DECISION This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. II, Karachi, dated May 11, 1973, whereby the learned Labour Court came to the conclusion that the termination of the services of the respondent was in contravention of the provisions of Standing Order l2 of the West Pakisian Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance). Briefly the facts are these.
2. The respondent was appointed as a Helper, on probation for a period of three months, on 16th August 1971. Thereafter, he joined the Mujahid Force in 1971. After being discharged from Mujahid Force, the respondent resumed his duty as Helper on 13th April 1972. His services were, however, terminated because of unsatisfactory work by the Management on 26th May 1972. The case of the appellant was that they were within their right to terminate the services of the respondent, as he was only a probationer during the period of his probation.
3. The learned Labour Court came to the conclusion that the respondent had completed his probationary period without any adverse remarks from the Management and, therefore, he had become permanent. The respondent's services could not be terminated without complying with the provisions of Standing Order 15 of the Standing Orders Ordinance. In this connection, the learned Labour Court has relied on the fact that the management had to pay all along, when the respondent was in Mujahid Force, the difference between his pay in Mujahid Force and the pay that he was drawing as Helper. On this ground, the learned Labour Court came to the conclusion that the respondent had continued in service of the appellant, without any adverse remarks, up to 13th April 1972, when he resumed his duty again with the appellant.
4. The short point for consideration is as to whether the respondent had satisfactorily completed the probationary period of three months. Under Standing Order 1, to the Schedule of the Standing Orders Ordinance a permanent workman is defined as: "A 'permanent workman' is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment (and includes a Badli who has been employed for a continuous period of three months or for one hundred and eignty- three days during any period of twelve consecutive months)." It would follow after reading the definition of permanent workman that the period of three months' probation need not be of active service in the establishment. The period of three months would include also the period that the Probationer was on leave. The respondent, prior to his joining in' Mujahid Force, had served the Management only for 36 days. Unless I were to hold that the period which he spent with Mujahid Force, should be treated as on leave, the respondent could not be held to be in the permanent service. As to whether a person was on leave or not is a question of fact. Leave can be granted expressly as well as impliedly. In the present case, I have come to the conclusion that the Management had granted leave to the respondent when he joined Mujahid Force. The most important question in this connection is the payment of difference in the pay that he was drawing from the appellant and the one he was drawing in Mujahid Force.
Mr. Ghulam Hasan, the learned Representative for the appellant, raised twofold contentions in this respect. He contended, in the first place, that the mere fact that his clients were paying the difference in pay to the respondent should not be taken to be a circumstance that he was granted leave by the Management. The difference was paid, it is submitted, on an appeal by the Deputy Commissioner. The fact, however, remains that the Management did not qualify expressly or impliedly that the payment may not be construed to mean grant of leave by the Management. It was open to the appellant to B have written to the respondent that they had no objection to his joining Mujahid Force, but when he resumes his duty, it will be deemed to be a fresh appointment.
Mr. Ghulam Hasan also contended that the leave mentioned in the definition of permanent workman could not be leave while the person is not serving in the Department. As I construe the definition of permanent workman, I do not find any such qualification that the person who takes leave is debarred from doing any other work. A person can take leave provided it is granted, to serve Mujahid Force and again resume his duties. I would construe the period from 16th August 1971 to 13th April 1972, to be a period in the employment of the appellant. This is much over three months. In these circumstances, I would confirm the award of the learned Labour Court and dismiss the appeal.