This Constitutional petition is directed against the order of a learned Labour Court, Karachi, passed on 30-7-1974, whereby it has confirmed the order of the Junior Labour Court, holding that the termination of services of respondent No. 1 by the petitioner herein was invalid, and accordingly directed the re-instatement of respondent No. 1 with back benefits.
2. The facts, as found by the two Labour Courts, are that respondent No. 1 was employed by the petitioner Textile Mills as a Weaver, originally, in 1970, but in August, 1972, his services were terminated on account of his continued absence, as he was arrested in a criminal case. After his release, he was appointed afresh on 25 .9-1973, and his services were terminated on 13-12-1973, that is within 3 months of his second employment. On these facts, both the Labour Courts have held that his second appointment was a fresh appointment and since he had not completed 3 months service in his appointment, before termination of the said service, he is deemed to be a probationer for the purposes of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter referred to as the Standing Orders Ordinance. This view is undoubtedly correct. In any case, it has not been challenged.
3. Both the Labour Courts, however, have held that since the termina--tion of employment of respondent No. 1 was on allegations of misconduct and not termination simpliciter, the termination could only be effected after an enquiry as contemplated by Standing Order 15. It appears from the order of the Appellate Labour Court that the services of respondent No, 1 were terminated on account of complaints being received against him that he used to remain absent from duties and was also negligent in the discharge of his duties, which allegations, in the view of the two Labour Courts amount to charges of misconduct.
4. The only question thus which falls to be considered is whether under the Standing Orders a probationer's services cannot be terminated for reasons of misconduct except after holding an enquiry. Standing Order 12 deals with the termination of employment of different clauses of workmen, Clause I of the said Order provides that one month's notice is required to be given to permanent workmen if his services are terminated for reasons other than misconduct. Clause 2 of the said Order provides that no notice is required to be given to a temporary workman, a probationer and a Badli worker for terminating his services. It may be pointed out that in the case of these three clauses of workmen no distinction is marlin between termination of service for misconduct and termination for any other cause, as in the case of permanent workman. However, as provided by clause 5 of this Order, the services of a permanent or temporary workmen cannot be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15. This latter order, it may be pointed out, provides for a due enquiry before termination of services of a workman. As this clause only refers to permanent and temporary workmen, the obvious inference is that the Legislature only intended to give protection against termination of service on the ground of misconduct, except after due enquiry under Standing Order 15, to two classes of workman only, that is permanent and temporary. The absence of reference to probationers and Badli workmen in this clause is significant and suggests that the latter two classes of workmen are no entitled to an enquiry under Standing Order 15 before their services are terminated even for reasons of misconduct. If the Legislature had intended to give similar protection to probationers and Badli workmen, it is not conceivable that the clause would have referred only to permanent and temporary workmen and omitted all reference to probationers and Badli workmen. The omission in the clause of reference: to these two classes of workmen is all the more significant when the order makes detailed provisions about the termination of services of each class of workmen. This appears to me to be a clear case of the application of the maxim: Expressio unius exclusive alterius (mention of one is exclusion of the other).
5. The Supreme COLrt, by majority, applied the above maxim in the G. L. Bhatacharia v. State (PLD1964SC503) while interpreting the provisions of P. O. No. 26 of 1962, which provided that a sentence of fine imposed by a Military Court would not be subject to the power of remission available to the Provincial Govern--ment under Chapter XXIX, Cr. P. C. The Supreme Court, by majority, held that mention of fine only in the aforesaid P. O. Clearly indicates that prohibition against exercise of power of remission by the Provincial Government applied only to sentences imposed by the Military Courts. Similarly, in Lahore-- Sukheki Transport Society v. Commissioner of Income-tax (1973SCMR525) the Supreme Court held that express mention of exemption from payment of Excess Profits Tax in section 4 of the Excess Profits Tax Act, 1940, in respect of profits exempted from income-tax, gives clear indication of Legislative intent not to allow any other kind of exemption from payment of Excess Profits Tax. It was observed that the fact that one particular kind of exemption is mentioned in the First Proviso to section 4(1) of the above Act, is a good ground for holding that the Legislature did not intend to allow any other kind of exemption for the purpose of a charge under the said Act. No doubt, in the case of Sind Employees' Social Security Institu--tion v.
Adamjee Cotton Mills Ltd. (PLD1975SC32) the Supreme Court cautioned that the Exclusive maxim is not of universal application but looking to the language used in clause 5 of Standing Order 12, the mention of only permanent and temporary workmen and the total omission of probationer and Badli workmen in that clause, clearly indicates that the application of the clause is restricted to the former two clauses of workmen and the provisions relating to enquiry are not applicable to probationers and Badli workmen even in the case of termination of service on allegations of misconduct or for any other cause.
6. The upshot of the above discussion is that the petition must succeed as the two Labour Courts have taken an, erroneous view of the law. I would accordingly allow the petition with costs..