P L D 1983 Lahore 531 (PLP)

Muhammad Fazil Hussain, respondent was employed by the petitioner-Board with effect from 12-4-1981 as an Overseer on ad hoc basis. Before he could complete the period of 3 months, his services were terminated as a probationer. He challenged the termination of his services, through a petition under section 25-A of the Industrial Relations Ordinance, which was allowed by the Punjab Labour Court No. I, Lahore by its order dated 18-11-1981 inter alia on the ground that no reason for termination was explicitly stated in the termination-order and thus, it did not satisfy the requirements of para. 12(3) of the Schedule of the Standing Orders Ordinance, 1968. The Board went in appeal, but the learned Punjab Labour Appellate Tribunal, concurred with the view of the Labour Court and on 20-i-1982 dismissed the petitioner's appeal in limine. The validity of this other has been called in question through this writ petition.

2. I have heard the learned counsel for the parties and examined the available record. There is no dispute about the status of the respondent and it is admitted by both the sides that he was a probationer and that his services were terminated before the completion of the probation period. The sole question requiring determination, however, is as to whether or not the order, terminating the respondent's services, conforms to the requirement of subpara. (3) of para. 12.. For facility of reference this order is reproduced below : "The services of Muhammad Fazil Hussain, Overseer, G. T. S., Sialkot, are hereby terminated within probation, with immediate effect."

3. It as argued on behalf of the petitioner that the fact that the respondent was a probationer and he was informed that his services were being dispensed with within the probation period, as stated in the order, by itself constituted explicit reason for the action taken against him. On the other hand, the contention of the respondent's learned counsel was that the termination order fell short of the requirement of para 12(3) and it should have been pointedly mentioned therein whether his services were being terminated on account of unsatisfactory work or misconduct or the post against which he was recruited stood abolished or there was some other reasons for proceeding against him. He argued, that in this behalf, as the termination order was completely silent, the mandatory provisions of para 12(3) were not complied with and further relied upon Messrs Nawab and Co. v. Rustam and others (1981 P L C 687) and Messrs Nawab & Co. v. Yaqoob and others (1982 P L C 47) to support his submissions.

4. Before proceeding further, the ruling relied upon by the learned counsel for the respondent may be looked into. These two judgments were rendered by the learned Labour Appellate Tribunal Sind. In both the, cases, the services of the workers were terminated by the employers without issuing any written orders. Evidently under para. 12(3) even if a worker is a probationer, his services have got to be terminated by an order in writing. Since in the precedent cases, the services of workers were terminated orally, the Labour Tribunal had to intervene. It being so these rulings do not lend any assistance in deciding the point raised in this case. 5: It is to be seen that the respondent's services have been dispensed with through a written order and thus one of the essential conditions for its validity, stands fulfilled. . However, the point which requires consideration is as to whether or not this order can be treated to have explicitly stated the reasons for terminating of the respondent's services, in contemplation of subpara. (3) of para.

12. A question arises as to what is the nature of the services of a probationer. A probationer is an employee who remains on, trial until within a specified period, his employer considers him fit to, be kept on the job. In Muhammad Sadiq Javed Chaudhry v. Government of West Pakistan (PLD 1974 SC 393) a probationer has been defined to be a person :- "Who is taken in service subject to the condition that it will attain a sure footing only if during the period that he is on probation he shows that he is a fit person to be retained in service." In this connection a reference may also be made to the observations made by the Supreme Court in Federation of Pakistan v. Muhammad Afzal Khan (P L D 1958 S C 258), which run as follows: "As we have said before, there is no duty upon the employer to give such an employee, whose employment is merely tentative until the contract is completed by satisfaction of all the necessary condition, an opportunity to clear his character while continuing in such tentative employment. Having received information upon which the employer can reasonably rely, to the effect that the intending employee, is unsuitable for the employment in question, the employer may immediately refuse to go on with the contract and thus bring it to an end. It is not necessary in such a case that there should be any direct or indirect rescission of the contract, because the contract was never completed ...... Thus, during probation-period, the services of a probationer remain at the pleasure of the employer and if the latter does not feel satisfied with hi,, work, his services can be terminated. Needless to mention that under subpara. (2) of para. 12, a probationer is not entitled to any notice if his services) are terminated by the employer.

6. It may be observed that as a probationer the respondent was treading on a slippery path and he could not have been unaware of the limitations under which he was working till he was confirmed by the petitioner. I feel, that the mention in the termination order- that his services were being terminated during the probation-period would carry with it, the necessary incidents of probation, namely, that the employer was dissatisfied with his work and thus. e not inclined to keep him. in the employment. In respect of termination of services of a probationer Kaikaus, J. in Federation of Pakistan v. Riaz Ali Khan (P L D 1958 Lah 22) took the following view :- " . . When a person is employed on probation the question as to whether be is to be employed has not yet been finally decided and when the employer terminates his services before confirmation, he is only saying that he refuses to employ him. A mere refusal to employ is not a removal from service. Or we may say that an employment on probation is an employment subject to a condition which will become absolute only if the condition of confirmation is fulfilled. As long as the condition is not fulfilled, the matter is in suspense and when there is refusal to confirm the employment has failed to take place. Such being the nature of the employment of a probationer, reference to the probation in the termination larder would constitute sufficient reason for termination of his services. The order impugned by the respondent before the Tribunals below did not cast; any stigma on him. In the circumstance of the case no right guaranteed or secured to him by or under any law, could be said to have been violated, to entitle him, to approach the Labour Court under section 25-A of the Industrial Relations Ordinance. If the arguments of his learned counsel are accepted which fall in line with the reasoning toed by the Labour Court, hardly any difference would be left between a probationer and a permanent worker. The learned Tribunals below completely misread the termination order and their decision suffers from an error apparent on the face of the record rendering the same liable to be removed through judicial review.

7. For the foregoing reasons, this writ petition is accepted, the impugned order declared to have been passed without lawful authority, and the parties are left to bear their own costs. M. Y. H. Writ petition accepted.