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Writ Petition No. 4018 of 1981, decided on 30th November, 1981.

‑‑‑ S. 6‑Essential service‑Impugned Notification covering only clauses‑ of employment connected with generation, trans mission, distribution or supply of electricity and respondent fail ing to produce enough material to establish his employment connected with generation of electricity, etc.‑ Respondent, held, failed to establish his employment to be treated as an essential service and as such has no right to invoke provisions of Act, in circumstances.

Ch. Abdul Shakoor v. WAPDA 1980 P L C 529 and WAPDA Workers' Union v. Fazli Khaliq Khan, Chairman, First West Pakistan Industrial Court, Karachi 1969 P L. C 492 ref.

Mian Iqbal Khalid and Col. Retd. M. A. Rashid for Petitioner. .

Nemo for Respondent No. 1.

Bashir Ahmad for Respondent No. 2.

Dates of hearing: 19th, 21st October; 18th and 22nd November, 1981.

The Water and Power Development Authority in this constitution petition has called in question the order dated 15th June, 1981 passed by the learned Chairman, National Industrial Relations Commission, Islamabad which was published in the Gazette of Pakistan (Extraordi nary), July 9, 1981, whereby removal of Muhammad Ashraf Butt, respon dent from service was set aside and direction to reinstate the respondent with back benefits was issued.

2. The facts forming background of this controversy are that Muhammad Ashraf Butt who was working at the relevant time as Accounts Assistant in the office of the Chief Engineer (Survey and Research) Organization, W BPD k, Lahore was served with show‑cause notice dated 24th November, 1979 requiring him to submit written defence under rule 5(iii)(b) of the West Pakistan WAPDA Employees' (Efficiency and Discipline) Rules, 1978. On receipt of the show‑cause notice the respondent requested the supply of certain documents to enable him to submit a reply to the show‑cause notice, but the same were not supplied. However, the respondent submitted an interim reply to the show‑cause notice on 16th December, 1979 and the same was found unsatisfactory and ultimately the Manager, Finance (Water) WAPDA as competent authority imposed the major penalty and ordered removal from service with immediate effect of the respondent under rule 5(iii)(b) of the aforesaid Rules vide order dated 22nd December, 1979.

3. This removal from service was challenged by the respondent by filing a petition under section 6 of the Pakistan Essential Services (Mainte nance) Act, 1952. The petitioner after submitting para. wise comments to the petition filed before the National Industrial Relations Commission under the aforesaid Act, submitted supplementary comments raising preliminary objections against the maintainability of the said petition as also to the jurisdiction of the Commission as Specified Authority on the ground that the respondent was not covered by Notification No. SRO. 112 (1)/79, dated 3rd December, 1979 issued under subsec tion (3) of section 3 of the said Act declaring "all classes of employment in connection with generation, transmission, distribution or supply of (electricity to be an employment to which the Pakistan Essential Services '(Maintenance) Act, 1952 shall apply". It was, therefore, contended that Muhammad Ashraf Butt, respondent, was employed in WAPDA on the Water side in the Survey an J Research Organization, when the order removing him from service was passed, he had.‑thus no connection directly or indirectly with the generation, transmission; distribution or supply of electricity. On the other hand Mohammad Ashraf Butt, respondent before the Commission relied on Notification No S.R.O. 667(1)/79 dated 27th September, 1979. The learner Chairman, N.I.R.C. on the request of the parties made a reference to the Ministry of Interior Division which in reply informed the Commission that as two notifications in question were issued on the recommendations of the Ministry of Water and Power which is administratively concerned with WAPDA, the matter has been referred to that Ministry for their views and comments. The clarification from the said Ministry of Water and Power was, however, not received by the Commission and instead Memo No. 7‑10/81 Poll‑1(2) dated 28th May, t981 was received. This memo reads as under :‑

I am directed to refer to the correspondence resting with your letter No. 18(99)/79, dated the 29th March, 1981, on the subject mentioned above, and to say that on 22nd December, 1979 the following two Notifications of this Ministry were in force:‑

(1) Notification No. SRO 1121(1)/69 dated the 3rd December, 1979, declaring all classes of employment in connection with the gene ration, transmission, distribution or supply of electricity to be employment to which the Pakistan Essential Services (Mainte nance) Act, 1952, shall apply, and

(2) Notification No. SRO 667 (1)/79, dated 27th September, 1979, declaring all classes of employment under the Water and Power Development Authority and Tarbela Dam Consultants (TAMS) working on the Tarbela Dam Project, to be employment to which the Pakistan Essential Services (Maintenance) Act, 1952, shall apply.

(3) As would be seen from the above Pakistan Essential Services (Maintenance) Act, 1952 was not applicable to the employment under the Survey and Research, WAPDA, Lahore, on 22nd December, 1979.

(Sd/‑)

(A. M. Usmani)

Section Officer

Tel. 27717

This memo was not treated as containing the view of the concerned Ministry though it was authenticated by a Section Officer and purported to convey the opinion of the Interior Division, as the learned Chairman was of the view that the opinion expressed is personal opinion of the Section Officer. It was also noted that the information given was contrary to the clarification issued earlier on 18th May, 1977, by the Ministry of Water and Power in consultation with the Law Division. The order of removal of the respondent was set aside under the impugned order as ultimately relying on the view, taken in cases of Ch. Abdul Shakoor v. WAPDA (1980 P L C 529) and WAPDA Workers' Union v. Fazli Khaliq Khan, Chairman, First West Pakistan Industrial Court Karachi (1969 P L C 492) the learned Chairman, N. I. R. C. as Specified Authority recorded the conclusion that provisions of Act L111 of 1952 apply as the employment of the respondent as Accounts Assistant in Survey and Research Organiza tion was covered by Notification dated 3rd December. 1979 rather than by Notification dated 27th September, 1979, which was specifically limited to the Employees of WAPDA working on Tarbela Dam Project.

4. Learned counsel for the petitioner contended before me that the finding to the effect that "it is not difficult to visualise that the Water Wing and Survey and Research Organisation of WAPDA are connected with Power Wing of WAPDA and are not independent of each other as is evident from the fact that Mangla and Tarbela Dams have been constructed and repaired by Water Wing in consultation with the Survey and Research Organization and these dams are connected with generation of the electricity" is based on conjectures and assumptions and that the same has been recorded ignoring completely the affidavit of the Chief Engineer, Survey and Research Organization and the Note submitted explain ing the functions of the Organization. Learned counsel also argued that the decisions in the cases of Abdul Shakoor and Machinery Pool 'Organi zation were wrongly relied upon to repell the submissions of the peti tioner as by virtue of the notifications referred to in these cases, the Pakistan Essential Services (Maintenance) Act, 1952 was made applicable to the whole of the Organization of WAPDA which is not the case now, as the word "Organization" was deleted from the Notification dated 4th June, 1979 and the Notification dated 3rd December, 1979 directed that the declaration made in the Notification dated 4th June, 1979 shall remain in force for a further period of six months.

5. Learned counsel for the respondent on the other hand adopting the view expressed by the learned Chairman in the impugned order argued that the employees of the Survey and Research Organization stand covered under the Notification dated 3rd December, 1979. Alternatively he argued that WAPDA employees irrespective of the department or Wing in which they perform their duties are governed by the provisions of Act of 1952 by virtue of Notification dated 27th September, 1979. It was also contended on behalf of the respondent that WAPDA Employees (Efficiency and Discipline) Rules, 1978 are not statutory Rules and in any case these Rules cannot supersede the provisions of Standing Order No. 15 of the West Pakistan Commercial Employment (Standing Orders) Ordinance, 1968, and as the order of termination of service was passed under the Departmental (Efficiency and Discipline) Rules, the said order of termination was illegal.

6. Learned counsel lastly contended that assuming that the provi sions of Act L11I of 1952 do not apply to the employment of the respon dent still the N. 1: R. C. had the jurisdiction to afford necessary relief to the respondent under the provisions of section 22‑A read with section 25‑A of the Industrial Relations Ordinance, 1969, and as the action of removal of the respondent was taken without affording reasonable opportunity to show cause and as substantial justice has been, done by the learned Chairman, this Court may not interfere in exer6ise of its constitutional jurisdiction.

7. It is common ground that in exercise of powers conferred by subsection (3) of section 3 of Act LI11 of 1952, notifications were issued from time to time applying the said Act to certain classes of employment under WAPDA. In the case of Abdul Shakoor v. WAPDA the plea taken was that only persons directly connected with the generation, transmission or supply of electricity were to be considered as belonging to an Essential Service and other employees of WAPDA who do clerical or other jobs do not belong to a class which could be cate gorised as an Essential Service. Abdul Shakoor petitioner in that case was serving as an Assistant Accountant in the WAPDA and the plea taken was not that his employment is not connected at all with the gen eration, transmission or supply of electricity rather the plea was that the employees who do clerical or other jobs do not belong to a class which could be categorised as ‑ an Essential Service, In this connection reliance was placed on another Notification dated 25th January 1978 under which employees in the WAPDA Press were declared as belonging to an Essential Service and it was, therefore, argued that the clerical jobs do no quality as a class to be categorised as an Essential Service. This argument was repelled by Mr. Ataullah Sajjad the then Chairman, N. 1. R. C. by observing that the notification declaring all classes of employments in connection with generation, transmission or supply of electricity as Essential Service, has to be given its natural meanings and it cannot be said that it had to be read with reservations which run counter to the explicit language used in it. From the observation made in this case it is not fair to conclude that the learned Chairman was laying down that all classes of employment under WAPDA as a whole was declared as an Essential Service. . Before invoking the provisions of Act LIII of 1952 the petitioner has to establish before the specified authority that his employment falls within the purview of the notifi cation holding the field at the relevant time. For this very reason the judgment of the Industrial Appellate Tribunal in the case of Representa tives of the WAPDA Workers' Union is also of no assistance as the notification under discussion in this case was dated 17th June, 1967 and the words used therein are entirely different from the phraseology used in the notification presently under discussion. The learned Member for holding that the employment in the Survey and Research Organization in the Water Wing of WAPDA is covered by the notification dated 3^rd December, 1979, relied on the "evident fact" that Mangla and Tarbela Dams have been constructed and repaired by Water Wing in consultation with the Survey and Research Organization and that the Dams are con nected with the generation, transmission, or supply of electricity. This observation has been made without there being any material on record. It will be noted that the respondent himself did not rely on this notifica tion as his case was that to his employment the notification dated 27^th September 1979 applies. The WAPDA‑petitioner on the other hand had submitted before the learned Chairman an affidavit of the Chief Engineer, Survey and Research Organization along with a note explaining the fungi lions of Survey and Research Organization. This note explained that the organization has the technical administrative control over the following formations:

"(i) Soil Salinity and Waterable Survey Directorate.

(ii) Reclamation and Research Directorate.

(iii) Mona Reclamation Experimental Project, Bahawal.

(iv) Watercourse Monitoring and Evaluation Programme of OF WM Project (Deposit Work).

(v) Lower Indus Water Management and Reclamation Project, Sind." '

and that this Organization had been engaged on the collection of field data in respect of soil salinity, waterable depth, irrigation and field application efficiencies and other agronomic and socio‑economic cons traints responsible for low agricultural production. As the respondent had produced no material to contradict the stand taken by the petitioner, therefore, by merely making a broad statement that Mangla and Tarbela Dams were constructed and repaired by the Water Wing in consultation with the Survey and Research Organization and these Dams are connec ted with generation of electricity, the finding could not legally be returned that the notification dated 3rd December, 1979, has the effect of applying the provisions of the aforesaid Act to the employment of the respondent as Accounts Assistant. The change of words used in different notifications issued from time to time and the fact that this change in the wording of the notifications was made after a specific representation of WAPDA would indicate the change so effected, intended to achieve some purpose. It may be added that W APDA in one of its letters, a copy of which is available on this record, suggested deletion of this words "the Organiza tion dealing with" occurring in the earlier notification as it was represented that use of those words in the notifications had created confusion and legal complication for WAPDA which is engaged in the unified and co‑ordinated development of the water and power resources of Pakistan, and has under it scores of formations and projects performing various functions and that the notification now to be issued ‑ should be made applicable to the employment connected with the generation trans mission, distribution or supply of electricity only and not to other for mations of WAPDA. No doubt the words used in a notification are to be interpretted and the suggestion made in the above referred letter will be of no consequence in case the draftsman has failed to achieve the intention by use of the proper words in the notification itself. Now the notification dated 3rd December 1979 admittedly; covers only those classes of employment which are connected with generation, transmission, distribu tion or supply of electricity and not the other classes of employ ment which have no connection with generation of electricity. So the question to be determined was whether the respondent had produced enough material to establish that his employment in the Survey and Research Organization was connected with generation ate of electricity. In this respect no material was produced by the respondent probably A because he was relying on the other notification dated 27th September 1979 which was held to be inapplicable. The respondent having thus, failed to establish that his employment is to be treated as an Essential Service, bad no right to invoke the provisions of Pakistan Essential Services (Maintenance) Act, 1952. Consequently the learned Chairman as Specified Authority had no jurisdiction to entertain the petition moved before him and to set aside the order of removal from service impugned before him.

8. The plea of the learned counsel for the respondent that the learned Chairman, N. 1. R. C. had the jurisdiction to grant necessary relief under the provisions of Industrial Relations Ordinance, 1969 and as substantial justice has been done this Court may not interfere in exercise of the constitutional jurisdiction cannot be accepted. Ad mittedly, the impugned order was passed acting as a Specified Autho rity under the Pakistan Essential Services (Maintenance) Act, 1952 and not in exercise of the powers vesting under Industrial Relations Ordi nance, 1969. The other plea that the substantial justice has been done cannot also be gone into as there is nothing on record on merits to show that the order of removal from service was patently illegal. Even the question of vires of WAPDA Employees (Efficiency and Discipline) Rules has first to be raised in proper proceedings and before proper forum.

9. The upshot of the above discussion is that the impugned order dated 15th June, 1981 cannot be maintained and the same is hereby declared to have been passed without lawful authority and hence is of no legal effect. The petition is thus accepted but there will be no order as to costs.

Petition accepted.

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