' This is an appeal against the impugned order, dated 2-8-1984, passed by the Sind Labour Court No.11 at Karachi, who by his order had allowed the grievance petition of the respondent, Abu Bakar, filed under section 25-A, I.R.O., 1969 and re-instated him with full back benefits.
2. The facts briefly are that the respondent, Abu Bakar was a permanent workman with the appellant's factory for more than five years and actively participated in the trade union activities.
He was falsely charged on 7-3-1983 and after the domestic enquiry was dismissed from service on 14-4-1983. On the intervention of the Joint Director Labour (West Division), Karachi, the respondent was taken back in the service on 6-8-1983, and he started attending to his duties. However, on 20- 10-1983, the respondent was not allowed to attend to his duties and this fact was reported to the General Secretary of the Collective Bargaining Agent Union. He was not allowed to resume his duties on 22nd and 23rd October, 1983 and on 23-10-1983, he delivered an application to the appellants. The appellants by their letter, dated 25-10-1983 informed the respondent that his performance was not found upto the mark and since he was on probation, his services were terminated. The respondent submitted the grievance notice to the appellants but the appellants refused to do so. The respondent further submitted in the grievance application that the action of the appellants was unjust, mala fide and illegal.
3. The appellants in their reply statement admitted the employment of the respondent as a worker in their factory since 29-12-1977. However, the appellants denied the fact of having charge-sheeted the respondent falsely. They denied the fact that the enquiry was mala fide and illegal. They admitted that the appellants re-employed the respondent as a general worker with effect from 6- 8-1983 on three months probation and since during the probationary period his performance was not upto the mark, therefore, his services were terminated on 25-10-1983.
4. In the Lower Court, an affidavit was filed by the respondent and he was cross-examined by the learned Advocate for the appellants, and also an affidavit of one Mohammad Nawaz was filed by the respondent who was also cross-examined by the appellants. On behalf of the appellants, one Jamal Yousuf, Factory Manager filed the affidavit.
5. I have heard the learned counsel, Mr. Rafat Usmani, Advocate for the appellants and Mr. Nayab Naqvi, Advocate, for the respondent. The moot point which requires consideration is whether the respondent was re-employed after the intervention of the Joint Director Labour purely on probation or it means that the re-employment was the re-instatement of the worker. A domestic enquiry was held in which this worker, who was a permanent worker, was dismissed but some settlement was arrived at on the intervention of the Joint Director Labour and he was re-employed. The order of re- employment does not carry the definite work that he would be on 'probation' for three months. The re-employment in the ordinary context would mean that he is re-instated and the domestic enquiry is annulled by way of a compromise. The word "probation" first occurs in the letter, dated 25-10-1983. This letter is the letter of termination where for the first time the word "probation" has been used. The circumstances of the compromise and settlement between the management and the Joint Director Labour indicate that the worker is re-instated and the domestic enquiry is not given effect to. This would be the ordinary meaning unless there is a clear cut order of re- employment as a "probationer". Such a clear cut order is not available on record. The Labour Court has analysed the evidence and has come to the following conclusion-- "I have no doubt in my mind that the employment of the applicant with effect from 6-8-1983 amounted to taking him back in the service as a permanent worker". I feel that his is right. The appellants have made a feable effort by producing photostat copies of Salary Bills to show that no Provident Fund was being deducted from the respondent's salary etc. This the Labour Court has disbelieved the photostat copies which were not true copies and this was later on produced by the appellants to substantiate their case that the respondent was re-employed as a 'probationer'. This is not believed by the learned Labour Court. The only inference which can legitimately be drawn is that the management originally on the insistance of the Collective Bargaining Agent and the Joint Director Labour, settled the dispute but with an ulterior motive A that in the course of re- employment, he would be dismissed without enquiry. Thus, my conclusion is that the respondent was not a probationer and his dismissal as such was illegal without fair domestic enquiry.
6. I am referred to an Authority, reported in PLD 1979 Kar. 204,. Wherein the meaning of "probationer" or "badli" workman is given. In this authority, the maxim: expression unions est exclusion alterius (mention of one is exclusion of another) is enunciated. It may be noted that Standing Order 15 mentions the permanent and temporary workman against whom allegations of misconduct are to be proved by a domestic enquiry. There is total omission of probationer and badli workman in the Standing Order 12, Part 5. But this authority is applicable only when a clear cut probationer is involved. In this case a probationer is not involved.
7. In the result, the impugned order could be well-sustained and the appeal has no force, Appeal is, therefore, dismissed.