Full Judgment Text & Judicial Ruling

1995 P L C (C

1995 P L C (C.S.) 509

[Federal Service Tribunal]

Before Muhammad Ismail and Noor Muhammad Magsi, Members

MUHAMMAD IKRAM

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through its Chairman, WAPDA, Lahore and 122 others

Appeal No. 212(L) of 1994, decided on 23rd November, 1994.

Service Tribunals Act (LXX of 1973)‑‑

‑‑‑‑S. 4‑‑‑Appeal‑‑‑Maintainability‑‑‑Civil servant who joined Water Wing of WAPDA, was declared surplus and was transferred to Electricity Wing‑‑‑Civil servant being surplus was placed at bottom of seniority list against which he made a belated representation which was rejected‑‑‑Civil servant instead of filing departmental appeal, had filed grievance petition in Labour Court which was accepted by that Court but rejected by Appellate Tribunal on appeal on ground that Labour Court had no jurisdiction in the matter because petitioner being employee ‑of WAPDA was a civil servant and not workman and his remedy lay with Service Tribunal‑‑‑Appeal subsequently filed by civil servant before Service Tribunal without first filing departmental appeal and after delay of more than three years without giving cogent reasons for condonation of such delay, was not maintainable.

F.U. Malik v. WAPDA 1983 SCMR 663; 1986 SCMR 18; 1975 PLC (C.S.T.) 87, 1983 SCMR 877, 1973 PLC (C.S.T.) 79 and 1972 PLC (C.S.T.) 208 ref.

Appellant in person.

Ch. Ghulam Hasan Gulshan for WAPDA.

Mian Mahmood Hussain for Private Respondents Nos. 25, 31, 34 and 42.

Date of hearing: 23rd November, 1994.

JUDGMENT

NOOR MUHAMMAD MAGSI (MEMBER).‑‑‑Briefly the facts of this appeal are that the appellant Muhammad Ikram joined as LDC in Water Wing of WAPDA on 11‑6‑1966. He was promoted as senior clerk on 30‑10‑1976. He was declared surplus on 8‑12‑1979 alongwith others and by order dated 24‑12‑1979 he was selected for appointment as Senior Clerk and directed to report for duty to Chief Engineer, Electricity WAPDA, Multan within 15 days failing which their services were liable to be terminated. Later on he was transferred to Faisalabad at his own request. A seniority list of UDC of Power Wing Ministerial Staff was prepared and circulated vide letter dated 3‑3‑1988. He made a belated representation on 17‑2‑1991 which was rejected by order dated 30‑3‑1991 by the Chairman; Area Electricity Board, Faisalabad on the ground that the surplus staff is placed at the bottom of the cadre. Thereafter, he served a grievance notice under section 25‑A of the IRO on 9‑6‑1991. He filed grievance petition on 6‑7‑1991 before the Labour Court 4, Faisalabad which was accepted. The respondent WAPDA filed appeal before the Punjab Labour Appellate Tribunal which was accepted by judgment dated 3‑7‑1994 and the order' of the Labour Court was set aside as the Labour

Court had no jurisdiction because the appellant was a civil servant and his remedy lay with the Federal Service Tribunal, where after the appellant filed this appeal before the Tribunal on 2‑8‑1994.

2. We have heard the appellant who argued his appeal himself. His contention was that he was never declared surplus nor was transferred to Faisalabad at his own request and as such he could not be relegated in lower position.

3. Ch. Ghulam Hasan Gulshan, Advocate appeared on behalf of WAPDA and submitted that the appeal is hopelessly time‑barred and the appellant has misrepresented the facts in the memo of appeal and on these two legal objections the appeal is liable to be dismissed. With regard to limitation he relied on 1983 SCMR 663 (F.U. Malik v. WAPDA) and 1986 SCMR 18 in support of his submissions. On merits he submitted that according to the documents placed on file the appellant alongwith others had been declared surplus and he was absorbed under jurisdiction of Chairman, Area Electricity Board in the Power Wing and was given seniority in the Wing from 17‑2‑1980, the date when he was absorbed. He relied on 1975 PLC (CST) 87, 1983 SCMR 877, 1973 PLC (CST) 79 and 1972 PLC (CST) 208, on the point that seniority of surplus staff is reckoned from the date of absorption and the absorption is discretionary.

4. Mian Mahmood Hussain, Advocate appeared on behalf of private respondents Nos. 25, 31, 34 and 42. While adopting the arguments of the learned counsel ‑for WAPDA he added two legal objections. Firstly that the appeal is not competent as no departmental appeal has been made to the General Manager as required under section 4(1) of the Service Tribunals Act, 1973 and that the appeal is also time‑barred. He relied on Pakistan WAPDA Power Wing Ministerial Rules, 1966, which provide that if the transfer is to absorb a surplus employee, his seniority shall be reckoned in the Power Wing from the date of joining. He submitted that the appellant has no grievance to agitate.

5. We have considered the submissions of the parties and perused the record. Admittedly the appellant having been declared surplus was selected for appointment alongwith, others in the Office of Chief Engineer, Electricity Board, Multan vide Letter dated 24‑12‑1979 issued by the General

Manager, S&GA WAPDA, Lahore, addressed to the Chief Engineer (Water), WAPDA, Faisalabad. Therefore, the contention of the appellant that he was not declared surplus is not tenable. There is also an application made by the appellant on 1‑1‑1980 addressed to the Project Director, Scarp Construction Circle WAPDA, Faisalabad, wherein he stated that he had directed him to report for duty at Multan and that he has been involved in a murder case and was on bail in those days and his case was under trial by a competent Court at Faisalabad. He requested that he may be posted in the Office of Chief Engineer (E), Faisalabad. Under the Pakistan WAPDA (Power Wing) Ministerial Rules, 1966, Rule 9 relates to seniority and according to clause (b) the seniority is to be reckoned from the date of continuous appointment. In case of the appellant as stated earlier he was appointed vide letter dated 24‑12‑1979 and he joined appointment with effect from 17‑2‑1980. According to Rules he has been given his due seniority and he has no grievance to agitate.

6. As regards the question of limitation: The impugned a ed seniority list was circulated on 3‑3‑1988, to which the appellant made a (belated departmental representation on 17‑2-1991 which was rejected on 30‑3‑1991. Instead of filing departmental‑appeal he served a grievance notice under section 25‑ of the IRO and the grievance notice cannot be treated as departmental appeal under the rules. He filed a grievance petition before the Labour Court and this exercise was not bona fide because the status of the WAPDA employ civil servants had been agitated upon and determined by the Supreme Court in case of F.U. Malik reported in 1983 SCMR 663. The appellant was not illiterate; person and support approach the Tribunal within the application for condonation acceptance of the Labour Appellate Tribunal by judgment dated on 2‑8‑1994 well as on the question of limitation.

7. Both on merits as well as on the question of limitation the appeal fails and is dismissed with coast.

H.B.T./1019/Sr.F Appeal dismissed.

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