Find a Lawyer

Appeal No. HYD‑235 of 1969, heard on 18th December 1969.

--‑Termination of service Temporary employee‑Show‑cause notice‑Termination in terms of employment‑--No show‑cause notice required‑Termination on grounds of misconduct‑Show cause necessary‑Natural justice, principle of No one to be condemned without defence opportunity‑Temporary employer s name removed from waiting list on grounds of unsatisfactory record without any enquiry‑Provisions of S. 38, West Pakistan Industrial Disputes Ordinance, 1968, held, in circumstances, attracted‑West Pakistan Industrial Disputes Ordinance (IV of 1968), Ss. 37 & 38.

There is, no doubt, that the service of a temporary employee can be terminated in terms of his employment without any show cause notice. On the other hand, it is now well settled Rule of Law that even the services of a temporary hand cannot be terminated on the ground of misconduct without giving him an opportunity to prove his innocence. The Principles of Natural Justice require that no man should be condemned without giving him an opportunity to defend himself. Even a person who is in temporary employment, if he is removed from service on the ground of misconduct it will debar his future employment with the other similar Companies or at least in the Company which removes him from service on the ground of misconduct.

So far as the question of the violation of the provision of section 37 of the West Pakistan Industrial Disputes Ordinance, 1968 is‑ concerned even an ordinary employee cannot be removed from service without having committed misconduct. A temporary employee can be removed from service in terms of his employment but if it is sought to do away with his services on the ground of misconduct the Principle of Natural Justice would have to be observed. In the present case the appellant was removed on the ground of unsatisfactory record during the term of his employment and also from the waiting list of drivers on the ground of unsatisfactory record without having been given an opportunity to show cause against the misconduct alleged against him. In the absence of any enquiry it cannot be said that the appellant bad committed any misconduct so as not to attract the provision of section 38 of the Ordinance.

A. Majeed for Appellant.

Mahboob Rizvi for Respondents.

Date of hearing: 18th December 1969.

This is an appeal against an order dated the 7th of October 1969, of the learned Chairman of the First West Pakistan Industrial Court, Karachi. The impugned order was passed on an application under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968. The facts briefly put are these.

2. The appellant claimed to have been employed as a driver by the Government Transport Service, Hyderabad. He stated that industrial Dispute No. 24 of 1968 was pending in the Industrial Court and that during the pendency of the said proceedings the appellant was removed from service by an order dated the 4th of October 1968, with effect from the 28th of September 19 8, on the ground of unsatisfactory record without having been giving him an opportunity to prove his innocence. On the other hand it was ‑ claimed by the Company that the appellant was a temporary hand and was employed in a leave vacancy with effect from the 12th of September 1968, to the 30th of September 1968. The Company contended that the appellant was not discharged or dismissed from service. He was only removed from the waiting list of the drivers.

3. The learned Chairman of the Industrial Court came to the following conclusion :

"It is established in the circumstances, therefore, that the applicant was a temporary and not a permanent hand and thus supports the case of the respondent that it was not necessary for the respondent to bold an enquiry against the applicant before removing the name of the applicant from the waiting list of the drivers.. It has also not been established that the applicant was an Office‑bearer of any Union and no violation therefore of section 37 of the Ordinance has been made out against the respondent and no action against the respondent is called for."

4. On a fair analysis of the conclusion arrived at by the learned Chairman, it would come to this:‑

(1) That the appellant being a temporary employee, his services could be terminated at any time; and

(2) That the appellant being not an Office‑bearer of any Union, the provision of section 37 of the West Pakistan Industrial Disputes Ordinance, 1968 was not violated.

5. There is no doubt, that the services of a temporary employee can be terminated in terms of his employment without any show‑cause notice. On the other hand, it is now well settled Rule of law that even the services of a temporary hand cannot be terminated on the ground of misconduct without giving him an opportunity to prove his innocence. The Principles of Natural Justice require that no man should be condemned without giving him an opportunity to defend himself. Even a person who is in temporary employment, if he is removed from service on the ground of misconduct it will debar his future employment with the other similar Companies or at least in the Company which] removes him from service on the ground of misconduct. The appellants' name was removed from the waiting list of drivers as would appear from Exh. P.‑5, dated the 4th of October 19; 8. The order reads as under :‑

"The name of Ghulam Akber son of Jalal Khan is hereby removed from the waiting list of drivers with effect from the 28th September 1968, in view of his unsatisfactory record."

It would appear from the above letter that some one in the Department was bent upon to mar the career of Ghulam Akber as a driver. That this conclusion finds support from the fact that Ghulam Akber was employed only up to the 3.Oth of September 1968. Uhulam Akber's employment would have come to an end on 30th of September 1968. It was absolutely unnecessary to have passed an order on the 4th of October 1968 conveying to Ghulam Akber that his name was removed from the list of waiting drivers on the ground of unsatisfactory record with effect from the 28th of September 1968. This stigma would attach against Ghulam Akber for all time unless he was given opportunity to defend himself.

6. So far as the question of the violation of the provision of section 37 is concerned even an ordinary employee cannot be removed from service without having committed misconduct. A temporary employee can be removed from service in terms his employment but if it is sought to do away with his services on the ground of misconduct the Principle of Natural Justice would have to be observed. In the present case Ghulam Akber was removed on the ground of unsatisfactory record during the'6 term of his employment which was to extend up to 30th off September 1968, and also from the waiting list of drivers on the) ground of unsatisfactory record without having been given an opportunity to show cause against the misconduct alleged against him. In the absence of any enquiry it cannot be said that Ghulam Akber had committed any misconduct so as not to attract the provision of section 38 of the Ordinance.

7. For the reasons given above I would hold that Ghulam Akber continued to be in service up to the 30th of September 11968, and that his name could not be removed from the waiting list of drivers without giving him an opportunity to show cause for the alleged unsatisfactory record. Ghulam Akber would be entitled to pay until 3Gth of September 1968. His name continues on the waiting list of drivers till the Department gives him show- cause notice for unsatisfactory record and on enquiry it is found that his record was unsatisfactory.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.