1986 PLP (C (PLC(CS))

SHAH ABDUR RASHID, (CHAIRMAN).‑‑This appeal is by Nasir Saeed, who has challenged the following order of termination of his service passed by the Resident Engineer, on 28‑1‑1984:‑ "The services of Mr. Nasir Saeed, Helper, are hereby terminated on account of unsatisfactory work and conduct, under clause (2) of his letter of appointment. These orders will take effect from 1 1‑1984, the date from which he is absenting himself from duty wilfully."

2. The appellant got associated with the WAPDA when Office Order, dated 26‑1‑1983 addressed to him was issued. This letter was issued in response to an application made by the appellant for appointment as Helper in the WAPDA. The terms of appointment are contained in this offer. The relevant portion of the letter is clause (2) of para. 2 of the letter which reads as follows:‑ "Probationary period; one year, in the first instance. 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."

3. The impugned order as its language shows, was passed by invoking the provisions of clause (2) of para. 2 of the Office Order, dated 26‑1‑1983 which we have reproduced above. The learned counsel for the appellant contends that the impugned order specifically mentions that the conduct of the appellant was not satisfactory and that this act causes stigma on the appellant. It was argued that when an order which causes stigma is passed without proper inquiry and without giving opportunity of being heard, that order is nullity in the eyes of law. In support of this contention the learned counsel for the appellant relied on the case of Muhammad Siddiq Javid Chaudhry v. The Government of West Pakistan P L C 1974 (C.S)

393. In this case the Supreme Court in similar circumstances had held that where al probationer's service is terminated on ground of unsatisfactory work, such termination is not dismissal or removal from service but within the domain of contract or Rules made by the Government, but where the service of such probationer is terminated on ground of misconduct the amounts to removal or dismissal and probationer being stigmatised is protected under Article 177 of the 1962 Constitution. The learned counsel for the appellant has not appreciated the position that when the aforesaid decision of the Supreme Court was given all civil servants had a constitutional protection and their services could not be terminated in a manner which caused stigma without affording reasonable opportunity of being heard. Now when the 1973 Constitution is in the field, no civil servant, much less an employee of the WAPDA which is a statutory Commercial Organization, can claim any such protection. In cases of this nature, however, if rules made by the employer are not complied with, the Courts do interfere for the reason that such rules become part of contract. In the present case though the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 are in field, yet Rules are not applicable to the appellant because he was a probationer and the applications of the rules in probationer's case is specifically excluded by rule 2 of the aforesaid Rules. The appellant was thus governed by contract of service contained in letter, dated 26‑1‑1983. Clause (2) of para. 2 of the aforesaid Office Order clearly provides that whenever it is found that work or conduct of a probationer is found to be unsatisfactory his service can be dispensed with without notice. However, the learned counsel for the appellant has relied on a decision of the Labour Appellate Tribunal reported as WAPDA v. Ausaf Ali 1984 P L C 1003, wherein it was held that the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 are ultra vires, as far as the workmen employees are concerned, because they are governed by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. We are afraid the opinion expressed in the aforesaid case is not on line with the Tribunal's view expressed in Khalil Akhtar v. Chairman, WAPDA Appeal No.749(L)/82 where contrary law has been laid down.

4. The net result of the above discussion is that the order oft termination of service of the appellant is quite valid and is not open to challenge specially when on facts the record does show that the conduct and work of the appellant had not been satisfactory during the period of probation.

5. This appeal is dismissed with cost. A. E. Appeal dismissed.