1987 PLP 587 (PLC)

1. In the opening para of the evidence recorded in the Labour Court, Mr. Zahoor Haider has frankly confessed that he was appointed as Security Guard. The controversy firstly is resolved that he was Security Guard. But what is agitated is that he was doing the manual work and he was a workman. Similarly, he has not disputed of his probation but contended that he was in a job upto 9‑1‑1986 from 7th October, 1985 crossing three months of probationary satisfaction. He was explained the period that on 23rd October, he met with an accident remained in the hospital till 7‑1‑1986. He got the leave of medical nature upto 8‑1‑1986 and resumed duty on 9‑1‑1986.

2. In the evidence before the Labour Court following extracts of his evidence having relevancy to the issue are given as under: "I worked on 13 days before accident. It is not correct that I did not take the search of the goods or took the reading of. the meter of vehicles or water tank. It is not correct that I did not work of manual nature during 13 days. Company's transport is provided to the workers to bring them in the shift. It is not correct that on that day I was not doing duty. It is not correct that I desired to be shifted to army hospital but did aft get admission. I was discharged from Social Security Hospital on 7‑1‑1986. I was indoor patient upto 7‑11‑1985 and outdoor treatment from 8‑11‑1985 to 7‑1‑1986. Syed Nasim Fatima is my wife. I see A/D Slip. This is not the signature of my wife Exh.A/3. I did not receive termination letter on my residential address. I received termination in February, 1986. 11 is not correct that I was not dismissed by Abbas."

3. There is evidence of Mr. Sabir Ali. He is Joint Secretary of C.B.A. He has supported Mr. Zahoor Haider regarding manual work. He has not disclosed in his evidence what type of manual work he was doing except of searching the goods watching the people and noting down the reading of meter of the vehicles. He has denied that he has made statement that Hr. Zahoor was removed for long absence. Whereas in para. 6 he stated that Mr. Abbas, Abdul Kadir informed him of his absence.

4. Third witness is Mr. Liaquat Ali. He has stated that hen he was physically fit on 9‑1‑1986 he was refused duty. In other Words he did not resume duty on 7‑1‑1986 but on 9‑1‑1986. He has alto stated that one Mr. Ahsan Danish was also present.

5. Fourth witness is Mr. Naqvi. He is Administrative C, ricer of Social Security Hospital. He stated that applicant was indoor patient from 23‑8‑1985 to 27‑11‑1985. He issued the medical certificate from 23‑10‑1985 to 8‑1‑1986. This witness has also disclosed that he was discharged from hospital on 27‑11‑1985. But was given the rest from 28‑11‑1985 to 10‑12‑1985. After rest he went to dispensary. He went from 11‑12‑1985 to 23‑12‑1985. He was granted leave by dispensary. The witness at the same time has stated that Mr. Zahoor Haider was given the leave from 24‑12‑1985 to 8‑1‑1986.

6. The witness has also been confronted as to what are the rules for granting leave under the Social Security Ordinance.

7. Finally, is the witness Mr. Zafar Farooqui. He is the Administrative Officer of the respondent. Mr. Farooqui has admitted that they issued B‑2 form for the purpose of admission of Mr. Zahoor Haider in the hospital of Social Security but explains that he received the message on telephone that Mr. Zahoor Ahmed has met with an accident find is in Jinnah Hospital. He desired that he should be sent to Shaukat Umer Hospital. When there was no accommodation and thereafter he wt. Admitted in Social Security Hospital. Witness has further said as follows; "It is incorrect to say that I did not mention that appellant was sick and under treatment of Social Security which granted him sick leave from the period he was shown absent in the report. In have not shown sick leave but showed him absent.

8. The witness also has been crossed question on these lines: It is correct that I have not seen myself as to what duties applicant was performing during working hours. It is incorrect that he was taking the meter reading or searching the goods and vehicle."

9. Last witness is Mr. Minhajuddin Siddiqui. He has stated that Mr. Zahoor Haider worked for 13 days. He did not do clerical or manual duty. He has also denied that he used to search the persons as Security Officer or Vehicles or take the meter readings. The witness has also further remarked when the question suggested to him about the satisfactory nature of duty. According to him he was lethargic. He was not alert as Security Guard. But he has also qualified statement in explanation of the question put specifically by the defence counsel. He has come out clearly with this remark that the performance of Mr. Zahoor Haider was not upto the mark. He was irregular, in‑attendance and worked for 13 days. He sent the absence report to the management and it was for the management to find out whether it was sick leave or absence.

10. With this background of the evidence if the position is accepted what applicant himself has stated that he was discharged from Social Security Hospital on 7‑1‑1986, the starting point of limitation of his three month's starts from 7th October, 1985 and completes on that date. But his own statement is contradicted by responsible Administrative Officer on affirmation that he was discharged on 27‑11‑1985 and gave him the rest upto 10‑12‑1985 and thereafter, granted leave from 24‑12‑1985 to 8‑1‑1986. In other words he was fully capable to resume duty and apply for leave from the employer for taking rest etc. He was not handicapped patient as indoor.

11. The second aspect which Court has examined is whether the searching of vehicles or checking the persons or the goods or noting of the meter reading is the part of the duty of Security Guard or of workman. Thirdly, if the performance was not upto the mark during probationary period whether the employer can terminate services without notice or on unsatisfactory working or what should be the effect of the word lethargic, in contradiction to the words performance of work not upto the mark. Much has been said that if Mr. Zahoor Haider did not receive the report of lethargic expressly recorded by management official, the assessment of the performance upto the mark is not justified.

12. These are three contentions on which the Court has to examine applicant's contention.

13. So far as the duties of watchman are concerned, the duty of a watchman is always of security nature, that is, to remain alert, to watch the people trafficking of goods who goes in, and out the gate. So, if he noted the meter reading or searched the vehicle, it is part of his duty from the very concept of his function. It does not involve physical exertion, what will be understood in the sense of physical working with hands like skilled artison, a mason or mechanic or of clerical cadre. In other words watchman does not necessarily mean to sit on the chair, and watch. But is also includes all his duties of general nature which come within the wider compass of his awakening to anything of security, although it is denied by the respondent through witness Mr. Zafar Farooqui that his duty was not to take search or to take down the meter reading and referred the annexure R‑14 to show that applicant only attended duty from 7‑10‑1985 to 23‑10‑1985. He was posted against the main office main store foundary. If the search was taken at the gate No.l it was by senior security staff disclosed by Mr. Minhajuddin.

14. Despite the fact as stated regarding his particular duty the Court is still of this opinion that the searching of the vehicles or meter reading, is a part of the duty of watchman. It does not involve heavy exertion but a part of security.

15. Regarding the opinion that the respondent formed that his performance was not upto the mark and the witness has said that he was lethargic. There was no such mention in the report, what reasons prevailed to assess his working, the Court is of the view that it is purely the privilege of the employer to see and assess his working whether his work is satisfactory. It is the employer who is the better Judge for gaining satisfaction, unless something extraneous is felt to defeat his judgment. Remarks of performance not upto the mark, convey wide range of assessment, not necessarily to write word lethargic in the report. What the witness of the respondent found suitability of the words to write in the report of general nature he described on the workmanship of the applicant. Therefore, to take exception that word lethargic was not used in the report the report is bad, the Court does not subscribe to this view of the applicant when his entire assessment was in the hands of employer to Judge his capability, efficiency and other traits of the job. Inefficiency includes the lethargic-ness. Further, the performance not upto the mark includes inefficiency, incapability and other qualities of short comings, what degree of standard of the duty he expected from the security.

16. Regarding probationary period of working, law has made emphasis, on the word satisfaction, what satisfaction to be gained by the employer, is question of fact, what he finds in better judgment, absence, inability to work, poor assessment. Buts if he qualifies in his Judgment, he qualifies himself to the benefits what the law assures to workman. So, it is the employer who is to Judge his satisfaction during initial period of probation.

17. Finally whether his admission in the hospital and such leave granted by the Social Security creates any right. Similarly if the employer by a compassionate consideration desired his treatment, whether the right which he otherwise enjoyed as a permanent workman or regular employee or secured person for the purpose of social security protection, will be the same right enjoyed by probationer who has put up only few days in employment and has not crossed that stage of probation for his mature entitlement of permanency of character with the guarantees of the benefits given to regular employee. If he was discharged as physically capable to resume duty and to apply for leave or to communicate intimation of his further leave till 9th January what is the effect of that so‑called absence and the fact of the social security leave regarding its legal right.

18. The Court may point out whether the provisions of section 72 of Social Security and section 47, I.R.O., in any way restrict the termination of an employee, who is firstly probationer. Secondly the termination order not being punishment P L D 1965 Supreme Court. The reason which the Court finds of his non‑applicability to the present case, the rule of sickness benefits whether followed strictly on the question of leave or beyond 15 days the opinion of Director Medical Circle was obtained for the extension of leave (reference) is to the sickness benefit clause (i) of the instruction of the Government at page 4 in respect of issuance of incapability certificate.

19. However, in view of the Court's opinion the applicant being a purely probationer was not the secured worker to enjoy the protection of section

72. He being the purely probationer employee, if the employer found in his better judgment that he will not give the satisfaction what he expected from the applicant to reach the stage of permanent workman his termination was purely simple termination not in the nature of punishment to call for interference in the discretion so exercised in the case of probationer. Furthermore,' the Court is still of the opinion for the purpose of the finding in the first instance that he was not a, workman, in other words a watchman by reason of his very appointment, as security guard and there are many judicial precedents to that effect.

20. Reference is also made by the respondent to the Constitutional Petition No. 187 of 1983 for perusal.

21. The Court has also gone through the contents of the arguments, submitted by Mr. Mirza Kazim, who has made emphasis, on section 72 of West Pakistan Employees Social Security Ordinance, the Court has discussed, section 72 and found that applicant being on probation, was not a secured worker, within the meaning of Social Security Ordinance. Probationer was still at the stage of training, subject to the satisfaction of his performance, by the employer, he has no vested right to claim permanency of character, in the employment till he had reached that stage of 3 months, with the certificate of fitness of his duty. If it is contended by Mr. Mirza Kazim, that he was on sick leave and not absent from duty. Then what was the standard of his assessment that he was not fit person within the imagination. If the Court agrees with Mr. Mirza, the employer has the privilege to make even the assessment of mental nature, of the very day, he employed, takes up the duty under probation. The performance under probation cover many aspects.

22. The case, therefore, of the applicant, being probationer has no merits.

23. The Court may also further adds that after impression is taken that if the man joined job, for three months, he becomes permanent. The Labour Court does not agree with this view, for example, every organization or establishment has got particular financial structure, I which go with the profitable returns and productive capacity. For that the Labour force is mobilised according to the financial requirements for the permanent, certain policies are there, for temporary, there is also policies. Of course those policies, are also, governed, by the legal restriction as to the clarification of the workman in the context of the legal status. If every body is made permanent after 3 months without following the legal requirements, then the entire structure of the establishment can collapse financially.

24. In the result the application is dismissed. M.Y.H./914/Lb. Petition dismissed.