1976 PLP 467 (PLC)

S. Os. 1(e) & 12(3)-Person employed against permanent job Employment made even for a fixed period-Cannot be treated as temporary workman-Such person having been appointed after successfully completing training period can at best be treated a probationer and not a temporary workman Termination simpliciter without explicit written reason, held, invalid. Aqa Asif Jaffary for Petitioner. Hamiduddin Qureshi for Respondent. This is an application under section 25-A of the Industrial Relations Ordinance, 1969, hereinafter mentioned as the Ordinance, submitted by Muhammad Amin ex-Conductor, for re-instatement in service of G.T.S. Multan, hereinafter mentioned as the respondent-Management, by setting aside the order of termination passed against him by the District Manager, G.T.S,, Multan, on 12-12-75. The said order runs in the following terms:-- "The services of temporary Conductor, Muhammad Amin No. 179, are hereby terminated within probation period with effect from 12-12-1975." It is stated on behalf of the respondent that the petitioner was appointed on purely temporary basis for a period of one-month alongwith other candidates on 24-9-75, Attested copy of the order is Exh. R. I. It is further stated that the petitioner's services were extended for further period of one month on 25-11-75, attested copy of the order being Exh-R,2. It is contended that as the petitioner was essentially appointed as a temporary worker for a fixed period of one month which was extended for further one month, he did neither fall within the definition of permanent workman nor under the definition of a temporary worker in the sense that any notice of termination or notice pay or any special reason for his termination was at all necessary in this case. On the other hand it has been urged on behalf of the petitioner that he has admittedly been appointed the very beginning against a permanent job as mentioned in written statement aid on that score he could not be held by any stretch of imagination to be the holder of a temporary post or for that matter a temporary workman. The learned counsel rather intelligently referred to the definition of temporary workman given under Standing Order 1 (e) of the Schedule to the Standing Orders Ordinance, 1968, which reads as follows:- "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 9 months." According to this definition a temporary workman is be who holds a job of essentially temporary nature and not the one which is fundamentally of permanent character. Any worker appointed to a permanent vacancy can only be regarded a probationer and not a temporary worker appointed for a fixed period to perform work of essentially temporary nature. Accord ingly it has been conceded that the temporariness of the appointment of the petitioner was of probationary nature and he could be regarded as a proba tioner who could be terminated through termination simpliciter. Obviously, the respondent-Management cannot go out of the admission made in the written statement that the petitioner was originally appointed against a permanent job of Conductor. This being so the representative or the respondent could not refer me to any rule of service allowing the appointing authority to recruit a trained worker against a permanent job but to hold it temporarily only for limited period, say, one or two months. The character of the job admittedly being permanent, ordinarily only a proba tioner can be appointed against it and the appointment would be regarded as an appointment on probation against a permanent job with the consequen ces to take place in the natural course of employment. In other words if a probationer holds a job satisfactorily for the probationary period, he is to be made permanent in due course. In the present case, this has also been admitted on behalf of the respondent and is also quite clear from the original order of appointment that the petitioner was one of the workmen who had completed the training for the job of Conductor successfully and it was on that score that he was appointed against a permanent job. In the result the only inference, which can fairly be drawn from the circumstance of the case, is that the petitioner when terminated was holding a job as a probationer against undisputedly a permanent job. According to the Standing Order 12(3) any worker, whether a permanent or temporary, cannot be terminated nor can he be removed retrenched, discharged or dismissed except on the basis of an order in writing which must explicitly state the reason for the action taken. In the present case even if the petitioner were regarded to be a purely temporary worker, an explicit reason for his termination was an essential pre-requisite for discharging him from service and the expression "termination simpliciter" does not exclude this obligation on the part of the employer. This is not the case of the respondent-Management that neither there were some spe cial circumstances necessitating the employment of temporary workers against permanent job nor any such evidence was sought of the Court to be produced on the file. In such situation the argument on behalf of the petitioner could be hardly brushed aside that the respondent Management by adopting the peculiar course of piece-meal employment of workers for limited period of one or two months against permanent jobs wanted to keep the jobs in reserve for making appointments suiting to its pleasure and removing the workers at will. The law, however, does not allow any such way of recruitment of trained workers against permanent jobs The impugned order of termination is, therefore set aside and the petition, being accepted, the petitioner is directed to be re-instated in service with back benefits as a probationer to complete the rest of his probationary period with the natural B consequences to take their course according to law. The file may be consigned.