1976 PLP 935 (PLC)

5. The learned Representative of the respondent, on the other hand contended that the respondent being a driver filed this petition in respect of a right guaranteed or secured to him by or under section 7 of the Road Trans port Workers Ordinance, XXVIII of 1961, which reads as follows :- "Restriction on termination of services, etc.-The services of a worker shall not be terminated without sufficient cause nor unless and until one month's previous notice or one month's pay in lieu thereof has been given to him and he has been paid his pay for any period of leave admissible to him, of which he did not avail himself while in service. . . . . . . . . . . . . . . . . "

6. This Ordinance does not make any distinction between a temporary or permanent employee. All employees are governed by suction 7 of the said Ordinance. This Ordinance was amended by the Road Transport Workers (Amendment) Ordinance, XI of 1974 which came into force on 27th September, 1974. The amendment reads as follows : W. P. Ordinance No. VI of 1968 to apply to Road Transport Service. The provisions of Standing Orders 10-B, 10-C, 12, other than those contained in clause (2) thereof, 13, 14 other than the proviso thereto, and 15 of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 (W P. Ordinance, No. VI of 1968), as in force for the time being shall apply to every road transport service as if such road transport service were an industrial establishment to which the aforesaid Ordinance had been applied by a notification under clause (c) of subsection (4) of section L thereof, and as if a worker was a workman or permanent workman, as the case may be, within the meaning of that Ordinance . . . . . . . . . . . . . . . . . . . . . .

7. From the above it is clear that Standing Order 12 (2) has not been made applicable. According to Standing Order 12 (5) which has been made, applicable, the services of a permanent or temporary workman shall not be terminated on the ground of misconduct otherwise than in the manner pre scribed in the Standing Order 15.

8. Now the point for determination is as to whether the termination of services of the respondent on the ground of unsatisfactory work was a misconduct and that he was entitled to a show-cause notice. In the present case the services of the respondent were found unsatisfactory because of the collision with the other bus. Misconduct is defined in Standing Order 15(3), Clauses (i) and (j) are only relevant to this case. Clause (i) reads as follows:

Habitual negligence or neglect of work. Clause ( j) reads as follows :- Frequent repetition of any act or omission referred to in clause (i) According to the learned counsel for the appellant collision was neither a result of habitual negligence or neglect of work nor of frequent repetition of any act or omission referred to in clause (i), therefore, the act committed by the respondent did not fall within the meaning of misconduct.

9. The learned Representative of the respondent, on the other hand, contended that the termination of services of a probationer on the ground of unsatisfactory work amounted to misconduct. He placed reliance on the judgment of Supreme Court in the case Muhammad Siddiq Javid Chaudhary v. Government of West Pakistan (P L D 1974 S C 393), wherein it was held that a probationer whose services bad been terminated on the ground of unsatisfactory work was entitled to a show-cause notice if there were allegations of corruption also. In the present case there were no allegations of corruption and therefore this ruling is not applicable.

10. The learned Representative of the respondent also relied on the judgment of the Sind & Baluchistan High Court in the case Dost Muhammad Cotton Mills Limited v. Muhammad Abdul Ghani and another (P L D 1975 Kar. 342) wherein it was observed :- "The next point in this case is whether the order of termination of services of the respondent is in fact and effect an order of dismissal. An "Employer" can terminate the services of an employee without show ing any fault but for dismissing the employee an enquiry has to b6 held in accordance with the provisions of section 15(4) of the Ordinance. The order of termination clearly states that the work of the respondent was unsatisfactory. It is also stated that a long time had been given to the respondent to achieve and show good results but the respondent bad failed. If the work of the respondent was unsatisfactory the same could reasonably full for punishment under section 15 (1) (ii) (d) for which a workman could be reprimanded or fined. This clause contemplates inefficiency, dilatoriness, carelessness or wasteful working. Under section 15 (3) (j) frequent repetition of any act or omission referred to in clause (1) of section 15, is treated as "Misconduct". The alleged unsatisfactory work of the respondent if the same was continuous, would attract section 15 (3) (j). The respondent is stated be continuously showing unsatisfactory work and such continuity constitutes misconduct within the meaning of clause (j) of section 15(3) of the Ordinance. What is more that the so-called letter of termination contains a stigma and the respondent has set up a case that he was unable to get a job in spite of efforts although he was fairly experienced. Normally, an order of termination carries no stigma but generally when a stigma attaches to an order of termination of services, the same obtains all the characteristics of dismi3sal. If an order is in fact and effect an order of dismissal, merely terminating the same as an order of termination will not change the character of the order. The respondent has further urged that he had become unpala table to the petitioner on account of some dispute, the petitioner had with his labourers. If would thus seem that the so called order of termination is only a guise and cloak to avoid the legal formalities of an enquiry under Standing Order 15 (4) of the Ordinance and to say the least it was a colourful exercise of power to get rid of an undesira ble employee."

11. This order was upheld by the Supreme Court vide their judgment dated 17-9-1975 reported in P L D 1975 S C 342.

12. In my view these cases are also not applicable, because in the instant case there is no allegation of continuous unsatisfactory work. There fore, the alleged act of the respondent is not misconduct and did not require any show-cause notice. Anyhow according to section 7 of the Road Tran. sport Workers Ordinance, 1961, the services of a worker cannot be terminated unless and until one month's previous notice or one month's pay in lieu there of has been given to him. No notice was given to the respondent before his services were terminated. He is, therefore, only entitled to one month's pay in lieu thereof and not re-instatement.

13. I accordingly accept the appeal, set aside the decision of the learned Labour Court and direct that the respondent be paid one month's wages in lieu of notice.