1980 PLP 152 (SCMR)

MUHAMMAD HALEEM, J.‑The petitioner seeks special leave to appeal from the judgment dated 13th May, 1976 of a learned Single Judge of the erstwhile High Court of Sind and Baluchistan Karachi by which Petition No, 1008 of 1974 was dismissed. Respondent No. 2 was appointed in the service of the petitioner as a Junior Operator in the E. D. P. Department on three months probation by letter dated 27th June, 1973 and it was a condition of his appointment that he should satisfactorily complete his probationary period. His perfor mance during this period was not upto the technical standard and he was, therefore, informed to improve his standard otherwise his services would be terminated in accordance with the Standing Order No. 12 (2) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 read with the letter dated 27th June, 1973. The res pondent No. 2 requested by letter dated 14th September, 1973 that he should be given a chance to improve his work and he was accordingly given two months time to show improvement in his work. However, respondent No. 2 did not come upto the mark even during the extended period and his services were terminated by letter dated 1st November, 1973. In all he had served for five months during which period he was on probation. Respondent No. 2, however, demanded his reinstatement by letter dated 2nd November 1973 stating therein that as a permanent worker his services terminated without assigning any reason and that he was entitled to one month's notice. In reply to this letter the petitioner by letter dated 13th November, 1973 made it clear that his services were terminated in accordance with the terms and conditions incorporated in the letters dated 27th June, 1973 and 14th September, 1973 and in spite of those terms he was offered salary in lieu of one month's notice. Being dissatisfied respondent No. 2 filed an application under section 25‑A (6) of the Industrial Relations Ordinance, 1969 before the Junior Labour Court No: IV at Karachi. By order dated 26th December, 1973 he was re instated on the ground that while terminating his services he was not given one month's salary in lieu of notice as was admissible to a permanent workman. Respondent No. 2 was accordingly re‑instated and given the full back benefits for the period during which he had remained unemployed where after his services were again terminated on payment of one month's salary in lieu of one month's notice and other benefits which were admis sible to him. The reason given for terminating his services was that he had not come upto the technical requirement. Respondent No. 2 again challenged his termination of service by filing a similar application in the Junior Labour Court No. IV at Karachi which was resisted by the petitioner. By order dated 22nd April, 1974 the application was rejected. On appeal the Sind Labour Court No. 2 set aside the order of the Junior Labour Court and ordered his re‑instatement. The petitioner thereupon invoked the Constitutional jurisdiction of the High Court. The learned Single Judge upheld the finding of the Sind Labour Court No. 2 that it was not a termination simpliciter but a dismissal or removal for unsatisfactory work which amounts to misconduct and accordingly compliance of Standing Order No. 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was necessary. In support of this view the learned Single Judge relied on the West Pakistan Road Transport Workers' Union (Regd.), Rawalpandi v. The Road Transport Corporation, Lahore (1970 P L C 233). The learned counsel for the petitioner contended this view was not tenable as it. was a case of termination of service simpliciter in terms of the contract of service which did not attract the compliance of Standing Order No. 15 of the West Pakistan Industrial and Commercial Employ ment (Standing Orders) Ordinance, 1968. In support of his contention the learned counsel relied on The Glaxo Laboratories (Pak.) Ltd. v. Pakistan (P L D 1962 S C 60), Muhammad Naseem Ahmed v. Azra Feroza Bakht (PLD1968SC37), Muhammad Siddiq Choudhary v. West Pakistan Government (PLD1975SC1) and Muhammad Afzal Khan v. Superintendent of Police, Distt. Montgomery (P L D 1961 Lah. 806). The submission involves a question of law of some public importance as it affects the nature of employment of a large number of persons. Leave to appeal is accordingly granted to the petitioner. Security for Costs Rs. 1,

000. Since it is a service matter, the appeal is ordered to be heard at an early date on the present record. The parties are at liberty to file additional documents. Leave granted.