1981 PLP 257 (PLC)

2. In her petition she has alleged that the Principle of WAPDA Inter College was interested in another lady but she did not qualify in the selection test for lecturership and was not appointed as lecturer and as such the Principal did not accept her mentally from the very beginning and schemed and manoeuvred to get the petitioner out of the College in order to bring his own favourite lady. According to her the Principal induced the Laboratory Assistant of the College to submit a complaint against her and he accordingly addressed a letter to the Principal accusing her of having used abusive language against the said laboratory assistant. She has further submitted that the Principal also made a complaint against the petitioner that her husband visited her in the College and she had exploited the incidence of puncturing her car by a student and had committed the misconduct. According to her the Principal again vide his letter dated 28th July, 1979 complained against the petitioner that her husband visited the College and that she had sent a notice through an Advocate to the said Principal and was forming a group of the staff' to work against the interests of the College. She was not asked to explain her petition and the respondent No. 1 terminated her services all of a sudden vide office order dated 19th August, 1979. She has submitted that this letter is liable to be set aside as no charge‑sheet was given to her nor any enquiry was held against her nor she was given an opportunity of being heard. She has, therefore, prayed that the impugned order may be set aside and the petitioner be reinstated with full back benefits.

3. The respondents were asked to submit their comments. it was submitted that the petitioner was given a fresh appointments as Lecturer and she was required to undergo one year's probationary period vide clause (ii) of her appointment letter dated 6th November, 1978. It has been denied that the Principal was interested in the appointment of another lecturer because he was not pointed as Principal when the petitioner was selected as lecturer in the WAPDA Inter College. It has further been submitted that the complaint lodged by the Laboratory Assistant with the Senior Officer (Personnel) was sent to the petitioner for comments but instead of furnishing comments she sent a letter to the Senior Officer (Personnel) through her counsel in which she threatened that she will file a suit in the Court against the Principal for creating mischief and defamation. She had therefore, herself denied the facility of defending herself before the Management in this case.

3. The respondent further submitted that the incidence of puncturing the car of the petitioner was reported to the Principal and he had promised to look into it first thing the following morning, and take suitable action against the boy if found guilty. The petitioner further reported the matter to her husband who reached the College, entered the office of the Principal and started admonishing him for not taking action against the student. He also used insulting and un-parliamentary language before other lecturers who happened to be present in the Principal's office at that time. The Respondent has further submitted that it was not the first misconduct on the part of the petitioner and her husband as on a previous occasion also they had created a similar situation in the Senior Model School, Tarbela where the petitioner was working as Trained Graduate Teacher. The petitioner was issued a warning on that occasion.

5. It has been submitted that the order of termination of the petitioner has been issued by the competent authority and under the rules no charge sheet/show‑cause notice or any enquiry was necessary in her case because she was on probation. The petitioner was not a regular employee of WAPDA at the time of termination of her services as by accepting the offer of appointment as lecturer she was posted as lecturer with effect from 9th November, 1978. It has also been contended by the respondent that the terms and conditions of service of the petitioner were not regulated under the Pakistan Essential Services (Maintenance) Act because she had entered into an agreement with WAPDA and these terms were laid down in letter dated 6th November, 1978.

6. I have heard the arguments of both the parties. The learned counsel for the Respondent has submitted that under the West Pakistan WAPDA Act, 1975 the WAPDA employees have been declared to be Civil Servants for the purposes of Services Tribunal Act, 1973 and the Service Tribunal has exclusive jurisdiction in respect of matters relating to the terms and conditions of Civil Servants. The jurisdiction of the Commission was therefore, barred in this case. He also argued that the petition was also barred under Article 212 of the Constitution and that the petitioner's services were liable to be terminated without notice during probationary period and she has therefore, no cause of action as even those persons who hold posts other than on probation can also be removed from service without assigning any reason. He also submitted that the petition was time barred and it was frivolous and vexatious. The learned counsel submitted that the jurisdiction of the Commission was barred in view of the following reported cases: (1) P L D 1976 Lab. 492 (2) P L J 1979 Tr. Cas. 26 (3) N L R 1979 Lab. (Lab.) 231 (4) N L R 1980 Lab. (Kar.) 1

7. The learned counsel for the petitioner has submitted that the Pakistan Essential Services (Maintenance) Act, 1952 was applicable to WAPDA‑ and in view of the provisions made in section 7‑A of that Act the applicability of any other Act to WAPDA was ousted and it was, therefore, not necessary for the petitioner to go to the Services Tribunal in view of the contention of the learned counsel for the respondent that the Civil Servants Act was applicable to the petitioner. He further submitted that the petitioner was not served any notice for termination nor was she given an opportunity of being heard and as such the order of termination was void and illegal. He further argued that the petitioner had been pursuing her case in the Court of Civil Judge, Abbottabad for a declaratory order and any party pursuing a remedy in another Court on bona fide grounds should not be estopped from approaching the appropriate authority to seek remedy. He quoted P L D 1977 S C 102 and P L J 1975 Azad J & K 149 and submitted that the limitation could be condoned for filing the case in the appropriate Court in case the petitioner had been pursuing his case in a wrong Court.

8. The learned counsel for the petitioner also submitted that it has already been held by the learned Chairman of the N I R C in Aminuddin v. Chairman, WAPDA (1978 P L C 330) that there was no bar on jurisdiction against the Specified Authority to take cognizance of such cases and that subsections (A) and (B) of section 17 of the WAPDA Act did not apply in the cases covered under the Essential Services (Maintenance) Act and that as long as the Essential Services (Maintenance) Act was applicable to WAPDA all its employees irrespective of the fact whether they were workmen or not could approach the Specified Authority in matters of wages and their terms and conditions of service. The case‑law quoted by the learned counsel for the respondent that is P L J 1979 Tr. C. 26 was not at all relevant as that judgment related to persons transferred from Provincial Electricity Department to WAPDA and were not held as Civil Servants as WAPDA was subject of Federal Legislative List. The case‑law P L D 1977 Lah. 492 was also not relevant as it did not examine the question of applicability of the Essential Services (Maintenance) Act to WAPDA. Similarly the case law N L R 1977 Lab. (Lah.) 123 dealt with the point that the Labour Court had no jurisdiction in respect of WAPDA employees after the promulgation of the WAPDA Amendment Act, 1975 as they had become Civil Servants. The point under issue was also not specifically discussed in this judgment. The case‑law N L R 1980 Lab. (Kar.) 1 also dealt with the point as to whether retrospective effect had to be given to the WAPDA Amendment Act, 1975 and whether it affected pending cases also or whether it had only prospective effect.

9. The question of applicability of Essential Services (Maintenance) Act and the point as to whether in view of the WAPDA Amendment Act, 1975 the Essential Services (Maintenance) Act was still applicable to WAPDA Employees has been discussed in a number of reported cases the most important of them being Aminuddin v. Chairman, WAPDA. The preliminary objection of the learned counsel for the respondents is ruled out in view of this judgment and I hold that the Essential Services (Maintenance) Act is applicable to the WAPDA employees.

10. The Essential Services (Maintenance) Act lays certain obligation both on the part of the employees and the employers and there is no distinction between various categories of employees to whom this Act is made applicable. In this law the words used in section 5(1) are "any person engaged in any employment or class of employment to which this Act applies". The petitioner was employed as a lady lecturer in WAPDA Inter College which was run by WAPDA and for all intents and purposes she was WAPDA employees and as such the Essential Services (Maintenance) Act was applicable to her.

11. The learned counsel for the respondent has contended that the petitioner was under probationary period and her services could be termi nated during this period without assigning any reason whatsoever. She was therefore, not served any show‑cause notice or asked to explain the reason for committing any misconduct which rendered her liable to termi nation. Section 5(1) of the Essential Services (Maintenance) Act provides that any employer who without reasonable excuse discontinue the employ ment of such person shall be guilty of an offence under this Act. The law does not provide for discontinuance of employment during probationary period. It speaks of only employment and even if the respondent had to terminate the services of the petitioner, he should have given reasonable excuse for such termination. The petitioner was not given any chance to explain her conduct except that comments were called for from heron the report submitted by the Laboratory Assistant. This was not a matter which could be decided only by calling comments from the petitioner. The respondent should have given a chance to her to explain her conduct and it was a matter in which an impartial enquiry could be conducted to find out whether she was actually guilty of the charges levelled against her by the Laboratory Assistant.

12. The petitioner was appointed as Trained Graduate Lady Teacher vide letter dated 1st November, 1977 with effect from 18th September, 1977 and after completing the period of probation satisfactorily she was declared regular WAPDA employee with effect from the date of her appointment vide' Office Order No. 3286 dated 28th November, 1978 issued by respondent No.

1. She was appointed as lecturer vide letter dated 8th November, 1978 and she relinquished the charge of the post of Trained Graduate Teacher on 8th November, 1978 and joined as Lecturer on 9th November, 1978. Since she had already been confirmed in the post held earlier by her and she joined a higher post in the same organisation she would be deemed to be, a regular employee which is the rule in public service as well.

13. I, therefore, do not agree with the contention of the respondent that she was a temporary employee and her services could be terminated without assigning any reason whatsoever. This being the position the order of termination of her employment dated 19th August, 1979 is illegal and I direct that she should be re‑instated with full back benefits. Petition accepted.