1. ' In this appeal the correctness and legality of the order dated 15-12-1985 of the learned Presiding Officer Labour Court Peshawar has been impeached.
2. ' The factual aspect culminating into this appeal is that the respondent was initially employed by the appellant as typist-clerk on the 10th of July 1984 and was then posted as Secretary to the Personnel Manager of the Establishment from 14-10-1984. It was stated in the petition under section 25-A of the Industrial Relations Ordinance that the service record of the petitioner remained speck less and no body had complained against him during the period of his service. On 5-1-1985 the respondent was indisposed and so he obtained half day leave to visit the doctor and then on the advice of the doctor he applied for ten days leave from 6-1-1985. The service of the respondent was terminated on 9-1-1985. It was, therefore, complained that the petitioner being permanent workman could not be removed from service without show cause or in case of misconduct without conducting enquiry. This petition was contested by the appellant but the Labour Court accepted the petition through order dated 29-4-1985 on these two technical grounds:- "a In the impugned order non-recording of reasons warrants its setting aside" and "b as Personnel Manager was not the appointing authority, therefore, the order of dismissal passed by him was illegal."
3. Consequently the petitioner was reinstated in service with full back benefits and wages while the appellant was allowed to proceed against the petitioner in accordance with law if so advised. In pursuance of this order the petitioner was reinstated w,e,f, 29-4-1985 and continued till 9-5-1985 when on this date his services were again terminated on the ground that his work was not satisfactory. The petitioner served grievance notice on the respondent on 12-5-1985 which was not responded and therefore he again filed grievance petition. After contest the Labour Court accepted this petition on 15-12-1985 and ordered reinstatement of the respondent with full back benefits and wages. This order was challenged in appeal in this Tribunal and the then learned Chairman by order dated 13-1-1986 while accepting the appeal set aside the order of Labour Court.
4. The respondent filed writ petition under Article 199 of the Constitution in the High Court to question the order of the Appellate Tribunal and the High Court by order dated 24-1-1989 accepted the Writ Petition and the case was remanded to this Tribunal with the following observation:- "From the above facts it is obvious that the important question requiring determination in the case, as to whether the petitioner shall be deemed to have completed the probationary period of three months after joining the service or his services were terminated before the expiry of probationary period, had not been adverted to by the learned Appellate Tribunal. In case it is held that his services were terminated after the probationary period of three months, then he shall be deemed to be a permanent worker and thus entitled to all benefits in respect of such employment and his services would not be terminated without notice and due enquiry."
5. ' The learned counsel for the appellant submitted that the services of the respondent were terminated during the probationary period on account of unsatisfactory record as neither his first appointment nor second assignment continued beyond three months and therefore he was a probationer when the impugned order was passed. He relied on 1990 SCM R 1539 and argued that the appellant did not fulfil the qualification of a permanent workman as laid down in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. On the other hand the learned counsel for the respondent pleaded that the respondent was appointed as typist on 10-7-1984 and he continued on the same job after the post was re-designated as Secretary to Personnel Manager on 14-10-1984. He urged that the agreement (Ex. RW-2) is in violation of Section 4 of the Standing Orders Ordinance and is, therefore, illegal and ineffective.
6. ' I went through the record in the light of the above submissions.
7. The stand of the appellant which can be gathered from their written statement and the statement of their witness Mr. Saeed Akhtar RW-1 as contained in the examination in chief and the documents placed on record appears to be that the respondent/applicant was initially appointed in the establishment on daily wages w,e,f, 11-7-1984, that he was appointed against the permanent post only on 14-10-1984 subject to probation period of three months and as he had not completed his probationary period by 5-5-1985 when his services were terminated, therefore, there was no violation of the Standing Orders Ordinance. It is to be noted that qualification of workman in the said Ordinance is based on nature of employment and not upon mode of payment. So keeping in view this criterion it is to be seen as to whether the initial engagement of the petitioner as workman was against a post of permanent nature likely to last for more than nine months. It is admitted on behalf of the appellant that the job of typist against which the respondent was initially appointed is the same as that of Secretary of Personnel Manager and that this job is of permanent nature when it was stated by their witness Saeed Akhtar RW-1, "it is correct that the job is of permanent nature.
8. Actually the post of typist and Secretary of Personnel Manager is the same but sometimes employees are posted as typist and sometimes as Secretary" and again "it is correct that the petitioner was performing the duties on the same post as typist and as Secretary for both the period when he worked on daily wages and then employed against the permanent post." This deposition of the appellant's own witness settles the controversy regarding the nature of the employment of the respondent as the witness has unequivocally described him as engaged on a job of permanent nature. The next question which requires to be settled is as to whether the respondent had completed his probation period by the time his services were terminated. The appellant in this context relies on the agreement dated 14-10-1984 marked as Ex-PW II and argues that the probation period would start from this stage as the earlier employment of the respondent as typist was brought to an end by the agreement. This contention cannot be accepted as no one can be allowed to contract out of the obligations under the Ordinance. When the nature of both the assignments was of permanent character and when they were interchangeable then there was hardly any justification for the agreement referred to above and it is obvious that the agreement was maliciously and with undue influence brought into being by the appellant so as to block the way of the respondent from claiming continuance in the job. This agreement would not have the effect of breaking the work of the respondent and the respondent will be held as continuing in the same job from his first appointment from 10-7-1984 and as such he had completed the required probationary period of three months in the same occupation. This is admitted position that no evidence was recorded at the trial of the instant grievance petition and that what was recorded during the trial of the first grievance petition was adopted for the decision of this petition. In that statement the witness of the appellant admitted that the performance of the respondent was satisfactory when he said "there was no complaint against the petitioner when he was working as typist nor there was any complaint against him when he was working as Secretary". Therefore termination of the respondent on the ground of "unsatisfactory service" on the same evidence is rather ludicrous.
9. ' In view of the above reasons I fully endorse the conclusion of the learned Presiding Officer Labour Court and accordingly dismiss the appeal with costs.