Prayer of Muhammad Arif, who was petitioner before the Punjab Labour Court No. 6, Rawalpindi, having approached the said Court, by way of a petition, under section 25-A of the Industrial Relations Ordinance, for reinstatement in service of the Postal Department, with back benefits, was turned down by the decision dated 20-12-1992; and he has come up in appeal to this Tribunal, background of his case being as below.
2. Muhammad Arif, on 6-12-1980, got employment in the Postal Department as Senior Clerk. He was selected as a District Accountant in NPS-16 in a newly set-up Department, the Literacy and Mass Education Commission (Nai Roshni School System). He joined service there on 28-4-1987. The department was disbanded and his services were terminated with effect from 1-7-1990. He states to have immediately reported back to his parent department (Postal Department), but he was not taken back in service by the said department.
3. The learned Labour Court has endorsed the stand-point of the respondent department the same being that the appellant had taken up an altogether different and new assignment, had in no manner retained lien with the parent department and had thus no entitlement to claim re- employment there, although, according to the appellant, he had been given an understanding, on his leaving the Postal Department, that had certainly not severed his connection with the said department but continued to have his lien there, he had not been able to satisfy the Court below about the manner in which he continued to be an employee of the Postal Department, despite his selection in service elsewhere. I agree that mere oral assertion made in that behalf could not normally be believed. Even the department, however, has not been able to satisfactorily state as to how the official had staged exit from there. Appearing as R.W. 1, Mr. Muhammad Aslam, Superintendent Post Office, Jhelum has deposed that in the record brought by him, Muhammad Arif's application, submitted to his superiors, for being relieved of his duty in the Postal Department, was not available, but he (R.W. 1) was clear in his mind that no undertaking of any kind had been given to the official and he had left the service of the department for all times to come. It is to be borne in mind that if on any count there exists a state of confusion or doubt, benefit of doubt has to be given to the employee or the workman. Fortunately, for the appellant, judicial pronouncements are all in his favour, although I myself was initially of the view that when the official had got employment in an organization with better prospects, and on leaving a post of Grade-7 he had got an assignment carrying Grade-16, he could not be taken to have still maintained his liaison with the previous department. He relinquished his former post and joined a new one in the same manner, a person in service does, on being selected for a post in the Armed Forces or in the Central. Superior Services.
4. In a case reported as 1994 PLC (C.S.) 210, the aggrieved person had joined service as Lecturer in NPS-17, on the recommendation of the Federal Public Service Commission. Through proper channel he applied for a post, carrying NPS-18, available with the Literacy and Mass Education Commission, Islamabad, and he was selected as District Project Manager. He asked the Principal of the previous Institution to provide him with the relieving order. He was informed that his name had been struck of the strength of the said Institution, with effect from the date he had joined his new post. He filed an appeal before the Federal Service Tribunal and was afforded the requisite relief. It was held that his appointment as Lecturer was against a substantive post, but even if it was temporary, it would be irrelevant, in so far as question of retention of lien with the organization, he had joined first, was concerned. Lien of a civil servant, as per Fundamental Rules, rule 14-A(a) could not be terminated, under any circumstances, even with his consent. Same view was expressed in the case reported as 1994 PLC (C.S.) 1566 (Service Tribunal Punjab). An Assistant Director in the Industries Department had been selected in the C.S.S., in the Accounts Group, but during his training in the Civil Service Academy, his services were somehow terminated, and he reported for duty in the Directorate of Industries, but was not allowed to join, on the plea that he could not possibly retain lien in the previous department. The Punjab Service Tribunal held otherwise. The Supreme Court of Pakistan has laid down an explicit rule on the subject, in the cases reported as 1992 PLC (C.S.) 411 and 1996 PLC (C.S.) 402. Lien of a permanent incumbent of a post could not be terminated, even with his consent, and such termination will take place only A when he is confirmed against some other permanent post in a different department or organization. The term 'deputation' has a distinct connoting, although it has not formally been defined in even ESTACODE. According to the practice in vogue, a Government servant is regarded as a deputationist, when he is appointed or transferred through process of selection to a post in a department different from the one to which he permanently belongs. PLD 1981 (SC) 531 and 1993 PLC (C. S.) 105 (110). Before a person goes on deputation to another organization or department, the borrowing as also the lending offices have to determine the conditions and abide by the same.
5. In the present case, it appears, the official had not been relieves by the Postal Department, with a stipulation that he was to work with the Literacy and Mass Education Commission on deputation.
He had joined that E department independently, for a better future; but even if it was so, the Postal Department could not refuse his re-absorption in the same capacity, in which he had left. In 1992 PLC (C. S.) 411, it was observed that notwithstanding non-specification of terms and conditions of deputation, an official/officer would be deemed to be on deputation with the next department, and conditions of his service would be regulated, as if he had been borrowed by the subsequent organization.
6. The appellant says that his name was wilfully kept out of the list of those having been confirmed in service, although it carries the name of a junior, Muhammad Akram, at Serial No. 60 of the list, Exh. P.
9. He served the Postal Department for a period of a little less than six and a half years, and yet was not confirmed. According to the respondents, the appellant had not yet been confirmed against the post he was holding prior to his departure from the department. It is to be noted in this regard that a person on initial appointment in Government service is to remain on probation for a year, and on expiry of this term, the probation period is deemed to have been extended, if no express order is made, and in absence of an order, the period of probation, on expiry of the extended term, or on conclusion of to years, will be deemed to have successfully been completed.
It is also provided in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. In the Pakistan Post Offices Manual, Volume IV, three months' preliminary course in the Postal Training Centre, followed by a probation for a period of 15 months, is provided. On successful completion of the initial training, and then the advanced course, an official would be eligible for confirmation against the post he is holding. If he fails in the first attempt, in the final examination, lie may be allowed a second chance. On failure even in the second attempt, probation period will be extended for a term of another six months. If during the probation period the work or conduct of an official is found unsatisfactory, or he is considered to be unlikely to improve, the appointing authority may either discharge him or may extend his probation for a further period as deemed fit. The appellant maintains that his work/conduct, as an employee of the Postal Department, has been up to the mark, if not exemplary. Nothing adverse has been brought on record. In PLD 1970 Quetta 115, it has been pronounced that a Court of law cannot permit the Government or the competent Authority to retain extra- Constitutional powers of arbitrary character. Condition of 'continuous officiation', attached to service of a civil servant, was treated as unlawful. It will thus be deemed that Muhammad Arif had been confirmed against a substantive post of Grade-7 on having rendered service extending over 6-1/2 years. In PLD 1992 SC 96, PLD 1964 SC 572 and PLD 1969 Quetta 13, it has been observed that no one can be permitted to reap the benefits of or to take advantage of his own wrong. If the Department had displayed slackness in the matter of confirmation of the appellant, against his substantive post, he should not be made to suffer for that.
7. This Tribunal, while disposing of Appeal No: 411 of 1991, Muhammad Zafar lqbal v. Pakistan Post Office through its Chief Postmaster, Jhelum Cantt and another, has held that a clerk of the Post and Telegraph Department would be covered by the definition of 'worker', as occurring in section 2(xxviii) of the Industrial Relations Ordinance, 1969, and not by the one, as embodied in section 2(n) read with Schedule II of the Workmen's Compensation Act. Subsection (3) of section 1 of the Industrial Relations Ordinance, 1969 envisages that although the provisions of the Industrial Relations Ordinance, 1969 would not be applicable to the persons employed in the Administration of the State, but the low-paid employees of the Railways, Post Offices, Telegraph and Telephone Departments have been excluded, and they, unless they are performing jobs of administrative, managerial or supervisory character, would be entitled to invoke the provisions of the Labour Laws, by having recourse to the Labour Courts. This would dispel and displace the contention of the respondents that the appellant is to be regarded as a 'civil servant', who even otherwise is no longer on the rolls of the Postal Department. Employees of Post Offices at entitled to maintain petitions under section 25-A of the Industrial Relations Ordinance (1988 PLC 114 Sind Labour Appellate Tribunal).
8. In so far as the appellant's entitlement to back benefits is concerned, it would be of advantage to refer to a judgment of this Tribunal reported as 1985 PLC 169, Muhammad Younus v. The West Pakistan Cooperative Consumers Society Ltd., Lahore. The appellant can legitimately claim that he shall be put to the same position, in which he was at the the of his exit from the Postal Department; but in the recent ruling of the Hon'ble Supreme Court of Pakistan, 1996 PLC (C.S.) 402, it has been laid down that the employee would not be entitled to claim back benefits. The appellant has not served the department throughout this period; and I do not think that on any valid premises the emoluments for this period should be awarded to him. The claim to back benefits is, therefore, taken to be untenable. I have the feeling that the question of the employee's retention of lien has been in doldrums, but not without ostensibly genuine hesitation on the part of the Department, and although arrears of emoluments for the period 1-7-1990 onwards may not be conceded to the appellant, he shall have still a right to fixation of his seniority, on the strength of length of his service, ever since December, 1980, when he initially joined service with the Postal Department.
Consequential promotion and fixation of salary ought not to be refused to him, for he has already suffered a lot, having been kept out of the fold of the Department, since July, 1990 to date. The appeal is accepted, to the extent indicated above, but there shall be no order as to costs of the litigation.