' A.O. RAZIUR RAHMAN (MEMBER).-- The appellant was appointed as L.D.C. (Meter Clerk) by the Superintending Engineer, 1st Circle, WAPDA, vide Letter No, 1219-21, dated 21-7-1980, issued by the said Superintending Engineer. According to this letter, he was a direct recruit appointed against a regular post subject to a probationary period of one year in the first instance. After he had served for a period of more than 10 months, his services were dispensed with, under clause (2) of the letter of appointment, vide Office Order No, 121, dated 8-6-1981, issued by the Executive Engineer, Fort Division, Lahore.
2. Against the above order of termination of service, the appellant served a grievance notice on the department on 14-6-1981. Thereafter, he preferred a grievance petition before the Labour Court on 27-6-1981. The Labour Court accepted the petition on 16-11-1981 and ordered re-instatement of the appellant with full back benefits. Against this decision of the Labour Court, WAPDA appealed to the Punjab Labour Appellate Tribunal, Lahore, who, vide their judgment, dated 26-3-1982, set aside the order of the Labour Court and directed the return of the grievance petition to the appellant for presentation in the proper forum.
3. The ground on which the appeal of the department was allowed by the Labour Appellate Tribunal was that the Labour Court had no jurisdiction to hear the grievance petition, since, by virtue of section 17(1-B) of WAPDA Act, he was a civil servant for the purpose of the Service Tribunals Act, 1973 and, therefore, not subject to the jurisdiction of the Labour Court. It was mentioned in the judgment of the Appellate Tribunal that there had been some controversy on the point, but the same had since been set at rest by the Supreme Court in the case of A F.O. Malik v. WAPDA (Civil Petition No, 163/R of 1982), decided on 5-12-1982, in which it had been held that all WAPDA employees were civil servants for the purposes of the Service Tribunals Act.
4. In the light of the judgment of the Punjab Labour Appellate Tribunal, the appellant came in appeal before this Tribunal on 26-4-1983. There was also an application; for condonation of delay, made under section 14 of the Limitation Act. In the light of the facts of the case, the period spent by the petitioner in agitating the matter before the Labour Court has been excluded and the appeal treated as competent.
5. The parties were heard on 3-6-1984 and again today at length.
6. It was contended by the learned counsel for the appellant, that, the appellant being a worker, the Standing Orders Ordinance was applicable to him. Under Standing Order 1(b), having satisfactorily completed a probationary period of three months in the same occupation, he had attained the status of a permanent employee and his services could be terminated only on the ground of misconduct (in accordance with the procedure prescribed in Standing Order No, 15) or, in case it was necessitated by retrenchment, then, as laid down in Standing Order No, 13, only if he were the junior-most employee. Since the termination of service was not ordered on the ground of misconduct or on account of retrenchment, the said order was illegal and void.
7. It was also contended by the learned counsel for the appellant that if, as stated in the impugned order, the termination of service was made under clause (2) of paragraph 2 of the appointment letter, it could not be sustained, because the said clause was not valid in the face of Standing Order 1(b) which had to prevail against the said clause of the appointment letter, with which it conflicted.
It was claimed that clause (2) could not be invoked,' since, after the expiry of three months from the date of appointment, the appellant had attained the status of a permanent employee and he could be dealt with only as such.
8. It was also argued by the learned counsel for the appellant that, even if clause (2) of paragraph 2 of the letter of appointment were held to be valid and applicable to the appellant, there was no material on record to show that the work or conduct of the appellant was unsatisfactory and justified an order dispensing with his services, without giving him any previous notice to the effect.
9. Against the above contention of the appellant, it was urged in defence of the impugned order by the learned counsel for the Respondents that the order passed by the Executive Engineer dispensing with the services of the appellant could not be attacked as an order passed by an incompetent authority, because, in the order specifying the appointing authorities for various categories of employees, officers ranging from Chief Engineer to Revenue Officer (Junior) had been mentioned as the appointing authorities for L.D.Cs. And, since the XEN was also one of the appointing authorities, he was to be treated as competent for the purpose also of dispensing with the services of the appellant, regardless of the fact that the appellant was actually appointed by the Superintending Engineer. It was argued that, because the appellant had been placed under the Executive Engineer, Fort Division (E), Lahore, the said Executive Engineer could take action against him under clause (2) of paragraph 2 of the appointment letter. However, the learned counsel was unable to adduce any argument to counter the stand of the learned counsel for the appellant that clause (2) of paragraph 2 of the letter of appointment could not be invoked in the face of Standing Order 1(b), by virtue of which the appellant was to be treated as having attained the status of a permanent employee. He was also unable. To produce any material before us to establish that the work or conduct of the appellant was unsatisfactory during the period of probation or even that any finding to this effect had been arrived at by the competent authority.
10. Having considered the arguments on both sides, we have come to the conclusion that the appeal should be allowed.
11. For one thing, it is seen that the appellant was appointed in July, 1980 and, by the time of the impugned order he had, in accordance with Standing Order 1(b), attained the status of a permanent employee. Thus, he could not be removed under clause (2) of paragraph 2 of the letter of appointment, even though that clause allowed such removal at B any time before the expiry of the probationary period of one year, because the statutory right, which accrued to the appellant under Standing Order 1(b) could not be taken away by any of the terms and conditions of the letter of appointment.
12. However, even if it were conceded that clause (2) of the terms and conditions of the appointment could hold good against the statutory right conferred on the appellant by Standing Order 1(b), since the respondents could not produce any evidence to show that there was any material on record from which it could be deduced that the work or conduct of the appellant during his period of probation was unsatisfactory, we are of the view that the order of termination of service was not justified and cannot be upheld.
13. In clause (2) of paragraph 2 of the letter of appointment, it has been stated that: "If his work or conduct during his period of probation is found unsatisfactory, the appointing authority may notwithstanding that the period of probation has not expired, dispense with his services immediately without giving him any previous notice to the effect."
From this, it is clear that an order under this clause has to be based on adequate material. So far as we are concerned, we are satisfied that, to say nothing of adequate material, there was no material at all on the basis of which the impugned order could have been passed. The order being unjustified cannot be upheld.
14. As for the question whether the Executive Engineer was competent to terminate the services of the appellant, when the actual authority who appointed the appellant was the Superintending Engineer, there is room for difference of opinion and it could be argued that, if the actual appointing authority was the Superintending Engineer, by virtue of having been designated as the appointing authority, the Executive Engineer could also dispense with the services of the appellant who was placed under him and was actually working within his jurisdiction. In our opinion, although officers of various ranks, ranging from that of Chief Engineer to Revenue Officer (Junior), had been designated as appointing authorities, the exercise of the powers of the appointing authority for the purpose of termination of service could not be left either to the discretion of any of the competent authorities or to the fact that, at a particular time, an employee was working under one or another of the many authorities designated competent. In our opinion, the fact that various categories of officers have been designated as appointing authorities clearly shows that there may be occasions when it may be advisable for appointments to be made by one Authority and occasions when such appointments could be made by other authorities . However, since, in the case of termination of service or removal from service, this could be done only by the appointing authority, the authority actually making the appointment could alone be treated as the competent authority for the purpose and not any other authority. For this reason also, we are of the view that the removal of the appellant from service could not be ordered by the Executive Engineer, when the appointment had been made by the Superintending Engineer.
15. In the light of the foregoing, we accept the arguments put forward on behalf of the appellant and hold that the impugned order cannot be sustained, not only because (a) it was passed by an incompetent authority and (b) it could not have been ordered after the expiry of the period of three months from the date of appellant's appointment, in view of the operation of Standing Order 1(b), but also because, even on merit, no case for termination of service was made out before the termination was ordered.
16. In the result, the appeal is allowed and the appellant re-instated in service from the date of termination, namely, 8-6-1981, together with all the consequential benefits of the re-instatement.