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Appeal No. KAR‑173 of 1982, decided on t3th July, 1982.

West Pakistan

‑‑ S. O. 12‑Probationer ‑ Discharge during probation period allegedly on account of unsatisfactory work‑Evidence of Foreman incharge indicative that work being satisfactory‑Job of permanent nature requiring hard labour‑Eight persons employed and none made permanent‑Such fact giving impression that employer getting rid of workman deliberately during probation period, so as to avoid making him permanent‑Discharge, is circumstances, held, not bona fide‑Re‑instatement with back benefits awarded by Labour Court upheld‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38.

Syed Zamirul Hassan for Appellants.

Mahmood Mubassir for Respondent.

Date of hearing : 13th July, 1982.

DECISION

The appellants are a foundry and re‑rolling steel mills. The work in the mills requires the employment of several tongsmen besides other workers. In the month of September, 198 .1 the exact date of appointment is disputed respondent Mohammad Rehman was engaged by the appellants as a tongsman in their mills. According to the appellant he was employed as a probationer and during the period of his probation, in December, 1980‑again the exact date of termination of service is disputed‑he was discharged from service as his services were not found satisfactory. The respondent, after service of the requisite grievance notice, preferred a grievance petition before the learned Second Labour Court challenging his discharge from service. The appellants resisted the grievance petition on the twin grounds that the respondent was discharged during the period of his probation and that his work has not been found satisfactory. The learned Labour Court repelled both these contentions and has taken the view that the respondent was employed by the appellant with effect from 1st September, 1980 and hence he had completed his probationary period when he is said to have been discharged from service and that further the stand of the appellants that the work of the respondent was not found satisfactory has been destroyed by their own senior foreman, Raza Mohammad, who has categorically stated that the work of the respondent was found satisfactory. The learned Labour Court has accordingly directed the re‑instatement in service of the respondent with full back benefits. Dissatisfied with this decision the appellant has come up in appeal to this Tribunal. I have heard Mr. Syed Zamirul Hasan, the learned counsel for the appellant, and Mr. Mahmood Mubassir, who represented the respondent workman.

2. The learned Labour Court has relied upon the evidence of res pondent Mohammad Rehman and his two co‑workers, Fazal Rehman and Feroz Khan, who have stated in their evidence before the Labour Court that the respondent was employed by the appellants with effect from 1st September, 1980. I regret that am unable to place reliance on this evidence. No doubt both Feroz Khan and Fazal Rehman have stated that the respondent was employed by the. appellants with effect from 1st September, 1980, but the value of their statements in this behalf can be judged from the fact that neither of them was able to remember the date from which they were recruited by the appellants. Fazal Rehman was specifically asked if he could remember the date of recruitment of any other colleague and was forced to reply in the negative. It is, therefore, clear that both Fazal Rehman and Feroz Khan had given obliging evidence which cannot be relied upon. As regards respondent Mohammad Rehman himself, he failed to produce his letter of appoint ment, ticket, attendance card or any other document tending to show that he was employed by the appellants with effect from Ist September, 1980. On the other hand, the appellants had produced an application for appointment, dated 25th September, 1980, and letter of appointment, dated 25th September, 1580, both of which are said to bear the thumb-impressions of the respondent. The respondent has not denied that these documents bear his thumb-impression but has alleged that some days after his appointment he was asked and made to thumb mark certain documents. The inference, therefore, would appear to be that these documents do bear the thumb‑impressions of the respondent. There is, thus, no tangible evidence in support of the contention of the respondent that he was employed, with effect from Ist September, 1980. The attendance register of the appellant's workshop also indicates that the respondent had started working in the appellant mills with effect from 25th September, 1980.

3. There remains the further question whether the services of the respondent were validly terminated. No doubt it is the right of the employer to terminate the services of a probationer but this right can only be exercised on the condition that the work of the probationer has not been found satisfactory. It appears from the evidence of Raza Mohammad, the senior foreman in the appellants mills, that he was satisfied with the work of the respondent and that he gave no cause of complaint. Raza Mohammad bas further explained in his evidence that a candidate for the job of tongsman, which involves hard labour, is put under observation for four days and if during this period of his work is found satisfactory, he is put to work. The evidence of this witness clearly indicates that the work of the respondent was found satisfactory. It would, therefore. appear that the respondent was discharged from service on some extraneous consideration not connected with the quality of his work or output. Mr. Syed Zamirul Hasan sought to place reliance on the evidence of Anwarul Haq, another foreman in the appellant mills. He submitted that Anwarul Haq. was responsible for the recruitment and discharge of workmen and as Anwarul Haq found the work of the respondent un satifactory, therefore, he was discharged from service. It appears that though Anwarul Haq was not acquainted with the working of re‑rolling mills he was appointed as a foreman by reason of his being the uncle of the proprietor of the appellants mills. He has frankly admitted that Raza Mohammad is senior to him and that he was trained by Raza Mohammad. Despite these facts he claimed to be senior to Raza Mohammad again he changed this stand and admitted that Raza Mohammad was the senior foreman. As Raza Mohammad was the senior foreman who was responsible for the maintenance of entire mills and for ensuring its smooth working, his opinion and assessment that the work of the respondent was found satisfactory and that he gave no cause of complaint would certainly outweigh the biased evidence of Anwarul Haq, who not only was admittedly junior foreman to Raza Mohammad but in comparison to Raza Mohammad was getting a much lower salary. It has been admitted by Anwarul Haq that he was drawing a salary of Rs. 800 P. M. while a salary of Rs. 2,300 P. M. was being drawn by Raza Mohammad. One more circumstance has to be borne in mind in considering whether the discharge of the respondent was‑bona fide. It has been admitted by Anwarul Haq that though the stand at which the respondent used to work requires the employment of a permanent tongsman, during the last one year seven to eight persons had been employed for short periods and not one of them was made permanent. This gives the impression that the appellants were deliberately getting rid of a workman during the period of his probation so that they could avoid making him permanent. I am therefore, of the view that the discharge of the respondent was not bona fide and was not on account of his work being found unsatisfactory as claimed by the appellants.

4. For the reasons discussed by me above I would dismiss his appeal,

Appeal dismissed.

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