' Z. A. CI-IANNA , J.--This Constitutional petition is directed against an award, announced by the 5th Sind Labour Court on the 13th day of December, 1973, by which it ordered reinstatement of respondent No, 2, Khan Muhammad, with continuation of service, on the ground that he was a permanent employee of the petitioner, Messrs Asiatic Optical Company, and that accordingly his services could not be terminated except by an order in writing stating the reasons for the action taken, as required by Standing Order No, 12.
2. The facts which have given rise to this petition are that respondent No, 2 was employed as a polishman by the petitioner. According to the petitioner the said respondent was employed on 12th February, 1972, but according to the respondent, he was employed by the petitioner with effect from 17-1-1972. The admitted position, however, is that the respondent continued to work for the petitioner till 4-4-1972. As 5th April, 1972 was Sunday, the establishment of the petitioner was closed.
From 5-4-1972 till 12-4-1972, the respondent No, 2 failed to turn up for his work at the establishment of the petitioner. He appeared on 13-4-1972, when he submitted his resignation from employment and was paid a sum of Rs,24 at the rate of Rs,6 per day for the four days of April during which he had worked. Subsequently, on 24-5-1972, respondent No, 2 filed an application under section 34 of the Industrial Relations Ordinance, 1969, read with section 25-A, thereof alleging that his services had been wrongfully terminated by the petitioner herein. The learned Labour Court took the view that respondent No, 2 had been engaged by the petitioner herein on permanent basis on a salary of Rs,175 per month w,e,f, 17-1-1972, and that his services stood terminated on 13-4-1972. It however, came to the conclusion, apparently due to some arithmetical error that respondent No, 2 had put in service exceeding 3 months, that accordingly he was a permanent worker and therefore termination of his services without following the procedure prescribed in Standing Order 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was illegal.
3. The petitioner herein, being aggrieved by the award of the Labour Court, filed an appeal before the Labour Appellate Tribunal which, however, dismissed the appeal as also certain other appeals of similar nature in view of the decision of this Court in Muhammad Akil v. Sind Labour Appellate Tribunal PLD 1978 Kar. 649 wherein it was held that decision of a Labour Court on an application under section 34 of the Industrial Relations Ordinance, 1969, is not appealable. The Counsel for the petitioner herein, however, pointed out to the learned Labour Appellate Tribunal that the application of respondent No, 2 before the Labour Court was not only under section 34 of the Industrial Relations Ordinance, 1969 but also under section 25-A of that Ordinance. In view of this fact, the learned Labour Appellate Tribunal reviewed its order and restored the appeal of the petitioner herein. Respondent No, 2 herein thereon challenged this order of restoration by means of Constitutional Petition No, 510 of 1974, wherein it was held by this Court that the learned Labour Court has no power of review and accordingly its order of restoration was set aside.
4. Mr. Aijaz Hussain Rizvi, the learned counsel for the petitioner, has assailed the order of the 5th Labour Court, which in view of the decision of this Court in Constitutional Petition No, 510 of 1974 presently holds the field, on the ground that the learned Labour Court was in error in holding respondent No, 2 to be a permanent worker, and therefore its award directing his reinstatement was in excess of its jurisdiction. In support of his contention, the learned counsel has referred us to the definition of permanent worker, in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. An essential requirement of that definition is that a workman must have satisfactorily completed a probation period of three months. It was contended by the learned counsel that respondent No, 2 had not completed the required period of three months, and therefore he could not be considered to be a permanent worker. According to him, respondent No, 2 was engaged by the petitioner on 12th February, 1972 and he remained in the petitioner's employment only till 12-4-1972, i,e, for a period of about two months. He submitted that even if the contention of respondent No, 2 be accepted, as had been done by the Vth Labour Court, that respondent No, 2 was engaged by the petitioner on 17-1-1972, then also the said respondent had clearly not completed three months' service when he resigned on 13-4-1972. Mr. Raza Ali, the learned counsel for respondent No, 2, on the other hand contended that the said respondent had been advised by his doctor to have complete rest and treatment for a period of a fortnight, commencing from 14-4-1972, and therefore during this fortnight, his services could not be terminated. This, however, is an entirely new point, which has been submitted by the learned counsel during the course of arguments. It was neither submitted before the learned Labour Court or the Labour Appellate Tribunal, nor has it been even alleged in the counter-affidavit filed on behalf of respondent No,
2. We are, therefore, unable to accept this contention.
5. Since the services of respondent No, 2 voluntarily stood terminated w,e,f, 13-4-1972, it is 1972, it is clear that even if we take it that he was engaged by the petitioner w,e,f, 17-1-1972, the said respondent had clearly not completed three months of service with the petitioner. The respondent, therefore, obviously does not come within the definition of permanent worker, as contained in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and on this ground alone the impugned award of the 5th Labour Court requires to be set aside. There is, however, a stronger reason for quashing the said award. In ordering the reinstatement of respondent No,2, the learned Labour Court has relied upon the provisions setting forth the conditions upon which the cervices of a permanent worker can be terminated. In the instant case, however, we find that there was no termination of employment, but there was resignation from employment by respondent No,
2. In his letter dated 13-4-1972, respondent No, 2, while acknowledging receipt of sum of Rs,24 as being his wages for the period from 1st April to 4th April has also categorically staled;" from today I am leaving my daily wages work". This clearly shows that respondent No, 2 was voluntarily resigning his employment and not that his employment was terminated. There is no bar to a worker, even if he be a permanent worker, voluntarily resigning from his employment, and the employer cannot compel him to remain in his employment. Faced with the position arising from the said letter of resignation by respondent No, 2, Mr. Raza Ali tried to contend that the said respondent was compelled by the petitioner to give his resignation. No such contention, however, was raised by respondent No, 2, either before the Labour Court or even in his counter-affidavit. We are, therefore, unable to consider this submission.
6. For the reasons stated above, we allow the petition with costs and set aside the impugned order of the Vth Labour Court, as being without lawful authority.