DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No,IV, dated 4- 1-1990, whereby the grievance petition of the respondent was allowed and he was directed to be reinstated with full back benefits.
2. The facts of the case leading to this appeal are that the respondent was admittedly employed by the appellant on 8-6-1988 as a General Helper on probation. The grievance of the respondent is that his services were terminated without any show-cause notice on 18-9-1988 on the ground that his services were found unsatisfactory. After serving notice upon the appellants the respondent filed grievance petition before the learned Labour Court. The appellants resisted the grievance petition on the ground that .The services of the respondent were terminated on 8-9-1988 before expiry of the period of probation in accordance with the terms of his appointment as his services were not found satisfactory.
3. I have heard Mr. Mahmood Abdul Ghani, learned representative for the appellants and Mr. Gohar Iqbal, learned representative for the respondent and have also gone through the record and proceedings of the case.
4. The main point that requires consideration is as to when the services of the respondent were terminated. The respondent alongwith the grievance application had produced termination letter as Annexure 'C' it bears date under his signature as 18-9-1988. It appears from this document that the `month' was corrected from '8' to '9'. Appellants have also produced photostat copy of the termination letter, which is Annexure R/1 on which the date under signature of the respondent is written 8-9-1988. There appears to be some interpretation in the figure '0' for which both the parties have conflicting versions which I will discuss later. They have also produced another copy of this- letter as Annexure 'X' which purports to bear the signature of one Humayoon, Time-Keeper. This is also dated September 8, 1988. All these three documents are copies of one document bearing the date on '8-9-1988' which clearly show that the letter was issued on 8-9-1988. The only question is when it was served upon the respondent.
5. The case of the respondent is that appellants had made interpolation in the date and changed
(1) to '0' whereas according to the appellants as per their witness M.I. Baig it was served upon the respondent in his presence on 8-9-1988 but respondent had written the date as 18th but on his pointation, the respondent himself corrected figure '1' as '0'. It may be pointed that this plea was not specifically taken in the written statement. It was also not put in the cross-examination of the respondent that he was served with this letter in presence of Mr. Baig or that on the pointation of Mr. Baig he himself corrected 'I' into '0'.
6. Mr. Mahmood Abdul Ghani has stressed upon the fact that there was interpolation of month from 8th to 9th in the copy of the termination letter producect by the respondent. There is no dispute about the month and correction of the month by the respondent in his copy does not necessarily show that he also manipulated by converting figure '1' into '0' in the document which was admittedly in possession of the appellants. The version as given by Mr. Baig was neither taken up by the appellants in the Written Statement nor was it suggested to the respondent in his cross- examination. It may also be pointed out that in the grievance application the respondent had specifically stated that he was served with the letter, dated 8th September, on 18th September, 1988. In reply to the grieyance notice appellants have not specifically denied the averment that termination letter was served on 18-9-1988, nor asserted that the letter of termination was served upon the respondent on 8th September. Mr. Humayun, who is alleged to have signed the copy of the letter, as Time-Keeper, which is produced as Annexure 'X' has not been examined on the ground that he had left services of the appellants and his whereabouts were not known. The date under signature of Mr. Humayun, which is identified by Mr.Baig is clearly 8th September. I have already pointed out that evidence on record shows that letter was issued on 8-9-1988. It is quite possible that Mr.Humayun might have received it on 8th September, but it does prove that this letter was also served upon the respondent on the same date, as Annexure 'X' does not bear the signature of the respondent.
7. The respondent also claims that he fell ill on 7th September, 1988 and he was under treatment of the Doctor of Social Security and, therefore, he was protected under section 72 of the Social Security Act. He has produced Medical Certificates Exhs. A-1 to A-7. Exh. A-7 shows that he was declared Medically Fit by the Medical Officer on 15-9-1988, though this letter appears to have been issued to him on 17-9-1988. It is submitted by Mr. Gohar Iqbal that due to illness the respondent did not attend the factory from 8th to 17th and when he attended on 18th he was served with the termination letter. Keeping all these facts in view, I am of the opinion that letter of termination was served upon the respondent on 18th September, 1988 and not on 8th September, 1988 as claimed by the appellants.
8. Section 72 of the Provincial Employees' Social Security Ordinance, 1965 provides, that no employer shall dismiss or discharge an employee during the period an employee is in receipt of sickness benefits etc. Mr.Mahmood Abdul Ghani has raised the question that the respondent was not referred to the Medical Officer by the proper authority and forms as required under Social Security Regulation were not properly filled and therefore the respondent was not entitled to any benefits under section 72. I need not go into points raised by Mr. Mahmood Abdul Ghani as I have already held that the respondent was served on 18-9-1988 when he had been declared to be fit for duty. Therefore, on 18th September section 72 would not protect the respondent from removal of service. My finding that the respondent was served on 18th is further supported by 'Departmental Clearance Certificate' issued to the ndent which is Exh. R/2. It was produced through the respondents witnes and it shows that respondent left services of the company on 18-9-1988. It is s ned by one M. Sadiq admittedly employee of the appellants. The objection is raised that it did not bear signature of Mr. Baig, who was 'Personnel Officer'. Mr. Baig did not produce any other Clearance Certificate with his signature, which might show that respondent left the appellants on 8-9-1988. It may also be pointed out that letter of termination of service neither bears the signautre of Mr. Baig nor a copy is endorsed to him.
9. Mr. Gohar Iqbal submitted, that as the respondent joined services on 11-6-1988 vide order dated 8-6-1988 he would be deemed to have been confirmed on the expiry of three months viz. On 10-9- 1988 and therefore his services could not be terminated on 18th September, 1988 on the ground that his work was not satisfactory. Mr. Gohar Iqbal was unable to show any provision of law or case-law under which after completion of three months, a workman attained the status of 'permanent workman' automatically. Letter of appointment shows that on satisfactory completion of probationary period the respondent could be confirmed. Standing Order I also uses the same language. Similar view was held by Division Bench of Sindh High Court at Karachi in the case of Deutachi Daspscaifpakaris Gesellsc 'Kansa' v. Muhammad Aquil and 3 others PLD 1979 Kar.
409. As already pointed out from the document produced by the respondent it is clear that on 8-9- 1988 the management came to the conclusion that respondent had not satisfactorily completed the probation and issued letter of termination of his services on that account on 8-9-1988 viz. Before expiry of period of probation. Only because either due to illness of the respondent or for other reasons, respondent remained absent so that the termination letter could not be served upon him before the expiry of three months it cannot be said under the circumstances that the respondent had satisfactorily completed his period of probation limitation and had attained the status of 'permanent workman'.
10. The next point raised by Mr.Gohar lqbal was that as the letter of termination contained charge against the respondent stating that his work was not satisfactory which attached 'stigma' to his carrier and therefore he was entitled to show-cause notice and without show-cause notice his services could not be terminated. He has relied upon the case of Tahir Rashid v. Punjab Urban Transport Corporation 1979 PLC 547, wherein the learned Punjab Labour Appellate Tribunal held that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable to the employees of Road Transport Service and they were entitled to notice under section 7 of the Road Transport Workers Ordinance, 1961 and the services of workman even during the period of probation for unsatisfactory work could not be terminated without show- cause notice and without holding necessary enquiry under law. That case is obviously distinguishable from the instant case where the Standing Orders Ordinance is applicable. Mr. Gohar Iqbal has also relied upon decision of Hon'ble Supreme Court reported in PLD 1974 Supreme Court 393. In that case their Lordships held that if the services of probationer is terminated on the ground of unsatisfactory work that does not amount to removal of service. If the services of probationer are terminated on the ground of misconduct that would amount to removal from service which would be stigma in his favour and he would be entitled to show-cause notice and enquiry against him. Even from this decision of the Supreme Court a probationer can be removed from service on the ground of unsatisfactory service without any show cause in accordance with the terms of his service/contract. In the case of Muhammad Zafar v. Road Transport Corporation, Lahore and another 1970 PLC 332 learned Industrial Appellate Tribunal West Pakistan held as under:-- "A perusal of the Standing Order 12(2) of the West Pakistan Industrial and Commercial Employement (Standing Orders) Ordinance, 1968 makes it clear that the Management has absolute right to do away with the services of a probationer without notice. What is important to note is that this provision contemplates simple termination of service. It does not contemplate termination of service on the ground of misconduct or unsatisfactory work or conduct. Where the services of a probationer are sought to be determined, specifically on the ground that his work and conduct is unsatisfactory, he is entitled, keeping in view the principles of natural justice, to a show- cause notice to enable him, if possible, to explain his conduct."
' I am afraid I am unable to subscribe to this view. The learned Industrial Appellate Tribunal West Pakistan has taken into consideration only clause (2) of Standing Order 12 but does not appear to have taken into consideration clause (3) of Standing Order 12. Clause (3) requires termination order in writing of the workman explicitly showing reason of his removal from service. In clause (3) word 'workman' is used and there is no distinction between a probationary workman, temporary workman or permanent workman. The services of probationer who is shown as workman under Standing Order 1 cannot be terminated except by an order in writing as contemplated in clause (3) of Standing Order 12 which also makes incumbent upon the management to show explicit reason for the termination of his service. The reason showing the termination order is that the performance of respondent was not found satisfactory during the period of probation which is valid reason according to terms of his service as well as Standing Orders Ordinance. Therefore, as held by their Lordships of Supreme Court in the aforementioned case, it did not attach any stigma to the respondent and no show-cause notice or enquiry was necessary. Similar view was taken by learned Member N.I.R.C. In the case of Aurangzeb Sarwar v. PIA 1977 PLC 130. In that case no reason for removal of the employee was not shown who was removed during the probationary: period. It was observed therein that clause (3) of Standing Order 12 clearly made obligatory upon employer to state reason and therefore the removal order was set aside.
11. I have already held that the management had come to the conclusion that work of the respondent was not satisfactory before the expiry of the period of three months of probation and that he did not automatically become confirmed only because three months had lapsed before order of termination which was dated 8-9-1988, could be served upon him as he remained absent from the factory either due to illness as alleged by him or wilfully as alleged by the appellants. In the case of Shahid Rabbani v. Messrs Hoechst Pakistan Limited 1981 PLC 691 this Tribunal held that on completion of three months' service the probationer did not essentially become permanent workman.
12. In view of the above discussion I am of the opinion that the respondent had not attained status of permanent workman when he was served with order of removal of service on the ground that his performance was not found satisfactory. The services of the respondent, therefore, had been validly terminated by the appellant.
13. As a result of above finding the appeal is allowed and impugned order of the learned Labour Court is set aside.