DECISION ' This is an appeal against the order, dated 17-10-1990, passed by the learned Presiding Offcer, Sindh Labour Court No, IV at Karachi, whereby he allowed the grievance petition of the respondent and ordered his reinstatement in service with full back benefits.
2. I have heard Mr. Muhammad Humayoon, learned Advocate for the appellants and Mr. Raja Shamsuz Zaman, learned Advocate for the respondent and have also gone through the record and proceedings of the case.
3. Admittedly the respondent was appointed as a probationary workman by the appellants on 16- 5-1987 vide order, Exh. A/2. Admittedly, he was confirmed as permanent workman, vide Exh. A/3 from 16-8-1987. It is alleged by the appellants that he continued to remain in service and his services were verbally terminated on 4-12-1988. After serving the grievance notice upon the appellants, the respondent filed grievance petition before the learned Labour Court. The appellants resisted the grievance application on the ground that the respondent had voluntarily resigned from service, vide resignation, Annexure. A/4 which does not bear any date; but, shows the note that it was accepted from 7-3-1988. It is further contended that the respondent was again employed on 15-10-1988 and his services were terminated during the period of probation on 21-12- 1988 by an order, in writing. In the course of the statement of Mr. Taufiq Ahmed, Manager of the appellants, it has come on record that the respondent was appointed for intermittent periods viz. From 12-3-1988 to 6-6-1988; again from 11-6-1988 to 17-7-1988 and finally from 15-10-1988 to 21-12- 1988. The respondent, however, has denied the intermittent appointment, but, claims to have worked continuously from the date of his first appointment and denies to have submitted any resignation application.
4. The main documents relied upon by the appellants are Annexures A/4 and A/9. Annexurc A/4 is the alleged resignation of the respondent. It was sent to the Handwriting Expert for comparison of the thumb impression on the resignation application with the admitted thumb marks of the respondent. Mr. Abdul Rauf, the Handwriting Expert had stated that the thumb marks on Annexure A/4 could not be compared with the admitted thumb marks as it was blurred and did not bear sufficient data to permit of a comparison in its minor details. Therefore, he refrained to give any opinion whether the thumb marks on Exh. A/4 was of the respondent or not. Even, otherwise it does not appeal to reason that the respondent would resign from permanent employment from 7-3- 1988 and seek re-employment only after 5 days viz., from 12-3-1988. The respondent had produced Social Security Card, Annexure 'B' which bears his Social Security Card No, 367843. It bears stamp cancelled but it is not clear on what date, it was cancelled. Mr. Muhammad Humayoon, the learned Advocate for the appellants contended that it was cancelled after the resignation, dated 7-3-1988 whereas Mr. Raja Shamzuz Zaman, the learned Advocate for the respondent contended that it was cancelled after termination of his services on 21-12-1988. In support of his contention, he has pointed to other documents produced by him. Annexure 'E' is a certificate of accident during work which was issued by the appellants. It is dated 21-3-1988 and it also shows the same Social Security Card Number. Similarly the Medical Certificate, Annexure 'N', dated 26-4-1988 issued to the respondent by the Sindh Social Security Institution also shows the same Social Security Card Number. The contention of Mr. Raja Shamsuz Zaman is that if the respondent had resigned and he was re-employed from time to time, then, he would have received the Social Security Cards with different Numbers and the same Card would not have continued to remain valid.
5. The appellants had produced certain vouchers which are Exits. A/5, A/7 and A/8, dated 8-3-1988, 6-6-1988 and 17-7-1988; and Exh. A/10, dated 21-12-1988. They show certain payment of salaries to the respondent in full and final settlement. The respondent in his cross-examination has admitted his thumb impression on A/7 and A/8, but, denies that he had received any full and final settlement. He has denied his thumb impression upon Exh. A/10 and also upon A/9. It may be pointed that A/10 was not sent to the Handwriting Expert while Exh. A/9 was sent to the Handwriting Expert, which according to Handwriting Expert bears the thumb impression of the respondent.
6. Exh. A/9 is a simple plain piece of paper which allegedly bears the thumb' impression of the respondent. Admittedly the respondent is an illiterate person, therefore, the writing on this document could not be that of the respondent. It shows that he had settled the accounts a few days earlier, but, wanted to be re-employed. The respondent has denied his thumb impression upon this document, but as pointed above, the Handwriting Expert has given his opinion that this document bears his thumb impression. The respondent was in the employment of the appellants and it would not have been impossible for them to obtain his thumb impression on such papers even on the pretext of giving him some payments. It may be pertinent to note that application for appointment is made on usual printed Form of the company which has been produced as Exh.R-1 by the appellants which also purports to bear the thumb impression of the respondent. Strangely, neither the respondent was confronted with this document, nor it was sent to the Handwriting Expert.
7. What looks more suspicious is the fact that though after the first appointment for which an application in the usual form, Exh. A/1 has been produced, a regular appointment order, as required under Standing Order 2-A was issued which has been produced as Annexure A/2. Subsequently regular order for his confirmation, Exh. A/3 was also passed. But there is no such appointment order produced by the appellants with regard to the alleged intermittent appointments of the respondent or even with regard to the alleged final appointment of the respondent on 15-10-1988. It may also be worthwhile to note that no termination order of any of the periods of the respondent has been produced by the appellants, which is a mandatory requirement of Standing Order 12(3), except the final order of termination which is dated 21-12-1988. The respondent denies the service of this order upon him and the noting on this order shows that it was offered to the respondent, but, he refused to accept it in presence of the witnesses, who also signed the order. However, the witnesses have also not been produced to show that the respondent had refused to accept the order. There is no evidence to show that this order was sent by registered post, but, admittedly it was produced alongwith the reply statement of the appellants in the Labour Court. This order alongwith copy of the reply statement, thereafter was supplied to the respondent through the Labour Court.
8. The appellants claim that final appointment on 15-10-1988 was on probation and, therefore, his services could have been terminated during the period of probation. I have already pointed that no appointment order as required under Standing Order 2-A was issued. Mr. Muhammad Humayoon, the learned Advocate for the appellants has relied upon Exh. R-1, which purports to be an application of the respondent for appointment and at the bottom of it, there is a column with regard to the official action on that application, which shows that he was appointed on 15-10-1988 at a monthly salary of Rs,700. As pointed above, the respondent was not confronted with this application. Apart from this fact, it appears that the appellant does issue regular appointment orders. This assumption is proved from the fact that first appointment order Exh.. A/1 is also on similar form as R-1 and there is an official action on it with regard to his appointment and the pay, but still regular appointment order, A/2 was issued, on which also, there is thumb impression of the respondent accepting the terms and conditions of the appointment. This appointment order, Exh.
A/2 shows that he was on probation of 3 months. In absence of such appointment order with regard to the alleged appointment of the respondent on 15-10-1988 and the fact that Exh. R-1 was not shown to the respondent in his cross-examination, serious doubt is raised with regard to the genuineness of the application Exh. A/9 which only allegedly bears the thumb impression of the respondent, hut, the writing is obviously in the hand of somebody else, who was also not examined.
All these facts give support to the contention of the respondent, that he continuouly worked in the establishment of the appellants with effect from his first appointment. The appellants failed to prove that the respondent had resigned. They have also not produced the letter of termination of his services on 7-3-1988.
9. Besides, neither Exh. R-1 shows that the respondent was appointed on probation or that he was appointed against a permanent vacancy nor there is any such evidence. A probationer as defined under Standing Order 1(c) as a `workman' who is provisionally employed to fill a permanent vacancy in a post and has not completed three months service therein. Unless, the appellants had produced any evidence that the respondent was appointed on 15-10-1988 against some permanent vacancy, his appointment could not be considered to be on probation.
10. The termination order which has been produced as Annexture R-2 shows the Subject-- `termination during the probationary period'--and it further informed the respondent that his services were 'no more required' and that his services had been terminated. I have already held that the appellants had failed to prove that the respondent was on probation. Standing Order 12(3) is a mandatory provision which requires that no workman should be removed from service, except by an order, in writing, showing explicit reasons for his termination. Mere showing in the termination order, that the services of a workman were no more required, would not be sufficient compliance of this mandatory provision, because such reason for termination of service is not explicit, but requires further evidence as to why the services of the worker were no more required. In this respect, reliance is placed upon a decision of the Division Bench of Sindh High Court in the case of Ghulam Muhammad v. Sindh Labour Appellate Tribunal and others, reported in 1990 PLC (C.S.) 385.
11. In view of the above discussions, I find no merit in this appeal which is accordingly dismissed.