Find a Lawyer

Appeal No. 174(R) of 1982, decided on 24th October, 1984.

‑‑‑S. 4‑‑West Pakistan Water and Power Development Authority Act (XXXI of 1958), S. 17(1‑B)‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss. 1(4), 2(i), S.O. 1(b) 12 & 15‑‑Payment of Wages Act (IV of 1936), S. 2(ii)(5)‑ WAPDA employees‑‑Status‑‑Civil servants only for purposes of Service Tribunals Act, 1973 and not for all purposes‑‑Labour Laws whether applicable to WAPDA employees‑‑WAPDA covered by definition of "industrial establishment" under Payment of Wages Act, 1936 and definition of "Commercial Establishment" under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑Meter Reader doing clerical work‑‑A "workman"‑‑To be governed by provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑Rules of WAPDA or terms and conditions of appointment contrary to Ordinance, 1968‑‑Inoperative and invalid‑‑Appointment made on conditions that appointee will be on probation for one year and liable to termination without notice before expiry of probation period‑ Such conditions contrary to Standing Order 1(b)‑‑Not valid‑‑Appointee, held, became permanent after service of 3 months and could not be removed without following procedure of Standing Orders 12 & 15 in circumstances‑‑impugned termination order on account of unsatisfactory work passed purportedly in terms of appointment conditions, held, not sustainable and set aside by Service Tribunal and appellant directed to be re‑instated from date of removal.

Asmat Kamal and Mahmood Hussain for Appellant.

Shahid Hussain Jilani for Respondent.

Date of hearing: 22nd April, 1984.

‑‑ The appellant was appointed as Meter Reader by the respondent, vide Memo. No. 2463‑16, issued on 14‑9‑1980. The appointment was to be temporary, terminable at any time on one month's notice, or pay in lieu thereof, on either side, without assigning any reason. He was, however, to be on probation for one year in the first instance. But, if his work or conduct during the period of probation was found to be unsatisfactory, the appointing authority could dispense with his services immediately without notice, even before the expiry of the probationary period, vide clause 2 of the terms and conditions of service contained in the offer of appointment. After the appellant had put in about 9 months of service, his services were dispensed with, by an order, dated 10‑6‑1961, issued by the appointing authority, namely, the Executive Engineer (E), Lahore, in terms of clause 2 of the letter of appointment referred to. The termination order was challenged before the Labour Court, under section 25‑A of the Industrial Relations Ordinance, 1969 and the said Court set aside the termination order on 30‑11‑1981 and directed the re‑instatement of the appellant in service, with full back benefits. This decision of the Labour Court was challenged by the respondents in the Punjab Labour Appellate Tribunal, Lahore, under section 37(3) of the I.R.O. The said Tribunal dismissed the appeal in limine, by a judgment delivered on 20‑1‑1982. Against this judgment, however, the respondent moved the Honourable Lahore High Court, in writ jurisdiction, and the said Court, by a judgment delivered on 9‑10‑1982, allowed the writ and declared the impugned order of the Labour Court as being of no legal effect, on the ground that the present appellant, being a civil servant for the purpose of the Service Tribunals Act, 1973, in view of section 17(1‑B) of the WAPDA Act, 1958, the order passed by the Labour Court was without jurisdiction and lawful authority. In view of the judgment of the Honourable Lahore High Court, the appellant came in appeal before the Tribunal, under section 4 of the Service Tribunals Act, on 17‑10‑1982. The appeal, having been admitted for hearing by order, dated 19‑10‑1982, the matter was finally heard on 20‑4‑1984 and is being disposed of by this order.

The case of the appellant is that, being a workman, as defined in the West Pakistan Standing Orders Ordinance, 1968, and the said Ordinance being applicable to WAPDA as an Industrial/Commercial Establishment, according to Standing Order 1(b), he was to be treated as a permanent workman, after he had completed 3 months of service as Meter Reader and could not, therefore, be removed from service, except in accordance with the procedure laid down in the Standing Orders. According to the appellant, if he were removed on the ground of misconduct, it had to be according to the procedure laid down in Standing Order No. 15 and, if on account of retrenchment, in the manner prescribed in Standing Order No. 13. In other words, he could not be removed under clause 2 of the letter of appointment, as he had acquired the status of a permanent employee, who could either be retrenched, if the situation so demanded, only if he were the junior‑most workman, or removed as a punishment by following the procedure of charge‑sheeting, holding an enquiry and being given an opportunity to offer his defence and passing the final order thereafter. Since, in this case, the termination of service was ordered neither on the ground of retrenchment nor in accordance with the provisions of Standing Order 15, the order of termination in question was without lawful authority and, therefore, illegal and inoperative. It was also pointed out that the order of termination did not comply with the requirement of Standing Order 12(3), under which his services could not be terminated, except by order in writing expressly stating the reason for the action taken.

3. The stand of the respondents, as spelled out in the written objections filed on their behalf, is that the provisions of the West Pakistan Industrial and Commercial Establishments (Standing Orders) Ordinance, 1968 are not applicable and that the appellant's services had been rightly terminated under clause 2 of the terms of employment, as conveyed in the letter of appointment. It is further their stand that neither Standing Order 1(b) nor Standing Order 12(3) are applicable to the case of the appellant. In this connection, the learned counsel for the respondent argued that WAPDA was not governable by the West Pakistan Standing Orders Ordinance but by its own rules, which it was empowered to frame under section 18 of the WAPDA Act, 1958. As such, the rule laid down in the letter of appointment was valid and the termination of the services of the appellant, in accordance with these rules was prefectly lawful and enforceable.

4. We have heard the parties at length. To us, it is quite clear that an employee of WAPDA is a workman, because he is a person employed in an industrial‑cum‑commercial establishment to do clerical work for hire or reward, vide definition of "workman" in section 2 of the West Pakistan (Standing Orders) Ordinance, 1968. The said definition reads as under:‑

(i) "workman" means. any person employed ir4 any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward.

As regards the status of WAPDA, it is an industrial establishment, as defined in clause (ii)(f) of section 2 of the Payment of Wages Act 1936 which is reproduced below:‑

"Workshop or other establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale."

It is also a commercial establishment, in terms of the definition of commercial establishment, as contained in section 2, clause (b) of the West Pakistan (Standing Orders) Ordinance, the relevant portion of which reads as under:‑

"Commercial establishment means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking."

In view of the above provision of law, we are compelled to accept the contention of the appellant that the West Pakistan (Standing Orders) Ordinance, 1968 is applicable to the employees of WAPDA and that application of any other rule framed by the Authority is not valid and legally enforceable. As a corollary to this, it has to be conceded that an employee of WAPDA, who qualified to be treated as a permanent workman under Standing Order 1(b), can be removed‑ only in accordance with the provisions of the relevant Standing Order. If his services are to be terminated, for any reason other than misconduct, one month's notice is necessary. If he is to be removed for unsatisfactory work, the procedure laid down in Standing Order 15 would apply. But, if the termination is to be on the ground of retrenchment of a post, the provision of Standing Order 13 has to be followed, under which the junior‑most workman is to be retrenched. Since, in this case, according to the admission of the respondent himself, the termination of service has been ordered on account of unsatisfactory work and since, as already observed, the appellant is to be treated as a permanent workman in view of the provisions of Standing Order 1(b), he could not be removed, except by following the procedure prescribed in Standing Order No. 15. Since this was not done, the impugned order is not valid order and cannot be sustained.

5. In this connection, it is pertinent to note that, although under section 17(1‑B) of the WAPDA Act, 1958, the WAPDA employees are to be treated as civil servants for the purpose of the Service Tribunals Act, 1973, they do not by virtue of this become civil servants for all other purposes. It was, however, contended by the learned counsel for the respondents that the labour laws are not applicable to WAPDA employees, by virtue of the said section. This, in our opinion, is complete misconception. The employees of WAPDA do not become civil servants for the purpose of determining their terms and conditions of service. If the terms and conditions laid down in the WAPDA rules or in any specific appointment or offer of appointment are ultra vires of the relevant labour laws, they cannot prevail, as against the labour laws. Even a collective agreement between WAPDA and its workers is not enforceable/binding, if it has the effect of taking away or diminishing any right or benefit available under the Standing Orders, vide proviso 2 to section 4. On the analogy of this provision, it can be safely held that a non‑collective agreement, as implied in the acceptance of the terms and conditions of appointment offered to the appellant, is even less defensible under the law. Clause 2 of the letter of appointment therefore, has to be held as invalid and inoperative and the respondent is precluded from taking recourse to it for terminating the services oz the appellant.

6. In the light of the above, the order of termination of services of the appellant being without lawful authority, the appeal is allowed and the impugned order set aside. As a consequence, it is further ordered that the appellant be re‑instated‑in service w.e.f. the date of removal.

A.E. Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.