1976 PLP 510 (PLC)

2. The facts relating to this case are undisputed. Wazir Ahmad, respondent who was on probation on 13-7-1975 was plying his bus from Lyallpur to Rawalpindi when he met with an accident near Sohawa. The respondent was going fast and due to rain and slippery road his bus skidded and collided with a bus of Government Transport Service coming from the opposite direction. Fortunately nobody received injuries, but the windscreen, headlights and some other parts of the respondent's bus were broken. The damage was caused to the extent of Rs. 1950. Thereafter on 5-8-1975 the Yard Master sent a monthly progress report and certified that the work of the respondent was unsatisfactory. Assistant Traffic Manager thereupon reported that the services of the respondent, who was on probation, be terminated due to unsatisfactory work. Consequently the District Manager on the same day on the above report terminated the services of the respondent. Against that order the respondent filed a petition under section 25A of Industrial Relations Ordinance, 1969. The learned Labour Court holding that even in the case of a probationer a. show-cause notice was necessary, when there were allegations of misconduct, accepted the petition and ordered the re-instatement of the respondent with back benefits.

3. Aggrieved by the above order Punjab Road Transport Board, appellant has preferred this appeal.

4. The learned counsel for the appellant contended that in view' of Standing Order 12(2) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 no notice was necessary' before terminating the services of the respondent as he was on probation. He relied on the judgment of the Sind & Baluchistan High Court, in the case, Messrs Rashid Textile Mills Limited, Karachi v. Rafiq M. Walt and 2 others (1976 P L C 181), wherein it was observed: "The mere perusal of provision of law makes it glaring that Standing: Order 12(2) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1969 does not necessitate the service of notice before the termination of services of a probationer. Standing Order 12(2) creates an exception to the general rule laid,, down in Standing Order 12(5) that every workman will be served with a notice in writing before his services are terminated. The removal from the service of the first respondent without a notice cannot therefore be challenged as illegal or without lawful authority."

5. The learned representative of the respondent on the other hand contended that the respondent being a driver filed this petition in respect of a right guaranteed or secured to him by or under section 7 of the Road Transport Workers Ordinance, XXVIII of 1961, which reads as follows : "Restriction on Termination of Services etc -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 and he has been paid his pay for any period of leave admissible to him, of which he did not avail himself while in service.

6. This Ordinance does not make any distinction between a temporary, or permanent employee. All employees are governed by section 7 of the said Ordinance. This Ordinance was amended by the Road Transport Workers (Amendment) Ordinance, XI of 1974 which came into force on 27th September, 1974. The amendment reads as follows: W. P. Ordinance No. VI of 1968 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 the proviso thereto, and 15 of the West Pakistan Industrial & 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 were an industrial establish ment to which the aforesaid Ordinance had been applied by a notification '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.

7. From the above it is clear that Standing Order 12(2) has not been made applicable. According to Standing Order 12(5) which has been made applicable the services of permanent or temporary workman shall not be l. terminated on the ground of misconduct otherwise than in the marine prescribed in the Standing Order 15.

8. Now the point for determination is as to whether the termination of services of the respondent on the ground of unsatisfactory work was misconduct and that he was entitled to a show-cause notice. In the present case the services of the respondent were fourid unsatisfactory because of the collision with the other bus. Misconduct is defined in Standing Order 15(3). Clauses (i) and (j) are only relevant to this case. Clause (i) reads as follows: Habitual negligence or neglect of work Clause (j) reads as follows: Frequent repetition of any act or omission referred to in clause (i), According to the learned counsel for the appellant collision was neither a result of habitual negligence or neglect of work nor of frequent repeti tion of any act or omission referred to in clause (i), therefore, the action committed by the respondent did not fall within the meaning of misconduct,

9. The learned representative of the respondent, on the other hand contended that the termination of services of a probationer on the ground of unsatisfactory work amounted to misconduct. He placed reliance on the judgment of Supreme Court in the case of Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan (P L D 1974 S C 393) wherein it was held that a proba tioner whose services had been terminated on the ground of unsatisfactory work was entitled to a show-cause notice if there were allegations of corruption also. In the present case there were no allegations of corruption and therefore this ruling is not applicable.

10. The learned representative of the respondent also relied on the judgment of the Sind & Baluchistan High Court in the case of Dost Mohammad Cotton Mills Limited v. Muhammad Abdul Ghani and another (P L D 1975 Kar. 342), wherein it was observed "The next point in this case is whether the order of termination of services of the respondent is in fact and effect an order of dismissal. An "Employer" can terminate the services of an employee without showing any fault but for dismissing the employee an enquiry has to be held in accordance with the provisions of section 15(4) of the Ordinance. The order of termination clearly states that the work of the respondent was unsatisfactory. It is also stated that a long time had been given to the respondent to achieve and show good results but the respondent had failed. If the work of the respondent was unsatisfactory the same could reasonably fall for punishment under sections 15 (i) (ii) (d) for which a workman could be reprimanded or fined. This clause contemplates inefficiency, dilatoriness, carelessness or wasteful working. Under section 15 (3) (j) frequent repetition of any act or omission referred to in clause (i) of section 15, is treated as Misconduct. The alleged unsatisfactory work of the respondent if the same was continuous, would attract section 10 (3) (j). The respondent is stated to be continuously showing unsatisfactory work and such continuity constitutes misconduct within the meaning of clause(j) of section 15(3) of the Ordinance. What is more that the so-called letter of termination contains a stigma and the respondent has set up a case that he was unable to get a job in spite of efforts although he was fairly experienced. Normally, an order of termination carries no stigma but generally when a stigma attaches to an order of termination of services, the same obtains all the characteristics of dismissal. If an order is in fact and effect an order of dismissal, merely terming the same as an order of termination will not change the character of the order. The respondent had further urged that he had become unpalat able to the petitioner on account of some dispute, the petitioner had with his labourers. It would thus seem that the so-called order of termination is only a guise and cloak to avoid the legal formalities of an enquiry under Standing Order 15(4) of the Ordinance and to say the least it was a colourful exercise of power to get rid of an undesirable employee."

11. This order was upheld by the Supreme Court vide their judgment-dated 17-9-1975 reported in P L 11975 S C 358.

12. In my view these cases are also not applicable, because in the instant case there is no allegation of continuous unsatisfactory work. Therefore, the alleged act of the respondent is not misconduct and did not require any show cause notice. Anyhow according to section 7 of the Road Transport Workers Ordinance, 1961, the services of a worker cannot be terminated unless and until one month's previous notice or one month's pay in lieu thereof has been given to him. No notice was given to the respondent before his services were terminated. He is, therefore, only entitled to one month's pay in lieu J" thereof, and not re-instatement.

13. I, accordingly accept the appeal, set aside the decision of the learned Labour Court and direct that the respondent be paid one month's wages in lieu of notice.