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Appeal No. RI‑337 of 1980, decided on 28th April, 1982.

‑‑ S. 25‑A read with First Wage Commission Award, Para. 233 Termination of service during probation‑Interference by Labour Court‑Service of probationer terminable during probation period if work found unsatisfactory ‑ Powers of termination cannot be exercised arbitrarily ‑ Work must actually have been found unsatisfactory‑Labour Court has jurisdiction to interfere where it is not proved that actually work was not satisfactory ‑ Bank employee (cashier) alleged to have refused to accept a challan when he had closed summary of daily transaction ‑ Such refusal not contrary to rules of Bank rather quite in accordance with such rules‑Order of termination of service during probationary period simply by recording "on ground of unsatisfactory work", in circum stances, held, not sustainable.

‑‑ Ss. 25‑A & 38(3)‑Re‑instatement ‑ Back benefits ‑ Impugned termination order found illegal‑Proceedings remaining pending before Labour Court for four years and before Appellate Tribunal for two years‑Parties not responsible for such delay ‑ Appellate Tribunal, in circumstances, allowing only fifty per cent. of back benefits but full benefits of increments for purposes of fixation of pay only.

Javed Rashid for Appellant.

Ch. Altaf Hussain for Respondent.

Date of hearing : 20th January, 1982.

This appeal arises from the decision, dated 17th March, 1980 passed by the learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi. whereby the grievance petition of the appellant was dismissed.

2. The appellant was employed as Cashier on 3rd August, 1976. On 8th December, 1976 before the expiry of the probationary period his services were terminated on the ground of his work being unsatisfactory. The opinion that his work was unsatisfactory was based upon two complaints made in respect of one and the same incident. The complaints are Exhs. R. 1 and R. 2. Mr. Anwar Mahmood Sheikh, Senior Manager Development, Mr. Qurban Hussain Malik, Zonal Inspector, Zonal Office, Islamabad are alleged to be on tour and were present in the Murree Branch of the National Bank on 30th October, 1976 where the appellant was employed as Cashier. The Head Cashier in their presence complained to the Zonal Manager that the appellant had refused to accept receipt challans of an army unit. On the request of the Head Cashier the Manager went to the appellant to pursuade him to accept the challans. After a short while the Manager came back and on the enquiry of Messrs Anwar Mahmood Sheikh and Qurban Hussain Malik told him that the needful had been done, but the Manager complained that the appellant was non co‑operative and was creating problems. The two persons mentioned above are alleged to have summoned the appellant and made him under stand that he should be co‑operative with his superiors and seniors and to the clients. According to them, the appellant had denied the allegation that he had refused to accept the challans, but had informed the Head Cashier that he had closed the summary of his day's transaction. These two persons who had made complaints Exhs. R. 1 and R. 2 were not examined before the lower Court. The Manager under whom the appellant was working admittedly did not make any complaint against him in writing, nor he was examined. If refusal on the part of the appellant to receive the receipt challans amounted to misconduct as being disobedience to a lawful order of his superior, then charge‑sheeting and making an enquiry according to paragraph 258 of the First Wage Commission Award were necessary. If conversely it is to be taken that the Head Cashier was not his boss then the ground of refusal to receive the receipt challans was sufficient. The ground given by the appellant was that he had closed the summary of that day's transaction. If after closing the summary he had restarted the business of the Bank, it would have appeared that he had shown undue indulgence for the sake of corrup tion. He may have been proceeded against for misconduct. When the Manager asked him to accept the receipt challans, he readily obeyed. So even if it be said that the complaints Exhs. R. 1 and R. 2 are correct no non‑co‑operation or allegation of refusal to perform his duty were proved. The appellant was justified in not taking the responsibility of receiving the receipt challans after closing the summary. Only under the advice of some responsible Officer i.e. Manager, he could do so and thus he actually did.

3. No doubt during the probationary period the service of a proba tioner can be terminated, if his work has been found to be unsatisfactory; but this power is not arbitrary. The intention of Legislature is not that ground of unsatisfactory work be recorded and services be terminated. The intention obviously is that actually the work of the incumbent concerned must have been found as unsatisfactory. Where it is not proved A that actually the work was not satisfactory, the Labour Courts have jurisdiction to interfere and set aside such an‑order which is not warranted by rules. Paragraph 233 did not stand included in the decisions of the wage Commission at the relevant time and even if it be said that it is effective, the power given to the authority to terminate the services can be exercised only in cases whether the incumbent has shown unsatisfactory progress during the period of probation. It is, therefore, necessary to decide before terminating the services that actually his work was unsatis factory. In the present case, as observed above, there is no material on the record to show that in reality the work of the appellant was unsatis factory. A person who abides by the rules cannot be said to have worked unsatisfactorily. The work of the appellant was found unsatisfactory simply for the reason that he on the asking of the Head Cashier refused to go against the rules to reopen the transaction of the Bank after closing his summary. This was not the case of the respondent that before the time fixed for closing the summary, the appellant had stopped entertaining receipt challans. If the appellant had accepted the receipt challans, obviously in order to make entry he would have reopened the transaction and the summary. This appears to be the reason that the Manager con cerned never recorded any order against the appellant to the effect that his work was unsatisfactory.

4. The respondent has filed cross objections also, which are to the effect that the grievance petition having not been made within two months was time‑barred ; that the petition was not competent as having been filed without availing statutory remedy of departmental appeal ; and that as there was no right guaranteed or secured by any law, award or settlement, the Labour Court had no jurisdiction and that no grievance notice was given. According to the cross objections, these points were not considered by the Labour Court. All these objections are frivolous. The order of dismissal was served upon the appellant on 16th December, 1976 vide Exh. A‑4 and the grievance petition was made on 10th February, 1977. According to subsection (6) of section 25‑A which at that time was present, the grievance petition could be made in cases of dismissal or termination within two months of the order of termination or dismissal and thus the petition was within time. In the Wage Commission Award there is a provision of appeal but there is no mandatory provision that without exhausting the said departmental remedy, the workman concerned cannot directly go to the Labour Court. This objection is also frivolous that the Labour Court did not consider that there was no right guaranteed or secured to the appellant by any law, award or settlement. As I have discussed above, it is necessary to show that in reality the work of the person to be removed is unsatisfactory which in the present case was not proved. The last objection that the grievance notice was not served is fallacious. Under subsection (6) of section 25‑A which at the relevant time was present in cases of dismissal or removal from service, giving of grievance notice was not necessary, if the petition was brought within two months of the service of the order of dismissal or termination or within two months of the commencement of the amending Ordinance by which subsection (6) was inserted in section 25‑A, whichever was later. Since the petition was made within two months of the service of the order of termination, service of grievance notice was not necessary. I, therefore, do not find any force in the cross objections.

5. As a result of the observations made above, I accept the appeal and setting aside the impugned decision of the learned lower Court and the order of termination, direct the reinstatement of the appellant in service. But for the illegal order of termination, the appellant would have worked and received his wages, so he has been deprived of the benefits because of the illegal order. However, since the case remained pending before the lower Court for four years and the appeal remained pending in this Court for two years, for which delay the parties obviously are not responsible, I am not inclined to allow full back benefits and direct that fifty per cent back benefits be paid to the appellant. However, while fixing his pay full increments falling due to him during the absence of his service will be added but he will be entitled to arrears only to fifty per cent. Cross objections are dismissed.

A. E.

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