1999 PLP 2272 (SCMR)

MAMOON KAZI, J,‑‑‑The respondents in these petitions, being sons of WAPDA‑employees had been appointed against various posts in WAPDA between September and November, 1996 in WAPDA by the Superintending Engineer (Electricity) Swat Circle, Saidu Sharif. According to the respondent's terms of appointment, their services were liable to 6e terminated during the probationary period of one year in case their work or conduct during the said period was not found satisfactory. Thereafter, when the respondents were performing their functions satisfactorily, vide order dated 3‑9‑1997, their services were dispensed with. The respondents were then informed that their services had been dispensed with in pursuance of the said terms of appointment, during the probationary period. The respondents first filed their appeals before the concerned department and subsequently, they filed their appeals before the Service Tribunal. The appeals were resisted by the petitioners on the ground that the respondents were sons of WAPDA‑employees and had been appointed in service against such quota, but the appointments had been made in violation of the relevant policy as the concerned department had failed to observe certain priorities. It was further pleaded that the said action had been taken during the probation period which was in accordance with the terms of the respondent's appointment. The Tribunal was, however, not impressed because it found the action unjustifiable inasmuch as the appointments had been made by the competent authority and the respondents were also qualified for such appointments. Consequently, according to the Tribunal, the Authority could not be allowed to take benefit of any lapse committed by it while making the appointments resulting in termination of the respondents' services. The Tribunal was also not convinced with the other ground because, according to the terms and conditions of the respondents, their services could only be terminated during the probationary period in case their work or conduct was found unsatisfactory. Admittedly, such was not the case in the present case. Consequently, the respondents were ordered to be reinstated in service and the intervening period was ordered to be treated as leave. So far as the findings of the Tribunal are concerned the same do not appear to be open to exception. The grounds upon which the impugned action was supported before the Tribunal and now before this Court are hardly tenable. The Tribunal in fact has relied upon a judgment of this Court while repelling the ‑contentions put-forth on the petitioners' behalf. In Director, Social Welfare, N.‑W.F.P., Peshawar v. Sadullah Khan (1996 SCMR 1350). The plea raised on behalf of the employer that the appointment of the respondent civil servant was terminated as being irregular, was out-rightly rejected by this Court. It was further observed that the Authority concerned could not be permitted to take benefit of its own lapses if it had itself committed irregularity by violating procedure governing such appointment. Thus, the finding of the Tribunal is not without force. The other finding of the Tribunal also can be fully justified as shelter was taken by the petitioners behind the terms and conditions of the letter of appointment. But the said letter indicates that services of an employee could only be dispensed with during the probationary period if his work or conduct was not found satisfactory. Admittedly, the respondents had been performing their functions to the satisfaction of the petitioners when their services were terminated. Learned counsel for the petitioners had argued in the end, that the action taken by the petitioners can be sustained under section 17 (1‑A) of the West Pakistan Water and Power Development Act (XXXI of 1958). No doubt, section 17(1‑A) empowers the Authority to terminate the services of an employee but the said section was amended by Act XIII of 1994. After the said amendment, employees of the petitioner‑Authority are to be informed in writing of the grounds on which such action is proposed to be taken and are to be further provided with an opportunity to show cause in writing against taking of such action. The provisions of section 17(1‑A) came to be examined by this Court in WAPDA and others v. Sikandar Ali Abro (1998 SCMR 137) and it was observed that although, the said amendment did not completely take away the discretion of the Authority to remove any of its employees but the discretion had been considerably curtailed. The observations made in the said case, therefore, clearly indicate that the action that may be taken by the Authority cannot be arbitrary and the procedure provided in section 17(1‑A) is to be followed before any such action can be taken by the Authority against an employee. However, in the present case, neither it was the case of the petitioners before the Tribunal that action against the respondents had been taken under the said provisions nor any material has been placed before us to indicate that the petitioner had any intention to invoke the said provisions of Act XXXI of 1958. The respondents were only informed that their services had been terminated in pursuance of their terms of appointment and during the probation period. Consequently, the said contention of the learned counsel for the petitioners is also repelled. In the result, all the petitions are dismissed and leave is refused. H.B.T./E‑9/S Petitions dismissed