1979 PLP 547 (PLC)

(g) habitual breach of any law applicable to the establishment ; (h) riotous or disorderly behaviour during working hours at the establish ment or any act subversive of discipline ; (i) habitual negligence or neglect of work ; (j) striking work or inciting others to strike work in contravention of the provision of any law, or rule having the force of law. (3) If in an case instituted for the contravention of the provision of sub section (1) the services of a worker are found to have been terminated without sufficient cause the amount payable as compensation under this section shall be in addition to any fine as payable under section 11. (4) No person who has been awarded compensation under this section shall bring a civil suit in respect of the same claim.

6. Rule 6 of the West Pakistan Road Transport Workers Rules, 1962 is also relevant for considering the termination of services of a transport worker for misconduct and the same is reproduced below :‑

6. Termination of Service.‑(1) No order of termination of service of a worker for misconduct shall be made unless and the worker cones is informed in writing of the alleged misconduct and is given an opportunity to explain the same. If the worker disputes the charge an enquiry may be held by the employer or any person nominated by him. (2) During such enquiry the worker may be suspended provided that the period of suspension shall not exceed seven days. (3) If the charge is proved the worker shall be deemed to have been absent from duty from the date of suspension and shall not be entitled to any remuneration for such period. If the charge is not proved, the worker shall be entitled to the same wages as he would have received if he had been on duty. (4) No order of termination of service shall .be passed except by or with the approval of the employer. (5) A copy of the final order terminating the services of the worker shall I be supplied to the worker concerned.

7. The Road Transport Worker' (Amendment) Ordinance, 1974 ordi nance No. XI of 1974) made certain amendments in the earlier Ordinance No. XXVIII of 1961, making applicable certain provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Ordinance No. VI of 1960 to Road Transport Service. Section 7 of Ordinance No. XXVIII of 1961 was substituted with the following new section by the said Ordinance No. XI of 1974 :‑-- (7) W. P. Ordinance No. PI of 1965 to apply to Road Transport Service. The provisions of Standing Orders 10‑B, 10‑C, 12 other than those contained in clause (2) thereof, 13, 14 other than proviso thereto, and 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (W. P. Ordinance No. VI of 1968), as in force for the time being, shall apply to every Road Transport Service as if such Road Transport Service won an industrial establishment to which the aforesaid Ordinance had been applied by a notifica tion under clause (c) of subsection (4) of section 1 thereof, and as if a worker was a workman or permanent workman, as the case may be, within the meaning of that Ordinance; Provided that for the purpose of calculating the period for which gratuity is due under Standing Order 12, no period of service preceding the commencement of the Road Transport Workers' (Amendment) Ordinance, 1974, shall be taken into account; Provided further that Standing Order 10‑B or 10‑C, or Standing Order 12, in so far as it relates to gratuity, shall apply only to a road transport service wherein the workers and the other persons employed on any day within the 12 months immediately preceding the commencement of the said Ordinance or on any day thereafter are‑ (a) in the case of Standing Order 10‑B, more than forty‑nine ; or (b) in the case of Standing Order 10‑C and 12 more than nineteen.

8. Clause (2) of Standing Order No. 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 hereinafter now refer to as Standing Order No. 12, which has not been made applicable to Road Transport Service, reads as under :‑

12. Termination of Employment.‑(1) . . . (2) No temporary workman, whether monthly rated, wkly‑rated, daily rated or piece‑rated, and no probationer or badly, shall be entitled to any notice if his services are terminated by the employer, nor shall any such workman be required to give any notice or pay any wages in lieu thereof to the employer if he leaves employment of his own accord. (3) .

9. From the perusal of the above, it is quite clear that under Transport Workers Ordinance, 1961, no distinction has been made between probationer and permanent workman so far termination of their services is concerned. On the other hand, it was provided under the original section 7 of Road Transport Workers Ordinance, 1961 that the services of a worker shall not be terminated without sufficient cause nor unless and until one month's previous notice or one month's pay in lieu thereof, has been given to him. It is under clause (2) of Standing Order No. 12 that an employer has been empowered to terminate the services of a probationer or temporary workman without any notice. Similarly, such probationer or temporary workman can leave the employment of his own accord without giving any notice or pay any wages in lieu thereof, to his employer. However: as mentioned above under the newly‑substituted section 7 of Ordinance No. XXVIII of 1961, clause (2) of Standing Order 12 has not been made. applicable to road transport service. The learned counsel for the respondent has not been able to point out any other provision of law under which the services of the appellant as conductor during probationery period could terminated without giving him show‑cause notice. Since clause (2) of Standing Order No. 12 has been specifically excluded from its application to the Road Transport Workers Ordinance, 1961 and no other provision of law or rules has been pointed out in the behalf by the respondent, it can safely be held that the services of a workman under Road Transport Workers Ordinance, 1961 for unsatisfactory work cannot be terminated by the employer even during the period of probation without serving him with a notice and holding necessary enquiry under the law. Similarly, no such worker can leave employment without giving notice or paying wages in lieu thereof tot his employer. After the exclusion of the application of clause (2) of Standing Order No. 12, a probationer worker under Ordinance No. XXVIII of 1961 stands at par with other workmen and therefore, is entitled to the same safeguards against termination etc.

10. The counsel for the respondent has taken me through the various provisions of Road Transport Workers Ordinance, 1961, West Pakistan Road Transport Workers Rules, 1962. The West Pakistan Motor Vehicles Ordinance, 1965, West Pakistan Motor Vehicles Rules, 1969, Road Transport Workers (Amendment) Ordinance, 1974 and W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, but has not been able to point out any provision of law or the rules under which the services of a probationer transport worker could be terminated without issuing show‑cause notice to him. The reason why clause (2) of Standing Order No. 12 has not been made applicable to Road Transport Workers' Ordinance, 1961, seems to be that the workers engaged on mobile duty like drivers and conductors etc, before joining employment in such capacities have to get a license under the rules from the appropriate licensing authority. It is admitted that no person can drive a public service vehicle and no person can work as a conductor of a stage carriage and no employer can employ any person as driver or conductor unless that driver or conductor is in the possession of a valid license issued by the appropriate licensing authority. It is .for the licensing authority to satisfy itself before issuing the required license that the applicant has acquired necessary knowledge and experience and is fit to work as driver or conductor etc. In other words, issuance of a license by an appropriate licensing authority to a person to work as conductor or driver etc. is sufficient guarantee that he is fit to be employed straight away on permanent basis without any period of probation. It is also pointed out that generally a conductor has to undergo practical training before issuing a license so him. In this view of the matter the law places responsibility upon the appropriate licensing authority before issuing required license to a person, to see that the applicant is fit to work in the capacity for which the license is to be issued to him and after the license has been issued to such a person the law presumes him to have completed his probationary period and is fit to work in that capacity on permanent basis.

11. In the instant case the appellant's services have been terminated during the probationary period without issuing any notice to him. His termination, therefore, is clearly without lawful authority. Consequently, the appeal is accepted and the impugned order dated 25‑7‑1978 passed by the Punjab Labour Court No. 1, Lahore as well as the termination order dated 3‑5‑1978 passed by the District Manager, Punjab Urban Transport Corporation, Kot Lakhpat Depot, Lahore are set aside and the respondent is directed to re‑instate the appellant with back benefits. Appeal accepted.