1998 PLP (C (PLC(CS))

SARDAR MUHAMMAD RAZA, J.

The services of Mr. Ali Gohar son of Abdul Qayyum Khan Sales Officer, Sui Northern Gas Pipe Lines Limited were terminated by an order dated 24-2-1997 which happens to be challenged before this Court under Article 199 of the Constitution; against Managing Director, Sui Northern Gas Pipe Lines Limited, Lahore, Regional Manager, Peshawar and Chief Sales Officer, Peshawar.

2. The short history of the petitioner's service is that he was appointed as Sales Officer on 12-2-1996 the charge whereof he took over on 25-2-1996. Required to be on probation for one year and having remained on probation, his services were terminated on the last date of his probation on the ground that "his performance during probationary period had not been satisfactory".

3. Mr. Samiullah Jan, learned counsel for the petitioner claimed at the very outset that the employment of the petitioner fell within the ambit of Pakistan Essential Services (Maintenance) Act LIII of 1952 and that the employer could not discontinue the employment of the petitioner without reasonable excuse and that, if so done, it constitutes an offence under section 5 of the Act aforesaid. The learned counsel added that the petitioner was removed from service without any notice.

4. Mr. Saleem Baig, learned counsel for the respondents-company contended that under section 3 of the aforesaid Act, no' service can be deemed as Essential Service unless a notification by the Federal Government is issued to that effect. He stated at the Bar that no notification -exists in the field to the effect that the service of Sui Northern Gas Pipe Lines Limited is an Essential Service at the moment, was so on the date of the passage of the impugned order and ever had been after 1993-95. This challenge at the Bar was not met and no notification could be shown by the learned counsel for the petitioner, having ever been issued under section 3 of the Act declaring the service of the Company to be Essential Service at least during the period of termination order. The question of Essential Service is, therefore; not very material.

5. It was further alleged that there was a specific charge levelled against the petitioner that his service during probationary period was not satisfactory and thus in the presence of a charge, the issuance of notice before termination was an essential legal requirement. It was also added that the charge levelled against the petitioner amounted to be misconduct and so also, the issuance of notice was mandatory. Capt. Muhammad Azhar v. Commissioner of Karachi etc. (PLD 1966 SC 253) was relied upon by the learned counsel in support of a argument that on charge of a misconduct even the services of a temporary employee could not be terminated unless a notice is give in the employee. In the aforesaid case the service of the employee therein vas temporary and terminable at 15 days notice yet the issuance of show cause notice w as considered necessary because the service was going to be terminated on grounds of misconduct.

6. A close appreciation of the case would indicate that the removal does not fall within the mischief of misconduct. It is nowhere mentioned in the order of termination that the petitioner had ever been guilty of misconduct. The simple reason was- that during probationary period his performance was not satisfactory. Whether someone's service being not satisfactory is a misconduct or whether it operates as a stigma on his career, we are of the view that it does not. The services of the petitioner could have been terminated any time without assigning any reason during his probationary period and satisfaction of the employer remains always the ultimate consideration for retention in service beyond the period of probation. When the performance is not satisfactory, the services can be terminated without notice. The very purpose of probationary period is to assess the performance of an employee during a specified period in which the service remains purely temporary.

7. We have already noticed that there has been no charge of misconduct against the petitioner. The only reason for his removal was the unsatisfactory performance. Such performance is not a stigma on the career of an employee and there is a plenty of case-law where the issuance of notice was considered not (1991 SCMR 1998). A probationer is taken into service subject to the ultimate satisfaction of the employer for which a period is fixed to keep his performance under observation. No show-cause notice is, therefore, necessary before termination of the service of a probationer unless it is on the charge of misconduct or on the basis of some serious allegations for which the employee must be given an opportunity of being heard. In the instant case no such situation is involved.

8. The last defence taken by the learned counsel for the respondents was that Sui Northern Gas Pipe Lines a limited-Company-wherein the terms and conditions of service of an employee are not governed by statutory rules and hence the relationship-between them is that of master and servant and no remedy could be sought through the writ jurisdiction of a High Court. The learned counsel relied upon (PLD 1984 170), (1971 SCMR 568.(PLD 1992 SC 531), 1993 SCMR 346) and (1995 CLC 1662).

9. From the memorandum and articles of association of the company, it appears beyond doubt that the affairs of the company are governed by a Board of Directors and the company cannot be subjected to any interference by the Federal Government except for regulatory control and except for the share of the Federal Government and that too to the extent of 36%. The company is a creation of statute but it does not' have any statutory rules, specially to regulate the affairs of the employees and to determine the terms and conditions of their service. It brings us to two conclusions. Firstly, that the employment of the petitioner was contractual and secondly, that the relationship of master and servant existed between the employer and the employee.

10. In the aforesaid circumstances, we are constrained to observe that no indulgence should be shown by this Court under Article 199 of the Constitution especially when the termination was ordered on the basis of unsatisfactory performance and that too during probationary period. The writ petition is hereby dismissed in limine alongwith C.M. No. 397 of 1997. H.B.T./53/P Petition dismissed.