1988 PLP 847 (PLC)

Mr. Muhammad Usman Ghani, has challenged the termination order during the period of the employment of which he has not disclosed that he was a probationer, but stated that he was appointed, against permanent vacancy of the coolie in the respondent's company on the 2nd of September, 1986 and on 19‑11 1986 he was called and given the letter of termination without any reason.

2. He sent the notice of grievance dated 14‑1‑1987 which he has attached with this petition, and explained the background that his work was satisfactory and he was doing overtime and when he asked for the payment and compensatory leave, against those weekly holidays he was asked to resign otherwise he will be discharged from the employment.

3. The respondent has replied to his grievance by filing Reply Statement and contended that he was unskilled worker as a probationer. His work did not come up to the expectations. His services were terminated during probationary period. He sent the notice of grievance which was replied. The respondent followed the terms and conditions and denied in the strong terms that there was any compulsion of resignation or there was any annoyance. Respondent has not come out with specific comments regarding his overtime but referred the appointment letter in paragraph 3.

4. Mr. Maqsood Ali was examined on behalf of the applicant as the only witness to support and Mr. Shakeel Pervez was examined from the side of the respondent as the only witness being officer of the packing and Despatch Department.

5. The gist of the evidence of Mr. Maqsood Ali is that Mr. Shakeel Pervez was satisfied with the performance of Mr. Usman Ghani and when he made the representation regarding non‑satisfaction of the dues of the overtime the respondent was annoyed and made a false report of his performance that he listens to radio during working hours. This witness is the witness .on the point what took place and that Mr. Shakeel asked him to restrain the applicant for representation of overtime.

6. The witness has also remained under the impeachment of cross examination where also he has taken the stand that Mr. Shakeel was satisfied with his work which he confirmed in his presence. When he was asked the question in the Labour Court, what was the date when he was asked by Mr. Shakeel to resign, the witness is not in a position to confirm with the accuracy of the date when actually Mr. Shakeel used compulsion, although he has taken the firm stand that he was called himself by Mr. Shakeel to bring Mr. Usman Ghani in the room, in the month of November 1986.

7. The applicant Mr. Usman Ghani has also remained under cross examination. He is not sure whether he was on probation. He admits the contents of the appointment letter and also termination within three months. But he is definite that Mr. Shakeel had told him to resign and Mr. Maqsood also entered in the room when the talk was almost over.

8. The respondent's witness is also under cross‑examination. He admits that he had sent the performance report to the Department Manager which he supports vide Exbt. R/3. He has also admitted that Mr. Usman Ghani was doing overtime during probation but has denied that this was the reason of overtime which compelled the management to terminate his services. He has also taken the stand that his report of performance was accurate of his assessment. It was not false report. REASONS:

1. Much has been said that the probationer who is appointed does not require the statement of reasons at the time of termination what is given in Standing Order 12, subsection (3).

2. The letter of management of 17th February, 1987 also shows that his services were terminated, dated 19th November, 1986 under the letter referred in Annexure‑A/2. The letter of November 1986 relates to the termination of services with the words that services are no longer required and he should collect the dues. The appointment order of September 22, 1986 also shows that he was on probation for three months and his services to be terminated without any notice.

3. This is also the accepted position that the performance report Exbt:R/3 was also submitted to the Plant Manager by Mr. Shakeel that Mr. Usman Ghani leaves the job and listens to the radio in the shop and therefore his work is not sufficient. These are the words exactly of the person concerned on R/3 and the noting of the Manager reads with these words: "That he is on probation. His services be terminated."

4. With this background the categories of workmen are defined in section 2 what is permanent, what is probationer what is badli, what is temporary workman. For the qualification of permanent workman, the work should be of permanent nature lasting more than ten months and satisfactory completion of probationary period and the probationer is a workman to fill the permanent vacancy by completing three months‑‑‑‑‑‑.

5. The Court also further refers sections 3 and 2 of the Standing Orders that in every Industrial and Commercial Establishment, condition of the employment of workman and other incidental matters shall be subject to other provisions of this Ordinance be regulated in accordance with the Standing Orders and by reference to section 4, no modification of the Standing Orders by means of CBA, shall take away or diminish any right or benefit available to the workman.

6. From the categories of the workmen, whoever is classified, "is a workman, first", and then followed the conditions. To be precise, therefore, what the Labour Court understands from the Standing Order 12, is that subsection (3) emphasizes the force, on the word "workman:" Subsection (3) does not expressly state what is shown in subsection (1) that a permanent workman. Subsection (3) speaks of general classification, to cover every workman. If there is a condition in subsection (2) that probationer need not be .given notice but the permanent workman shall be given notice of one month what the Labour Court understands, this applies to the monetary advantage of one month's wages. But subsection (3) is the heart of the proviso where the workman with whatever category it may be with all the legal incidents .should be informed of the reasons of such rejection or acceptance. Therefore, the statement of reasons given in the termination order the Labour Court examines whether the jurisdiction exercised by the employer was rightly exercised based on judicial discretion or on fanciful grounds. Indeed there is a jurisdiction to the employer to have the mental assessment of the work of probationer regarding ability, efficiency and other traits of the job in the industrial working to base his judgment for the permanency of the entitlement with which he is taken on probation, obviously indicative that if the word, probation is used, it is against the permanent vacancy but the satisfactory completion of work in the context of the legal limitations, is the privilege of the employer to appreciate the working of an employee for the benefit of the Industry. But at the same time if the relationship of the employee or employer, is regulated, by the provision of law what is in sections 3 and 4 of the Standing Orders, the Labour Court thinks that such discretion is under the review of the Labour Court which is the highest forum.

7. In this context Mr. Samiullah has contended itself that the words used therein that the services no more required fulfil the requirements of the proviso and has referred to decisions of this Court also but not produced the decisions. The Labour Court, it feels that every case has got its own peculiarities of the facts of the case and the Court decides in that context by seeing the quality of the evidence proposed to be advanced for every case has its own versions and necessities and shortcomings. 8: In the present facts the Court is also referring the decision of the highest Court, the honourable Supreme Court of Pakistan (1974 P L C 243). This is case of Abdul Rasheed Abbass v. S.P. Muzaffar Garb. My Lords, the honourable Judges of the Supreme Court have observed which the Labour Court respectfully quotes: "A probationer is a person who is taken in the service subject to the condition that it will attain sure footing only if during the period that he is on probation he shows that he is the ft person to be retained in service. ' His lordship further held, in the context of the termination of probationer's service which I respectfully quote: `Probationer's service terminated on the ground of unsatisfactory work‑ Such termination not dismissal or removal from service within the domain of the contract or rules made by Government‑‑Service of probationer terminated on the ground of misconduct‑‑Such course amounts to removal or dismissal and probationer being stigmatised protected by Article 177‑‑Show‑cause notice and proper enquiry against probationer necessary in such cases'."

9. There is also reference by the applicant to 1977 P L C 130 of my Lord the Honourable Judge of the High Court, in the context of Standing Order 12(3) that termination letter without proper, show‑cause notice or not indicating any reasons is against the principle of natural justice.

10. In the case cited, it was not the Labour case. But in view of the law on the principle of probation, the Court refers the decision and makes it as a basis in the context of the present facts that the fairness of the action to exercise discretion by the employer would have been to test the accuracy of Mr. Shakeel to be sure about the performance. But even, despite the view taken by the Labour Court in the context of the present facts, the Court has been taking consistent view previously also that subsection (3) of Standing Order 12 must give the reasons, however brief they may be, to offer the self‑explanation before the employer/master about his innocence. This being the fundamentalism of the concept of the justice what the Labour Court understands, for the opportunity to be afforded or to place the matter before the Court of law, for the redress of the,' grievance to exclude the suspicion if any. The Court is better judge also of the assessment of the judgment of the employer despite the privilege he has which also Court protects his right like a worker in the scale of justice to be measured to maintain the equity of the problem. The Labour Court, also feels, that human faculty is inborn, in every human being, to perceive justice. Some times the human problem looks so heart rending that the person who comes for perception '' of truth has the lesser sympathy on its surface. But whether problem is true or false, justice is the only cure to remove those suspicions where justice is pure and noble, and adjective itself.

11. So, the realistic approach can, best be seen, if the reasons would have been assigned in the termination order to test the accuracy of Mr. Shakeel. The Court also further having the disadvantage of knowing the fact of overtime without giving specific comment in the written statement which is said to be the background. But the Court for the purpose of the merits comes to this finding that subsection (3) of Standing Order 12 is the, heart of the proviso and also of the Ordinance, what the Labour Court feels by reading it is that the rights of the employer and the employee are protected by‑sections 3 and 4 of the Ordinance‑1 The fairness of the action would have been that reasons would have been given l for the Court to see and to appreciate that the judgment of the employer was fair and just based on the discretion.

12. In the result the non‑compliance of the statement of reasons simply using the expression "the services are no longer required" has not satisfied the judicial satisfaction. The words "no longer required" are also the reason but it should have been explanatory.

13. The Court further adds that every case has got its own peculiarities of the evidence, what the witness speaks, how the witness diverts, what circumstances he reflects, what judgment he reflects, for the Court to review. These are the circumstances in the view of the Labour Court to consider whether the action taken was proper which satisfied the judicial aspirations.

14. Application is allowed accordingly. He is still on the probation. He cannot claim the permanent benefits. He must acquire the permanency of appointment. Regarding overtime the worker if he is aggrieved, the law has opened the forum under the‑Payment of Wages Act to meet with the challenge of each others' version regarding deduction of the wages. He is reinstated from that stage. A.E/1134/Lb. S Application allowed.