1988 PLP 841 (PLC)

These two cases, present the highly controvertial point of law whether the statement of reasons, in writing by the employer to find in the letter of termination under Standing Order 12(3) to justify the probationer for coming to the Labour Court for the redress of grievance, if by the very appointment order it is expressly provided that no notice is necessary to assign reason.

2. Although the employer, and the workmen have put up different versions. The employee claims that he worked for 99 days and enjoyed the status of permanent workman the version of the employer is that he worked for 77 days from 11‑10‑1986 to 27‑12‑1986, in the case of Mr. Baloch Khan. In the case of Mumtaz Khan the employee claims that he worked for 93 days including. 4 days of compensatory leave. The employer's version is that he worked only for 89 days from 1‑10‑1986.

3. Shortly, to put it the employer claims that they are the probationers. The employee claims that he is a permanent workman.

4. Besides these questions of law, there are two other legal aspects raised that juniors have been retained and the permanent have been released. The employer's version is that there was no retrenchment. It was simple termination.

5. Learned counsel Mr. Shahani has also gone further to contend that applicants are not the workmen. No right is secured to them for seeking redress.

6. Mr. Shahani has also emphasised, more on these words in section 2 of Standing Order 1 that the period of three months which entitles the workmen to become permanent does not specify the days, for every calendar month is either 30 days in a month or 31 days. He has also been more specific to say that the word compensatory leave is nowhere defined.

7. In this context the Court therefore refers the relevant provisions of law namely the Standing Orders to show the categories of the workmen, i.e. permanent, probationers, badlis, temporary and apprentice. For the purpose of relevancy in this case, the workman is said to be permanent who completes probationary period of three months in respect of the work which is of permanent nature to last more than 9 months. The word probationer means who is provisionally employed to fill permanent vacancy in the post and has not completed three months' service. It further qualifies that if permanent employee is employed as probationer, he may at any time during probationary period revert to his old permanent post.

8. Standing Order 12 speaks of termination of permanent workman, in subsection (1) and it provides that one month's notice shall be given. Subsection (2) provides that no temporary workman whether monthly rated, weekly rated, daily rated or piece rated including the probationer or badli shall not be entitled to any notice if his services are terminated. If subsection (1) and subsection (2), are seen, in their natural and plain meaning the context of the notice must be understood in the sense of which subsections (1) and (2) conveys. What the Labour Court feels and understands, from the language used therein that notice is necessary in the case of permanent workman for which he is also paid the wages and in case of probationer, that notice has not been made as condition precedent.

9. Subsection (3) goes further that the services of the workman shall not be terminated except by an order in writing which shall be explanatory to state the reasons for the action taken. Subsection (4) again refers that the services of an workman if are terminated, the wages will be paid before the expiry o the second working day.

10. Standing Order 3 as the Labour Court understands conveys the clear sense that the statement of reason is the heart of the provision of Standing Order 12 where the word workman is used, in A the same context of the definition of workmen who will be called as a workman whether be permanent, probationer, temporary, badli or apprentice.

11. If the word permanent workman would have been used, expressly the subsection (3) would have conveyed the sense. Workman is a workman, irrespective of the categorization or classification.

12. The Court still proceeds further that if the word any workman is used in subsection (4) what the Labour Court understands that the sense it conveys that the wages of any workman should not be with held and nothing beyond as the date of the limitation of the payment of wages to obviate hardship and to maintain the spirit of the labour welfare.

13. The Labour Court therefore in precise opinion finds that the statement of reasons is the cornerstone or even to say the heart of the proviso to be followed by‑an employer before any action is taken for it impliedly is understood that the jurisdiction to be exercised by the employer of termination of probationer or any workman may not be exercised, unjudiciously. What the Labour Court follows that if the Standing Orders Ordinance relates to the terms and conditions of workman in the Industrial Employment, it also assures of the security of the workman to the extent of limitation in the Ordinance. So as to exclude this hypothesis that the jurisdiction of the exercise of discretion may not be misused and for that, the Labour Court be given the jurisdiction to examine the grievance in light of section 25‑A where the workman or the worker as the case may be is given the jurisdiction to vindicate his grievance. If the wordings of section 25‑A as the Court finds that grievance can be brought in respect of the right secured to him the Labour Court as understands from definition of workman in section 2 read with Standing Order 12, it obviously gives the jurisdiction that any workman who is affected by the termination in context of Standing Order 12 to assume the jurisdiction of presenting the grievance, firstly for knowing his status and also to show what are the terms and conditions emphasised in sections 3 and

4. In section 3 of Standing Orders the word used is workman and in section 4 the word is collective agreement regarding modification of Standing Orders if consented by C.B.A. provided that agreement shall not take away the right or benefit of the workman. Besides these words it is also emphasized that the terms and conditions shall be regulated in accordance with the Standing Orders. So, if both sections are read together, what the Labour Court understands that the word is used of workman of the general context, and the employment and of the regulation of the terms with the Standing Orders and finally not to take away the benefit what is assured in section 4 in contradistinction to the word right used therein if taken in that sense. The Court also further understands that in the formation of Union any workman can be member. Therefore, if sections 3 and 4 assure of guarantee under the law which is Standing Orders Ordinance, any appointment therefore, of an employee may be understood to follow, in conformity with the requirement of law. So, if the appointment order speaks of the termination without any reason, .even there may be an estoppel by conduct or representation, it cannot operate against the Statute what the Labour Court understands in the whole context to examine the action of employer and employee in the context of the Industrial Relations within the spirit of the Ordinance.

14. Mr. Shahani however, in the course of legal arguments further gave the impression that the word compensatory holiday is not known to him. Mr. Latif representing Mr. Ch. Rashid Ahmad his Senior Counsel has very forcefully contended that the applicant was entitled to compensatory holidays during period of his working of which he states that they have become permanent. The compensatory holiday was the right or benefit to be availed. This aspect came in the case of Mumtaz Khan where 4 days have been shown to have been added 'to 89 days and in the case of Baloch Khan they have taken definite stand of the completion of 99 days.

15. For the information of Mr. Shahani, the word compensatory holiday has been found in section 35‑A of the Factory Act that if factory is exempted under particular rule from the provision of section 35 and the worker is deprived of any weekly holiday, he shall be allowed compensatory holiday which he has lost. Section 35 in the general context speaks of the weekly holidays of which this sense is conveyed in section 35‑A. So, in the words of Mr, Shahani it is not correct that compensatory holiday does not exist. It is secondary question, whether it is to be availed during probation or during the stage of permanency, Mr. Latif has taken a definite stand that they have become permanent. No evidence has been led to produce the record of attendance by the employer.

16. What the Court finds from the record of evidence Mr. Latif can rightly say that if the employer is in possession of the record of attendance and no evidence is led on this fact what the petitioner ‑has said regarding number of days he has worked should be accepted in all the normal sense of judicial comprehension. The Court further has also taken the view of section 35‑A of the Factory Act and has considered it from all the aspects in light of the definition of workman and finds nowhere that the word permanent workman is used to avail this benefit of section 35‑A to the exclusion of other workmen. The C word worker as defined in Factories Act speaks of the employment for wages. In view of the matter therefore what the Court reaches the conclusion and will be just and fair that firstly they have become permanent workmen. But if they are not accepted as permanent workmen still, the Standing Order 12(3) comes in the way of the employer who has to disclose what reasons prevailed with a sense of perception at the time of his probationary performance that the employer, within its mental assessment and the judgment, did not get the subjective satisfaction to the capacity of work or inefficiency or other mental traits of character, unsuitable to the Industrialization progress. Indeed there is no dispute to his unfattered jurisdiction, as the master, to see his mental superiority of the work. But what the Court is anxious to see is his judgment within the judicial perception, to confirm to the requirements of justice, in respect of the exercise of his discretion which he desires to be absolute. Why the Court emphasises that if the legislation in the form of Ordinance has regulated the behaviour, it is to be in accordance with that spirit of the Ordinance. However, the Court also will add further that compensatory holiday in the case of a probationer also is the benefit to be read with section 35 of the Factories Act that if the employee whether be probationer or permanent is entitled to festival holiday, he can avail that holiday or if no such holiday is given, compensatory holiday becomes the judicial l) consideration in the context also of human relationship where human being cannot be expected to work for 90 days with no rest in the case of any eventuality in the case of human tragedies. Legally speaking, the Court finds no clog or restrictive limitation by express bar in section 35‑A or section 35 which speaks of only of adult worker.

17. Regarding the plea that juniors have been retained this is not a case of retrenchment. Mr. Shahan has rightly contended in view of these admissions, in case of Baloch Khan where Mr. Baloch Khan himself has disclosed in the cross‑examination that he is not sure when new people were appointed. But on the contrary it is said that they were already employed.

18. The contention therefore, is not accepted of the petitioner -applicant that it was case of victimization. But for the reasons, the E impugned order is set aside, on the failure, to state the reasons, under Standing Order 12(3), when they are the permanent workmen, with all the legal incidents of due entitlement of benefits.

19. Mr. Shahani has also referred judicial precedents for reference (1976 P L C 181 and 183) P L D 1979 Karachi page 409), 1980 PLC 351, 1980 P L C 568 , 1979 P L C page. 201, 1985 P L C 275).

20. Reference has been made to case of 1976 P L C

181. In this case it has been shown by Mr. Shahani that notice in the case of probationer is not necessary. Since the Court has held that they are the permanent workmen, the facts will be distinguishable. Reference of 1980 P L C page 353 relates to the case of badli workman. It has been shown that badli workman does not become permanent and leave of some days availed during continuous employment will not make employment as non‑continuous. This is used in that context. Here the facts are distinguishable in the context of section 35‑A which was not the point in that case. Besides this is a case of workman who initially was taken on probation and no record produced of his attendance by the employer. Each case therefore is distinguishable. There is a case of 1980 P L C

353. In this case I.R.O. 69 and Standing Orders Ordinance 1968 have been discussed. This is in the context that protection against termination where one of the issue was that there cannot be re‑instatement of probationer. There was also another issue in that case whether grievance application was competent and the respondent was not entitled to the benefits of the West Pakistan Industrial and Commercial Employment which applies to Industrial Employment or Commercial Establishment where 20 or more workers were employed. So, the facts were different and used in that context whether the strength of the employees made the Standing Order applicable.

21. Another issue of probationer in that case also came under consideration that employer need not give any reason for discharging probationer 'and that certain reasons given by the employer did not appeal to the Tribunal could not take away such right and further held that the Tribunal cannot sit over the judgment of employer and direct him to absorb the probationer, these observations came with reference to decision of Calcutta of the year 1963 L L C

344. There was also reference of thd Constitutional Petition No.630174 in the National Art Press v. Badru Khan. This was also relied for the proposition that termination of the employment under the Shops and Establishment Ordinance, gives rise only to challenge of compensation to the extent of one month's wages and employee was not entitled to claim reinstatement. So, both these issues were decided in context of that case law, in paragraphs 7 and 8 where the facts are distinguishable from the present case on the different facts and different points involved. There is also reference of P L D 1979 Kar.409 .where also it was held that the respondent becomes permanent workman on satisfactory completion of probation. In the present case of both the applicants no reasons of subjective satisfaction have been given and therefore the facts of the case are distinguishable. There is also case of 1985 P L C page 275 referred in the arguments. This is a decision of the Honourable present Chairman. His Lordship has also held that it is not necessary to give lengthy reasoning for the removal if the reason is given that the services are no longer required. In the view of the Labour Court every fact is different with the peculiar defences in the decision, quoted the post of record‑keeper was not needed. The employer passed the order of removal on re‑organization. This is a case where the question of probation and permanency of the entitlement came under discussion where the word satisfactory completion, needed the `statement of reasons, for the Court to have the idea, whether the discretion of the jurisdiction was properly exercised in view of the above reasons discussed by the Court in the earlier paragraphs of the judgment of this case.

22. Consequently, as the Labour Court understands, the context of every case, has got different facts, peculiarities of different version, different niceties of the legal aspects.

23. In the result on the reasons, advanced by the Labour Court in context of the present facts, the application is allowed accordingly. They are reinstated with back benefits. A.E./1135/Lb. S Application allowed.