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Appeal No.53(R) of 1986, Appeal No.194 (L) of 1983, decided on 7th June, 1987.

‑‑‑R.1(2)‑‑Employee on probation‑‑Application of said Rules, held, was excluded in case of employees on probation.

(b) West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978‑‑

‑‑‑R.5(iv)‑‑Service Tribunals Act (LXXI of 1973), S.4‑‑Dismissal‑ Validity‑‑Where allegations levelled in charge‑sheet did not constitute a misconduct punishable with extreme penalty of dismissal from service, order of dismissal of such employee, held, could not be sustained‑ Dismissal order was set aside‑‑Employer was directed to reinstate employee in his previous appointment.

‑‑‑S.4‑‑West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1974, R.5(iv)‑‑Limitation Act (IX of 1908), S.14‑‑Time‑barred appeal against dismissal order‑ Application for condonation of delay‑‑Appellant stating in said application that certain judgments of Service Tribunal and Labour Courts having created a bona fide impression about jurisdiction of Service Tribunal, he had first challenged his dismissal order before Labour Court and on return of said application for want of jurisdiction had filed present appeal‑‑Such delay in filing being neither deliberate nor intentional, request for condonation of delay was granted by Service Tribunal.

Mian Mahmood Hussain for Appellant.

Sardar Muhammad Amir Akbar Khan, counsel for the Respondents.

Date of hearing: 23rd October, 1986.

‑The relevant background giving rise to the present appeal is that the appellant was appointed as Line Superintendent (Grade‑II) on 5‑3‑1981 and while working as such his services were terminated vide order dated 24‑3‑1981 purportedly passed under clause 2 of his offer of appointment. The appellant challenged the said termination order before the learned Punjab Labour Court which by its order dated 14‑5‑1981, directed the reinstatement of the appellant in service with full back benefits. It appears that the respondents were initially reluctant to carry out the order of the learned Labour Court whereon the appellant filed a criminal complaint against the Respondent No.1 in the Punjab Labour Court and ultimately he was reinstated in service. At the same time, however, he was first suspended from service and then served with the following Show Cause Notice:‑

Your personal record obtained from your parent office i.e. Office of XEN, Elecy: Wapda, Hafizabad, revealed that there were so many "serious allegations" against you for which a charge sheet and a Show Cause Notice (copy enclosed) had already been served upon you by the above named XEN, but you at the time of appointment in the Office of S.E., Ist Lahore Circle, Lahore as L.S. II, concealed the aforementioned facts. Thus, evidently you have cheated the Department and procured the appointment as L.S. II, in this Circle of Superintendence through fraudulent means.

If the above allegations are proved, you will be guilty of gross misconduct under the Pakistan Wapda Employees (E&D) Rules, 1978, applicable to you and will render yourself liable to all or any of the penalties described in rule 4 of the said Rules. You are, therefore, hereby required to put in your written defence reply within fourteen days of the receipt of this Show‑Cause Notice, stating at the same time whether you desire to be heard in person.

Your defence reply should reach the undersigned within the stipulated period, failing which it will be presumed that you have no defence to offer and an ex parte action will be taken against you, which may tentamount to the dismissal of your services.

Sd/-

SUPERINTENDING ENGINEER,

IST LAHORE CIRCLE, LAHORE,

2. The appellant submitted a detailed reply to the above Show -Cause Notice whereby he denied and refuted the charges levelled against him. However, vide the impugned order dated 24‑2‑1982 he was dismissed from service in purported exercise of the power derived from clause 3 of the offer of appointment issued to the appellant vide Office Memo. dated 5‑3‑1981. Aggrieved thereby the appellant first filed a grievance petition before the learned Punjab Labour Court but the same was returned to him by the said Court for want of jurisdiction vide its order dated 11‑4‑1983; he then filed the present appeal on 27‑4‑1983.

3. The learned counsel for the appellant submitted that the respondents with ulterior motive, first terminated the services of the appellant a few days after he joined the service under clause 2 of offer of his appointment which could be invoked for dispensing with the services of a probationer only if his work or conduct during the period of probation, is found unsatisfactory, while, it was impossible to judge the work and conduct of the appellant during a few days he served as a probationer. In any case, according to the learned counsel, when the appellant succeeded in getting the said order set aside by the Punjab Labour Court, the Respondent No.1 became more hostile and after reluctantly reinstating him in service in pursuance of the decision of the Labour Court, again dismissed him quite illegally and unjustifiably. The learned counsel further submitted that even otherwise the impugned order is bad in law inasmuch as the allegations on the basis of which the impugned order was passed, apart from being baseless, do not constitute a misconduct.

4. Be that as it may, however, the first question which falls for determination is whether the WAPDA Employees (Efficiency and Discipline) Rules were applicable to the appellant It may be useful to reproduce below sub‑rule (2) of Rule 1 of the said Rules which reads as under:

"2. They shall apply to all Wapda Employees except those on probation and those borne on work charged establishment."

A bare reading of the above provision makes out that the application of the said Rules was excluded in case of employees on probation. Since the appellant was admittedly still on probation, the impugned proceedings against him under the Wapda Employees (Efficiency and Discipline) Rules, were incompetent and unlawful. Mention in the impugned order of clause 3 of the offer of appointment also is misplaced and does not, in any way, alter the above said position because under the said clause the services of a probationer could be terminated for insubordination, intemperance or misconduct or continuous absence from duty, but the said rule could not be invoked for awarding a penalty of dismissal from service which could be done only under the Wapda Employees (Efficiency and Discipline) Rules. Thus, viewing from this angle also the impugned order remains incompetent.

5. Even on merits the impugned order cannot be sustained for the simple reason that the allegation levelled in the charge‑sheet does not constitute a misconduct punishable with the extreme penalty of dismissal from service inasmuch as the application of the appellant, for appointment as Line Superintendent (Grade‑II) yeas duly forwarded by the Executive Engineer, Hafizabad Division, and on his selection as such he was relieved of his duties as Meter Reader in the Hafizabad Sub‑Division which necessarily implied that the relevant authorities of the Hafizabad Sub‑Division had no objection to the appointment of the appellant as Line Superintendent (Grade‑II). The Respondents also failed to show anything in support of the stand that the appellant was bound to disclose in his application for appointment as Line Superintendent (Grade‑II) the fact of service of a charge‑sheet on him previously.

6. The learned counsel for the Respondents has seriously taken an objection about the competence and maintainability of the present appeal urging that the appeal is barred by limitation. The present appeal having been filed on 27‑4‑1983 against the order dated 24‑2‑1982 is obviously time‑barred. An application for condonation of delay has, however, been filed by the appellant stating therein that certain judgments of this Tribunal and the Labour Courts created a bona fide impression about the jurisdiction of this Tribunal and as such the appellant had first challenged the impugned order dated 24‑2‑1982 before the Labour Court which by its order dated 11‑4‑1983, returned the plaint for want of jurisdiction and thereafter he filed the present appeal on 27‑4‑1983. It was urged that the delay was neither deliberate nor intentional but was due to a bona fide misunderstanding prevailed at that time about the jurisdiction his Tribunal. In the circumstances of the case, we are inclined to accept the explanation offered by the appellant and accordingly the request for condonation of delay is allowed.

7. For the foregoing reasons the appeal is accepted and the impugned order is set aside. As stated above, however, prior to passing the impugned order, services of the appellant were terminated on 24‑3‑1981 in purported exercise of the powers under clause 2 of the terms and conditions of his service contained in his appointment order. The said termination order having been set aside by the Labour Court, the appellant was taken back in service but was again dismissed by the order impugned herein. The aforesaid order of the Labour Court was subsequently found to be without jurisdiction and was so declared by the High Court. Thereafter, the appellant filed an appeal being No.155(L)/1984 before this Tribunal to challenge the order of termination of his service. The said appeal, however, having been held to be barred by limitation, has been dismissed with the obvious result that termination order dated 24‑3‑1981 remains operative and effective. Therefore, reinstatement of the appellant in service as Line Superintendent (Grade‑II) is not possible although order of his dismissal from service impugned in the present appeal is being hereby set aside. It is, however, noticeable that but for his selection as Line Superintendent (Grade‑II) the appellant would have continued in his previous service as Meter Reader. Since his selection as L.S. (Grade‑II) is not materialized for no fault of the appellant, it would be highly improper and unjust if he is deprived of his previous job also. It is, therefore, directed that the appellant should be taken back in his previous service as Meter Reader.

8. No order as to costs.

A.A./380/Sr.F

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