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Appeal No. ID‑115 of 1980/Pb., decided on 1st December 1980.

----Ss. 17 (1‑A) & 20‑‑Executive Engineer‑Not delegated powers of Authority‑Termination order passed by Executive Engineer‑Cannot be deemed to have been passed under S. 17 (1‑A)‑‑Termination order passed by Executive Engineers according to' terms of appointment letter during probation period‑Presumption of Labour Court that such order passed under S. 17 (1‑A), held, quite erroneous.

Mian Mahmood Hussain for Appellant.

Kamal Mufti for Respondent.

Date of hearing : 1st December, 1980.

Vide appointment Letter No. 11/1/2 dated. 13‑1-1979 Muhammad Ayub, appellant, was appointed as Assistant Lineman (A. L. M.). Vide Office Order No. 211/1/2 dated 21‑6‑1979 the services of the appellant were termi nated under clause (2) of the appointment letter referred to above. Clause (2) of this appointment letter as well as the order of his termination is reproduced below :‑‑‑

"2. Probationary period, one year in the first instance."

The Services of Mr. Muhammad Ayub A. L. M. son of Muhammad Shuaib appointed vide this Office Order No. 11/1/2 dated 13‑7‑1979, is hereby terminated ink view of the Clause No. 2 as per above office order. The L. S. incharge Niloor sub‑office has reported that the official is wilful absent from his duty with effect from 26/5/1979 vide his Letter No. 848 dated 14‑6‑19979."

The above termination order was passed by the Executive Engineer (P) Operation Division No. Il, WAPDA, Islamabad. After serving a grievance notice, the appellant challenged the order of his termination before Punjab Labour Court No. 6, Rawalpindi under section 25‑A of the Industrial Relations Ordinance, 1969, which vide impugned decision dated 19‑2‑1980 dismissed the petition by holding that the impugned termination order passed by the Executive Engineer will be deemed to have been passed by the Authority under section 17(1‑A) of the WAPD A Act and, therefore, section 17 (1‑C) of the said Act is applicable to the instant case. Feeling aggrieved with the impugned decision, the appellant has preferred the present appeal.

2. I have heard at length the counsel for the parties and have also perused the entire material available on the record.

3. Sections 17 (1‑A) and 17 (1‑C) of the WAPDA Act relied upon by the Labour Court are reproduced below :‑.

"17 (1‑A).‑‑Notwithstanding anything contained in subsection (1) of any rules made, or orders or instructions issued, by the Authority, or in the terms and conditions of service of any person employed by or serving under the Authority, the Authority may at any time retire or remove from its service any person without assigning any reason, after giving him not less than 30 days' notice or pay for the period by which such notice falls short of 30 days.

17 (1‑C).‑Any order of removal or termination of service passed by the Authority in exercise of the powers conferred by subsection (1‑A) shall not be called in question m any proceedings taken under the Industrial Relations Ordinance, 1969 (XXIII of 1969), or the Essential Services (Maintenance) Act, 1952 (LIII of 1952) or under any law for the time being in force, before any Court, Tribunal or Commis sion after the thirtieth day of September, 1975 and before the coming into force of the West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1979 and any order setting aside or modifying or declaring any order of the Authority to be void and of no effect, shall stand vacated."

4. The first question which requires consideration is whether the termination order dated 21‑6‑1979 passed by the Executive Engineer can be treated as the order passed by the Authority under section 17 (1‑A). The term 'Authority' has teen defined under section 2(i) of WAPDA Act as under:-

"2(i) 'Authority' means the West Pakistan Water and Power Development Authority established under section 3 of this Act."

Under section 4(1) the composition of the Authority is as under :‑‑

"The Authority shall consist of a Chairman and not more than three Members to be appointed by the Government:

Provided that till such time as the Authority is fully constituted, the Chairman shad exercise the powers, functions and duties of the Authority."

Under section 20 of the Act, the Authority is Authorised to delegate its powers to the Chairman, Member or officer of the Authority any of its powers, duties or functions under the Act, subject to such conditions as it may think fit to impose. This section reads as under :‑

"S. 20.‑The Authority may by general or special order delegate to the Chairman, a Member or Officer of the Authority any of its powers, duties or functions, under this Act subject to such conditions as it may think fit to impose."

Vide Office Order No. S/SO (E‑I) I (1069‑B)Admn/44735‑855 dated 31‑10‑1975 the Authority in exercise of its powers conferred by section 20 of the Act had delegated its power under section 17 (1‑A) of the Act to the Members and Officers of the Authority shown in Column I of the annexure attached with the said office order. This office order alongwith the annexure is reproduced below :‑

In exercise of the powers conferred by section 20 of the West Pakistan Water and Power Development Authority Act, 1958, the Authority is pleased to delegate its power under section 17 (1‑A) of the said Act, to the Members and Officers of the Authority, shown in column 1 of the annexure to this office order to be exercised by them in respect of the persons employed by or serving under the Authority, as described is column 2 thereof.

A copy of the West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1975, inserting subsections (1‑A) and (1‑B) under section 17 of the Act is enclosed for facility of reference.

Annexure.‑‑1. Schedule of delegation of power.

2. Ordinance.

(Sd.)

(AMAN ULLAH KHAN),

Secretary,

WAPDA.

Annexure

It is an admitted fact that in the above annexure the Executive Engineers are not included. The learned counsel for the appellant has placed a copy of another Office Order No. S/SO (E‑I)I(1069‑B)Admn/3185‑33857 dated 22‑1‑1976, which shows that the Authority had withdrawn with immediate effect the powers delegated by it to the Members and officers of the Authority vide Office Order No. S/SO(E‑I)1(1069‑B)Admn/44735‑855 dated 31‑10‑1975 reproduced above. This office order dated 22‑1‑1976 is also reproduced below :‑

"The Authority has decided to withdraw, with immediate effect, the powers delegated by it to Members and officers of the Authority vide Office Order No. S/SO (E‑I) I (1069‑B) Admn/44735‑855 dated October 31, 1975."

The respondent‑Authority hag not placed any material on the record to show that the Authority had delegated its powers under section 17 (1‑A) of the Act in favour of any officer, especially the Executive Engineers. Mr. Kamal Mufti, learned counsel for the respondent‑Authority, sought several adjournments in order to ascertain from the appropriate officers whether the powers of the Authority under section 17 (1‑A) have been delegated to the Executive Engineers or other officers or not, but he frankly confessed before me that he was not able to produce any such order before this Tribunal showing that the Executive Engineer was in fact delegated the said powers of the Authority under section 17 (1‑A). It is not denied that the onus was upon the respondent‑Authority to establish that such power was in fact delegated in favour of the Executive Engineers. In the absence of any positive document, the Labour Court was not justified to deem or presume that such delegation order was passed in favour of the Executive Engineer, who passed the impugned termination order. The result is that at present powers under section 17 (1‑A) can only be exercised by the Authority and not by any other officer of the Authority as its delegatee, because the respondent‑Authority has failed to place any documentary proof on the record showing such delegation of powers under section 17 (1‑A) of the WAPDA Act. Moreover, in the instant case the impugned termination order has been passed by the Executive Engineer under clause (2) of the appointment letter of the appellant. The Labour Court, therefore, was factually wrong to observe that the impugned termination order was deemed to have been passed under section 17 (1‑A) of the Act. As mentioned above, it is only the Authority, which is given power under section 17 (I‑A) and the same has not so far been delegated in favour of any other officers of the Authority. Therefore, the impugned termination order could not in any manner be deemed to have been passed under section 17 (1‑A), as the Executive Engineer had no authority to exercise power under section 17 (1‑A). Since the termination order was passed' under the appointment letter, the Labour Court was fully competent to examine the validity of the same.

5. In view of the above, this appeal is accepted, the impugned decision of the Labour Court is set aside and the case is remanded back to it for decision afresh in accordance with law.

Appeal accepted. Case remanded.

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