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Appeal No. LHR‑471 of 1979, decided on 4th July, 1982.

‑‑‑ S. 1 (4) , proviso and S.O. 15(4) and West Pakistan Water and Power Development Authority (Efficiency and Discipline) Rules, 1978, r. 5(3)‑WAPDA founded under West Pakistan Water and Power Development Authority Act; 1958‑Does not require any authority from any other quarter and independent‑Mere fact that appointment of big employees made by Government not sufficient to show that WAPDA is working under authority of Government WAPDA authorised to lay down procedure under S. 18 of West Pakistan Water and Power Development Authority Act and WAPDA (Efficiency and Discipline) Rules, 1978 framed thereunder not noti fied‑Doubtful to be characterised as statutory rules‑Such Rules may have binding force where West Pakistan Industrial and Com mercial Employment (Standing Orders) Ordinance, 1968 not ap plicable but to be saved from application of Ordinance such Rules must be statutory ‑WAPDA employees, held, governed by Ordinance and not excluded from its purview‑WAPDA employee dismissed on account of allegation of misconduct denied to have been committed by accused‑‑Order passed merely after show‑cause notice and with out enquiry purportedly under r. 5 (3) of WAPDA (Efficiency and Discipline) Rules, 1978‑Such rules, held, do not empower to dismiss a person without proving allegation which is denied Question of fact to be decided by means of evidence and not merely by saying that reply to allegation was incorrect or not acceptable Enquiry envisaged by S, O. 15 (4), further held, mandatory because WAPDA employees not excluded from purview of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

‑‑‑ S. 17 (1‑B) read with Civil Servants Act (LXXI of 1973), S. 2(n) and Service Tribunals Act (LXX of 1973), Ss. 2(a) & 4‑‑WAPDA employees‑Whether civil servants falling within exclusive jurisdic tion of Service Tribunal‑Only those employees who do not fall within definition of "Workman" under Workmen's Compensation Act, 1923 and Factories Act: 1934 are to be treated as civil servants‑Lineman of WAPDA covered by clause (xix) of Schedule II of S. 2 (n) of Workmen's Compensation Act, 1923 thus not a Civil Servant‑‑Labour Court held, has jurisdiction for grievance petition against alleged illegal dismissal of such employee of WAPDA‑Industrial Relations Ordinance (XXIII of 1969), S. 25‑A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance EVI of 1968), S. O. 15(4).

Muhammad Nawaz for Appellants.

Mian Mahmood Hussain for Respondents.

Date of hearing: 26th June, 1979.

The two appeals captioned above arise from the decision dated 9th July, 1979, passed by the learned Presiding Officer, Punjab Labour Court No. 1. Lahore, whereby the grievance petitions of the respondents were accepted and they were directed to be re‑instated in service with back benefits. Since the questions of fact and law involved in the two appeals are the same, they are being disposed of together through this single judgment.

2. The allegation against the respondents was that they were asked to appear before the Selection Committee for interview for being promoted to the post of Lineman Grade‑I but they did not appear and incited others not to appear before the said Committee. Previously an interview was held in 1978 for the same purpose but no decision was made. The respondents were charge‑sheeted to the effect that they did not appear before the Selection Committee on 28th February, 1979 held for considering the eligibility of Lineman Grade‑1I for being promoted to the post of Lineman grade‑I. It was mentioned in the charge‑sheet that they had thus committed misconduct by refusing to be examined by an authorised committee being guilty of breach of service conditions and instructions issued by the Authority and disorderly behaviour during working hours, The respondents replied to the charge sheet stating that once they had appeared before the Committee on 7th December, 1978, for interview, which had not been cancelled by any notification, therefore, there was no justification for holding interview again. Thereafter, second show‑cause notice were issued to the respondents, in which another allegation was added which was that they had incited other not to attend the interview. The respondents submitted replies denying the allegation that they had incited others for not attending the interview. Thereafter, no enquiry was made and the orders of dismissal were passed.

3. So far as the failure on the part of the respondents to attend the interview held on 28th February, 197‑9, is concerned, this act of the res pondents did not amount to misconduct. It did not amount to even insubordination. If a person does not want to be interviewed for pro motion, the question of his promotion may be ignored but it cannot be said that he committed any misconduct. So far as the allegation that the respondents had incited others not to attend the interview, the allegation was denied by the respondents in their replies; therefore, without holding an enquiry and bringing evidence on the record on the point, it could not be found that they were guilty of misconduct. A question of fact is always decided by means of evidence and not merely, saying that the reply to the allegation was incorrect or not acceptable. This is true that powers are given to the Authority to decide whether in a particular case an enquiry be held or not, but no power has been given to dismiss a person without proving the allegations where they are denied. Rule 5(3) of the Efficiency and Discipline Rules of WAPDA is clear on the point. This has been said presuming that Efficiency and Discipline Rules of WAPDA are applicable. Otherwise Standing Order Ordinance is applicable, according to Standing Order 15 (4) of which, charge, sheeting and making of enquiry are indispensable in cases where an order of dis missal is to be passed. It has been argued by the learned counsel for the appellant that Standing Orders Ordinance is not applicable. This plea has been taken in many other cases but I have already held that the con ditions given‑in provises to section 1(4) of the Standing Orders Ordinance, 1968 do not stand fulfiled, therefore, WAPDA is not exempted from the application of Standing Order Ordinance, 1968, WAPDA is not working under the Authority of the Government, but under the direct authority of WAPDA Act, 1958. The establishments which have no statutory sup port for their coming into may require the authority of anybody, but the establishments like WAPDA which has been found under a Statute do‑ not require any authority from any other quarter and are independent in this respect, Tie mere fact that the appointment of their big employees is made by the Government is not sufficient to show that the WAPDA is working under the authority of the Government. Section 18 of WAPDA Act has authorised WAPDA to lay down the procedure and under the said section West Pakistan WAPDA Employees (Efficiency and Discipline Rules were framed in 1978 but they have not been notified, therefore, it is doubtful whether they can be characterized as statutory rules. Since they had been framed under section 18 of the WAPDA Act, they may have binding force where Standing Orders Ordinance is not applicable, but to be saved from the application of Standing Orders Ordinance it is necessary that the rules should be statutory. So even the second condition given in proviso to section 1(4) does not stand fulfilled and thus Standing Orders Ordinance, 1968'is applicable and not the Efficiency and‑ discipline Rules. Standing Orders Ordinance is the product of legislation and it was duly notified in the Government Gazette, therefore, the rules which have to substitute the said Ordinance must be statutory in their character. This is noteworthy that section 18 of the WAPDA Act has not authorised WAPDA to frame rules but has authorised only to prescribe a procedure for appointment and terms and conditions of service of its officers and servants. Section 18 does not say that the procedure prescribed by WAPDA would be the statutory rules and that they shall be notified. So the intention is quite clear that the procedure to be prescribed by WAPDA is not to be taken as statutory rules. The procedure prescribed under section 18, therefore, cannot take the place of Standing Orders Ordinance, 1968,

4. Learned counsel for the appellants has also argued that the res pondents were civil servants according to section 17 (1‑B) of WAPDA Act and thus the Service Tribunal and not the Labour Court has jurisdiction. No doubt section 17 (1‑Bl says that all employees of WAPDA except the deputationists would be deemed to be civil servants for the purposes of the Service Tribunals Act, 1973 but the section has not defined the term civil servant'. To see what is meant by the term 'civil servant' we shall have to seek for its definition. The term is defined in Services Tribunals Act, 1973 but there also the definition given in the Civil Servants Act has been borrowed. According to the definition given in the Civil Servants Act, the employees who come within the definition of workman defined in section 2 (n) read with Schedule It of the Workmen's Compensation Act and in the Factories Act are nit civil servants. If WAPDA had defined the term 'civil servant' itself, notwithstanding the definition given in the Civil Servants Act and had omitted the exceptions given in the Civil Servants Act, it could be said that the WAPDA employees were civil servants and were not workmen. If it had been done, the other diffi culties would have arisen and that is that the Services Tribunal would have no jurisdiction to bear the appeals arising from the orders passed by the WAPDA, because the purpose of promulgation of Services Tribunals Act. 1973 is to provide a forum for deciding cases of civil servants as defined in the Civil Servants Act where the question of terms and con ditions of employment of the civil servants is involved. WAPDA em ployees in that way would have been different civil servants from the civil servants defined in the Civil Servants Act. The result is that only those employees of WAPDA are civil servants and the Services Tribunal has jurisdiction to decide their cases who do not fall within the definition Q of workman as defined in the Workmen's Compensation Act and the Factories Act. So far as the respondents are concerned, they being Linemen are covered by clause (xix) of Schedule‑II of section 2(n) of the Workmen's Compensation Act and thus they are not civil servants an dl the Labour Court, therefore, had jurisdiction.

5. No other point has been argued by the learned counsel for the appellants.

6. Since the respondents denied to have incited any other employee from attending the interview held on 28th February, 1979, charge did' not stand proved and they were rightly ordered to be re‑instated in service by the learned trial Judge.

As a result of the observations made above, I do not find any force in the two appeals and dismiss them.

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