' RASHEED-UD-DIN ARSHAD (MEMBER).--The appellant has objected to the termination of his service and requested for re-instatement.
2. The appellant was appointed as Lineman I on 22-6-1973 by Superintending Engineer, Gujranwala.
His service was, however, terminated on 13-9-1974 under clause 5 of his appointment letter by serving one month's notice. The appellant filed a civil suit at Gujranwala on 26-9-1974 but later withdrew the suit on 1-12-1975 in view of the amendment made in WAPDA Act 1958 vide Order No, XVI published on 30-9-1975, by which the employees of WAPDA could after filing a departmental appeal approach the Service Tribunal for redress. A departmental appeal was filed on 6-1-1976 and on receiving no reply an appeal was submitted to the Service Tribunal on 10-4-1976. This appeal was, however, dismissed on 23-1-1978 in liming on the ground that he was not a civil servant but a "workman" under the Workmen's Compensation Act, 1928. A copy of the order was supplied to the appellant on 22-2-1978. The appellant then filed a grievance petition under section 25(a) of the Industrial Relations Ordinance 1969 before Punjab Labour Court No, 3 Lahore on 4-3- 1978 and the Court by its decision dated 17-11-1980 condoned the delay in filing the petition and set aside the order of termination of service and re-instated the appellant with all back benefits. The respondents (WAPDA) then filed an appeal before the Punjab Labour Appellate Tribunal, Lahore and took the plea that grievance petition before Labour Court was time-barred and no grievance notice was served before filing the grievance petition. Punjab Labour Appellate Tribunal remarked that if departmental appeal was treated as a grievance notice then the petition was time-barred and if the departmental appeal is not treated as a grievance notice then the appeal becomes incompetent for want of grievance petition. The appeal of WAPDA was accepted and the order of Labour Court was set aside. WAPDA then passed an order removing the appellant from service. The appellant then filed a writ petition before the Lahore High Court but by its order dated 22-2-1983 the High Court refused to interfere with the order passed by the Punjab Appellate Tribunal and dismissed the appeal in limine.
3. The appellant has stated that a copy of the High Court order was supplied to him on 16-3-1983 and he was going to challenge the order before the Supreme Court but when he approached his counsel he was advised that Supreme Court had held that WAPDA employees are civil servants and appeal should be filed before the Service Tribunal and submitted the appeal before this Tribunal on 20-4-1983.
4. Before taking up the grounds of appeal a preliminary objection of the learned counsel for respondents is taken up first. It has been stated that the appellant's services were terminated on 13-9-1974 and as such the appeal is hopelessly time-barred. The plea put forward by the learned counsel for the appellant on the other hand is that he has been pursuing his case in different forums. He has also drawn attention to his earlier appeal filed before the Service Tribunal on 104- 1976 which was dismissed on 23-1-1978 for want of jurisdiction and has requested for condonation of delay, in filing the appeal before the Tribunal. We have noted that appellant has been agitating his case in various legal forums and also that in the past there was an ambiguity about the correct legal forum for WAPDA employees till the matter was decided in the case of F.U. Malik v. WAPDA 1983 SC MR 663. We, therefore, condone the delay in filing the appeal.
5. The appellant's service was terminated on 13-9-1974 by letter which reads as under:- "WEST PAKISTAN ELECY: DEPARTMENT ' Memo No, 8267 dated 13-9-1974 ' From: The Superintending Engineer, ' Gujranwala Circle, Gujranwala.
' To ' Mr. Bashir Ahmad, s/o Rahmanullah ' L.M.I. c/o Xen. Sheikhupura.
' Subject:- NOTICE FOR TERMINATION OF SERVICES ' It is hereby notified that your services are no longer required by the Department. Under clause 5 of the offer of appointment to you vide this office memo. No, 14957, dated 22-6-1973, you are, therefore, hereby served with one month's notice on the expiry of which your services would be deemed as terminated and you will be relieved accordingly."
' Clause 5 of the appointment letter dated 22-6-1973 was as under:- "5. The appointment is temporary, and may be terminated at any time on one month's notice or pay in lieu thereof on either side without assigning any reason. If he is guilty of any insubordination, intemperance or misconduct or continuous absence from duty without permission, his services will be liable to termination without notice. No cause for legal or other action shall lie against the Authority for the termination of his services under this clause."
6. The learned counsel for the appellant has pointed out that according to clause 2 of his appointment letter, he was to be on probation for one year and by clause 3 he was to be governed by such conditions of service as the Authority may from time to time prescribe. It has been stated that he had completed the probation period of one year and as such was to be governed by the conditions of service prescribed by WAPDA.
7. The counsel for the appellant has stated that termination of service was in contravention of Rule 17 of West Pakistan WAPDA (Power Wing) Technical Subordinates (Line Staff) Service/Recruitment Rules, 1971 (hereinafter referred t o as Line Staff Rules) which are still in force and has drawn otter attention to WAPDA's No, S/DD (Rules/07452/8/38932-39036, dated 4-4-1984 amending the said rules. The learned counsel for the respondents has stated that WAPDA (Efficiency and Discipline)
Rules, 1978 were applicable but has not quoted any notification cancelling the Line Staff Rules and, therefore, it appears that these rules as well as the WAPDA (Efficiency and Discipline) Rules were in the field. As the appellant belongs to the line staff we feel that the rules which dealt specifically with the terms of line staff should be applicable to him.
8. Rule 17 of the Line Staff Rules reads as under:-- "17. TERMINATION OF SERVICES OTHER THAN REMOVAL OR DISMISSAL FROM SERVICE.
' Notwithstanding anything contained to the contrary in any other Rules, orders or instructions already issued by the Authority, the services of a member of the service, who has satisfactorily completed the period of probation and has fulfilled all other terms and conditions of probation in accordance with these Rules, shall not be terminated, except in any one of the following cases, namely:- (i)where the post which is deemed to have been occupied by him by virtue of his seniority position in the cadre has been abolished or downgraded consequent upon the reduction in the strength of the service or reorganization/re-constitution of the service cadre, without creating a corresponding equivalent post in the cadre and there is no other equivalent post vacant at the moment against which he can be adjusted;
(ii) where the permanent incumbent (of the post held by him), or any other member of the service senior to him on the seniority list pertaining to the cadre, has returned from leave, deputation, training, or other temporary duty or assignment and there is no other equivalent post vacant at the moment against which he can be adjusted;
(iii) where the termination of his services has been necessitated due to abolition or downgrading of another high post in the cadre, and consequent arrival on reversion of another member of the service previously occupying higher post or senior position in the cadre, on the lower post held by him, and there is no other equivalent post vacant at the moment against which he can be adjusted. No order of termination or discharge from service under this rule shall be passed without, first giving a three calendar months' notice (or such notice as is laid down in the original terms and conditions of employment) in writing to the person proposed to be terminated or discharged from service, or without paying to him be4o re termination or discharge from service, three month's pay (or such pay as is laid down in the original terms and conditions of employment) in lieu of such notice. NOTE: The terms "Termination or Discharge from service does not include removal or dismissal from service.
9. Rule 17 of the Line Staff Rules was, therefore, applicable to the appellant who had completed one year of service. The counsel for the respondent has not been able to state as to whether the situations as stated in the Line Staff Rules existed which could justify the termination of service of the appellant. We, therefore, accept the appeal and direct that the appellant should be re-instated in service. For the period he remained out of service he shall be treated as on leave and the appellant will be allowed leave on full pay or half pay due to him if any while the rest of the period will be treated as extra-ordinary leave. The appeal is disposed of accordingly.
10. No order as to costs.