WAPDA Employees Probation based service matters (Daily Legal Advice Series 4)

Legal Queries on Services matters for civil servants , particularly relating to WAPDA employees involving the issues of probation are very frequent on our Website.We hope to help these queries to the best of our abilities.The list below reviews a few recent cases on the topic and we hope these summaries will be of help to our clients.As always, if you wish to get a proper legal consultation on this topic, please send us an email at jm@joshandmak.com

WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) Vs. Brig. (R.) MUHAMMAD ARIF 2007 PLC(CS) 650   SUPREME-COURT 

Preamble—Constitution of Pakistan (1973), Art.185(3)—Respondent was initially appointed on probation as Engineer in wapda and on account of state of war between Pakistan and India, he was commissioned in Pakistan Army on 13-12-1965 by way of conscription in terms of Compulsory Service (Armed Forces) Ordinance, 1965; respondent got his normal promotions in the Army and retired from service in the rank of Brigadier with effect from 14-12-1995; he approached wapda for his re-employment which showed its inability to adjust him—High Court accepted appeal of the respondent for his re­employment—Validity—Held, for all practical purposes respondent could no longer be considered to be governed by Compulsory Service (Armed Forces) Ordinance, 1965 as he had been permanently inducted into Pakistan Army from where he retired as Brigadier and question of his repatriation to wapda would not arise at all—Judgment of High Court was not sustainable at law—Principles.

AURANGZEB vs. WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) 1988 PLC(CS) 53     FEDERAL-SERVICE-TRIBUNAL

Service Tribunals Act 1973 –S.4(a)–Appeal before Tribunal–Departmental remedy exhausted before filing of appeal–wapda employees seeking relief against order terminating services during probation in accordance with terms of appointment—No statutory provision providing for departmental appeal against such order–Appeal dismissed in circumstances.

 NASIR SAEED vs.  CHAIRMAN WAPDA 1986 PLC(CS) 394     FEDERAL-SERVICE-TRIBUNAL

Civil Services — Termination of service during probation –-wapda employee on probation and according to appointment order liable to termination without notice during probation in case work and conduct not found satisfactory-Termination on account of unsatisfactory work and conduct, in circumstances, held, quite valid and not open to challenge–Plea that mention in termination order that conduct was unsatisfactory caused stigma and no order causing stigma could be passed without proper inquiry and opportunity of being heard–Repelled.

 MUHAMMAD ASHRAF NAEEM  Vs. EXECUTIVE ENGINEER, CANTT. DIVISION (E),WAPDA, LAHORE 1985 PLC(CS) 390   FEDERAL-SERVICE-TRIBUNAL

Service Tribunals Act 1973 —S. 4–West Pakistan Water and Power Development Authority Act (XXXI of 1958), S. 17(1-B)–West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss. 1(4), 2(i), S.O. 1(b) 12 & 15–Payment of Wages Act (IV of 1936), S. 2(ii)(5)-wapda employees–Status–Civil servants only for purposes of Service Tribunals Act, 1973 and not for all purposes–Labour Laws whether applicable to wapda employees–wapda covered by definition of “industrial establishment” under Payment of Wages Act, 1936 and definition of “Commercial Establishment” under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968–Meter Reader doing clerical work--A “workman”–To be governed by provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968–Rules of wapda or terms and conditions of appointment contrary to Ordinance, 1968–Inoperative and invalid–Appointment made on conditions that appointee will be on probation for one year and liable to termination without notice before expiry of probation period-Such conditions contrary to Standing Order 1(b)–Not valid–Appointee, held, became permanent after service of 3 months and could not be removed without following procedure of Standing Orders 12 & 15 in circumstances–impugned termination order on account of unsatisfactory work passed purportedly in terms of appointment conditions, held, not sustainable and set aside by Service Tribunal and appellant directed to be re-instated from date of removal.

 1985 PLC(CS) 382     FEDERAL-SERVICE-TRIBUNAL

Civil Services —–Termination of service–wapda employee (Meter Clerk) appointed subject to termination if work and conduct found unsatisfactory during probation ary period of one year–Termination ordered within probation period–Order, in circumstances, held, to be based on adequate material to establish that work or conduct was unsatisfactory–No material available–Impugned order, in circumstances, held, unjustified hence set aside by Service Tribunal–Service Tribunals Act (LXX of 1973), S.4.

 MUHAMMAD YAQUB vs. EXECUTIVE ENGINEER, FORT DIVISION (ELECTRICITY) WAPDA, LAHORE and another 1985 PLC(CS) 382     FEDERAL-SERVICE-TRIBUNAL

West Pakistan Water and Power Development Authority Act 1958 —S. 17(1-B)–West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 1(b)–Service Tribunals Act (LXX of 1973), S. 4–wapda employees–Civil servants for purposes of Service Tribunals Act, 1974–Within jurisdiction of Service Tribunal and not Labour Court–wapda employee (Meter Clerk)–A worker–West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 applicable to such employee–Becomes permanent under S.O. 1(b) of Ordinance, 1968 after service of three months–Condition in appointment letter contemplating liability to removal from service before expiry of probation ary period of one year, held, could not take away statutory right accruing under S.O. 1(b)of Ordinance, 1968 hence could not be invoked for termination of service after satisfactory completion of probation ary period of three months provided under S.O. 1(b) of Ordinance, 1968–Termination order passed purportedly in terms of appointment letter, in circumstances, set aside by Service Tribunal.

1984 PLC(CS) 1579     NATIONAL-INDUSTRIAL-RELATIONS-COMMISSION

Industrial Relations Ordinance 1969 –S. 34–Word “Award”-Does not necessarily mean award given under Industrial Relations Ordinance, 1969-Award given by Industrial Court under Industrial Disputes Act, 1947 neither modified nor revoked, held, could be enforced by application under S. 34-Such Award laying down certain principles for converting work-charged establishment of wapda into permanent after completing probation ary period of 3 months-Plea that such employees not being regular were not entitled to pension-Rejected-Directions issued by National Industrial Relations Commission that employees or wapda on deputation to Mechanised Construction of Pakistan Limited having opted to remain employees of wapda should be regularised in terms of Award of Industrial Court and be paid pension and other benefits under rules-Water and Power Development Authority Pension Rules, 1977, rr. 3 (i) (ii) and (iii) & 4 (v) and (vi).

 MUHAMMAD AYUB vs. WAPDA 1982 PLC(CS) 108     LABOUR-APPELLATE-TRIBUNAL-PUNJAB

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 –S. 1 (4), proviso and S. Os. 1 (b) & (c) & 15(4)—WAP15A–A separate statutory body and separate legal entity–Not state carried on by or under authority of Government provisions of Ordinance applicable to wapda –wapda employee (Assistant Lineman) employed on probation -Nature of work for which employed likely to last for more than nine months-A permanent workman after completion of probationary period of 3 months-Charged of absence exceeding 10 days-Charge-sheeting for such misconduct and inquiry, held, necessary-Termination order passed without such proceedings, in circumstances, set aside-Re-instatement awarded on technical grounds hence back benefits not allowed.

MRS. JEHAN ARA TABASSUM Vs.  WAPDA 1981 PLC(CS) 257     NATIONAL-INDUSTRIAL-RELATIONS-COMMISSION

West Pakistan Water and Power Development Authority Act 1958 — S. 17-A & Bread with Pakistan Essential Services (Maintenance) Act (LIII of 1952), S. 7-A-wapda declared as essential service Matter concerning termination of service of Lecturer in wapda Inter College-Within jurisdiction of Specified Authority under Essential Services (Maintenance) Act, 1952-Contention that wapda employees fall within exclusive jurisdiction of Service Tribunal rejected-No distinction between various categories of employees–Pakistan Essential Services Maintenance Act, 1952, held, applicable to any person engaged in any employment or class of employment to which Act made applicable-Termination of service – Reasonable excuse Essential even in case of a probationer-Pakistan Essential Services (Maintenance) Act (LIII of 1.952), S. 5(1).

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