A. O. RAZIUR RAHMAN (MEMBER).-Originally, an employee of the Electricity Department of the Government of the N.-W. F. P., who, on the establishment of the Water and Power Development Authority, West Pakistan, was transferred to WAPDA and was serving as Chief Engineer (Distribution) at Quetta since 12-11-1976, the appellant submitted an application addressed to, the Chairman on 21-5-1977, in which he stated: "I am a Government servant and have put in 29 years of service. It is requested that I may very kindly be allowed to proceed on retirement. L.P.R. Application with effect from 1-6-1977 along--with leave availability certificate are annexed."
2. This application was granted and orders to this effect were issued on 7-6-1977. The said order is reproduced below: "No. SJSO (ADMN) 1 (574)/34999-35006, dated 7-6-1977.
OFFICE ORDER The Authority is pleased to accord sanction to the grant of leave preparatory to retirement to Mr. A.
A. Sohail, Chief Engineer (O.S.D.) office of the General Manager (Distribution) WAPDA, under the West Pakistan Government Leave Rules, 1955, as indicated below:
(i) From 7-6-1977 to 2-12-1977 (on average pay)
(ii) From 3-12-1977 to 6-6-1978 (on half average pay)
2. On the expiry of his L.P.R. Mr. A. A. Sohail, Chief Engineer (O.S.D.), shall stand retired from service with effect from 6-6-1978 (A.N.).
(Sd.) Aman Ullah Khan, Secretary, WAPDA "
3. Some time after this, i.e. On 8-9-1977, the appellant made an application to the Chief Martial Law Administrator praying that "he may be allowed to cancel his Leave Preparatory to Retirement, which was forced on him".
4. It appears that no response was received to this application and the appellant made an application to the Chairman, WAPDA, requesting for permission to withdraw his application, dated 21-5-1977, for L.P.R. And for being given posting order. He followed this up with reminders, dated 18- 12-1977 and 4-1-1978. But, on 5-1-1978, he was informed, through Memo. No. SO (Admn.) 1 (574)
8700-01, that his request had been considered by the Authority and rejected. Against this order of the Authority, the appellant filed an appeal before the President on 10-1-1978, in which he prayed for setting aside the order of the Authority refusing to allow him to withdraw his application for being allowed to go on L.P.R. And to declare the petitioner as continuing in service without any break and entitled to serve till the age of superannuation.
5. Meanwhile, since the appellant was under the impression that his reminder, dated 4-1-1978, which was a detailed application, had not reached the authorities of the organization, lore they replied to his previous representation, by a memo. Dated 5-1-1978, he thought it fit to approach the authorities with reminders, which he sent on 4-2-1978, 7-3-1978 and 6-4-1978, after which the Authority informed the appellant, by memo. Dated 2-5-1978, that they could not agree to modify their previous decision contained in the office order, dated 7-6-1977. Mean--while, however, the petitioner's application, dated 10-1-1978, against the Authority's order of 5-1-1978, was forwarded by the Chief Martial Law Administrator's Secretariat (Public), Rawalpindi to the Ministry of Water and Power, for being "looked into personally and the Secretariat kept informed of the action taken in the matter". On 4-10-1979, the appellant addressed the Secretary, Ministry of Water and Power and requested him to inform him about the action taken. This application was, in turn, forwar--ded to the Chairman, WAPDA, by the Ministry on 7-10-1979, for being looked into personally and both the C:M.L.A's Secretariat and the Ministry informed of the action taken. Prior to this, the appellant had, on 28-5-1978, approached the Honourable Lahore High Court at Lahore, for relief under Article 199 of the Constitution, read with Article 2 (2) of the Laws (Continuance in Force) Order, 1977, through Writ Petition No. 2888-S/1978. The writ petition was dismissed by the said High Court, by its judgment, dated 29-10-1978, whereafter the appellant filed a petition for Special Leave to Appeal in the Supreme Court of Pakistan on 12-3-1979. This, however, was withdrawn by the appellant, some time in October, 1979. The present appeal was filed thereafter on 30-10-1979.
6. The background of the letter of the appellant asking for grant of L. P. R. Is that, while he was posted at Quetta as Chief Engineer, disciplinary action in the form of retirement from service against two employees of the organization, working within the jurisdiction of the appellant, was taken on 22-1-1977, which was shortly after the posting of the appellant on 12-11-1976. As a reaction to this step taken by the aut--horities, the Chief Engineer and his colleagues at Quetta were gheraoed by the employees on 28-1-1977. Al a result of this, the appellant, who was also designated as Chairman, Area Electricity Board, passed an order holding in abeyance the implementation of the orders of two of the employees in respect of whom retirement orders had been published on 12-1-1977. The higher authorities at Lahore were apprised of the facts and the next day, i.e. 29-1-1977, by office order No. 69911/11,' the Authority withdrew the orders of retirement which had been passed on 12-1-1977. This, however, did not succeed in eliminating the trouble with labour and they continued to agitate for the removal of their grievances, as a consequence of which, the Chairman, WAPDA, held the appellant responsible for the trouble and, as alleged by the appellant, he even abused him on telephone on or about 11-2-1977, after the President of the WAPDA Employees' Union, Baluchistan had visited the Chairman at Lahore and pressed for a number of demands on behalf of the Union. After some time, on the refusal of the Chairman to accept some of the demands of the Union and, as alleged by the Union, because of the "misbehaviour" of the Chairman with the President of the Labour Union, the Union served a strike notice on the Chairman, threatening to go on strike from 19-4-1977, if the demands were not met by 18-4-1977. This, more or less, coincided with the "Pahiya Jam Strike" called by the P. N. A., against the then Government from 24-4-1977. On the refusal of the authorities to deal with the Union in a persuasive manner, the employees actually went on strike on 22nd and 23rd April, 1977. About the same time, the appellant was relieved of his posting at Quetta and ordered to report to Headquarters at Lahore, whereafter he availed casual leave for 22 days. On reporting for duty on 17-5-1977, he was posted as Officer on Special Duty in the rank of a Chief Engineer under General Manager (Distribution), with effect from 24-4-1977. According to the appellant the Chairman had taken a decision on 19-5-1977 to call for the appellant's explanation in connection with the strike by the WAPDA Employees' Union, Baluchistan. Before formal notice in this behalf could be issued the appellant tried to have an interview with the Chairman, to explain his point of view, but was not granted the same. But, when he met the Chairman outside the office room just as he was leaving the office, the Chairman told him that he had already taken a decision and the appellant could accept any of three alternatives, namely;
(i) Reversion to the post of Superintending Engineer.
(ii) Removal from service under section 17 (1-A) of the WAPDA Act.
(i.e) Leave Preparatory to Retirement.
Faced with such a situation, the appellant submitted his application for L.P.R. On 21-5-1977. No action was taken on this application immediately, but, on 31-5-1977, he was served with a memo.
Requiring him to explain his conduct in connection with the strike by the WAPDA Employees' Union.
Thereafter, on 7-6-1977, the, office order granting him L. P. R. Was published. .
7. The refusal of the Chairman, WAPDA to permit the appellant to withdraw his application for L. P. R.
And the subsequent failure of the C. M. L. A./President to give him any relief in the matter have been impugned by the appellant on a number of grounds, which we shall discuss shortly. But, before we do so, we must deal with the preliminary objection to the admission of the appeal, raised on behalf of the respondents.
8. The learned counsel for the respondents drew our attention to the fact that, although final order rejecting the prayer of the appellant for cancelling his L.P.R. Was passed by the Chairman, WAPDA on 2-5-1978, the appeal was actually filed as late as 30-10-1979. Since service under WAPDA was treated as service of Pakistan, after the insertion, by an amending Ordinance, of subsection (1-B) in section 17 of the WAPDA Act, which took place in 1975, the appellant should have preferred his appeal before the President of Pakistan within 30 days of this order and. On failure to get any reply thereto, he should have come up before us within 90 days of his representation ; but since he filed his appeal as late as 30-10-1979, the same is barred ` limitation and should, therefore, be rejected.
After hearing both the Arties on this point, we are satisfied that the appeal need not be dismissed on the ground that it was time--barred. The reason for our taking this view is that, although, after the final order conveyed to him by the Chairman, WAPDA on 2-5-1978 and his failure to obtain any redress from the CMLA/President, the Appellant moved the matter in the High Coti6t, through a Writ Petition on 28-5-1978, which was dismissed on 29-10-1978, ~ after which he approached the Supreme Court on 12-3-1979, but realising that the proper forum for agitating the matter was the Federal Service Tribunal, he came up before us on 30-10-1979, which was within thirty days of the withdrawal of his petition before the Supreme Court. The learned counsel for the appellant explained, on his behalf, that the reason for his approaching the Honourable High Court and, thereafter, the Supreme Court was that the status of the appellant was not clear all the time and the Honourable High Court had been entertaining appeals in similar cases. He further submitted that, as soon as the correct legal position was brought home to the appellant, he approached the correct forum for agitating the matter without loss of time. We are satisfied that, whatever the reason for the confusion, on account of which the appellant lost so much time pursuing the matter in a wrong forum, there is no doubt that he had been pursuing the matter diligently and, for this reason, the condonation of delay, applied for by him, deserves to be granted. We, accordingly, reject the objection raised by the respondents on the ground of limitation.
9. The main ground, on which the orders of the concerned autho--rities, refusing to allow the appellant to withdraw his application for L.P.R. And to return to duty before the expiry of the leave period, have been impugned, is, briefly, that such withdrawal is permissible under the relevant rules, as elucidated in, Memo. No. 705-8-VI-67, dated 13th April, 1967, issued by the Government of West Pakistan, Finance Depart--ment, wherein it has been clarified that officers/officials who, on their own, applied for leave with permission to retire 'on the ' expiry of leave "may cancel their application for leave" and "return to duty" not "more than 14 days before the expiry of the period of leave granted, except when the Authority which granted the leave, permits them to return to duty before the specified period". The appellant claims that he had, according to the Government of West Pakistan memo. Referred to, the statutory right to cancel his leave under the relevant rules of the Government of the N.-W F.P. To which he originally belonged, and which were applicable to him by virtue of the third proviso to section 17 (I) of the West Pakistan WAPDA Act, 1958, according to which, the terms and conditions of service of any person belonging to the Electricity and Irrigation Departments of a Provincial Government, who were liable to serve under the WAPDA, could not be varied by the Authority to his disadvantage.
10. The complete text of subsection 17 (1) is reproduced below; "17.-(1) : The Authority may from time to time employ such officers and servants, or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit Provided that all persons serving in connection with the affairs of a Province in the Electricity and Irrigation Departments shall be liable to serve under the Authority, if required to do so by the Provincial Government, on such terms and conditions as the Provincial Government may, in consultation with the Authority, determine but shall not be entitled to any deputation allowance; Provided further that the Provincial Government, in relation to any such person as aforesaid delegate such administrative, discip--linary and financial powers to the Authority as the Provincial Government may deem fit : Provided also that the terms and conditions of service of any such person as aforesaid shall not be varied by the Authority to his disadvantage."
11. The relevant portions of the Government of West Pakistan, Finance Department, Memo. No. 705- 8-VI-67, dated 13th April, 1967, are also reproduced; "Subject : Retirement of Government Servants at the age of 55 years under Article 178 of the Constitution.
Sir, I am directed to address you on the subject noted above and to state that a question has arisen whether an official who requests for the grant of leave preparatory to retirement, can subsequently withdraw his application.
(2) In this connection I am to explain that such Government Servants can be placed in two categories viz. (i) those who are sent on retirement as provided for in the Constitution (Sixth Amendment) Act, 1966, and (ii) those who on their own apply for leave with permission to retirement on the expiry of leave. The position in respect of each would be as under; (i).....................
(ii) Category II-Those officers officials who do not fall in category I but who on their own apply' for leave with permission to retire--ment on the expiry of leave. The officer officials failing under this category may cancel their application for leave and under rule 8.44 ibid, or the corresponding rule of the other integrating units, should not normally return to duty more than 14 days before the expiry of the period of leave granted except when the authority which granted the leave permits them to return to duty before the specified period. Clearly in this case alone, the leave sanctioning authority may exercise the discretion envisaged in rule 8.44 ibid etc. Your obedient servant.
(Sd.)
S. AKHLAQUE HUSSAIN Additional Secretary (11), Government of West Pakistan, Finance Department."
12. Reading the Finance Department's memo., alongwith the relevant portions of section 17 (t) of the WAPDA Act, we come to the conclusion that a former employee of the N.-W. F. P. Government employed in the Electricity Department of that Government, being a person governed by the terms and conditions of his service as determined by the N.-W. F. P. Government and, subsequently, the Government of West Pakistan, had the right to cancel his application for L.P.R. And to return to duty before the expiry of the leave period. Against this stand of the appellant, the learned counsel for the respondents argued that, under section 17 (1-B) of the West Pakistan, WAPDA Act, 1958, the Authority was competent, at any time, to retire or remove from service any person without assigning any reason and that the right to reject the application for returning to duty was inherent in the Chairman of the Authority.
13. We have given our most careful consideration to the stand of the two parties on this very important point. Apparently, there is a great deal of force in the view expressed by the appellant, and pressed before us by his learned counsel, that, the appellant being an original employee of the Government of the N.-W. F. P., under the `second proviso to section 17 (1) of the WAPDA Act, he was to be governed, during his employment under WAPDA, by the terms and conditions of his service under the Electricity Department of the Government of the N.-W. F. P. Under these terms and conditions, he had the right, as explained in the West Pakistan, Finance Department memo. Dated 13-4-1967 to cancel his application 'for leave under 'the relevant rules of the N.-W. F. P. Government enabling him to do so. The learned counsel for the respon--dents was unable to convince us that this right, which would have been available to the appellant had he remained in the service of the N.-W. F.P. Government and which had been protected under the third proviso to section 17 (1) of the WAPDA Act, had been abrogated and was no longer available. His stand was that, after the introduction, by an amendment of the original Act, of subsection (1-A) in section 17, the said right had ceased to be available to the appellant. A simple reading of the said subsection merely shows that, under this sub section, the Authority could retire or remove any person serving under it without assigning any reason. For one thing, it is doubtful whether this provision, being inconsistent with the protection given to the appellant under the third proviso to sub--section (1), could operate against the appellant. But, even if it could, reference to this provision is not relevant to the point at issue.
Since, in the instant case, the Authority had not removed the appellant from service. It could not be argued that it had acted under the subsection. Admittedly, the employee had applied for L.P.R.
Under the rules applicable to him and he had been granted the same. If he could be granted permission to go on L.P.R; under the rules of the Provincial Government applicable to him, he could also ask for withdrawal of his application under the same rules and the learned counsel for the respondent could not cite any provision of law on which this could be refused. The mere claim that the Chairman, WAPDA had an inherent right to reject the application for returning to duty is not only without any legal basis but also unconvincing logically and from the view-point of common sense. We are, therefore, unable to accept the plea of the respondents and the C refusal of the respondents to allow the appellant to return to duty, by withdrawing his application for leave, cannot be upheld and, on this ground alone, the appeal must succeed.
14. The learned counsel for the appellant touched upon a number of other points which have also been mentioned in the memo of appeal. Among these, two important points raised by him were that the Chairman, WAPDA, was not competent to sanction the L.P.R. Of the appellant, because the petitioner, although employed under WAPDA, continued to be governed by the rules of the Provincial Government and, therefore, after the dissolution of West Pakistan and with the transfer of all authority, vested in the Provincial Government, in respect of employees of the category of -the appellant, to the President, it was the President alone and not the Chairman, WAPDA, who could accept or reject the application for grant of L.P.R. Prima facie, we do not see any cogent reason for rejecting this argument of the appellant and neither in the written objections filed before us nor in the arguments of the learned counsel for the respondents was any reasoning put forward to counter this stand of the appellant. We are, therefore, inclined to agree with the appellant on the point that the competent authority in the case of the appellant was the President of Pakistan and not the Chairman, WAPDA. But, even if it were otherwise, since we have already held that the appellant had a right to return to duty before the expiry of his L.P.R., it would not make any difference whether the Chairman is treated as the competent authority or the President of Pakistan.
15. The appellant, in his memo. Of appeal, has taken great pains to emphasize the point that there was an element of mala fide in the attitude of the Chairman, WAPDA towards him, for which reason he was compelled to apply for L.P.R. At a very short notice. Considering the circumstances, in which he applied for L.P.R., it does appear that, at the time when he submitted the application, he was under very great pressure and, whether the fault was his or of the Chairman, there is no doubt that it was because of this pressure that he decided to apply for L.P.R. No sooner had the pressure been relaxed, with the departure of the previous regime, the promulgation of Martial Law on the 5th of July, 1977, and the restoration of normal and peaceful conditions, both in industrial activities and in the country generally, the appellant decided to withdraw his application for retirement and return to work. In these circumstances, which were fully explained by the appellant both to the Chairman, WAPDA and the C.M.L.A., it would have been fair and proper for the concerned authorities to have acceded to the request of the appellant to withdraw his application for proceeding on L.P.R. And to allow him to resume duty. Whether the action taken by the Chairman against the appellant prior to his applying for L.P.R. Was actuated by any mala fide on his part, we, shall not adjudge. But, from the fact that the Chairman refused to allow the appellant to return to duty when, under the rules, he had every right to so return, no other inference can be drawn than that the Chairman was not sufficiently considerate in dealing with this employee.
16. In the light of the above discussions and findings of ours, we are satisfied that the action of the Chairman, WAPDA; in refusing to allow the appellant return to duty, after cancelling his L.P.R., was null and void. We, therefore, set aside the impugned orders of both the original and the appellate authorities and order that the appellant be treated as having returned to duty 14 days before the expiry of the L.P.R granted to him by the order dated 7-6-1977 and direct that he be re-instated in service with effect from the presumptive date of his return to duty and be allowed all the consequential benefits of the re-instatement.
17. No order as to costs.
18. Parties to be informed.
MUHAMMAD IRSHAD KHAN (MEMBER).-I agree.