1970 PLP 332 (PLC)

‑Re‑instatement‑Payment of back wages‑Workman not making application to Industrial Court promptly‑Delay of four months in making application not explained‑Workman, in circumstances, held, not entitled to back wages on re‑instatement‑‑West Pakistan Industrial Disputes Ordinance (IV of 1968), S.

38. Mirza Nazir Ahmad Naz for Appellant. Nasirul Hasan for Respondent No.

1. Date of hearing: 5th January 1970. This is an appeal against an award of the learned Chairman of the West Pakistan Industrial Court (Central Zone), Lahore, dated 24th October 1969. The facts giving rise to the present appeal briefly put are these.

2. The appellant was selected as a conductor on 26th February 1968. He was appointed as a conductor on probation for a period of three months. He was removed from, service on 5th June 1968, during the period of his probation. The appellant made an application before the learned Industrial Court was that even the services of a probationer could not be determined on the ground of unsatisfactory work and conduct without a show‑cause notice. The learned Chairman relying on subsection (2) of section 12 of the West Pakistan , Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders), came to the conclusion that no notice of show cause was necessary in the case of the appellant, who was only a probationer.

3. Subsection (2) of section 12 of the Standing Orders, reads as under:‑ "No temporary workman, whether monthly‑rated, weekly- rated, daily‑rated, or piece‑rated, and no probationer or badli, shall be entitled to any notice or pay in lieu thereof, if his services are terminated."

4. A perusal of the above subsection of section 12 of the Standing Orders, makes it very clear that the Management has absolute right to do away with the services of a probationer with out notice. What is important to note is that the provision reproduced above contemplates simple termination of service. It does not contemplate termination of the service on the ground of misconduct or unsatisfactory work or conduct. Where the services of a probationer are sought to be determined, specifically on the ground that his work and conduct is unsatisfactory,, he is entitled, keeping in view the principles of natural justice, to a show‑cause notice to enable him, if possible, to explain his conduct. In this connection, reference may be made to a Division Bench Ruling‑Riaz Ali Khan v. Pakistan (P L D 1967 Lab. 491). It was observed in that case as under :‑ A probationer is as much in service or as much holds a civil post as any other employee. The only difference id that his appointment has not yet got a sure footing from the, very beginning. But that is a different matter altogether . . . If what takes place is a simple termination of his service, then he is not eligible for a show‑cause notice, but if it is a dismissal or removal, as for example for misconduct or any unsatisfactory work, then he is eligible for a show‑cause notice."

5. In this case, admittedly, the services of the appellant were terminated on the ground of unsatisfactory work and conduct. He was, therefore, entitled to a show‑cause notice. In case, he was able to explain the charges, the Management may have retained him in service.

6. Mr. Naz, the learned Representative for the appellant, prayed that in case the appeal is allowed, the appellant be re‑instated in service from 5th June 1968, with full benefits. In the circumstances of the present case, which I would presently mention, it would not be fair and just to the Department to order that the appellant be paid back benefits also. The appellant filed an appeal before the Director, Road Transport Corporation, Northern Zone, Rawalpindi. The appeal was disposed of on 14th October 1968. The appellant should have made an applica tion to the Industrial Court immediately thereafter. He however, filed a revision before the Chairman, Road Transport Corporation. The date of the order of the Chairman is not known, but the admitted position is that the order of the Chairman was communicated to the appellant on 6th May 1969. The appellant made an application before the learned Chairman of the Industrial Court on 28th August 1969 under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968. There is no explanation on the record of this case as to why the appellant waited for almost four months before making the application to the Industrial Court under section 38 of the Ordinance of 1968. It seems that the appellant was not keen to pursue his remedy under the Industrial Disputes Ordinance. In these circumstances, I do not think it would be fair to burden the Department with the payment of back wages. I would order that the appellant be re‑instated to the job that he was holding without any back benefits. It would, however, be open for the Department to proceed against the appellant in accordance with the law, if it so desires.