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Writ Petition No. 11754/5 of 1980, decided on 17th March, 1981.

‑‑‑‑ Art. 199/212‑Petitioner employee of WAPDA transferred on deputation to a Company‑Company informed by WAPDA that de putationist would not be repatriated without its prior approval but Company relieving petitioner despite his representation and WAPDA refusing to entertain arrival report‑Held : Petitioner still being employee of WAPDA has a right to serve WAPDA and could not be prevented from joining service‑‑Refusal on part of WAPDA to let petitioner join it held, without lawful authority and of no legal effect‑No cause of action, held further, existed for petitioner to approach Labour Tribunal instead of High Court whose jurisdic tion not barred in view of Art. 212.

Munawar Ahmad Javed for Petitioner.

Mansoor Hussain Bokhari for Respondents Nos. 1 and 3.

Sair Ali for Respondent No. 2.

Date of hearing : 17th March, 1981.

This order shall also dispose of Writ Petitions Nos. 419‑S‑81, 11709‑5 80, 9454‑S‑80, 9455‑S‑80, 10109‑S‑80, 11708‑S‑80, 11710‑S‑80, 177‑S‑81, 178‑S‑81, 179‑S‑81, 237‑S‑81, 385‑S‑81, 407‑S‑81, 12178‑S‑80, 11973‑S‑80, 11981‑S‑80, 11960‑S‑80, 11959‑S‑80, 11958‑S‑80, 1957‑S‑80, 11956‑S‑80, 11955‑S‑80, 11954‑S‑80, 11953‑S‑80, 11952‑S‑80, 11951‑S‑80, 11950‑S‑80, 11949‑S‑80 and 11948‑S‑80, which involve the same questions of law and facts.

2. The petitioner was employed as Assistant Engineer by WAPDA in Scarp‑I in 1980. In September, 1972, he was transferred to the Machinery Pool Organisation, another department of respondent No. 1. On 31st August, 1974, a private limited Company under the name of Mechanized Construction of Pakistan Limited (respondent No. 2) was floated in the public sector and it took over all the assets, liabilities of the Machinery Pool Organisation. The services of the officers of the Machinery Pool Organization were also transferred to it.

3. Vide letter dated 4th September, 1975, WAPDA explained the terms and conditions of its employees on deputation with Mechanised Construction of Pakistan Limited to state that they were governed by the WAPDA Efficiency and Discipline Rules. A copy of that letter is said to have been endorsed to the Director (Complaints and Investigation) under it, with the direction that he should continue dealing with the enquiry cases of WAPDA employees on deputation with the respondent No. 2.

4. On 18th April, 1977, the respondent No. 1 took a decision to terminate the lien of the petitioner and other employees who were on deputation with respondent No. 2. It was communicated to respondent No. 2 vide its letter dated 3rd May, 1977. The petitioner and other affected employees agitated the matter with the result that the Secretary, Ministry of Water and Power agreed to allow the deputationists who opted for WAPDA service to retain their lien. The petitioner is said to have done that. The respondent No. 1, also, decided that those who had opted for WAPDA would continue to serve respondent No. 2 as depu tationists. It further informed the respondent No. 2 as well as the respondent No. 3 that deputationists would not be repatriated to WAPDA without the prior approval of respondent 1. The matters like pensions employee provident fund, group insurance etc. were also to be governed by WAPDA Rules. The same position is said to have been confirmed by the Ministry of Law vide advice dated 29th April, 1980.

5. On 25th November, 1980, Mechanized Construction of Pakistan Limited relieved the petitioner in pursuance to its order dated 22nd November, 1980. Likewise the other petitioners were also relieved. The petitioner represented against it and stated that respondent No. 2 should not relieve him till such time a decision is made by respondent No. 1. However despite a representation, the petitioner was relieved as said above. Consequently, he submitted his arrival report to respondent No. 1 on 27th November, 1980 but the same was not entertained. The petitioner sent his arrival report by a registered post. He then filed the present writ petition.

6. It is contended by the learned counsel that as the petitioner is a WAPDA employee and as the same stands admitted by WAPDA on the basis of Annex. F' dated 11th July, 1970, he has a right to join it after being repatriated by the respondent No. 2. The learned counsel for a WAPDA, however, submitted that as the petitioner could not be repatriated without the consent of the respondent No. 1, it is the respondent No. 2 who should be directed to take the petitioner and other employees back. He further pleaded that as the petitioner has a sight to go to the Service Tribunal, the jurisdiction of this Court is barred in view of Article 212 of the Constitution.

7. None of the contentions of the learned counsel for the respondent No. 1 has any force. Admittedly, the petitioner was and remains to be an employee of the respondent No. 1. He would have been obliged to serve the respondent No. 2 if the respondent No. 2 was willing to let him do so. However as the respondent is not willing to retain the services o the petitioner, he could not impose himself on him. The dispute, if any, will thus be between the respondent Nos. 1 and 2, and till such time it is resolved, the petitioner is entitled to join the respondent No. 1. The denial on his part to do so is, therefore, unlawful.

8. Further, as the petitioner still continues to be an employee of the respondent No. 1 and as no action other than the above has been taken against him, he had no cause of action to approach, and trove the Tribu nal. Undoubtedly, he is still an employee of WAPDA and has, therefore, a right to serve it, The W4PDA thus could trot prevent him from joining and serving it.

In view of the above, the refusal on the part of WAPDA respondent No. 1, to let the petitioner join it, is without lawful authority and of no legal effect. The WAPDA is, therefore directed to entertain his arrival report as submitted on 27th November, 1980 and treat him as its employee. The respondent shall pay the costs also.

Petition allowed.

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