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Constitutional Petition No. S‑40 of 1984, decided on 27th March, 1986.

‑‑‑S. 17(1‑B)‑‑Payment of Wages Act (IV of 1936), S.15(3)‑‑Provincial Government employee on deputation to WAPDA‑‑Status‑‑Determination of‑‑Employee of Provincial Government on deputation to WAPDA, held, would not be governed by Act XXXI of 1958 in matters of 'award‑of wages and could not be regarded as civil servant within ambit of S.17(1‑b) of Act XXXI of 1958‑‑Authority under Payment of Wages Act, would have jurisdiction to award claim of wages to such employee.

Ahmed Hussain Qureshi v. Chairman, Water and Power Development Authority and another P L D 1967 Lah. 796; Chairman, WAPDA, Lahore v. Muhammad Khan and 2 others P L D 1978 Lah. 781; 1984 P L C 1387; WAPDA and another v. Muhammad Arshad Qureshi 1986 S C M R 18 and F.U. Malik v. WAPDA and another 1983 S C M R 663 distinguished.

‑‑‑S.17(1‑B)‑‑Payment of Wages Act (IV of 1936), S.15(3)‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction, exercise of‑ Provisions of S.17(1‑B) of Act XXXI of 1958 would not regard provincial employee as civil servant to be governed by Act XXXI of 1958 in matters of claim of wages‑‑High Court declined to exercise constitutional jurisdiction where provision of Act XXXI had been rightly interpreted by forums below.

Abdul Hameed Khan for Petitioner.

Naimatullah Qureshi for Respondents.

Date of hearing: 27th March, 1986.

The respondent No. 1 was employed in Electricity Department, Government of Sind in 1952 and on creation of WAPDA ho was transferred to WAPDA on deputation as Overseer. The respondent No. 1 submitted an application under section 15(3) of the Payment of Wages Act and claimed Rs.34,185 alleged to have been illegally deducted by the petitioner. The petitioner denied the liability. The Commissioner Workmen's Compensation, an Authority under the Payment of Wages Act accepted then application and directed the petitioner to deposit the total amount of Rs.1,70,925 by his order 22‑2‑1984.

An appeal filed against the above order was dismissed by the learned Labour Court No. VI Hyderabad by the judgment, dated 24‑5‑1985. The petitioner being aggrieved has filed the present petition.

2. The petition is to be disposed of only on technical ground. It is contended by the learned counsel for the petitioner that the respondent though on deputation was a civil servant and section 17(1‑B) of the WAPDA Act would apply and, therefore, the two Courts below namely the Authority under the Payment of Wages Act and the Labour Court had no jurisdiction in the matter. The respondent was a civil servant and, therefore, he should have approached the Civil Services Tribunal for the grievance.

3. In order to appreciate the contention it is necessary to refer to the relevant provisions of section 17(1‑B) of the WAPDA Act, which reads as under:‑

"(1‑B). 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 Service Tribunals Act, 1973 (LXX of 1973)."

Learned counsel for the petitioner has stated that bare perusal of this section would show that every person holding a post under the Authority shall be deemed to be a civil servant.

On the other hand learned counsel for the respondent No. submitted that it does not apply to those employees who are on deputation to the Authority. The contention of the learned counsel for the respondent No. 1 appears to be correct.

Learned counsel for the petitioner has referred to the case of Ahmed Hussain Qureshi v. Chairman Water and Power Development Authority and another P L D 1967 Lah. 796 wherein it has been observed that employee of Electricity Department of Provincial Government transferred by Government to serve under Water and Power Development Authority retains status of civil servant notwithstanding his transfer to serve under Authority. This authority relates to interpretation of section 17(1) of the Water, and Power Development Authority and section 17(1‑B) had been added in 1975, therefore, this authority is inapt.

Next case cited by the learned counsel for the petitioner is Chairman, WAPDA Lahore v. Muhammad Khan and 2 other P L D 1978 Lah. 781. This authority goes against the petitioner because according to this authority a person employed in generating, transforming or supplying electrical energy is a workman and not a civil servant.

Next case cited by the learned counsel is 1984 P L C 1387. This authority is also inapt and in fact goes against the petitioner.

Next case cited by the learned counsel is WAPDA and another v. Muhammad Arshad Qureshi 1986 S C M R 18 wherein it has been held that the Service Tribunal alone had the jurisdiction to adjudicate with regard to the terms and conditions of WAPDA employees as from 30‑9‑1975 and that jurisdiction of all other Courts, Tribunals, Commissions was affected. But in these cases also the persons holding the post were 'not on deputation to the Authority from any Province, therefore, this authority is also not applicable.

Learned counsel has also cited the case of F.U. Malik v. WAPDA and another 1983 S C M R 663. This authority is also inapt. It has been observed that the petitioner holding very responsible post should have been aware of the provisions of section 17(1‑B) of the WAPDA Act.

It is an admitted position that the respondent was on deputation with WAPDA. He was a Provincial employee and, therefore, section 17(1‑B) of the WAPDA Act clearly shows that he is not a civil servant, therefore, the respondents Nos. 2 and 3 had the jurisdiction in the matter.

The petition has no force and the same is dismissed with no order as to costs.

A. A. Petition dismissed.

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