction by National Industrial Relations Commission in the matter was unwarranted by law‑‑‑Order passed by National Industrial Relations Commission being without lawful authority, was not sustainable‑‑‑High Court declared the order as without lawful authority and of no legal effect.
WAPDA and another v. Muhammad Arshad Qureshi. 1986 SCMR 18: Water And Powers Development Authority v. Agha Nazim Ali 1988 SCMR 574; WAPDA v. Muhammad Zubair and others NLR 1996 Labour 89; Waseem Ahmed Khan v. WAPDA and 3 others 1997 SCMR 2000: Zahir Ullah and 13 others v. Chairman WAPDA, Lore and others 2000 SCMR 826 and Malik Mumtaz Ahmed and others v. Federal Service, Tribunal and others 2000 SCMR 832 ref.
S. M. Masood for Petitioners
Nemo for Respondents
Date of hearing: 25th February, 2002.
JUDGMENT
Respondent No.2 was employed as Line Superintendent with the petitioner. He was convicted by the Summary Military Court No.65, Faisalabad and was sentenced to six months R.I. on 23‑I0‑1980. He was then removed from service on 6‑12‑1980. On 2‑4‑1995, he filed a petition under section 22‑A(8)(g), read with sections 15 and 25‑K of the Industrial Relations Ordinance before the National Industrial Relations Commission alleging victimization on account of trade union activities and affiliation. It was on 16‑10‑1996 that Agha Saleem Khurshaeed, Member of the Commission, proceeded to pass the impugned order accepting the petition of respondent No.2 and setting aside order of his dismissal. Same has been challenged through this petition.
2. It is contended by the learned counsel that respondent No.2 was a civil servant whose petition before respondent No.1 did not lie in view of Article 212 of the Constitution: it is contended that such an objection had been raised before respondent No.1 in the written reply, filed by the petitioner, but it was not adverted to and through a brief non‑speaking, order the petition of respondent No.2 was accepted. According to him, the assumption of jurisdiction by respondent No.1 in the matter was unwarranted by law and the impugned order has been passed without jurisdiction. Reference has been made to WAPDA and another v. Muhammad Arshad Qureshi (1986 SCMR. 18), Water And Power Development Authority v. Agha Nazim Ali (1986 SCMR 574), WAPDA v, Muhammad Zubair, and others (NLR 1996 Labour 89), Waseem Ahmed Khan v. WAPDA and 3 others (1997 SCMR 2000), Zahir Ullah and 13 others v. Chairman WAPDA, Lahore and others (2000 SCMR 826), and Malik Mumtaz Ahmed and others v. Federal Service Tribunal and others (2000 SCMR 832). None has appeared on behalf of respondent No.2 despite the fact that the names of the learned counsel duly appear in the cause list and the matter was kept in waiting till after the interval.
3. It may be observed that the petitioner had Submitted written reply to the complaint, filed by respondent No. 2 before respondent No. 1, wherein a specific objection to the jurisdiction of the learned Commission was taken that respondent No.2 being a civil servant, the jurisdiction of the Commission was barred in view of Article 212 of tile Constitution of Islamic Republic of Pakistan. It was also pleaded that the petitioner was dismissed from service due to his involvement in corruption cases and conviction by the Military Court. Be that as it may, respondent No. 1 assumed the jurisdiction despite an objection to the same had been raised by the petitioner, without even adverting or adjudicating tile, same respondent No. 1 was obliged to, first determine as to whether respondent No.2 was not a civil servant. He could only assume jurisdiction or proceed with the matter if finding to that effect had been recorded by him. He, however, chose to accept the petition, filed by respondent No.2 without adverting to .the essential issue going to the very root of the matter and his jurisdiction. In Muhammad Zubaris's case (supra) a learned Single fudge of this Court held that "every person holding a post under the authority i.e. WAPDA, is a Civil Servant for. the purposes of Federal Service Tribunal Act, 1973. Therefore, in view of the provisions of Article 212 of the Constitution read with section 4 of the Federal Service Tribunals Act, 193 the jurisdiction of all the Tribunals and Courts including that of National Industrial Relations Commission and its learned Members is barred, in So) far as the order relates to the terms and conditions of service. The said judgment was upheld by the Hon'ble Supreme Court in Waseem Ahmed Khan's base (supra). It was thus abundantly clear that petition of respondent No.2 before respondent No. 1 was not maintainable. The assumption of jurisdiction in the matter by the National Industrial Relations Commission was wholly illegal and unwarranted. The impugned order was passed by respondent No. 1 without any lawful authority which is not sustainable in, law.
As a result of the above, this petition is accepted declaring order dated 16‑10‑1996, passed by respondent No. 1 as without lawful authority and of no legal effect. No order as to costs.
H.B.T./W‑55/L Petition accepted.