1990 PLP 233 (PLC)

5. The contention is devoid of any force. The definition and classification of workman are to be found in Standing Order No. 1 in the Schedule to the said Ordinance which reads thus: "

1. Classification of Workmen.‑‑(a) Workmen shall be classified as‑‑ (1) Permanent, (2) Probationers, (3) Badlis, (4) Temporary, (5) Apprentices. (b) A `permanent workman' is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment ........................... By an amendment promulgated in 1973, the following words were added to this definition:‑‑ "and includes a Badli who has been employed for a continuous period of three months or for one hundred and eighty‑three days during any period of twelve consecutive months. (c) A `probationer' is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed three months' service therein. If a permanent employee is employed as a probationer in a higher post he may at any time during the probationary period of three months, be reverted to his old permanent post. (d) A `Badli' is a workman who is appointed in post of a permanent workman or probationer, who is temporarily absent. (e) A `temporary workman' is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months. (f) An `apprentice' is a person who is an apprentice within the meaning of the Apprenticeship Ordinance, 1962 (LVI of 1962)."

6. A bare reading of clause (3) of Standing Order 12 with clause (c) of Standing Order No. 1 would show that a probationer is also one of the category of workman within the purview of clause (3) of the Standing Order 12 and, therefore, his services cannot be terminated by the employer without an order in writing explicitly stating therein the reasons for such termination. Thus visualised, the benefit of Standing Order 12(3) is available to all workmen including a probationer. The said provision of law refers to all category of workmen defined in clause (1) of the Standing Orders without any qualification. The same view is taken in Pakistan International Airlines v. Sindh Labour Court No. 5 and others P L D 1980 S C 323, which I respectfully follow. It is, therefore, evident that a probationer can competently file an application under section 25‑A of the Ordinance, if his rights under Standing Order 12(3) have been infringed.

7. The sole point which requires consideration is as to whether or not the order of termination passed by the petitioner can be treated to have explicitly stated the reasons for terminating the services of respondent No. 2 in conformity with the provisions of clause (3) of the Standing Order 12.

8. For facility of reference, the order of termination is reproduced below:‑‑ "Reference our appointment Order No. PC/Admn./Estt/87/8851, dated 26‑12‑1987, we regret to inform you that your aptitude and suitability has been assessed during your probation period and it has been observed that you have not been found suitable for the job assigned to you. Therefore, your services are hereby terminated with immediate effect. You are advised to collect your dues, if any, from our Finance Department after producing N.O.C. from the head of department."

9. The dictionary meaning of the term `explicit' is, "not obscure or 13 ambiguous, having no disguised meaning or reservation. Clear in understanding."(Black's Law Dictionary, 1979). As per the Oxford English Dictionary, the term `explicit' means, "Hence of persons, their qualities, etc. Speaking out fully all that is meant; definite and unreserved in expression; outspoken." The word `explicit' means as a matter of `explicit' knowledge, belief, or statement; expressly and not merely by implication, opposed to implicitly, with detailed exposition.

10. In the instant case, it has been explicitly stated in the termination order that the aptitude and suitability of respondent No. 2 had been assessed during his probation period and he was not found suitable for the job assigned to him. The order of termination did not cast any stigma, inasmuch as, the services of respondent No. 2 were not terminated on account of any unsatisfactory work but after assessing his aptitude and suitability. I am, therefore, inclined to hold that the reasons for termination were explicitly stated in the termination order and thus it did conform to the requirement of Standing Order 12(3). Refer Punjab Road Transport Board v. Muhammad Fazil Hussain and another P L D 1983 Lahore 531, wherein it was held that having regard to the nature of the employment of a probationer, reference to the probation in the termination order would constitute sufficient reason for termination of his services where no stigma is attached, within the purview of Standing Order 12(3). The order of termination passed in the instant case is a termination simpliciter and not dismissal or removal in the garb of termination. Needless to say, where termination order amounts to dismissal and not merely an order of termination, the same would not be sustainable under Standing Order 12(3). Refer Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 S C M R

382. In the instant case, there is no finding in the impugned order that the termination order was either mala fide or passed in colourable exercise of powers.

11. Learned counsel for the respondent No. 2 placed reliance on the' observations made by the Punjab Labour Appellate Tribunal in the impugned judgment that "very strong evidence is required to show that the workman is not tit for the job in cases where his services are terminated before he completes the period of probation. Reliance was also placed on Sethi Straw Board Mills Ltd., Rawalpindi v. Punjab Labour Court, Lahore and 2 others 1977 P L C 402, to contend that the mere word of the employer in the absence of any material produced before the Labour Court justifying the termination of an employee is not a sufficient compliance of the Standing Order 12(3). The submission is that in the instant case as well except the termination order, no other material was produced before the Labour Court justifying the termination of the respondent employee. The contention is unsustainable. The Sethi's case supra is distinguishable, in that, in the precedent case the order of termination was found to be mala fide and in colourable exercise of powers by the Labour Appellate Tribunal. The High Court refused to interfere in the matter in the exercise of Constitutional jurisdiction, in the absence of any material on record, in support of the contention of the employer. The instant case relates to probation and the ratio laid down in Punjab Road Transport Board's case (supra) is fully attracted to the facts of the present case.

12. In view of the above, the writ petition is accepted. The impugned judgment is declared to have been passed without lawful authority and of no legal effect. However, the parties shall bear their own costs. A.A./P‑92/L Petition accepted.