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Appeal No. ID-491 of 1981/Pb, decided on 22^ndDecember, 1981.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)-

--S. 1 (4), proviso and S. Os. 1 (b) & (c) & 15(4)---WAP15A--A separate statutory body and separate legal entity--Not state carried on by or under authority of Government provisions of Ordinance applicable to WAPDA--WAPDA employee (Assistant Lineman) employed on probation-Nature of work for which employed likely to last for more than nine months-A permanent workman after completion of probationary period of 3 months- Charged of absence exceeding 10 days-Charge-sheeting for such misconduct and inquiry, held, necessary-Termination order passed without such proceedings, in circumstances, set aside- Re-instatement awarded on technical grounds hence back benefits not allowed.

Mian Mahmood Hussain for Appellant.

Khalid Ahmad for Respondent.

Date of hearing: 25^thNovember, 1981.

This appeal arises from the decision, dated 11^thJuly, 1981 passed by the learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi, whereby the grievance petition of the appellant for his re-instatement was dismissed.

2. The appellant was employed as Assistant Lineman on 13th January, 1979 on a probationary period of one year. His services were terminated vide order dated 21st June, 1979. The appellant challenged the said order, and his petition was previously dismissed by the Labour Court on 19th February, 1980, but the case was remanded by my learned predecessor vide his judgment dated 1st December, 1980, Previously, the learned Presiding Officer, of the Labour Court had held that it had no jurisdiction, inasmuch as the order of termination had been passed under section 17 (1.A) of the WAPDA Act. Now the ground given by the learned Presiding Officer for dismissing his application is that the service of WAPDA have been declared as service of Pakistan, WAPDA is working by or under the authority of the Central Government and thus according to proviso to section 1 (4) of the W. P. Industrial and Com mercial Employment (Standing Orders) Ordinance, 1968, the said Ordinance is not applicable. After holding so, the learned Presiding officer, has observed that the probationary period being one year and the service had been terminated within that period, the appellant does not come within the definition of permanent workman and thus he was rightly terminated. Regarding misconduct the learned trial Judge observed that since only habitual absence is misconduct under sub-rule (5) of rule 5 of the W. P. WAPDA Employees (Efficiency and Discipline) Rules, 1978, the absence of the appellant did not amount to misconduct, therefore, the charge sheet and making of enquiry were not necessary.

3. This is wrong that WAPDA is being carried on by or under the authority of the Government. It is a separate statutory body. If it has been carried on by or under the authority of the Government, there would have been no necessity of making provision that Service of WAPDA would be a service of Pakistan. The very proviso shows that neither WAPDA is a Department of the Government, nor its employees are independent to that provision Government servants. In order to attract the provision of Services Tribunals Act, such a provision appears to have been made. There is no declaration by the Central Government that WAPDA would be functioning by or under the authority of the said Government, or that it would be one of the Departments of the said Government. WAPDA is a separate legal entity. If WAPDA had been a Department of the Government or functioning by or under the authority of the Government, there would have been no necessity of sending some Government Officers to WAPDA on deputation. Again if WAPDA had not been a separate and independent entity there would have been no necessity of making efficiency and discipline rules and the Efficiency and Discipline Rules of the Government should have been applicable to its,1 employees. I thus hold that WAPDA not being carried on by or under the authority of the Government and thus Standing Orders Ordinance, 1968 is applicable to it.

4. According to clauses (b) and (c) of Standing Order 1 of the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, probationary period is three months and since the appellant before his termination had completed that period and as the nature of work for which he was employed was likely to last for more than nine months, he was a permanent workman on the day of his termination. The charge against him was of absence from 26^thMay, 1979 to 14^thJune, 1979, i.e. g exceeding ten days. Since such an absence amounts to misconduct, according to Standing Order 15 (4), charge-sheeting and making of enquiry against him were necessary.

5. As a result of the observations made above, I accept the appeal and setting aside the impugned decision of the learned lower Court, direct the re-instatement of the appellant in service. Since the appellant has been re-instated on technical grounds, he will not be entitled td bank benefits. Present none.

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