Find a Lawyer

Appeal No. KAR‑785 of 1980, heard on 1st December, 1980.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑S. 7 and S. O. 12 (3)‑Termination of service‑Issuance of written order stating explicit reason‑Essential pre‑condition‑No distinc tion even in case of a probationer‑Termination without such written order even in case of a probationer‑Not valid‑Violation of mandatory provisions makes offender liable to conviction also.

Rasheed Textile Mills v. Rafiq M. Wali 1976 P L C 181 distinguished.

Zahid Hamid for Appellant.

Date of hearing : 1st December, 1980,

This appeal is directed against the decision of the learned IIIrd Labour Court, given on 15th October, 1980, allowing the grievance peti tions of the 3 respondents, challenging the termination of their services, and directing their re‑instatement in service with full back benefits. The learned Labour Court has based its order, setting aside the termination of services of the 3 respondent, on the ground that such termination was in violation of the provisions of clauses (1) and (3) of Standing Order 12. The learned Labour Court has referred to the evidence of Gulzar Ahmad, the sole witness examined on behalf of the respondent establishment, who has admitted that neither any orders of appointment were issued to the respondents nor‑‑were letters of termination of services issued to them. In fact no orders of termination of services have been produced. '

2. It was contended by Mr. Zahid Hamid, the learned Representa tive for the appellants, that inasmuch as all the 3 respondents were only probationers, it was not necessary to issue them any orders of termination of services. In support of his contention, the learned Re presentative relied upon the decision of a learned Single Judge of the Sind & Baluchistan High Court in the case of Rasheed Textile Mills v. Rafiq M. Wali (1976 P L C 181). There is, however, no evidence to establish that the 3 respondents were probationers. A probationer worker has been defined in Standing Order I (c) to mean "a workman is provisionally employed to fill a permanent vacancy in a post and has completed three months' service therein. If a permanent employee is employed as a probationer in a higher post he may, at any time during the probationary period of three months, be reverted to his old permanent post. Since no appointment orders in respect of the 3 respondents were admittedly issued by the appellant establishment, it cannot be said that the respondents were appointed as probationers. Even if it were to be assumed that they were appointed as probationers, it is not known whether they were so appointed to fill a higher or promotion vacancy and whether they had completed more than 3 months' service as probationers. On the other hand, the case of the respondents is that they were employed in the appellant establishment for more than a year. No reliance, therefore, can be placed on the bare word of the appellant's sole witness, Gulzar Ahmad,, that the respondents were appointed as probationers and during their probationary period their services were terminated. It may be stated here that it was admitted at the Bar by Mr. Zahid Hamid that the appellant have been prosecuted and convicted for failing to issue orders of appointment to the respondents in contravention of Standing Order 2‑A.

3. I also find no force in the contention of Mr. Zahid Hamid that no order in writing is required to be made by the employer or on his behalf while terminating the services of a probationer. Clauses (1) to (3) of Standing Order 12 read as follows :‑

12.

.‑(1) For Terminating employment of a permanent 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 wages in lieu thereof to the employer if he leaves employment of his own 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 termination of his services or removal, retrenchment, dis charge 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 thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."

4. Clause (1) of the Standing Order is applicable only to perma nent workers. In the case of such workmen, while terminating their services under the said clause, it is necessary to give them either one month's notice or pay in lieu of notice. Clause (2) is applicable to temporary workman, including probationers and badlis. In their case it is expressly provided that they are not entitled to notice or pay in lieu of notice. The notice referred to in clause (2) is a notice of one month specified in clause (1). Clause (3), however, is applicable to all workmen, whether permanent, temporary, badli or probationers. It lays down that an essential pre‑condition for terminating the services of any workmen, i.e. permanent, temporary, badli or probationer, is the' issuance of an order in writing which shall explicitly state the reason for the action taken. In the instant case, as admittedly no such order was issued by the appellant establishment, not only is the termination for services of the 3 respondents invalid on this account, but further the appellant establishment is liable to be prosecuted for not complying with the mandatory provisions of the Standing Orders. Mr. Zahid Hamid, however, relied upon the decision in the case of Rashid Textile Mills in support of his contention that no order in writing need be passed or made for terminating the services of a probationer during the period of his probation. This decision, however, does not support the conten tion of Mr. Zahid Hamid as all that it decides is that in case of a pro bationer no notice is required to be given to him while terminating his service. " The decision is thus in accordance with the provision of clause (2) of Standing Order 12. However, clause (3) of Standing Order 12 is applicable to all workmen, including probationers, and requires the passing of an order while terminating the services of any workman and further such order should explicitly state the reason for the action taken. As already stated, this is a mandatory requirement of law and violation B of this provision is punishable under section 7 of the Sind Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. Since no such order has been passed in the case of the respondents, even if it be assumed that they were probationers, though I am of the view that this plea of the appellant establishment is unfounded, the termination of ser vice of the respondents would be invalid.

5. For the reasons stated by me above, I find no merit in this appeal and accordingly dismiss the same in limine,

Find a Lawyer Near You

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