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---Ss. 25-A & 38 (3) read with First Wage Commission Award, para. 233-Bank employee-Termination of service during proba tionary period-Permissible only if employee fails to show satisfactory progress-Powers of termination -Not arbitrary and can be exercised only if there is in reality a ground for that.-No such grounds disclosed either to employee or before Labour Court Labour Court's order dismissing grievance petition simply for reason that it was a termination during probationary period, in circumstances, held, not justified hence set aside by Appellate Tribunal and case remanded-Labour Court directed to re-decided petition after opportunity of evidence to parties on point whether performance of employee (appellant) was actually unsatisfactory and if so to such an extent that he could not improve by extension of probation period.

Zafar Saleem for Appellant.

A. R. Sheikh for Respondent.

Date of hearing : 4th May, 1982.

The appellant was a probationer and during the probationary period his services were terminated on the ground that his performance was not found satisfactory. The appellant challenged the order before the learned lower Court, which held that as the appellant was a probationer and his services were terminated on the ground that his performance was not satisfactory, he had no guaranteed right.

2. The West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is not applicable since the respondent bank has been nationalized and is functioning under the authority of the Government and as the Wage Commission Award by which the banks are governed, enjoys the character of statutory rules. The learned lower Court has applied paragraph 233 of the First Wage Commission Award. No doubt this paragraph permits the employer either to extend the period of probation or to terminate the service of an employee, if the said employee has failed to show satisfactory progress, but this is always a question of fact whether the employee concerned has failed to show satisfactory progress. Powers given to the employer are not arbitrary and can be exercised only if there is in reality a ground for that. This is noteworthy that arbitrary powers have not been given to terminate the services of an employee within the probationary period. Since no show-cause notice was served and no explanation was called, and the' only document which exists for the termination of the services of the appellant is the termination order, it was necessary to show in the said order how the work of the appellant was unsatisfactory. It is not mentioned in the order Exh. P. 4 that the immediate officer or incharge of the appellant has ever made any report against him giving examples that his work was unsatisfactory. Even on the lower Court record no material was brought to justify that the performance of the appellant was unsatisfactory. The presumption, therefore, would be that there was no adverse report of the immediate officer of the appellant. The appellant was a cashier-cum-clerk, so the work done by him during the tenure of his service must be on the record of the appellant and, there fore, to show that in reality it was unsatisfactory the same or some of it could be produced before the lower Court for an example. The provision that services can be terminated within the probationary period, if work is unsatisfactory, for the reason that if the order of termination is challenged, there must be some data to satisfy the Court that in reality the order of termination was justified, otherwise there was no necessity of making a provision in the above-mentioned paragraph that only in cases where the progress was not satisfactory, services can be terminated. Again only the provision is not the services are to be terminated if the work is not satisfactory but there is another provision also and i. e., that the probationary period may be extended. In cases where unfavourable alternative is selected it is further necessary to give reasons for not electing to extend the period of probation but in the present case absolutely no reason was given why the period of probation was not extended, if at all the performance of the appellant was unsatis factory. The outgoing person must know what was the actual defect in him for which he was being deprived of his livelihood. In the present case, as mentioned above, it was not shown how the work was unsatisfactory, therefore, the appellant did not know what was the real cause of the termination of his service. The learned trial Judge should not have dismissed the petition without inviting evidence on the point whether actually the work of the appellant was unsatisfactory. Of course, if the respondent had succeeded in showing to the Court that there was justi fication for the termination of the services, the Court would have been justified in dismissing the petition of the appellant.

3. I, accordingly, accept the appeal and setting aside the impugned decision of the learned lower Court, remand the case with the, direction that opportunity be given to the parties to lead their evidence on the point whether actually the performance of the appellant was unsatisfactory and if so, to such an extent that he could not improve by the extension of the period of probation. After giving opportunity to the parties to produce evidence, the case be decided afresh,

A. E.

Appeal accepted.

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