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Appeal No. LHR‑724 of 1984, decided on 23rd July, 1985.

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

-----S.Os 12(5) & 15(4) ----Termination of services---probationer---show cause notice and holding of probationer is on grounds of misconduct.

1979 P L C 201 rel.

‑‑S.O. 1‑‑Probation‑‑Contractual appointment for fixed period‑ Provisions of S.0.1 not applicable‑‑Contractual employee on completion of three months satisfactory service can claim continuity in service till expiry of contract period and not entitled to serve beyond such period‑ Employee serving on contract for about two years and subsequently brought in regular cadre against permanent post‑‑Probation, in circumstances, held, rightly treated from date of appointment on regular basis against permanent post and period of contractual service not countable towards probation.

1976 P L C 942 distinguished.

Asadullah Siddiqi for Appellant.

Anwar Ali Chaudhry for Respondent.

Date of hearing: 15th July, 1985.

The decision dated 17‑11‑1984 passed by the learned Presiding Officer, Punjab Labour Court No.2, Lahore has been challenged, whereby the respondent was directed to be re‑instated in service with back benefits.

2. The facts of the case are that the respondent applied for appointment on contract basis and he was, accordingly appointed vide order EXh. P.1, dated 30‑12‑1981 for two years. In July, 1982 the respondent applied for regularization of his service and vide order Exh.P.2, dated 20‑7‑1982 he was appointed as Feature Writer in Grade‑II of the Wage Board Award in the time scale of Rs.950‑50‑1,170‑60‑1,770 with effect from 1‑8‑1982 and was placed under probation for three months. The respondent during the period of probation wrote a feature in the newspaper to the effect. The appellant considered that this act of the respondent was detrimental to and embarrassing for the interest of the paper and thus vide order Exh.P.3 terminated his services on the ground that this work was not satisfactory.

3. The learned lower Court has held that the respondent was a probationer and directed the re‑instatement for the reason that allegations made against the respondent amounted to misconduct, therefore, charge‑sheet and holding of inquiry were necessary It has been argued by the learned counsel for the appellant that since the respondent was a probationer, charge‑sheeting and holding of inquiry was not necessary. Reliance has been placed upon 1979 P L C 201. The argument of the learned counsel is supported by the authority cited by him. The observations made are as under:‑

"The observation by the employer that 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 assignments given to him during a particular period. It is of the nature of a timely subjective dissatisfaction of the employer with the outcome of petitioners efforts in a particular direction but does in no way pronounce on his faculties or capabilities. That observation would not, therefore, affect the petitioner's career."

It has also been held that the services of the probationer could be terminated for unsatisfactory work without show‑cause notice. I have gone a step further and my observations while deciding such cases were that even if there is an allegation of misconduct against a probationer, charge‑sheeting and holding of inquiry are not necessary. Order 12 (5) is clear on the point. In the said clause probationers are not mentioned. It says that the services of a temporary or permanent workman cannot be terminated without following the procedure laid down in Order 15(3) where the allegation is of misconduct. The Legislature was aware while inserting clause 5 in Order 15 that by virtue of Order 1 persons employed against permanent vacancies remain under probation for three months. In spite of it probationers are not mentioned in clause 5 of Order 12 although temporary employees have been included. Intention of the Legislature is clear that so far as probationers are concerned, giving of show‑cause notice and holding of inquiry are not necessary even though they are terminated on the ground of misconduct. The learned counsel for the respondent has argued that initially the employment of the respondent on contract basis was illegal being against Order 1 of the Standing Orders Ordinance, 1968. The line of his argument is that vide Order 1 the person engaged on a post which continues for more than nine months are permanent before and a probationer after completing three months service satisfactorily becomes a permanent employee. The learned counsel further argued that the period for which the respondent worked on the previous post is to be counted and as the respondent served for more than one year and he completed the probationary period and thus, he had become permanent he was regularised as Feature Writer on 12‑7‑1982, therefore, without charge sheeting and holding of inquiry he could not be terminated or at least he could be reverted to the previous post. The argument is not tenable. Standing Orders Ordinance, 1968 does not exclude the Contract Act. Where the post is contractual for a fixed period and the person has been appointed under a contract for fixed period, Standing Order 1 is not applicable. In such cases if the employee has completed three months period satisfactorily, he can claim continuation in service till the expiry of the contract period but he cannot claim that he is I entitled to serve beyond the contractual period. In the present case the respondent on his application was brought in a regular cadre against a permanent post, therefore, Standing Order 1 became applicable and the period of probation was rightly fixed. The argument of the learned counsel for the respondent that the respondent had already become permanent and that probationary period of three months was wrongly fixed is not entertain-able, inasmuch as the learned lower Court has held that the respondent was a probationer and this finding has not been challenged by way of any cross‑objection. Since the respondent was a probationer, he was rightly terminated within the said period. The learned counsel for the respondent has cited 1976 PLC 942 but the same is distinguishable from the facts of the present case. A settlement was arrived at between the management and C.B.A., according to which, it was settled that certain number of posts be retrenched. The grievance of the worker was not mentioned in the notice of retrenchment, in support of which settlement was awarded, therefore, it was held that the said settlement was not binding upon the employer. It is apparent that it has not been observed that the said authority was that the employment on contract basis in violation of Order 1 of the Standing Orders Ordinance 1968, therefore, the employment for the fixed period is not against any law. The learned lower Court has, therefore, wrongly held that issuing of charge‑sheet and holding of inquiry were necessary for the termination of service.

4. As a result of the observations made above, the appeal is accepted and setting aside the impugned decision, the order of termination is revived and the grievance petition of the respondent is dismissed.

A. E.

Appeal accepted.

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