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Writ Petitions Nos.4028, 4030, 4031. 4033, 4034, 3909 and 3910 of 1985, dismissed on 12th May, 1986.

---S. 2(i)(b)--Workmen's Compensation Act (VIII of 1923), S. 2(i)(n)(ii), Schd. II, Cls. (viii) and (x)--West Pakistan Irrigation Department Overseers Mechanical Service Rules, 1962, R. 11--Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R. 4--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 1(4)--Proviso, Industrial Relations Ordinance (XXIII of 1969), S. 2(xxviii)--Sub-Engineer of Irrigation Department with monthly wages exceeding Rs.1,000 p.m. do not fulfil requirements of S.2(i)(n)(ii) of Workmen's Compensation Act, 1923--Such employees, held, were not workmen but Civil servants--Provisions of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 applicable to such Sub-Engineers by virtue of R.11 of West Pakistan Irrigation Department Overseers Mechanical Service Rules, 1962--Framing of separate Efficiency and Discipline Rules for such employees was not necessary--Contention that Sub-Engineers of Irrigation Department were not ousted from purview of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 by virtue of first proviso to S. 1 (4) thereof, repelled- Such Sub-Engineers, held, performed supervisory duties in respect of persons employed in the sections and their monthly wages exceeded Rs.800 and thus were not covered by definition of "workman" in S.2(xxiii) of Industrial Relations Ordinance, 1968.

Khawaja Ijaz Ahmad. Muhammad Siddique Nasim v. Government of Punjab through Secretary, Irrigation and Power Department 1983 PLC (C.S.) 690 distinguished.

---Ss. 2(xxviii) & 25-A--Grievance petition--Maintainability of--Person removed from service being not a workman within meaning of S.2(xxviii), was not entitled to seek remedy by way of grievance petition under S.25-A.

National Bank of Pakistan, Gujranwala v. Punjab Labour Appellate Tribunal 1985 Law Notes (Lah.) 655 rel.

‑‑‑Arts. 199 & 212‑‑Punjab Service Tribunals Act (XI of 1974), S.4 ‑Writ jurisdiction‑‑Matter within exclusive jurisdiction of Service Tribunal--Cannot be brought for scrutiny before any other Court including High Court under Art. 199 of Constitution, 1973‑‑Order of removal from service passed under R. 9 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑Challenged in Writ petition inter alia on ground that same. was passed by person not designated as authority‑‑Alternate remedy of appeal before departmental appellate authority available under rules and matter otherwise falling within exclusive jurisdiction of Service Tribunal‑‑Impugned order not appearing to have been passed by an authority lacking jurisdiction‑‑Writ petition, dismissed as not maintainable.

Muhammad Amir Khan v. Controller of Estate Duty P L D 1961 SC 119; Mujeebullah Ijaz v. Director General, Telephones and Telegraph PLD 1980 Quetta 58 and Farzand Ali Shah v. Additional Inspector‑General of Police 1979 P L C 433 ref.

Muhammad Aslam Bajwa v. Federation of Pakistan P L D 1974 Lah. 545; Gul Sher Khan v. ‑Province of West Pakistan P L D 1975 Lah. 722 and Amanual Mulk v. N‑W.F. P. P L D 1981 Pesh. 1 rel.

D.M. Awan for Petitioner.

M.M. Saeed Beg for Respondents.

‑‑This judgment would dispose of the present writ petition as also Writ Petitions Nos. 4030, 4031, 4033, 4034, 3909 and 3910 of 1985 as common questions of fact and law are involved in these writ petitions.

2. The petitioners entered into service in the provincial Irrigation Department as Sub‑Engineers. Abdul Ghafoor petitioner, Muhammad Yasin Mirza, Ch. Muhammad Yasin and Ghulam Muhammad petitioners in Writ Petitions Nos. 4031, 4033 and 4084 respectively were posted as Sub Engineers, in the Tubewell Operation Sub‑division, Mandi Bahauddin, while Saeed Khan petitioner in Writ Petition No. 4030 was posted as Sub‑Engineer in the Store and Workshop Sub‑division, Mandi Bahauddin. Ikramul Haq Siddiqui and Muhammad Siddique petitioners in Writ Petitions Nos. 3909 and 3910 were holding the posts of Sub‑Engineers in Shah Jewna Tubewell Sub‑division. On 29‑8‑1978'a case under section 409/420/467/468/471, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 was registered against the petitioners and other employees of the Irrigation Department. The case was tried by the Special Military Court No. 2 at Sargodha in 1979. The hearing in the case was completed 1981 but the judgment was delivered on 27‑5‑1984 by the Special Military Court No. 18. All the petitioners were found guilty under section 468, P.P.C. and were sentenced to suffer R.I. for one year. In addition to the sentence of imprisonment, which was to run with effect from 10‑2‑1981, all the petitioners except Ikramul Haq Siddiqui were ordered to pay a fine of Rs.20,000 each. Ikramul Haq Siddiqui petitioner was directed to pay a fine of Rs.40,000. The petitioners filed appeal against the aforementioned order of conviction before the Martial Law Administrator, Zone 'A' Lahore, on 29‑8‑1984. Before the appeals could be disposed of the petitioners were served with notices under rule 9 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 by the Senior Staff Officer, Chief Engineer, Irrigation, Sargodha Zone, Sargodha, respondent No.1 to show cause within fourteen days why they should not be dismissed /removed from service or reduced in rank. The petitioners submitted reply of the above notice on 1‑9‑1985. After considering the petitioners, reply respondent No.1 passed order of their removal from service on 14‑9‑1985.

3. The petitioners have challenged the aforementioned order inter alia on the grounds that they are workmen and not civil servants and as such are not governed by the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975; that respondent No. 1 not having been designated as authority by the Government to exercise the powers of the authority under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, was not competent to issue show cause notice nor he could pass the impugned order of removal from service; that the impugned order was illegal as the petitioners were not informed in writing of the alleged misconduct within one month of the date of such misconduct or the date on which the alleged misconduct came to the notice of the Government as contemplated by Standing Order No. 15 (4), West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (West Pakistan Ordinance No. VI of 1968) which applied to the petitioners as no separate disciplinary rules applicable to the Sub -Engineer had been framed by the Provincial Government; that no independent inquiries were instituted against the petitioners before issuing show‑cause notices nor reasonable opportunity was afforded to them to produce their defence; and that the order of removal from service could be made only by the Chief Engineer, Irrigation, Sargodha Zone respondent No.2, as he was the employer of the petitioners for the purposes of action under the labour laws.

4. The respondents in compliance with the order of the Court filed replies, to the writ petitions controverting the petitioners' allegations. During the preliminary hearing learned counsel for the respondents was also permitted to make his submissions. These writ petitions were heard alongwith Writ Petition No. 4257/1985, which was filed by the Superintending Engineer (Headquarters) and the Chief Engineer against the order of reinstatement in service passed by the learned Labour Appellate Tribunal Lahore. in the case of Syed Moazzam Ali, Sub‑Engineer of the Irrigation Department, whose appointment was terminated by the Superintending Engineer (Headquarters) as in that writ petition also the main question for determination was whether Syed Moazzam Ali Shah was a workman. As the answer to the above question in Writ Petition No. 4257 of 1985 could be given only after considering the facts of that case, we found that it would not be proper to dispose of that writ petition and present writ petitions through one order. We have accordingly disposed of that writ petition through a separate order.

5. Learned counsel for the petitioners have contended that the petitioners are not covered by the definition of civil servant as given in section 2 (1) (b) of the Punjab Civil Servants Act, 1974 because they are workmen under the Workmen's Compensation Act, 1923 (Act No. VIII of 1923) in view of the nature, of duties performed by them which are covered by clauses (viii) and (x) of Schedule II of the Act. Reliance has also been placed on Khawaja Ijaz Ahmad, Muhammad Siddique Nasim v. Government of Punjab through Secretary, Irrigation and Power Department 1983 P L C (C.S.) 690 in which it was held that Sub- Engineers in the Irrigation and Power Department are covered by the definition of workmen given in section 2(n) read with clauses (viii) and (x) of Schedule II of Act No. VIII of 1923. Learned counsel for the petitioners have also referred to the case of Syed Moazzam Ali respondent in Writ Petition No. 4257 of 1985, who too was a Sub‑Engineer of the Irrigation Department and was found to be a workman by the Labour Court.

6. Learned counsel for the respondent has placed on the file a statement prepared by the Executive Engineer concerned, which show, the monthly salary of each petitioner at the time of his removal from service. Correctness of the above statement has not been questioned by the petitioners. In other words it is admitted that the petitioners' monthly wages exceeded Rs,1,000, at the time of their removal from service. This being so the petitioners do not fulfil the legal requirements of sub‑clause (Il) of clause (n)' of subsection (1) of section 2 of Act No. VIII of 1923 that the monthly wages received by the person employed in any such capacity as is specified in Schedule II should not exceed H Rs.1000. In view of this factual position the decision in the cases of Khawaja Aizaz Ahmad, Muhammad Siddique Nasim and Syed Moazzam All relied upon by the petitioners are not helpful to them.

7. Learned counsel for the petitioners have further submitted that the petitioners are workmen even if they are not covered by the definition of workman given in Act VIII of 1923 because the comprehensive definition of the term of workman given in the West Pakistan Ordinance VI of 1968 covers their case. According to this definition any person employed in any industrial or commercial establishment to do any skilled or unskilled manual or clerical work for hire or reward is a workman. The petitioners are employed in commercial establishment in view of the nature of duties performed by them. According to the learned counsel the first proviso to subsection (4) of section I of the aforementioned Ordinance VI is not attracted because no separate conduct or disciplinary rules applicable to the petitioners have been framed by the Provincial. Government.

8. The assumption on the basis of which the learned counsel for the petitioners want to show that the petitioners are not covered by the first proviso to subsection (4) of section I of the West Pakistan Ordinance V I of 1968 is factually incorrect because the petitioners are civil servants under section 2(1)(D) of the Punjab Civil Servants Act 1974 and as such the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 are applicable to them. No separate Efficiency and Discipline Rules were necessary in the case of petitioners because in Rule 11 of the West Pakistan Irrigation Department Overseas Mechanical Service Rules, 1962, which according to the petitioners, regulate recruitment to their service it is provided that members of the service shall be governed by such rules as have been or may hereinafter be prescribed by Government and made applicable to them. The Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, which are applicable to all civil servants, would also apply to the petitioners, who admittedly are civil servants. In view of the above legal and factual position, the petitioners' contention that they are workmen under the West Pakistan Ordinance VI of 1968 is without any basis.

9. According to the statement showing the duties performed by the petitioners, placed on the record by the learned counsel for the respondents, the petitioners also perform supervisory duties in respect of persons employed in their sections and since the monthly wages of each petitioner exceeds Rs.800. They are not covered by the definition of worker or workman given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 (Ordinance XXIII of 1969). Even otherwise the petitioners are not entitled to seek remedy under section 25‑A of the aforementioned Ordinance because after their removal from service they cannot be considered as workers or workmen in view of the definition of the said terms given in section 2(xxviii) of the Ordinance. In this connection reference may be made to the decision of a Division Bench of this Court in the case of National Bank of Pakistan Gujranwala. Punjab Labour Appellate Tribunal [1985 Law Notes (Lahore) 655],where it was held:‑

"In the presence of the clear language of section 2 (xxviii) there is no room for finding a contradictory interpretation. If the Legislature intended to include all the dismissed employees in the category of workers there was nothing preventing it from saying so specifically, rather than leave it to the guess work and calculation of the lawyers. The Indian Legislature made their intention known by adding section 2‑A a deeming clause, to treat dismissal etc. of an individual workman to be an industrial dispute. This does not however, mean that a dismissed employee has no remedy. He can still seek his remedy, but he can do it only through the Collective. Bargaining Agent or through a civil suit."

It has been contended on behalf of respondents that the petitioners have always been accepting their status as civil servants and it is for the first time that they have styled themselves as workmen. Reference in this connection is made to the replies filed by them on receipt of show‑cause notices issued under rule 9 of the Punjab Civil Servants (Efficiency and Discipline), Rules 1975, where the applicability of the aforementioned rules has been challenged on a number of grounds but not on the ground that the petitioners are workmen and not civil servants. Learned counsel for the respondents has submitted that the petitioners are admittedly civil servants and as such they cannot invoke the Constitutional jurisdiction of this Court in view of the provisions of Article 212 of the Constitution. The only appropriate course for them is to seek redress against the order of their removal from service by filing appeal before the appellate authority under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. According to the learned counsel the petitioners have in fact filed appeal before the Chief Engineer against the order of their removal from service and the same are pending. The writ petitions filed by the petitioners, in the circumstances, are misconceived and incompetent.

10. Learned counsel for the petitioners. on the other hand, have submitted that the petitioners' previous conduct of accepting their status as civil servants is not relevant because the petitioners can show that they are workmen under law and as such are entitled to derive benefit under the laws applicable to workmen. The petitioners are entitled to seek relief from this Court in the exercise of its Constitutional jurisdiction and it is not necessary for them to avail alternate remedy before coming to this Court. In support of this contention reliance has been placed on Muhammad Amir Khan v. Controller of Estate Duty PLD 1961 SC 119 wherein it was held that "the rule that the Court will not entertain a writ petition, when other appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court. It is a rule by which the Court regulates the exercise of its discretion". It was also held that "one of the well‑recognized exceptions to the general rule is a case, where an order is attacked on the ground that it was wholly without authority. Reliance has also been placed on a decision of a Full Bench of the Baluchistan High Court in the case of Mujeebullah Ijaz v. Director‑General, Telephones and Telegraph PLD 1980 Quetta 58 wherein it was held that Article 212 of the Constitution did not completely bar exercise of writ jurisdiction under Article 199 as the legal bar was restricted only to such matters in which the Service Tribunal Act and the Civil Servants Act occupied the fields. It was further held that "there may be cases" relating to want of jurisdiction by reason of lack of jurisdiction or absence of valid order to constitute an administrative tribunal or Court and in such cases it is not difficult to state that the case is one of absence of jurisdiction or the tribunal is coram non judice. Such situation would clearly attract the jurisdiction under Article 199 of the Constitution. Farzand Ali Shah v. Additional Inspector‑General of Police 1979 PLC 433 has also been cited by the learned counsel for the petitioners. In this case it was held that the order of compulsory retirement of a civil servant not passed by the competent authority, may be declared as void and ineffective by the High Court in the exercise of its writ jurisdiction. Petition under Article 199 would be incompetent if order passed by a functionary empowered in that behalf.

11. The question whether the petitioners have accepted their status as civil servants in the past is not material because even ‑after considering the petitioners' submissions on the basis of which they claim to be workmen, it has been found that the petitioners are civil servants. The main issue for determination is whether the petitioners can seek relief by invoking the Constitutional jurisdiction of his Court against the order of their removal from service passed by respondent No.1. There is no denying the fact that the petitioners have also an alternate remedy to seek relief against the aforementioned order. The rule laid down in the case of Muhammad Amir Khan relied upon by the learned counsel for the petitioners may not be attracted in the present case because clause (2) of Article 212 of the Constitution of Islamic Republic of Pakistan provides "Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1) no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends". It is quite evident from the above provision that a matter which falls within the jurisdiction of Administrative Court or Tribunal cannot be brought for scrutiny any other Court including the High Court under Article 199 of the Constitution.

12. The aforementioned provisions of Article 212 of the Constitution have been considered in some cases and it has been found that the ouster of jurisdiction of the Courts under clause (2) of the Article is complete in cases, which fall within the jurisdiction of the Administrative Court or Tribunal. It is immaterial whether the impugned action in such cases is challenged on the ground of want of jurisdiction. In Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah. 545 it was contended on behalf of the petitioner that the impugned order was not passed by a competent departmental authority and as such being coram non judice was open for adjudication by the High Court. Repelling this contention it was observed: ‑

"The words competent to make an order do not mean that a particular order involved in a given case was competently made, but simply indicate that if in a proper case the said authority was competent to pass an order in respect of the kind of matters involved therein, then his order will be appealable though in that particular case such an order according to the appellant could not have been passed. The defect in competency in other words will provide a good ground for appeal rather than negate it. That it is in this context that sections 4 and 6 of the Service Tribunals Act of 1973 are to be read is clear from Article 212 of the Constitution which states that it is the subject- matter of a case on which will depend the ouster of jurisdiction of other Courts. If the subject matter of Courts or Tribunals of exclusive jurisdiction is the 'terms and conditions of service' or 'discipline' and relates to persons who are or have been in the service of Pakistan then the ouster of jurisdiction of other Court is complete. As in the instant case, the petitioners are those who have been in the service of Pakistan and the impugned orders relate to their 'terms and conditions of service' and 'discipline' and for those matters Tribunals and Courts of exclusive jurisdiction have been established, they can now properly approach those Tribunals/ Courts under section 6 read with section 4 ibid and their cases in this Court can no longer proceed."

In Gulsher Khan v. Province of West Pakistan PLD 1975 Lah. 722 the relevant observations on the question of jurisdiction of the High Court under Article 199 of the Constitution in matters pertaining to the terms and conditions of the civil servants are as under:‑

"There is no dispute about the proposition that if an order or decision against a civil servant relating to the terms and conditions of service including disciplinary matters have been passed on or after the lst of July, 1969 the High Court will have no jurisdiction to make any order or entertain any proceedings under Article 199 of the Constitution and the only remedy such person will have will be before the Tribunal constituted under an Act of the appropriate Legislature as contemplated in article 212 of the Constitution. "

In Amanul Mulk v. N.‑W.F.P. PLD 1981 Pesh. 1, a Full Bench of the Peshawar High Court observed:‑

"Reverting to Article 212 of the Constitution, it may be noticed that when a Tribunal is established under the said Article no other Court is empowered to grant any injunction or make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends. It also provides that all proceedings in respect of the matters within the jurisdiction of the Tribunal pending before any other Court shall abate. The provisions of this Article on the very language oust the jurisdiction of all other Courts and as observed by a Division Bench of this Court in the case of Dr. Raja Mansoor Elahi v. N.‑W.F.P. P L D 1980 Pesh. 8 an order of a departmental authority even if it is without jurisdiction or is mala fide can be challenged before the Tribunal and the jurisdiction of the civil Courts and for that matter of the High Court is specifically ousted. The words 'Notwithstanding anything hereinbefore contained, occurring in clause (2) of Article 212 definitely point to all the provisions of the Constitution including Article 199 which gives extraordinary jurisdiction to the High Court to make orders and directions. It is, therefore logical to conclude that the jurisdiction of the Tribunal, wherever it exists.

ousts the jurisdiction of High Court under Article 199 and also of the Courts of ordinary civil jurisdiction."

13. We are in respectful agreement with the view taken in the aforementioned case that the extraordinary jurisdiction of the High Court under Article 199 of the Constitution cannot be invoked in matter, which fall within the exclusive jurisdiction of Administrative Court or Tribunal set up as contemplated by clause (1) of Article 212 of the Constitution. The order of removal from service challenged by the petitioners in the writ petitions can be assailed in appeal before the appellate authority under the rules. As informed by the learned counsel for the respondents the petitioners have already filed appeals before the Chief Engineer, Irrigation, Sargodha Zone, respondent No, 2. In the event of dismissal of their appeals by him the petitioners can further approach the Service Tribunal for relief. Their contention that the impugned orders have not been passed by a competent departmental authority and on that score they can seek their remedy from this Court under Article 199 of the Constitution, has no substance because the Senior Staff Officer respondent No. 1, who, according to the West. Pakistan Irrigation Department (Delegation of Powers) Rules, 1962 as amended by Notification No. SOR‑I‑(S&GAD)15/75, dated 24‑9‑1975 has been designated as the appointing authority. Thus, prima facie the impugned orders do not appear to have been made by an authority lacking jurisdiction.

The upshot of the above discussion is that the writ petitions filed by the petitioners are not maintainable and the same are accordingly dismissed in limine.

A. E.

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