1. ORDER, The applicant was appointed as Jobber on 10-11-1984. He is said to have worked upto 4-2-1986 and from 5th onwards he proceeded on leave upto 8-2-1985, 9th was said to be weekly of and so when the applicant went on 10-2-1985 for duty, he was refused entry into the mill on the plea of termination. Grievance notice was, therefore, sent by him on the same date which was replied by the management on 18-2-1985 and, thereafter he approached this Court for his re-instatement with back benefits.
2. The respondents' plea in nutshell is that during his probation period his work was found unsatisfactory and so his services were terminated with effect from 5-2-1985. The termination letter was first offered to him in person on 4-2-1985 and on his refusal, the same was sent by, registered post A/D but the same was also returned unserved as refused. A number of other pleas have also been advanced, which I feel, would be irrelevant for the purposes of this case.
3. The applicant alone examined himself in support of his case, while on behalf of the respondent Messrs Syed Muzaffar Hussain, Personnel Manager, Shamsuddin, Welfare Officer, Muhammad Nadeem, Timekeeper, Abdul Ghaffoor Khan, Postman and Nusratullah Siddiqui, Shift Incharge were examined on behalf of the respondent. After evidence, I have heard Mr. Wasiullah Qureshi, Advocate for the applicant, and Mr. A. Ghani Khan, Advocate for' the Respondent. I have also examined the material on record.
4. According to Mr. Wasiullah, only two points need consideration in this case viz. Whether the applicant comes within the category of a workman and, if so, whether the termination letter was served on him as pleaded by the respondent. Mr. Wasiullah submits that firstly the appointment letter and the chart of duties of Supervisors brought on record as R/1 and R/2 respectively were not given to the applicant but even if the receipt of these documents is admitted on the basis of the applicants signature thereon, the applicant cannot be said to have performed supervisory duties.
5. Mr. Wasiullah, pointedly referred to clauses 2, 3, 9 and 10 of R/2 and submits that according to these duties it is quite evident that the applicant was supposed to perform manual duties throughout and so he would fall within the category of a workman. Mr. Ghani on the other hand, submits that these duties are incidental to the primary duties specifically mentioned in R/2 and if the same are read with the powers to be exercised as per R/2, the applicant would certainly be a Supervisors and not a worker.
6. I have gone through the contents of this R/2 as also the evidence on record and I feel that the submission of Mr. Wasiullah has substance. R/2 is in fact a printed matter with vague descriptions.
7. It is meant for a number of Supervisor whereas the applicant has only been shown a Jobber simpliciter. Assuming that the applicant was also considered to be covered by this R/2, I think that the duties which were required to be performed cannot be said to be incidental or casual but these duties were regularly performed and if it is so, the applicant would certainly be considered to have been working manually and so cannot be termed as a Supervisor with supervisory duties.
8. Moreover, no evidence was led to show that the applicant had ever exercised the supervisory powers as per R/2. On the contrary, Mr. Muzaffar Personnel Manager has admitted that the applicant was being marked on an attendance card issued by the time office. The attendance card is always given to the workers whereas as a recognized procedure, persons other than workman are required to sign on muster roll. Considering all these things together I would accept the submissions of Mr. Wasiullah and hold that the applicant was a workman for all intents and purposes and so his present petition is competent in law.
9. The most important question which now needs consideration is whether the impugned termination is in accordance with law. The plea of the applicant is that he had worked upto 4-2-1985 and thereafter proceeded on 4 days leave plus 5th day of. The management also pleaded that the applicant had worked only upto 4-2-1985. The impugned termination is also said to have been issued on the last working day of the applicant. The termination is said to have been issued within the probationary period as admittedly the applicant was appointed on 10-11-1984. If the termination from 5-2-1985 is admitted, it would be within 3 months and so the management would be competent to dispense with the services on the basis of unsatisfactory work. I do not agree with Mr. Wasiullah that the termination would be illegal because the report was made by a person who even did not know the actual designation of the workers and so such report would be deemed to be concocted one. Management is fully competent to terminate the services of its employees if the work of such employee is not considered satisfactory within the probation period. Admittedly there is no charge of committing any misconduct and so this Court is not supposed to act as a Judge in regard to the performance of the applicant during his probationary period.
10. The main controversy in this case is whether the termination was communicated to the applicant as contemplated by S.O.12 (3). The submission of Mr. Wasiullah is that it was never communicated and if according to the management, the applicant had refused to receive the same, the management must have published the same in a newspaper or at least should have sent a copy of such letter in reply to the grievance notice. The contention of the respondent however, is that the termination was personally offered by the Timekeeper on 4-2-1985 but the same was refused and so it was sent by registered post A/D. This registered letter was also returned as refused and so the management was not legally obliged to make its publication. Timekeeper examined in this Court, has supported the respondent to the effect that the termination was personally offered by him to the applicant but the later refused to receive the same. Postman was also examined and he also certified that he made attempt to serve this registered letter but it was not accepted and so he returned as refused. Mr. Wasiullah submits that in fact the Postman did make no genuine efforts to first find out the presence of the applicant and then to personally offer him nor he recorded the statements of any other person in regard to this refusal. I have given my anxious consideration to this aspect of the case and I feel that the respondent has complied with the legal provisions. S.U.12 only directs the communication and no specific mode of service has been detailed in it. In the instant case, the applicant was personally offered on 4-2-1985 but he is said to have refused. There is no suggestion on behalf of the applicant to the witnesses that this plea of refusal was falsely set up by them. The respondent made another attempt by sending it by registered post and when it was returned unserved with the endorsement of refusal. I do not think that the management was still legally obliged to repeat or to publish it in any newspaper. Mr. Wasiullah has no doubt placed reliance on 1974 PLC 205 and 1980 PLC 136, but these authorities have no bearing on the facts of this case. I may mention here that the applicant had admittedly worked only upto 4-2-1985 and thereafter he pleaded that he proceeded on leave upto 9-2-1985. He led no proof whatsoever about this assertion. Not only this, but he also did not put any question in regard to this leave to the Personnel Manager who is supposed to deal with the leave matters. No documents of the respondent in this connection were also summoned. In fact, it is a coincidence that the postman offered the registered letter on 9-2-1985 and the applicant set up a plea of-his leave upto 9-2-1985 and then he pleaded reporting duty on 10-2-1985. As regards to Postman I do not think that there was any possibility for the postman to record statements in view of the fact that only some children were found playing by him near the quarter of the applicant and the same was locked from outside. In view of this sort of evidence am of the firm view that the management has discharged its obligation as contemplated by S.O. 12 and no exception can be shown to it.