Mr. Abid Nazir respondent No, 3 hereinafter referred to as the respondent was appointed in May 1978 as Cashier-cum-Clerk in the Zonal Office, Gujranwala of Habib Bank Ltd., the petitioner herein on probation for six months. His services were however, terminated on 10-8-1978 vide letter Annexure `A' during the subsistence of period of probation on the plea that his performance during the period of probation had not been found satisfactory.
2. After the service of grievance notice, the respondent filed grievance petition before the learned Punjab Labour Court No, 7, Gujranwala, under section 25-A of the Industrial Relations Ordinance, 1969 hereinafter referred to as the Ordinance. The learned Labour Court dismissed the grievance petition on 2-5-1979. It was found that under the relevant Standing Order, the probationer was not entitled to any service of show cause notice prior to termination of his service and therefore he had no right under the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 to challenge to termination of his service during the period of probation. The respondent, however, preferred appeal before the learned Punjab Labour Appellate Tribunal. His appeal has been accepted and the Labour Court's judgment has been set aside. The case has been remanded to the learned Labour Court with the direction that opportunity be given to the parties to lead evidence on the point whether actually the performance of the appellant was un- satisfactory and if so, to such an extent that he could not improve by the extension of period of probation. The order in this behalf has been made on 23-5-1982. The aforementioned order passed by the learned Punjab Labour Appellate Tribunal has been impugned through the present writ petition.
3. It was mainly urged that the terms and conditions of service of employees of the Nationalised Banks and other financial institutions were governed by the Award of the Wage Commission and that such Award could only be enforced by the National Industrial Relations Commission while the Labour Court and the Labour Appellate Tribunal lacked jurisdiction in the matter. This plea of the petitioner Bank found favour with a learned Division Bench of this Court which was then seized of the matter. Consequently the writ petition was allowed on 10-4-1985. The detailed judgment was recorded in the connected W.P. No, 791/1982.
4. The respondent as also the other adversely affected employees of the Nationalized Banks preferred appeals before the learned Supreme Court of Pakistan. The august Supreme Court accepted the appeals and set aside the judgment of the Division Bench. It has been held that the Award of the Wage Commission was enforceable like any other Award under section 25-A of the Ordinance and therefore, the Labour Court and the Labour Appellate Tribunal were possessed of the jurisdiction. Consequently the cases have been remanded to this Court for deciding the same on merits.
5. As for the merits, in the present case it has been urged by the petitioner-Bank that the respondent being a probationer at the time of termination of his services, he was not entitled to the service of any show cause notice prior to the termination of his services. It has further been urged that the employer was under no obligation to prove in Court that the performance of the respondent during the period of probation was actually unsatisfactory. It has been averred that in case of the employees of the Nationalised Banks Standing Orders Ordinance, 1968 is not applicable and the terms and conditions of service of such employees are governed by the Award of Wage Commission for Banks and financial institutions. This is true that the Standing Orders Ordinance is not applicable to the case of the respondent and his terms and conditions of service are governed by the Wage Commission Award.
Paragraph. 233 of the Award 1974-75 provides:- "In the event of an employee failing to show satisfactory progress during his probation, the appointing authority may extend his period of probation or terminate his services."
Failure to show satisfactory progress as envisaged in Para.233 ibid should be a reality and not just a garb for terminating the services of a probationer. It has been observed in the impugned judgment by the learned Appellate Tribunal that there was nothing in the record of service of the respondent to indicate that his performance during the period of probation was assessed as unsatisfactory by any superior officer. It has been viewed by the learned Tribunal that it was just a colourable exercise of power on the part of the petitioner while terminating the services of the respondent on the plea that his performance during the period of probation was not satisfactory and that as a matter of the fact his plea was non-existent. In Crescent Jute Products Ltd., Jaranwala v. Muhammad Yaqoob and others (PLD 1978 Supreme Court 207) it has been held that Labour Court can go behind a dismissal order and see for itself whether on facts and circumstances of the case, dismissal order was or was not justified both on merits as well as law.
The finding on question of fact recorded by the Labour Appellate Tribunal which of course was possessed of jurisdiction in the matter that there was nothing on the record to show that factually the respondent failed to make satisfactory progress re his performance during the period of probation is unexceptionable. It has further been noticed that through the impugned judgment, the learned Labour Appellate Tribunal has not ordered the reinstatement of the respondent. It has rather remanded the case to the learned Labour Court to allow opportunity to the parties to produce evidence to show if actually there was justification to conclude that the performance of the respondent during the period of probation was not satisfactory and if in such an eventuality the desired result could not be achieved by further exercise of the period of probation. In such circumstances the grievance brought by the respondent before the learned Labour Court has not been finally adjudicated by the Tribunal warranting interference by this Court in exercise of writ jurisdiction. In the Divisonal Superintendent, Pakistan Railways, Rawalpindi v. Muhammad Aslam and 25 others (1986 SCMR 1607) Labour Appellate Tribunal remanded case for decision afresh after affording opportunity to parties to produce evidence; order of the Tribunal was set aside by the High Court in writ jurisdiction. It was held by the Supreme Court that order of remand not being final adjudication of claim, writ petition was not competent and therefore order of the High Court was in excess of jurisdiction vested under Article 199 of the Constitution of Pakistan 1973. The writ issued by the High Court was thus recalled. In the present case, as already observed through the impugned judgment, the learned Tribunal has remanded the case and thus the grievance taken before the Labour Court under section 25-A of the Ordinance has not been finally adjudicated. In such circumstances, writ jurisdiction cannot be invoked.
6. For the foregoing reasons, the writ petition is dismissed but there shall be no order as to costs.