' A.
0. RAZIUR REHMAN (MEMBER).-The appellant, an old employee of WAPDA, who had been recruited as Storekeeper (Grade-8) as far back as 1st July, 1961, was, on 1st September, 1974, on the establishment of a private limited company under the name of Mechanized Construction of Pakistan Limited, transferred from WAPDA to the Mechanized Construction of Pakistan Limited, where he continued to serve as a deputations. After the lapse of some time, WAPDA (respondent No, 1) decided to terminate the lien of the appellant and four other employees on deputation with the Mechanized Construction of Pakistan Limited and communicated the decision to the said organization. When the appellant, and other employees affected by this decision, agitated this matter and approached the higher authorities, the Ministry of Water and Power agreed to allow those deputationists who had opted for WAPDA service to retain their lien in WAPDA. The appellant being one of those, his lien was restored, but it was stipulated by respondent No, 1 that the petitioner or other deputationists would not be repatriated by the M. C. P. To WAPDA without the prior approval of respondent No,
1. At the same time, it was clarified that matters like pension, employees, provident fund, group insurance etc. Would continue to be governed by WAPDA rules.
Nevertheless, the M. C. P. Relieved the appellant and others on 30th November, 1980 by way of repatriation to WAPDA. However, when the appellant and others affected by the repatriation order reported their arrival in WAPDA, they were not accepted and the concerned persons, including the appellant, went in writ petitions to the Lahore High Court, who, after hearing the parties, ordered WAPDA to entertain the arrival report of the appellant and the others and directed it to treat them all as its own employees, by a judgment passed in the matter on 17th March, 1981. In spite of this order of the honourable High Court, WAPDA (respondent No, 1) declined to take the appellant and the others similarly placed on strength. Not only this by orders dated 3rd May, 1981, the appellant and others were informed that, since no post of the categories to which they belonged were available, their services were no longer required by WAPDA and so it had been decided to terminate their services with immediate effect, on one month's pay in lieu of one month's notice in accordance with the relevant rules. The appellant preferred a departmental appeal to the Chairman, WAPDA on 9th June, 1981, which remained unresponded, whereupon he preferred the present appeal before the Tribunal on 5th July, 1981. This was admitted for regular hearing, at the preliminary hearing on 25th September, 1982, and, after final hearing on 3rd December, 1983, is being disposed of by this order.
2. As the Appeal No, 105 (L)/81 by Anwar Ahmad, Appeal No, I 1 1 (L)/81 by Muhammad Rashid and Appeal No, 115 (L)/81 by Abdul Ghaffar, involve identical points of fact and law, they will also be dealt with by this order.
3. The case of the appellant is that when the new organization was set up and he was deputed to the Mechanized Construction of Pakistan Limited on 1st September, 1974, his lien in WAPDA was retained and he continued to have the right to revert to his parent department till such time as he was confirmed in the new organization. Nevertheless, WAPDA, on 3rd May, 1977, without consulting the appellant, or other employees similarly placed, terminated their lien with effect from 1st May, 1976, but on 19th June, 1979, after the affected persons had agitated the matter, WAPDA accepted them and restored their liens. Prior to this, option had been invited from all employees of WAPDA serving with M. C. P. L. To either remain WAPDA employees on the terms and conditions applicable to all other WAPDA employees or to become employees of M. C. P. L. At that time, the Appellant had opted for WAPDA service. Later, after WAPDA had restored the liens of the concerned employees, they were again required to give their options and the appellant again opted for WAPDA on 23rd September, 1979. In view of this, his case is that WAPDA could not refuse to take him back on its strength on repatriation by M. C. P. L. His further contention is that, after the High Court had directed WAPDA to treat the appellant as its employee, by its order dated 17th March, 1981, WAPDA could not terminate his service without adequate reasons.
4. Considering the facts and circumstances of the case, we have no doubt in our mind that the appellant, who was originally an employee of WAPDA and, on the establishment of a new organization, was deputed to that organization, continued to remain an employee of WAPDA A with lien on a post in WAPDA. Under the rules, his lien could not be terminated by WAPDA, without his consent, unless he was confirmed in a post in M.C.P.L.
5. The stand of the department is that, although the appellant was a deputationist of WAPDA with M. C. P. L., one of the conditions of the deputation was that M. C. P. L. Was not to repatriate him to his parent organization without consulting WAPDA. Since, according to WAPDA, the repatriation was done by the M. C. P. L. Without consulting them, WAPDA was not bound to accept the repatriate. It was also urged on behalf of WAPDA that, since the repatriation had been ordered by M. C. P. L. At the instance of the appellant himself, the appellant should suffer the consequences of the repatriation, in the form of loss of job, because there was no post available in which he could be absorbed.
6. We are of the clear and definite view that the stand of the department is not sustainable, either in logic or in law. As was rightly observed by the honourable High Court in its judgment on the subject, whether M. C. P. L. Could repatriate the appellant without consulting WAPDA is a matter entirely for the two organizations to settle between themselves but the fact that the repatriation was done without prior consultation should be no ground for WAPDA refusing to accept the appellant as its employee. That being the position, and WAPDA having actually, though not formally, treated the appellant as its employee by paying him his salary for the period after he was repatriated by M. C. P. L. Could not terminate his service on the plea that there was no post available for him. The mere fact that the appellant had a lien on a post in WAPDA implies that there was a post for him to which he could revert. If that post had been filled up by some body else, subsequent, to the appellant's deputation to the other department the new incumbent had to be shifted or had to be made to vacate the post for the appellant.
7. So far as the request of the appellant and others for repatriation is concerned, it is observed that this was made by them, because the M. C. P. L. Were not paying the leave salary and pension contributions of these employees to WAPDA and this was a cause of dissatisfaction among these persons, who could think of no other way of getting redressal except to make a request for return to their parent organization. In our opinion, the employees could not be penalised for taking steps to protect their service interests, when these were adversely affected by the action of the department to which they were deputed in clear violation of the terms and conditions of their deputation.
8. During the course of the arguments, it was also pleaded on behalf of WAPDA that the termination was ordered on the strength of sub-rule 13 (i) (a) of the WAPDA Service Rules, according to which termination of services can be ordered because of abolition of posts. This rule, which was introduced by an order dated 16th April, 1981, could not, in our opinion be invoked for dispensing with the services of the present appellants, because, these appellants were old employees of WAPDA, with services extending to; as many as 20 years or more, and if some posts had been abolished, C those to be relieved had to be the junior-most and, therefore, the termination of his service does not appear to be either just or logical.
9. In this connection, it was stated by the appellant, and not denied by the respondents, that, out of 19 persons repatriated by Mechanized Construction of Pakistan Limited, 14 employees were re- absorbed in WAPDA as fresh entrants against fresh vacancies. If fresh vacancies could be created, it is not understood why adjustment could not be made so as to provide continuity of service, to the repatriates on the strength of their original liens in WAPDA.
10. It was also brought to our notice, and not denied by the respondents, that a number of posts were advertized as late as 16th June, 1981. If posts could be advertised on this date, it is difficult to appreciate how terminations could have been ordered on 3rd May, 1981.
11. Another aspect of the case to which our attention was drawn during the hearing was that, according to the WAPDA Service Rules, if a WAPDA employee is selected for discharge owing to the abolition of a regular post, he shall, unless he is appointed to another post the conditions of which are acceptable to him, have the option of taking any compensation pension and/or gratuity to which he may be entitled for the service he has already rendered ; or of accepting another post or transfer to another Division/Organization of WAPDA even on a lower pay, if offered and continuing to count his previous service for pension. In the instant case, it was pointed out that when the M. C.
P. L. Was set up the post held by him was not abolished nor, assuming that it was abolished. Was he. Given the option of either taking compensation pension and/or gratuity or of accepting another post or transfer to another Division/ Organization of WAPDA. Clearly, as we see it, if the post held by the appellant in the Machiner Pool Organization before the setting up of the M. C. P. L. In 1974 had been abolished, the appellant should have been appointed to another post on conditions acceptable to him or given option of taking compensation pension/gratuity or of accepting another post or transfer to another Division/Organization of WAPDA. Since nothing of the sort was done, it is clear that the appellant continued to remain an employee of WAPDA till the actual termination of his service. However, at the time his service was terminated, there was no contingency arising on account of the abolition of the post formally held by the appellant.
Therefore, it could not be pleaded that the post in question was either abolished or did not exist.
But, even if such a situation, for the sake of argument, were accepted to have been created, the option to which he was entitled under the provisions of the WAPDA service Rules referred to above (Rule 2 of Chapter 3), did not appear to have been offered to him. This clearly shows that his case was not dealt with according to the rules and that, from whatever angle we view his ease, bis service rights were violated by the impugned orders of termination passed on 3rd May, 1981.
12. In the light of the above discussions, we are satisfied that the appellant has been unjustly and unfairly treated by the respondents, who denied to him his right to revert to a job on which he held a lien. We can find no reasonable ground for supporting the action of the organization, either on the basis of the relevant rules or on the grounds of justice and fairplay.
13. In the result, we allow the appeal and set aside the impugned order of termination of service dated 3rd May, 1981. We further direct that the appellant shall be re-instated in service with effect from the date of termination and shall be entitled to all the consequential benefits of the restatement.
14. No, order as to costs.
15. Parties to be informed.
16. This order will apply, mutatis mutandis to Appeals Nos, 105(L)/ 81, 111(D)/81 and 115(L)/81 also.