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(a) Industrial Relations Ordinance (XXIII of 1969)----

--‑‑S. 25‑A‑Termination of service‑Grievance notice‑ Mandatory requirement‑Grievance notice to be sent to employee‑Complaint to Labour Department, held, not grievance notice ‑ Proceedings against employer on such complaint not legal.

(b) Industrial Relations Ordinance (XXIII of 1969)‑---

--‑‑S 25‑A ‑ Grievance notice ‑ Pre‑requisite‑.Proceedings before Labour Court without grievance notice not maintainable.

Muhammad Zafar v. Road Transport Corporation, Lahore 1970 P L C 332 ; Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan P L D 1974 S C 393 ; Messrs Dawood Hosiery Mills v. Hazrat Muhammad Yousuf P L D 1975 Kar 312 ; Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 S C M R 304 ; Khawaja Nazir Ahmad's case A I R 1936 P C 253 and Pakistan National Centre's case P L D 1976 Lab. 1085 fol.

(c)

West Pakistan

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

S. Os. 12 (3) & 15‑Termination of service ‑ Apprentice proba tioner‑Protection of S. O. 12 (3) or 15 not available to probationer apprentice not completing probationary period.

(d)

West Pakistan

Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)----

‑S. O. 15 (3)‑"Misconduct"‑Probationer‑Termination of service- Observation of employer that "employee miserably failed in his assignment", held, does not amount to misconduct'.

(e) Industrial dispute‑---

‑‑Probationer‑Misconduct ‑ Show‑cause notice Termination of service of probationer for unsatisfactory work‑Show‑cause notice not required‑Show‑cause notice necessary only if workman termi nated on account of misconduct.

Naseem Kashmiri for Petitioner.

Date of hearing : 22nd October, 1978.

JUDGEMENT

The petitioner challenges an order dated 6th August, 1978, whereby the appeal of respondent No. 2 was accepted and the order of the Labour Court re‑instating the petitioner in his post was set aside.

2. The petitioner was appointed as an apprentice construction supervisor (Steel Works erection) at Pattoki Sugar Mills Project, on 21st June, 1977. Some explanation allegedly with regard to his absence from duty was called by the respondent on 31st July, 1977. He submitted his reply on 3rd September, 1977. A second explanation was also called on 1st September, 1977. His services were terminated on 13th September 1977.

3. 1n anticipation of termination of his services, the petitioner sent a letter dated 5th September, 1977, to respondent No. 2 asking him to withdraw the previous letters calling for explanations as the same were illegal. On 14th September, 1977, he sent an application to the Zonal Director, Labour Department, Lahore, also praying for an immediate action against the management before an illegal dismissal/removal order could be made against him.

4. However, on coming to know that the petitioner's services were being terminated without an inquiry, he moved a petition on 22nd September, 1977, under section 25‑A of the Industrial Relations Ordinance, 1969, before the Punjab Labour Court‑II, Lahore. The Labour Court treated it as an application against termination. This application succeeded on 30th October, 1977, when the order of termina tion was set aside. The Labour Court relied on Muhammad Zafar v. Road Transport Corporation, Lahore (1970 P L C 332), wherein the Industrial Appellate Tribunal decided that in order to terminate services of a probationer for unsatisfactory work, a show‑cause notice was necessary under the principles of natural justice. He also referred to Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan (P L D 1974 S C 393) but the same does not help him as is being discussed later. Respondent No. 2., however, got that order reversed in appeal before the Labour Appellate Tribunal on 13th December, 1977.

5. It is contended by the learned counsel that as the allegation against the petitioner was about habitual absence', it was covered by the definition of misconduct' as given is Standing Order 15, and, therefore he even though a probationer, had the right to be proceeded against in accordance with the Standing Order 15. It is further submitted that the representation sent to the Zonal Director of the Labour Department, should have been considered as a valid grievance notice under section 25‑A and the omission by the Appellate Tribunal to consider it so was without lawful authority. Reliance was placed on Messrs Dawood Hosiery Mills v. Hazral Muhammad Yousuf (P L D 1975 Kar. 312) where a notice sent through an Advocate was considered to be valid grievance notice.

6. The learned counsel also referred to the termination order to say that as his services were terminated on the ground that the petitioner had miserably failed in his assignment' a show‑cause notice before termination was necessary in view of the law laid down by the Supreme Court in Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (1979 S C M R 304) This was a case of a permanent employee whose services had been terminated because of unsatisfactory work.

7. I have heard the learned counsel at great length but find no merit in his submissions. It is to be noted that the Labour Court did not consider the question of habitual absence and in fact there is nothing on record to suggest that this was the reason for termination of the petitioner's services. The Labour Court was of the view that even a probationer was entitled to be heard under the principle of natural justice before he could be dismissed. The Appellate Tribunal however, looked at the case from a different angle and held that as the petitioner failed to serve a grievance notice, which is a mandatory prerequisite and as the petition under section 25‑A had been filed not against the termination but in anticipation of it no relief could have been allowed to the petitioner.

8. It is factually correct that the petitioner dud not serve any grievance notice as provided in section 25‑A of the Industrial Relations Ordinance. The complaint sent by the petitioner to the Zonal Director, Labour Department, also cannot be considered to be a grievance notice although there are various channels provided in section 25‑A (1) for transmitting the complaint, yet destination is only one and that is the employer. Therefore, not only that it has to be brought to his (employer's) notice in writing, within three months when cause of grievance arose under section 25‑A (2) the employer is also obliged to communicate his decision in writing within fifteen days to the worker, if the complaint was made by the worker himself. The tenor of the above provisions show and it is a mandatory requirement of law that the grievance must be sent to the employer as provided, to give it a legal sanctity. Reference be made to the case of Khawaja Nazir Ahmad (AIR 1936 P C 253) where in it was held that when law provides doing of a thing in a particular way, it should be don that way or not at all. Secondly, no grievance was made after termina tion.

9. No grievance notice had, therefore been given about the termina tion of services, which took place about 8 days after the above two representations. I have already given my views on this point in the case of Pakistan National Centre (P LD 1976 Lah. 1085) that a grievance notice is a pre-requisit and proceedings before Labour Court without it were not maintainable. The order of the Appellate Tribunal, therefore, cannot be assailed on that/ground.

10. Admittedly, the petitioner had been appointed as an apprentice/probationer on 21st June, 1977 and therefore, he could be entitled to the protection of a workman only after successfully completing his three months' probationary period. In the case in hand the petitioner as stated by the learned counsel for the petitioner himself had been asked to explain twice for the absenco on 31st July, 1977 and 1st September, 1977. The dissatisfaction of respondent No. 2 is also not shown to have ended thereafter. His services were terminated on 13th September, a he miserably failed in his assignments. In this view of the matter it cannot be said that the petitioner had successfully completed his probationary period so as to claim the protection under Standing Order 12 (3) or 15.

11. 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 argument 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 not a stigma of a permanent nature but refers only to the petitioner's achievement vis‑a‑vis the assignment given to him during a particular period. It is of the nature of a time subjective dissatisfaction of the employer with the outcome of petitioner' efforts in a particular direction but does in no way pronounce on hi faculties or capabilities. The observant would not, therefore, effect the petitioner's career. It was held in the case of Muhammad Siddiq Javai Chaudhary that services of a probationer could be terminated for unsatisfactory work without a show‑cause notice which will be necessary only if an employee was removed or dismissed from service on ground o misconduct: The relevant portion at page 401 may be reproduced with advantage :‑

"I agree with the view expressed in Muhammad Afzal Khan v. The Superintendent of Police. Montgomery and Riaz Khan v. Pakistan, that a person who is on probation is subject to all checks to which a permanent servant is subject. He cannot, for example, refuse to obey orders, keep own hours of duty, or indulge in any malpractice. In my opinion, if the service of a probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in terms of the contract. of 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. In the last mentioned case, the probationer will be protected by the provisions of Article 177 of the Constitution of 1962 and will be entitled to a show‑cause notice and a proper enquiry against him must be made."

It may further be added that no constitutional protection is provi ded in the case of the petitioner. The admitted facts of this case do no attract the applicability of the provisions of Standing Order 15, I, therefore, do not find any merit in this contention either.

In the circumstances, I do not find any merit in this petition and the same is dismissed in limine.

Petition dismissed.

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