1976 PLP 146 (PLC)

The above order was challenged by the appellant under section 25-A of the Industrial Relations Ordinance, 1969, in the Junior Labour Court. He pleaded that he was a permanent employee and as such he could not be removed from service without any show-cause notice or inquiry against him . He further said that one allegation against him was that he drove bus No. 9575 on 10-11-1974 from Lyallpur to Rawalpindi at a very fast speed, that he reached Gujranwala 45 minutes before time and due to this fast speed one piston of the engine was burnt. He said that this allegation was incorrect and if his employer had held any inquiry he could prove that the allegation was incorrect. He prayed for re-instatement with back benefits.

3. The employer resisted the case. The main plea taken by him was that the appellant was a probationer, that his services could be terminated within three months, that it was a simple termination of service, therefore, it was legal termination, as required under Standing Order No. 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It was stated that he was not removed by way of misconduct or for un satisfactory work. With respect to burning of any piston it was stated that these facts had no relevancy with the petition.

4. The learned Junior Labour Court was of the view that the appellant was a probationer, that his services were terminated within three months and so the employer was justified to terminate his services. His petition was dismissed, therefore, the appellant has come up in appeal.

5. The facts are not disputed in this case. The appellant was appointed as driver with effect from 21-8-1974. He was a probationer for a period of three months and his services were terminated on 19-11-1974 without assign ing any reason. Obviously his termination was within three months. The question is whether his termination is legal.

6. The law of termination of employment is given in Standing Order No.

12. The relevant subsections are 1, 2, 3, and

5. They are reproduced below: - Termination of Employment-(1) For terminating employment of a per manent workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workman. One month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice. (2) No temporary workman, whether monthly rated, weekly rated, daily rated or piece rated, and no probationer or badli 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 wage,:) in lieu thereof to the employer if he leaves employment on his owl' accord. (3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termina tion of his services or removal, retrenchment, discharge or dismissal; he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and there upon the provisions of the said section shall apply as they apply to the redress of an individual grievance. (4)

(5) The services of a permanent or temporary workman shall not be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order No.

15. The employer, District Manager, Government Transport Service, Lyallpur does not appear to have followed the law relating to termination of employment as envisaged in Standing Order No. 129 referred to above. The classification of workers is given in Standing Order No. 2 and they have been divided into five categories. The mode of termination of five of the categories namely; permanent, temporary, probationer or badli and apprentice has been given to Standing Order No.

12. The first subsection relates to termination of a permanent workman. If his termination is to be done on account of his misconduct then the employer must follow the procedure, laid down in Standing order No.

12. If his services are to be terminated far any reason other than misconduct it is necessary for the employer to give one month's notice or to pay one month's wages in lieu of notice. In the case of other classes of workers, namely; temporary, probationer, or badli no notice is necessary. It is specifically provided in subsection (5) that where services of a permanent of temporary workman are to be terminated on the ground of misconduct again it will be necessary for the employer to follow the procedure laid down in Standing Order No. 15.

8. Subsections (1) and (2) mainly deal with the question as to where a notice is to be given to the workman and where it is not to be given. The clear position is that where the workman is permanent a notice is mandatory and where the workman falls in any other class, a notice is not necessary. Subsection 3 deals with all types of termination. It covers all the classes of workmen. It provides that the services of a workman shall not be terminated except by an order in writing which shall explicitly state the reason for the action taken. It therefore, follows that irrespective of the fact whether a workman is permanent, or temporary or badli or a probationer, it is mendatory for the employer to follow the A procedure laid down in subsection

3. For the termination of any class of a worker, the employer must pass an order of termination in writing and secondly he must explicitly state the reason for the action taken. In any case where the reason has not been given, the order of termination would be illegal. For instance, if any of the workmen, irrespective of the fact whether he is permanent, temporary, probationer or badli, is to be terminated, the employer must state if the termination was on the ground of misconduct. In such a case if the proper inquiry has not been held the termination would be illegal. It would be no defence for the employer to say that as the workman w4s temporary or probationer or badli, therefore, he had not conducted any inquiry. Whenever a question of misconduct arises, the employer shall have to follow the procedure laid down in Standing Order No.

15. In any other case where there is no allegation of miscon4uct it will be necessary for the employer stn state reason as to why he was terminating the services of any worker. T45e law does not envisage that the employer should keep silent and without assigning any reason, be should state that be had terminated the services of any worker. The law requires that in every other case the employer roust state the reason so that the Labour Courts should sit on judgment on the order passed by the employer and if the reason given by him is incorrect then the Labour Court must set aside the order of the employer. If a worker is appointed against a permanent post and the post has been abolished, the employer can state the reason in the order of termination that the post has been abolished and therefore, the worker is no more required. In the case of a temporary worker, the employer can state the reason that the post was for a fixed period and that the work for which the worker had been employed has finished and so the services were no more required. In the case of a temporary worker, if the post continues, the employer would not be entitled to terminate the services merely on the ground that the worker was temporary. In fact, no worker is temporary but it is the period of a particular post, which determines the duration of service of a worker. To clarify my point I may quote one example although the examples may be numerous. If any employer wants to construct a building, he may employ workers as masons and coolies etc. and when the building has been completed, the employer will be competent to terminate the services of all the workers, stating the reasons that the construction work has come to an end and so services of workers were no more required. But if the construction is incomplete, the employer would not be competent to terminate the services, because the posts had not been abolished. The labour law does not allow an employer to terminate the services of any worker where the employer cannot state any reason for termination.

10. The words shall explicitly state the reason for the action taken , are of great importance for the labour class and they are applicable in the case of any class of workers. If there is a badli worker, his services can only be terminated if the permanent workman or probationer in whose place B the badli worker has been appointed has resumed his duty and the employer must state in the order of the termination this reason. If the reason has not been stated then the termination would be illegal.

11. In the present case I am concerned with a probationer. The period of his probation was three months and there is no doubt that his services were terminated within this period. The order does not state any reason as to why his services were terminated. The order only says that his services were terminated within the probation period. The only reason which emerges from this order is that as the appellant was a probationer, therefore, his services were terminated. The law does not give arbitrary powers to any employer to terminate the services. In the case of a probationary, the employer must state that his performance was unsatisfactory. If this reason has not been given in the order of his termination then his termination would be illegal. In the present case, the appellant had stated in his petition that he was terminated by way of misconduct. He said that there was an allegation against him to the effect that he drove his bus on 10-11-1974 at a fast speed and brought it from Rawalpindi to Gujranwala 45 minutes before time and so one of the pistons was burnt. He said that that allegation was without substance. This assertion was denied by the employer but it was stated that these facts had no relevancy with the petition. The employer has given an impression that even if there was such an allegation it had no relevancy for the purpose of this case. The question of a probationer was discussed by the Supreme Court in Muhammad Siddiqui Paved Chaudhry v. Government of Pakistan (PLD1974SC393). 1n this case at page 401 it was observed: - A probationer is 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 retrained in service.

12. On the same page it has been further observed: If the services of a probationer is terminated on the ground of un satisfactory work that will not amount to dismissal or removal from service, such termination will be in terms of the contract or the rules made by the Government but if the service of a probationer is terminated on the ground of misconduct that will amount to removal or dismissal. It will be a stigma in his favour.

13. The termination of a probationer will be illegal if it is on the ground of misconduct. The provision of subsection (3) of Standing Order No. 12 forces an employer to state the reason as to why he has terminated the service of a worker. This provision is with purpose and the purpose is that the Labour Courts must examine genuineness of the reason. If it is a case of misconduct, the employer cannot be allowed to state that the post has been abolished or that the work of probationer was unsatisfactory. The dirt on the hands of employer must be removed when a case comes before the Labour Courts. As no reason has been given in the impugned order, passed by the employer, therefore, I hold that the termination of the appellant was illegal.

14. For the foregoing reasons, the appeal is accepted, the order of the lower Court is set aside and employer is directed to re-instate the appellant with full back benefits.