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Appeal No: KAR‑56 of 1970, heard on 18th April 1970.

---Ss. 37 & 38 read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O.12(T) Termination of service of permanent workman due to non requirement‑‑Termination simpliciter‑Termination, however, made upon only two days' notice‑Conditions of service envisaged by S. O. 12(i), West Pakistan Industrial and Commercial Employ ment (Standing Orders) Ordinance, 1968, in circumstances, held, 7 changed for want of proper notice of one month‑Provisions of S.37, West Pakistan Industrial Disputes Ordinance, 1968, 1n circumstances, held, violated attracting provisions of S. 38‑‑Work man, in circumstances, however, held, entitled to compensation for one month's pay and not to re‑instatement.

Glaxo Laboratories (Pakistan) Ltd. v. Glaxo Laboratories Workers' Union and 33 others P L D 1962 S C 60 rel.

A. Majid for Appellant.

A. A. Shariff or Respondents.

Date of hearing: 18th April 1970.

This is sat appeal against an Award dated, the 4th of February 1970. where by, the learned Chairman dismissed 'the application of the appellant under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the repealed Ordinance,) on the ground that on the facts established the appellant had failed to make cut a case that there was any violation of section 37 of the repealed Ordinance. The facts necessary for the dismissal of the appellant, briefly put are these.

2. The appellant applied in response to an advertisement for the post of a Stenographer in the respondent‑company, on 23rd October 1969. He was appointed on a temporary post w. e. f. 2nd November 1967, for a period of three months. He was again appointed as a temporary Steno grapher on 18th January 1968, for a period of 3 months expiring on 30th April 1968. Thereafter by a letter dated the 26th of April 1968, the appellant was appointed as a Stenographer attached to Zonal Officer in the Regular Cadre w. e. f. 1st May 1968. He was to be on probation for a period of three months. Before the expiry of the period of three months, however, the period of probation was extended for a further period of three months on 10th July 1968. The services of the appellant were terminated by a letter, dated 29th August 1968, from the afternoon of 31st August 1968.

3. The first question that requires consideration, is as to whether there is any 'violation of the provision of sec tion 37 of the repealed Ordinance. The; answer to tills question will depend upon the fact as to whether the appellant can be said to have become permanent employee of the respon dent‑company. I will now proceed to determine this question. Admittedly the appellant was employed in the Regular Cadre of Stenographer in the respondent‑company. He was to be on probation for a period of three months. It would be useful to reproduce para.2 of the letter of appointment, dated the 26th of April, 1968.

It runs as under:--

"You will be on probation for a period of 3 months during which period your services will be liable to termi nation without notice should your work and conduct be unsatisfactory."

4. Admittedly during the period of three months the appellant served the respondent‑company. The appellant's conduct and work was not found to be unsatisfactory. In this connection reference may be made to the certificate dated August 31, 1968 given by the Zonal Manager (Life of the Company). He certified that the work and conduct of the appellant were quite satisfactory. The appellant became a permanent employee after the expiry of the probation period of three months as result of award dated 14th March 1967, between Premier Insurance Company v. Employees' Union of the respondent‑Company. The Award is as under:‑‑

"Demand No. 11.‑‑Probationary period.

'No workman shall be employed on probation for more than the months.'

In this connection, the learned Representative of ‑the respondent Insurance Company on 14th February 1966, made the following statement. 'I confirm that after three months' probation each workman is confirmed and we have no objection if demand No. 11 is granted."

In view of it, I allow this demand in terms of the statement.

The Award dated 14th March 1967, continues to be binding on the parties as the same has not been so far determined by either of the parties. I would hold that the appellant had become permanent employee of the Company.

5. The case of respondent‑company was that they terminated the services of the appellant as they did not need any Stenographer in their Zonal Office. In other words it was a, case of termination of the services simpliciter. It is now well set law that the termination of employment of a workman simpliciter, does not attract the provision of section 38 of the repealed Ordinance. The question, however, is as to whether the services of the appellant were terminated in accordance with a provision of the Standing Order, 1968 and that the act of the Company did not involve any change in. the terms and conditions of the services of the appellant. It is true that the termination of the services of the employee simpliciter, does not amount to discharge, dismissal or punishment of a workman, but it must be done so as not to change the terms and conditions of his service. The provision of .the Standing Order,1968, form part of the terms and conditions of service of a workman. In this connection reference may be made to the Standing Order 12(1). It reads as under:‑

"12. Terminating of employment.‑(1) For terminating the employment of the permanent workman one month's notice in writing shall be given either by the employer or the workman. One month's wages calculated on the basis of average of wages earned by the workman during the last three months shall be paid in lieu of notice."

6. The provision reproduced above form part of the contract or service of the appellant. Admitted position is that the services of the appellant werc4 not terminated as a result of misconduct but on the ground that the Company did not need any stenographer in the Zonal Office. 7. Mr. Sharif, the learned Representative who appeared for the respondent‑company did not challenge the position that the appellant was a permanent employee of the company but he contended on the language of the notice dated 29th August 1968, that the Standing Order' 12 was in fact complied with. The notice of 29th August 1968, reads as under:‑‑

" We regret to advise you that your services are no longer required by us and these stand terminated from the afternoon of 31st August 1968.

Please call on our Account Department and collect your dues if any."

7. Mr. Sharif relied on the last sentence of the notice and contended that the intention of the Company was to pay him ' a month's wages calculated on the basis of average of wages learned by him during the last three months as required by the Standing Order 12. On the face of it, it is impossible to read what Mr. Sharif would like me to conclude from the letter reproduced above. The company is a big Insurance Company. It has tile advantage of .the advice of Advocates who are conversant with the provisions of the Standing Order. The notice dated the 27th of August 1968, by no stretch of imagination can be said to be a notice as required by the Standing Order 12. T have, in these circumstances, come to the conclusion that the respondent‑company altered the prejudice of the appellant, tie terms of service by dep riving him of a month's wages. The company acted arbitrarily by giving him only one day's notice to leave the employment.

8. The last question is as to what relief should this Court grant to the appellant. I have arrived at the conclusion that there was violation of the provision of section 37 of the repealed Ordinance, inasmuch as the company has change the terms and the conditions of the appellant's service to his prejudice by not giving him a month's notice and pay in lieu thereof. I have further come to the conclusion on the evidence produced by the respondent‑company that the appellant's services were terminated, as the Company did not need any Stenographer in the Zonal Office. To order the Company to re‑instate the appellant, 'would be to improve the appellant's contractual rights' under the terms of his". service. In this connection reference may be made to the case of the Glaxo Laboratories (Pakistan) Ltd. v. Glaxo Laboratories Workers' Union and 33 others (P L D 1962 SC 60). The relevant passage lies as under :‑

"It would, however, depend upon the circumstances of each case whether the relief of re‑instatement or compensa tion for wrongful discharge from service would be the appropriate remedy. No hard and fast rule can be laid down in this connection. In the case of re‑instatement, however, it seems to be necessary to clarify that an order passed in favour of the workman does, not have the effect of improving his contractual rights under the terms of his service."

10: In this connection reference may be made to another case of Abbasi Textile Mills Ltd., Rahimyar Khan v. Kale Khan (P L D 1966 S C 765). In that case the principle was reaffirmed that the Industrial Court in appropriate cases can grant compensation instead of re‑instating the workman. It is not fit case for the re‑instatement of the appellant as his services were terminated as a result that the company did not need any Stenographer in the Zonal Office. He, o however, would be entitled to compensation as the company altered the terms and conditions of his service by not complying with the provision of Standing Order 12.

11. 1 would order‑ that the Company should pay a month's H ages calculated on the basis of average of wages earned by the appellant during the last three months of his service. In the circumstances of the present case I would also grant cost to the appellant. The appellant has been without employment as would appear from his affidavit. I would grant Rs. 250 as cost to the appellant. The one month's wages as stated above and cost of Rs. 250 should be paid to the appellant within a week from today.

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