1982 PLC(CS) 785
ORDER
This appeal by the management of AI‑Mahmood Foundry Workshop and Re‑Rolling Mills to whom I will refer as the mills, is directed against the decision of the learned IInd Labour Court, given on 10th August, 1981, directing the mills to re‑instate the respondent with back benefits. The impugned decision has been given on a grievance petition filed by the respondent wherein he had claimed that he was illegally gate‑stopped on 8th October. 1980 by the Chowkidar while he was entering the mills to perform his duties as Tongs man.
2. The impugned decision is based on the grounds, firstly, that the respondent having served the mills for more than 3 months had ceased to be a probationer and was to be deemed to be a permanent workman, and secondly, that since the respondent's services are said to have been terminated on the ground of unsatisfactory work by him action had to, be taken against him under Standing Order 15, which was not done by the mills.
3. I have heard Mr. Zamirul Hassan who appeared for the appel lant mills and Mr. Mahmood Mobassir, the learned representative for the respondent.
4. Now as regards the first point, namely, whether the respondent, was employed by the mills .for a period exceeding 3 months, though it was claimed by the respondent that he was employed in the mills froth 4th June, 1980 upto 8th October, 1980, when he was gate‑stopped, there is unimpeachable evidence to show that the respondent was employed with effect from 15th July, 1980. The evidence on this point, firstly, is his application for appointment, which is dated 15th July, 1980. This appli cation admittedly bears the thumb impression of the respondent, though in his evidence before the learned Labour Court, he had denied the same. However, when an application was submitted by the appellant mills for sending the documents, allegedly bearing the thumb impression of the respondent for examination and comparison by the Finger Prints Expert, the respondent turned a summersault and admitted that the thumb impressions on the application for appointment, appointment letter as well as vouchers are his. On the application for appointment, there is an order of the mills appointing him as Tongs man with effect from 15th July, 1980, for a period of 3 months satisfactory services, at the rate of Rs. 21.56, per day including allowances. The next piece of evidence on this point is the order of appointment of the respondent as Tongs man. This order, which is dated 15th July, 1980, also bears the thumb impression of the respondent in token of having received a copy of the appointment order. There is one more important piece of evidence on this point and it is the vouchers evidencing the payment of wages to the respondent. The first voucher is dated 17th July, 1980, and shows that the respondent was paid a sum of Rs. 21.56 as wages for 15th July, 1980. The second voucher is dated 4th August, 1980 and it shows that the respondent was paid a sum of Rs. 301.84 for performing duties for 14 days with effect from 16th July, 1980 to 31st July, 1980. The third voucher is dated 11‑th September, 1980 and it shows that the respondent was paid a sum of Rs. 258.72 for having worked in the mills for 12 days from 1st September, 1980 to 15th September. 1980 including holidays. The fourth voucher is dated 4th September, 1980 and it shows that the respondent was paid a sum of Rs. 304.84 for having worked for 14 days from 16th August, 1980 to 31 st August, 1980. The last voucher is dated 18th September, 1980, and it shows that the respondent was paid a sum of Rs. 280.28 for performing work at the mills for 13 days from 1st September, 1980 to 15th September, 1980. All these vouchers bear the thumb impressions of the respondent. It is clear from these documents that the respondent was employed in the mills with effect from 15th July, 1980. As according to the respondent himself, he was gate‑stopped on 8th October, 1980 he had definitely not completed 3 months service with the mills. He thus continued to be probationer when his services are said to have been terminated.
5. It next falls to be considered whether the termination of services of the respondent was in contravention of any provision of law. The order terminating the services of the respondent is dated 7th October, 1980, but it is said to have been sent to the respondent by registered post, A/D, 'on 8th October, 1980. The said order reads as follows:‑
"Abdul Ali (Probationer Tongs man)
A1‑Mahmood Rolling Mills,
F/34, S. 1. T. E., Road,
Karachi.
Sub:‑Service Termination Order.
You were appointed on 15th July, 1980 as a probationer Tongs man for a period of three months in our rolling mills.
We are not satisfied with your work and as such according to clause 10 of your service agreement with the manage ment your services are hereby terminated with effect from 8th October, 1980. You are advised to collect your due wages from the cashier of the mills. for AL‑MAHMOOD
Sd/‑
Management."
6. It was strongly urged by Mr. Mahmood Mubashir, the learned representative for the respondent that terminating the employment of a workman for unsatisfactory work is tantamount to labling him with the black mark of misconduct and hence such termination is equivalent to dismissal and consequently the procedure prescribed in Standing Order 15 has to be followed which has not been done in the instant case. In support of his contention, the learned representative relied upon a decision of a Division Bench of the defunct High Court of West Pakistan in the case of Riaz Ali Khan v. Pakistan (P L D 1967 Lab. 491), a decision of my learned predecessor in the case of Workers' Union v. Road Transport Corporation (1970 P L C 241), the decision of the Supreme Court of India in the case of Express Newspapers Ltd. v. Labour Court, Madras and another (1965 L L C 294) the decision of the Supreme Court of Pakistan in the case of Muhammad Siddiq Javed Choudhry v. Government of West Pakistan (P L D 1974 S C 393), another decision of the Supreme Court of Pakistan in the case of Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani & others (1979 S C M R 304) and the decision of a learned Single Judge of the Karachi High Court in the case of Glaxo Laboratories (Pak.) Ltd. v. Sind Labour Court No. II, Karachi (P L D 1979 Kar. 500). Now as regards the decision in the case of Riaz Ali Khan, it related to a Government servant and the issue which fell to be considered by the Division Bench of the High Court was whether a temporary employee or probationer in Government service was entitled to show cause under the provisions of sections 240 and 241, Government of India Act, 1935, if his services were sought to be terminated on the ground of unsatisfactory services. Similarly the decision of the Supreme Court in the case of Muhammad Saddiq Javed Choudhry was in respect of a Government servant and involved the question whether services of a probationer could be terminated on the ground of unsatisfactory work, without show‑cause notice and proper enquiry against the probationer under Article 177 of the Constitution of Pakistan, 1962. As regards the decision of the Indian Supreme Court in the case of Express Newspapers Ltd., a perusal of the judgment shows that the Labour Court had taken the view that the workmen's services were illegally terminated due to victimization and hence neither the High Court nor the Supreme Court of India were inclined to disturb the findings of fact by the Industrial Tribu nal of India based on tangible evidence. The decision of the Supreme Court in the case of Dost Muhammad Cotton Mills is based on the very peculiar facts of that case, as pointed out by their Lordships of the Supreme Court themselves in the case of Talat Farooq v. Messrs Chloride Pakistan Ltd. in Civil Petition for special Leave No. 145/76. As regards the decision of a learned Single Judge of the Karachi High Court in the case of Glaxo Laboratories Ltd. it is based upon the decision of their Lordships in the case of Muhammad Afzal Khan, which case as already pointed out deals not with a workman but with a Government servant. The decision of my learned‑predecessor in the case of the Read Trans port Corporation is based on the decision in Riza Ali Khan's case, which was a case of a ‑Government servant.
7. The authorities cited by Mr. Muhammad Mobassir, therefore, in my humble opinion do not appear to provide any clear guideline on the issue whether the services of a probationer could be validly .terminat ed, if his work is not found upto the mark as in the instant case, without following the procedure provided in Standing Order 15.
8. It may be pointed _out that the services of a probationer can be terminated without notice as provided in clause (2) of Standing Order 12. Clause (3) of the said Standing Order provided that the termination of services of any workman can only be effected through an order in writing which shall explicitly state the reason for the action taken. In the instant case, the order terminating the services of the respondent is in writing and also states the reason for the termination of services, which was that the management was not satisfied with this work. No‑ doubt, clause (4) of Standing Order 12 provides that the services of any permanent or temporary workman cannot be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15, but apart from the fact that the said clause in term applies only to permanent or temporary workers while the respondent as already shown continued to be a probationer when his services were terminated, the said clause would only come into play if the services of a workman are terminated for misconduct. In my humble view the term "misconduct" as used in the aforesaid clause is not to be given a popular meaning but is to be under stood in the sense in which the term is used in Standing Order 15. In other words, only that act would amount to misconduct for the purposes of clause (5) of Standing Order 12, which comes within the ambit of clause (3) of Standing Order 15, for the latter clause specifies the act which are deemed to constitute misconduct for the purposes of Standing Orders. In my respectful view, the opinion of the management that they are not satisfied with the work of a probationer cannot possibly be cons trued as constituting misconduct for the purposes of clause (3) of Standing Order 15, for it is merely an assessment or opinion of the management a to the suitability of the workman for further appointment by the manage ment, but does not cast any stigma on the workman or his ability general ly. I am fortified in my view by a recent decision of a learned Single Judge of the Lahore High Court in the case of Anwar Ali Shah v. Punjab Labour Appellate Tribunal, Lahore (1) The learned Judge has thus express ed himself on this issue:‑
"The next contention that the petitioner was entitled to a show‑cause notice is also not valid. Firstly, no proceedings had been started against the petitioner on' account of misconduct. Secondly, even if, for the sake of arguments, it is accepted that there were valid proceedings before the Labour Court, there is no evidence or finding about habitual absence. The observation by the employer that the petitioner miserably failed in his assignment, does not amount to misconduct as defined in Standing Order 15(3). Further, it is net a stigma of a permanent nature but refers only to the petitioner's achievement vis- -vis the assignments given to him during a particular period. It is of the nature of a timely subjective dissatisfaction of the employer with the outcome of petitioner's efforts in a particular direction‑ but does in no way pronounce on his faculties or capabilities. That observation would not, therefore, affect the petitioner's career."
9. The letter of appointment of the respondent expressly provides that the appointment of the respondent would be for a period of 3 months only, but reserved the right to the management to terminate his services if the management was not satisfied with him. I am of a the opinion that the services of the respondent were terminated in accor dance with his letter of appointment and he cannot rightly complain against the termination of his services.
10. The upshot of the above discussion is that I would allow the appeal and set aside the impugned decision of the learned Labour Court as in my view the respondent's services were terminated in accordance with the terms of his appointment letter during the period of his probation, and no infringement or violation of law .was committed. Since the appeal is being allowed, the amount deposited by the appellant mills towards the back benefits of the respondent, is directed to be refunded to the appellant mills:
Appeal allowed,