1986 PLP 247 (PLC)

18.The facts, to this extent, were different that the services were terminated verbally and it was contended that the respondent was not a workman. Although it was not the' case of Badli worker, but the principle of Standing Order 12(3) was involved. There is another Decision of 1979 P L C

131. In this case also, it was emphasised that the order of termination must show the reasons. Appellant was in the permanent service and his services were terminated. The contention of other side was that he was not a workman but a Sales Representative. The principle of Standing Order 12(3) was involved, in all these decisions.

19. The learned representative of worker, has also produced the Decision of His Lordships of the Labour Appellate Tribunal Sind, that word no longer required, is not sufficient. In this case, the facts were that the applicant was on contract and his services were prematurely terminated.

20. With this law,, it appears that the statement of reasons is the corner‑stone of the Standing Order

12. It is nowhere defined by the 1B representative of the worker that what is the meaning of explicit. The word explicit appears to signify explanation. In other words, the reasons must be explained. In my opinion, it does not mean that detailed reasons be given. In the decision, which has quoted of the Tribunal, in my opinion, the facts were that the services were prematurely terminated before the period of contract and it was held that the action was arbitrary.

21. So in the opinion of this Court, if the word "no longer required" is used it appears to indicate that the person, against whom, the post was filled is returned, or the vehicles were short, or the ground of administrative conveniences, looking to the post of ad hoc nature for termination.

22. It is next contended that Badli conductors are made also permanent in K.T.C. Service.

23. It all depends on the day, they worked, by the terms of offer of appointment being on daily wages and what pleases the employer to be retained them if they are of good performance, or conform to suitability. The employer cannot claim the vested right of permanency that he should be retained, there is nowhere in the service that vested rights can be claimed. But he is right to claim, that he made good performance and be retained.

24. As regards the selection after the termination, it is also the privilege of employer of fresh recruitment on the availability of vehicles and its need or capacity. If the junior is retained, prior to termination of a senior post, it amounts to mala fide action, but it is after termination, it is fresh selection.

25. Finally it is argued that the practice found by the K.T. C. is, that they invite application and terminate employment of this type of service and, therefore, it is a mala fide action. In my opinion, that if the rules enable the employer to frame his policy, in the public service, it cannot be said that employer has no jurisdiction, within its own sphere of facility to run the organization in the manner as he finds of utility and above all in the interest of public, like Transport Service, where there are accidents, loss to the vehicles, etc. The action can be mala fide, if the employer knowingly kept junior persons and does not give preference to the persons who are affected. If the appointment order is an offer and accepted by the workman, at the time of his fresh entry, he is bound by the conditions, he 'accepts, till he has qualified and experience of 9 months or 3 months, as the case may be I have seen Decision of 1980 P L D 323, where His Lordship of Supreme Court has emphasised, on the word "likely to be", it was held that the workman cannot become a permanent workman if the work for which he came to be employed, expected to be finished within 9 months, but was completed after 9 months. In this decision, there is reference also that if there is a contract outside the provisions, of law, for example, the employer wants to appoint a workman on purely temporary basis, he cannot contract out of his obligation under this Ordinance.

26. In view of this decision, if the word Badli is used in the definition and the word daily wages is nowhere defined in the definition of Badli This is also the question, whether applicant comes within the definition of Badli or some other, definition, for example, the temporary workman of daily rate, which is the post more than that of Badli, of purely temporary. For the reason that notice may not be necessary, but still distinct from the probationer, Badli, whether if there is a misconduct, he can be proceeded. So, it is settled position that in view of this decision, the Transport Service, whether can go outside the provisions of law. Even the workman is appointed on purely temporary basis, but nevertheless, the position of that person becomes temporary workman on daily wages, subject to certain advantages but cannot even claim that if work is not completed within 9 months, he becomes a permanent workman.

27. Now I come to the facts of each case, whether each one has completed 90 days, Mr. Muhammad Ali says, that he was conductor on daily wages on 16‑10‑1982, his services were terminated on 8‑1‑1983, he again made application on 30‑1‑1983, and his services were again terminated on 21‑4‑1983.

28. Mr. Hafizur Rehman states that he worked for 21 days in January 1983, he worked for 15 days in February, 1983. In April, 1983, he worked for only 9 days. He has denied the suggestion of K.T. C. that K.T.C. has only 45 vehicles. He has also shown unawareness, whether the K.T.C. had only 35 buses. District Manager is also examined who has said that when he had taken charge, in February 1982, there were 50 buses. In cross‑examination, he has said that he was taken in employment on 8th of December 1982, and his services; were terminated on 12‑4‑1983. Mr. Muhammad Siddiqi has also given the details of days, .he worked. He states that in December, 1982, he, worked 17 days. In January, 1983, he has worked for 21 days. In February, 1983, he has worked for 15 days. In March, 1983, he has worked for 27 days, and in April, 1983 for 9 days. He has further explained that Schedule Number of buses is 45, but due to defect, only 34 buses are sent on routes, showing the average from 1‑7‑1983 to 16‑7‑1983. Mr. Ghulam Murtaza has said that he made application for appointment on 27‑3‑1983. He has not received the appointment letter but admits the signatures, he was removed from service on 23‑5‑1983, he worked for one day in March 1983. He worked for 27 days in April 1983. He has denied that he worked only 22 days in the month of May according to him he worked for 23 days. Mr. Muhammad Rustam states that he was appointed on 6‑1‑1983, and removed from service on 20‑3‑1983. He was appointed again on 18‑4‑1983, and again removed on 31‑5‑1983. All they admit also that they received T.S.‑6 forms, whenever they report for duty.

29. So, if the public utility service, like the work of limited period, nor exceeding nine the petitioners, if taken in the same definition, of temporary is used in Standing Order 12, their position will be that of Badli conductors, which is also purely of ad hoc nature, through not defining that of Budh shall be on daily wages but in one there is time limitation and other, there is time that the person against whom the post is to be filled, will be temporary absent and notice in both the ways for the ways is not necessary for the temporisation.

30. In my opinion, the appointment orders, as Badli conductor, is not in violation of Standing Order

3. Similarly, the words "no Longer required" suffice to indicate in the public transport service that either the person against whom the post was filled, he has returned or the administrative convenience, in view of the vehicles availability. Further, ' may mention here that the word Badli, used in definition, also signifies to mean that he should be employed for three months, continuously, to claim the permanency of workman status, for example, petitioners Rustam Ali, Muhammad Ali and Ghulam Murtaza, have not completed 90 days. In other words, if there is any cause of action, on the first appointment, as the case may be, they did not prefer the grievance petition, in the Labour Court, accepted their appointments on the terms and conditions. Time limitation is a valuable right accrued to the employer under section 25‑A. Even clause (6), section 25‑A, if invoked, he can come directly, within two months, from the first date of cause of action. Whether by the second appointment, the previous cause of action terminated by estoppel, by conduct.

31. With this background, I now deal with the facts of each case, the case of Hafizur Rehman, is distinguishable, he was appointed on 8‑12‑1982, but nowhere the respondent, in their reply statement, have shown his termination, which, according to him, is termination on 12‑4‑1983. Mr. Hafizur Rehman has cross‑examined but no question was suggested to him, for the month of March, he did duty. He has denied that he worked 17 days in December, but admits that he worked for 20 days in January, 1983 and 21 days in February, 1983 and in April, 1983 he worked for 9 days. Respondent has shown that he worked for 17 days in December, in January, 21 days, in February 15 days, March 27 days and in April, 1983, 9 days, in all, he has shown that he worked for 89 days. Respondent has also made this statement on oath. Respondent has also shown buses on road in two shifts, 45 in December, 1982, 45 in February, 1983, 30 in March, 1983 and 32 in April, 1983.

32. In the first place, number of buses is not relevant, because his position is that of Badli conductor, he cannot claim as vested right. Why the respondent has not produced the termination letter or the appointment letter in this particular case, the point again arises whether the respondent did terminate service of Mr. Hafizur Rehman by stating the reasons as required by law, or to be presumed that he did not issue reasons and, therefore, no document was produced. His application is allowed for reinstatement only on this ground, that the respondent had to state the reasons otherwise the termination was wrongful. As regards three other cases, for example, in case of Muhammad Rustam, if he was removed on 20‑3‑1983, his cause of action terminated, the moment, he lost the time limitation by filing grievance petition. His next termination was on 30‑5‑1983, where he has not completed 90 days, on the second appointment, and also acquired, the first termination by conduct.

33. In the case of Muhammad Ali, first he was appointed on 16‑10‑1982, and removed on 8‑1‑1983, again appointed on 31‑1‑1983, and second time terminated on 21‑4‑1983. If he did not file grievance petition, he also lost the period of limitation.

34. In the case of Ghulam Murtaza, his first appointment was on 27‑3‑1983, and removed from service on 23‑5‑1983, he had not completed 90 days. He admits that he worked for one day in March, 1983, 27 days in April, 1983 and according to him, he worked 23 days in May. 1983. Although respondent has denied. He has also stated that he was appointed on permanent basis on 1‑7‑1980, but he has not produced any document in proof of appointment, or produced T.S.‑6 Form to show that he has been working more than 90 days in continuity, to claim the status of permanent workman. I may also mention here, that first, denied the signatures and subsequently accepted his signatures on the appointment. Therefore, he says that he worked for 90 days. The burden is on him, to prove when he could produce T.S.‑6 Forms to show the mark of his attendance.

35. Consequently,, he has no cause of action His post is of Badh conductor, they rightly terminated.

36. In the result, all the petitions, are dismissed, except the petition of Hafizur Rehman, which is of different facts. Although, Badli conductors were riot entitled to any notice, and their position is the same like that of temporary workman, namely, the Badli conductor. They cannot claim vested right, that they should be retained, but they have right to claim if they have given good performance, suitability and any settlement, between the union and the transport service by their mutual agreement. However, the respondent must keep in view that if any post falls vacant, they should be entitled to preference.

37. Following are the points, observed by the Court:‑‑ (i) No notice is necessary in case of Badli conductor or probationer (ii) No notice is necessary in case of temporary workman. (iii) The statement of the reason is most important requirement in every termination, whether be of probationer, Badli or temporary workman, or any workman. (iv) Only temporary workman, is proceeded on the ground of misconduct as in case of permanent workman, but not the probationer or Badli. (v) Even the Badli or probationer, if removed from service, he has right of cause of action to challenge the order in the Court, and it is for the Court to see whether impugned termination was in accordance with discretion, based on judicial principles, and in accordance, within the definition of Standing Orders. (vi) In the opinion of this Court, probationer or Badli are of ad hoc nature, they cannot claim vested right. They can only claim that they should be given preference on good performance, and suitability, or the person, who is not returned. (vii) The word Badh is nowhere defined that he is on daily wages, so also the temporary workman is engaged on the work within the limited period. Both the posts are of ad hoc nature, but the position of Badli worker is still purely of temporary nature. A.E. Orders accordingly