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Applications Nos. 126, 232, 262 and 263 of 1983, decided on 7^th December, 1983

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

‑‑‑S. Os. 1 (d) & 12(3)‑‑Industrial Relations Ordinance (XXIII of 1969), S. 25‑A‑‑Badli workman‑‑Termination of service‑‑Notice not necessary but reason must be mentioned in written' order of termination‑‑Badli workman on termination has right of cause of action to come before Labour Court and Labour Court has to see whether termination was in accordance with law and discretion based on judicial principles‑‑Badli workman can be on daily wages or otherwise but such appointment is of purely stop‑gap ad hoc nature creating no vested right of permanency though a Badli workman can claim to be given preference on basis of good performance and suitability if incumbent of post not returning back‑‑Badli conductor engaged on daily wages‑‑Services terminated before serving for 90 days‑‑Termination order stating "services no longer required"‑‑Such words, held, suffice to indicate (i) actual incumbent returned, or (ii) vehicles were short, or (iii) administrative convenience‑‑Termination order, in circumstances, held, not exception able‑‑Termination made without written order indicating reasons‑ Termination in circumstances, held, illegal‑‑Management however directed to give preference to ousted Badli workers in case of future vacancies.

1979 P L C 475, 1980 N L R, 143 and 1979 P L C 131 rel.

Chaudhry & Co. for Applicant No. 2.

S.P. Lodhi Representative for Applicants Nos. 1, 3 and 4.

Ghulam Hussain for Respondents.

These are four applications, filed by Badli conductors, challenging their termination, from the employment that this action by K.T.C. was not in accordance with the law.

2. Ghulam Murtaza claims that he has been in service of the respondent Transport Corporation, when it was Omni Bus Service. The services of the applicants were assured of the permanent nature, but the Karachi Transport Corporation has followed illegal practice for asking them to file fresh application, periodically before the completion of 90 days and thereby terminate the services. Likewise the services of the applicant were terminated on 23‑5‑1983, without assigning any reason and many juniors have been retained against the senior peoples and there is new recruitment, therefore, this procedure is not only illegal but his termination be set aside.

3. Mr. Ghulam Murtaza has nowhere mentioned when he was appointed in the service of respondent.

4. Karachi Transport Corporation has supported the termination and states that the applicant did not work for 90 days and they were within the legal jurisdiction to terminate the services when he was Badli conductor. According to the Karachi Transport Corporation, he was appointed on 29‑3‑1983 at the rate of Rs.20 per day. He worked only for one day in the month of March, 1983, 27 days in April, 1983 and 22 days in May, 1983. They have also taken this defence that the respondent appoints staff as per requirement and in accordance with the provisions of law.

5. The next petition is of Mr. Muhammad Rustam. He also claims that he was appointed as Badli conductor on 6‑1‑1983, and his services were terminated on 31‑5‑1983 which procedure was illegal as his services were assured of permanent nature.

6. Respondent has supported the termination and contended that he was appointed on 8‑1‑1983 and removed from service on 31‑5‑1983, before completion of 90 days.

7. Third is the petition of Mr. Muhammad Ali. He claims that he was appointed on 8‑1‑1981 and removed from service on 22‑4‑1983 and this termination was illegal when he was assured of the post of permanent nature.

8. Respondent has supported the termination and stated that he was appointed on 17‑10‑1982 and removed on 21‑4‑1983. The termination was legal and in accordance with the provisions of Standing Orders Ordinance.

9. The fourth petition is filed by Hafizur Rehman, on the identical facts except the applicant claims that he was appointed as Badli conductor on 8‑12‑1982 and his services were terminated on 11‑4‑1983.

10. Respondent has admitted that he was on daily wages of Rs.20, and was appointed on 8‑12‑1982. His work was not satisfactory because he was involved in fraud case and fined Rs.20. He has not shown when he was removed from service, but he has given number of days in Affidavit of District Manager, which shows that he worked for 89 days. He has also produced the number of buses in particular depot, to be 45 only but due to defect 34 buses were on the routes in the both shifts. He has shown statement, showing the average of the dispatch, from 1‑7‑1983 to 16‑7‑1983, and according to this calculation, only 90 could be the conductors, and presently there are 112 conductors on the road, which are surplus.

11. All these petitions are taken at one time as the question of law is identical in all respects whether Badli conductor on daily wages, has the vested right or a guaranteed right, and what is the effect of Badli conductor on its termination.

12. Before I refer to the factual aspect in each petition, I refer to legal aspect regarding these classified services.

13. Standing Orders Ordinance defines workman means any person employed in any industry or commercial establishment to do any skilled or unskilled work, manual or clerical work for hire or reward. Industrial Relations Ordinance defines, worker, worker means any person not falling within the definition of employer, employed in industry or establishment for hire or reward. Section 25‑A, I.R.O., provides that a worker may bring his grievance in respect of any right, guaranteed or secured to him by law under award or settlement. Standing Orders further classify workman as permanent, probationer, Badli, temporary, or apprentice. Standing Order 12 further provides that for terminating employment of a permanent workman for any reason other than misconduct, one month notice shall be given. Sub‑Order (2) provides that no temporary workman, whether monthly rate, daily rate, probations or Badli, shall be entitled to any notice. Sub‑Order (3) provides that services of workman shall not be terminated except by order in writing, which shall explicitly state the reason. Sub‑Order (4) provides, when the services of any workman are terminated, the wages earned by him shall be paid before the expiry of the second falling day. Sub‑Order 5 provides that the services of permanent or temporary workman shall not be terminated on the ground of misconduct other than in the manner Standing Order 15 prescribed. Sub‑Order 15(4) provides that no order of dismissal shall be made unless workman is informed in writing of the alleged misconduct and is given opportunity to explain.

14. From the reading of these definitions, it appears that the distinction has been laid down that the worker includes any person who is employed in the industry excluding those who are otherwise classified as workman, namely, permanent, probationer, temporary, apprentice. Further, if Standing Order 12 is referred as an aid, to the meaning reached, to those above classified services, Standing Order 12 in all its sub‑Orders, speaks of the elucidation of the definition of workman and its procedural conduct of its governance in the matter of his termination. But sub‑Order (4), if read in connective with all its sub‑Orders, in which, the different categories are classified, namely permanent workman, temporary workman, and Badli or probationer, the word workman, is used in all its sub‑Orders except in sub‑Order (4) where it emphasises the distinction where the word is used any workman which is not otherwise in the above sub‑Orders. In other words, it means whether those sub‑Orders govern both temporary and permanent workman, or workman is still classified in different sense. If the word workman is given in definition namely, permanent, temporary, probationer, Badli, apprentice, word workman, also be understood in the context as used in the Standing Order 15 also or its sub‑Orders, because the word, if any workman as given in sub‑rule (4) of the Standing Order 12, appears to be differently placed. It further appears that sub‑Standing Order (5) further has classified the services that services of permanent workman or temporary, shall not be terminated on the ground of misconduct, otherwise, than in the manner, as Standing Order 15 prescribed. At the same time, the word temporary workman, though has included the category of probationer or a Badli, in its separate sub‑Order (2) distinctly from sub‑Order (1) of Standing Order (12) it thereby involves that there are two categories of temporary workman, monthly rate, daily rate and probationer and Badli, otherwise its status has in no way changed from the definition of workman, regarding different classifications given in the definition of section 2. The difficulty, now; is placed whether the word workman as understood in Standing Order 15, will also cover all classified services or only those services which are permanent or temporary, as understood in sub‑Order (5) of Standing Order 12.

15. The reading of Standing Order 12, in my opinion, appear to lay down distinction, firstly, whether the temporary workman, namely daily rate and monthly rate or piece rate, shall not be entitled to notice. Secondly no probationer or Badli shall be entitled to notice, if services are terminated. Thirdly if the services are terminated of temporary workman, excluding the category of probationer and Badli, their services shall not be terminated on the ground of misconduct, except, as understood in Standing Order 15. Fourthly, services of any workman, if referred, and has no otherwise separate definitions, in my opinion means whether he be permanent, temporary, probationer or apprentice, shall be paid dues and finally the services of workman, whether be permanent, temporary probationer or Badli if are terminated, must state the reason. In other words, the workman if understood in Standing Order 15, refers permanently to two categories, namely permanent or temporary, excluding the category of probationer or Badli by use of word and in the definition of temporary workman, making it as a special category. I find that the status of these classified services of probationer and Badli are even found rather of ad hoc nature. Because of its temporary duration.

16. But what is the safeguard, which appears to be in these cases of services which is given in sub‑Order (3) of Standing Order 12, which differentiate in its two procedural intentions. Firstly that the notice, in such services, shall not be mandatory. But at the same time, the same sub‑Order finds that the employer when terminates the services of workman, must state the reason. Now in this context, if it is argued that the termination may be oral when no notice is mandatory, requirement, giving the discretion to the employer, which is not otherwise in the case of termination of permanent workman or given in Standing Order 12 or temporary workman of the category I have stated. In the opinion of this Court, as I read and understand its meaning, and the context in which it is shown, even if such classified services if terminated by the employer, the termination is still to be examined whether the impugned termination in the classified categories also fit, in within, the definition given in Standing Order section 2, for example, whether the services of permanent workman, probationer, Badli or temporary workman, were terminated in accordance with, is object, and the legal requirement or in the context of the discretion to satisfy its judicial principles embodied in the definition, in the different set of the facts and the rules governing the statutory corporations, and autonomous bodies, in respect of trade union activities, governed by the Labour Laws, applicable to it.

17. If notice is not necessary for termination even in those classified services like probationer or Badli worker and in other cases, notice is a mandatory, it appears that this category of workers is placed special legal significance, completely differentiating its status even less than temporary workman as defined. If the statement of reason is mandatory requirement in respect of all categories, irrespective probationer or Badli, it appears that the statement of reason is also the legal emphasis in the sub‑Order of Standing Order 12, which is to be read as a whole in the context, except where the different language is used, for example, there is also emphasis on the word "any workman", which, otherwise, not in other sub‑Orders. All the sub‑Orders, therefore, leave no discrimination, of the exclusion of the clause of the statement of reasons even in cases of probationer or Badli, except it appears that the discretion is given to the employer to the extent of dispensation of notice. In other words, the termination may be oral or otherwise reasons of this termination must be given to the person effected, to indicate in the petition under section 25‑A, I.R.O., where if the worker is given right to come to the Court, for any guaranteed right, the probationer or Badli also can come to the Court to challenge A the termination, whether it was termination of Badli conductor in accordance with law. Indeed, in my opinion, the probationer or Badli worker are like stop‑gap arrangements based on the Rules and policy of particular organization against the vacancy of permanent post or probationer as defined. But in my opinion, they have no vested right to be retained, except to claim permanency, if the employer finds them to retain on the basis of merits performance and to fill the vacancy if the particular person has no intention to come against the permanent post or against the person who is temporarily absent or remains absent. So, that discretion given to the employer of the dispensation of the notice of termination appears to be unfettered, but subject to this restricted safeguard that the discretion exercised was not on the whims and consideration of the employer to detriment of the worker when he also has the right to claim employment, but not to force the employer to retain him and also to request for preference. In these petitions, the termination order has shown the termination on this ground that they are ho longer required. According to the Karachi Transport Corporation it appears that the word "no longer required" seems to be based on the existence of the vehicles and other administrative inconveniences. This word has also been the subject‑matter of controversy by the Labour Representatives. In this context, I also refer to the decision of 1979 P L C 475. This is with reference to Standing Order 12(3). It was held by His Lordship of Appellate Tribunal, that order in writing indicating the explicit reasons, is mandatory. In this case, the workman was employed temporarily for particular project. In this decision His Lordship further observed that the services of a workman whether permanent, temporary, probationer or Badli, cannot be terminated except by order in writing, which, show the explicit reasons for termination. In the facts of those cases, the petitioner was temporary workman for specific project and claimed to be permanent workman, and no such order was passed, giving the reasons. In the present petitions, the facts are different of Badli worker, but this principle is also extended by showing the word Badli in the decision, in in terms of the reference of Standing Order 12(3). There is another Decision of Punjab Labour Appellate Tribunal, His Lordship held that the termination order passed without assigning reasons does not satisfy the requirements of Standing Order 12(3). In this case, the applicant was a helper and his termination order simply shown, that services were terminated with immediate effect. There was no reason at all, given in the termination order. There is another Decision of N L R 1980 p. 143. The facts in it somewhat, are identical. In this decision, reasons were not given but it was stated that the service is no longer required as it is in the case of K.T.C. in cases of Badli workers.

18.The facts, to this extent, were different that the services were terminated verbally and it was contended that the respondent was not a workman. Although it was not the' case of Badli worker, but the principle of Standing Order 12(3) was involved. There is another Decision of 1979 P L C 131. In this case also, it was emphasised that the order of termination must show the reasons. Appellant was in the permanent service and his services were terminated. The contention of other side was that he was not a workman but a Sales Representative. The principle of Standing Order 12(3) was involved, in all these decisions.

19. The learned representative of worker, has also produced the Decision of His Lordships of the Labour Appellate Tribunal Sind, that word no longer required, is not sufficient. In this case, the facts were that the applicant was on contract and his services were prematurely terminated.

20. With this law,, it appears that the statement of reasons is the corner‑stone of the Standing Order 12. It is nowhere defined by the 1B representative of the worker that what is the meaning of explicit. The word explicit appears to signify explanation. In other words, the reasons must be explained. In my opinion, it does not mean that detailed reasons be given. In the decision, which has quoted of the Tribunal, in my opinion, the facts were that the services were prematurely terminated before the period of contract and it was held that the action was arbitrary.

21. So in the opinion of this Court, if the word "no longer required" is used it appears to indicate that the person, against whom, the post was filled is returned, or the vehicles were short, or the ground of administrative conveniences, looking to the post of ad hoc nature for termination.

22. It is next contended that Badli conductors are made also permanent in K.T.C. Service.

23. It all depends on the day, they worked, by the terms of offer of appointment being on daily wages and what pleases the employer to be retained them if they are of good performance, or conform to suitability. The employer cannot claim the vested right of permanency that he should be retained, there is nowhere in the service that vested rights can be claimed. But he is right to claim, that he made good performance and be retained.

24. As regards the selection after the termination, it is also the privilege of employer of fresh recruitment on the availability of vehicles and its need or capacity. If the junior is retained, prior to termination of a senior post, it amounts to mala fide action, but it is after termination, it is fresh selection.

25. Finally it is argued that the practice found by the K.T. C. is, that they invite application and terminate employment of this type of service and, therefore, it is a mala fide action. In my opinion, that if the rules enable the employer to frame his policy, in the public service, it cannot be said that employer has no jurisdiction, within its own sphere of facility to run the organization in the manner as he finds of utility and above all in the interest of public, like Transport Service, where there are accidents, loss to the vehicles, etc. The action can be mala fide, if the employer knowingly kept junior persons and does not give preference to the persons who are affected. If the appointment order is an offer and accepted by the workman, at the time of his fresh entry, he is bound by the conditions, he 'accepts, till he has qualified and experience of 9 months or 3 months, as the case may be I have seen Decision of 1980 P L D 323, where His Lordship of Supreme Court has emphasised, on the word "likely to be", it was held that the workman cannot become a permanent workman if the work for which he came to be employed, expected to be finished within 9 months, but was completed after 9 months. In this decision, there is reference also that if there is a contract outside the provisions, of law, for example, the employer wants to appoint a workman on purely temporary basis, he cannot contract out of his obligation under this Ordinance.

26. In view of this decision, if the word Badli is used in the definition and the word daily wages is nowhere defined in the definition of Badli This is also the question, whether applicant comes within the definition of Badli or some other, definition, for example, the temporary workman of daily rate, which is the post more than that of Badli, of purely temporary. For the reason that notice may not be necessary, but still distinct from the probationer, Badli, whether if there is a misconduct, he can be proceeded. So, it is settled position that in view of this decision, the Transport Service, whether can go outside the provisions of law. Even the workman is appointed on purely temporary basis, but nevertheless, the position of that person becomes temporary workman on daily wages, subject to certain advantages but cannot even claim that if work is not completed within 9 months, he becomes a permanent workman.

27. Now I come to the facts of each case, whether each one has completed 90 days, Mr. Muhammad Ali says, that he was conductor on daily wages on 16‑10‑1982, his services were terminated on 8‑1‑1983, he again made application on 30‑1‑1983, and his services were again terminated on 21‑4‑1983.

28. Mr. Hafizur Rehman states that he worked for 21 days in January 1983, he worked for 15 days in February, 1983. In April, 1983, he worked for only 9 days. He has denied the suggestion of K.T. C. that K.T.C. has only 45 vehicles. He has also shown unawareness, whether the K.T.C. had only 35 buses. District Manager is also examined who has said that when he had taken charge, in February 1982, there were 50 buses. In cross‑examination, he has said that he was taken in employment on 8th of December 1982, and his services; were terminated on 12‑4‑1983. Mr. Muhammad Siddiqi has also given the details of days, .he worked. He states that in December, 1982, he, worked 17 days. In January, 1983, he has worked for 21 days. In February, 1983, he has worked for 15 days. In March, 1983, he has worked for 27 days, and in April, 1983 for 9 days. He has further explained that Schedule Number of buses is 45, but due to defect, only 34 buses are sent on routes, showing the average from 1‑7‑1983 to 16‑7‑1983. Mr. Ghulam Murtaza has said that he made application for appointment on 27‑3‑1983. He has not received the appointment letter but admits the signatures, he was removed from service on 23‑5‑1983, he worked for one day in March 1983. He worked for 27 days in April 1983. He has denied that he worked only 22 days in the month of May according to him he worked for 23 days. Mr. Muhammad Rustam states that he was appointed on 6‑1‑1983, and removed from service on 20‑3‑1983. He was appointed again on 18‑4‑1983, and again removed on 31‑5‑1983. All they admit also that they received T.S.‑6 forms, whenever they report for duty.

29. So, if the public utility service, like the work of limited period, nor exceeding nine the petitioners, if taken in the same definition, of temporary is used in Standing Order 12, their position will be that of Badli conductors, which is also purely of ad hoc nature, through not defining that of Budh shall be on daily wages but in one there is time limitation and other, there is time that the person against whom the post is to be filled, will be temporary absent and notice in both the ways for the ways is not necessary for the temporisation.

30. In my opinion, the appointment orders, as Badli conductor, is not in violation of Standing Order 3. Similarly, the words "no Longer required" suffice to indicate in the public transport service that either the person against whom the post was filled, he has returned or the administrative convenience, in view of the vehicles availability. Further, ' may mention here that the word Badli, used in definition, also signifies to mean that he should be employed for three months, continuously, to claim the permanency of workman status, for example, petitioners Rustam Ali, Muhammad Ali and Ghulam Murtaza, have not completed 90 days. In other words, if there is any cause of action, on the first appointment, as the case may be, they did not prefer the grievance petition, in the Labour Court, accepted their appointments on the terms and conditions. Time limitation is a valuable right accrued to the employer under section 25‑A. Even clause (6), section 25‑A, if invoked, he can come directly, within two months, from the first date of cause of action. Whether by the second appointment, the previous cause of action terminated by estoppel, by conduct.

31. With this background, I now deal with the facts of each case, the case of Hafizur Rehman, is distinguishable, he was appointed on 8‑12‑1982, but nowhere the respondent, in their reply statement, have shown his termination, which, according to him, is termination on 12‑4‑1983. Mr. Hafizur Rehman has cross‑examined but no question was suggested to him, for the month of March, he did duty. He has denied that he worked 17 days in December, but admits that he worked for 20 days in January, 1983 and 21 days in February, 1983 and in April, 1983 he worked for 9 days. Respondent has shown that he worked for 17 days in December, in January, 21 days, in February 15 days, March 27 days and in April, 1983, 9 days, in all, he has shown that he worked for 89 days. Respondent has also made this statement on oath. Respondent has also shown buses on road in two shifts, 45 in December, 1982, 45 in February, 1983, 30 in March, 1983 and 32 in April, 1983.

32. In the first place, number of buses is not relevant, because his position is that of Badli conductor, he cannot claim as vested right. Why the respondent has not produced the termination letter or the appointment letter in this particular case, the point again arises whether the respondent did terminate service of Mr. Hafizur Rehman by stating the reasons as required by law, or to be presumed that he did not issue reasons and, therefore, no document was produced. His application is allowed for reinstatement only on this ground, that the respondent had to state the reasons otherwise the termination was wrongful. As regards three other cases, for example, in case of Muhammad Rustam, if he was removed on 20‑3‑1983, his cause of action terminated, the moment, he lost the time limitation by filing grievance petition. His next termination was on 30‑5‑1983, where he has not completed 90 days, on the second appointment, and also acquired, the first termination by conduct.

33. In the case of Muhammad Ali, first he was appointed on 16‑10‑1982, and removed on 8‑1‑1983, again appointed on 31‑1‑1983, and second time terminated on 21‑4‑1983. If he did not file grievance petition, he also lost the period of limitation.

34. In the case of Ghulam Murtaza, his first appointment was on 27‑3‑1983, and removed from service on 23‑5‑1983, he had not completed 90 days. He admits that he worked for one day in March, 1983, 27 days in April, 1983 and according to him, he worked 23 days in May. 1983. Although respondent has denied. He has also stated that he was appointed on permanent basis on 1‑7‑1980, but he has not produced any document in proof of appointment, or produced T.S.‑6 Form to show that he has been working more than 90 days in continuity, to claim the status of permanent workman. I may also mention here, that first, denied the signatures and subsequently accepted his signatures on the appointment. Therefore, he says that he worked for 90 days. The burden is on him, to prove when he could produce T.S.‑6 Forms to show the mark of his attendance.

35. Consequently,, he has no cause of action His post is of Badh conductor, they rightly terminated.

36. In the result, all the petitions, are dismissed, except the petition of Hafizur Rehman, which is of different facts. Although, Badli conductors were riot entitled to any notice, and their position is the same like that of temporary workman, namely, the Badli conductor. They cannot claim vested right, that they should be retained, but they have right to claim if they have given good performance, suitability and any settlement, between the union and the transport service by their mutual agreement. However, the respondent must keep in view that if any post falls vacant, they should be entitled to preference.

37. Following are the points, observed by the Court:‑‑

(i) No notice is necessary in case of Badli conductor or probationer

(ii) No notice is necessary in case of temporary workman.

(iii) The statement of the reason is most important requirement in every termination, whether be of probationer, Badli or temporary workman, or any workman.

(iv) Only temporary workman, is proceeded on the ground of misconduct as in case of permanent workman, but not the probationer or Badli.

(v) Even the Badli or probationer, if removed from service, he has right of cause of action to challenge the order in the Court, and it is for the Court to see whether impugned termination was in accordance with discretion, based on judicial principles, and in accordance, within the definition of Standing Orders.

(vi) In the opinion of this Court, probationer or Badli are of ad hoc nature, they cannot claim vested right. They can only claim that they should be given preference on good performance, and suitability, or the person, who is not returned.

(vii) The word Badh is nowhere defined that he is on daily wages, so also the temporary workman is engaged on the work within the limited period. Both the posts are of ad hoc nature, but the position of Badli worker is still purely of temporary nature.

A.E.

Orders accordingly

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