1. The respondent Abdul Hamid, who was employed as Salesman in the Staff Canteen on daily wages basis, was terminated on 15th October, 1974.
2. He challenged his termination before the learned Junior Labour Court No. 1, Lahore by way of an application under section 25-A of the Industrial Relations Ordinance, 1969 hereinafter referred to as the 1. R. O. and sought for his re-instatement with back benefits.
3. The validity of the order of termination was challenged by the respon--dent mainly on the following grounds :-
(1) That his termination was based on mala fide. Inasmuch as, the Personnel Officer of the P. I. A. at Lahore Airport was inimical towards Mr. M. Afzal Hussain, Traffic Supervisor a cousin of the respondent who happened to be the Co-ordination Secretary of Pakistan Inter--national Airlines Corporation Employees' Union ;
(2) that the respondent was a permanent employee. For terminating his services compliance with the provisions of Standing Order 12 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was necessary but his termination was Ordered in utter- disregard of the said provisions; and
(3) that according to the order of termination the respondent's termina--tion was ordered on the ground that his performance was not satisfac--tory. On this grouted his services could only be terminated after observing the procedure contained in Standing Order 15 of the Standing Orders Ordinance but no such formalities were observed at all.
4. The application of the respondent was vehemently opposed before the learned Court below by the appellant, viz. Pakistan International Airlines Corporation through Personnel Officer, Lahore Airport who pleaded inter alia that actually the respondent was appointed on purely temporary basis as Sales--man in the Staff Canteen at Lahore for a period of 30 days on 13th May 1974 in a vacancy caused by tire transfer of a salesman to other station whose replacement was expected within a short time. After the expiry of the afore--said period of 30 days no replacement of the transfer the salesman arrived. The respondent applied for fresh appointment on daily wages basis for other period of 30 days. On the recommendation of the local administration and with the approval of the Director, Administration, the respondent was again appointed for a period of 30 days with effect from 15 June, 1974 to 14th, July 1974. He was again relieved from duty with effect from 5th July, 1974. However he again approached the Personnel Officer for fresh appointment on temporary basis against the casual vacancy. He vas appointed accordingly. In the meantime the replacement of the transferred salesman arrived and there being no vacancy the services of the respondent were terminated under the order of the higher authorities. It was inadvertently remarked in the order that his services were also not satisfactory. This remark was sought to be withdrawn by the written statement filed by the appellant.
5. Abdul Hamid respondent appeared as his own witness before the learned Court below. tie also produced Exh. P W 1/2, the letter of termination dated 15th October, 1974 which was received by him through his relative vii. M. Afzal Hussain. He admitted that he has submitted an application Exh. R. A.
In rebuttal Muhammad Zafarullah Khan Personnel Officer, P. I. A. C. Lahore Airport testified on behalf of the appellant. He produced documents Exh. R W 1/1 to Exh. R W 1/3 relating to the service of the respondent. Muhammad Humayum Baber, Senior Ass1stant of the Personnel Officer also appeared as R W 2, to state that he offered the termination order dated 13th October 1974 to the respondent but the respondent refused to take the same whereupon the witness submitted report Exh. RW 2/1 to the Personnel Officer. The learned lower Court after considering the parties' evidence obtained that the respondent had been engaged on a work of permanent nature against a permanent vacancy. His services could not be terminated without complying with the provisions of Standing Order 12. Consequently the respondent's application under section 25-A of the I. R. O. was accepted and he was ordered to be re-instated. His absence on 13th June 1974 and 14th June, 1974, 15th and 16th July 1974 and for the period from the date of termination of his service to the date of resumption of duty was ordered to be treated as leave without pay. It was also ordered that his seniority in the cadre would remain in tact. This order was made by the learned Court below on 15th May, 1975 and the same has been impugned through the present appeal.
6. On 5th June, 19,'5 the respondent has filed cross objections whereby he prayed that appeal might be dismissed and the respondent be re-instated with full benefits.
7. I have carefully gone through the records of the case. The parties have been heard at a considerable length. As regards the respondent's plea that his termination was malicious on account of his relationship with M. Afzal Hussain, Traffic Supervisor and an office-bearer of P.
1. A. C.
Union the respondent while appearing as his own witness stated before the learned lower Court that his relative M. Afzal Hussain was Co ordination Secretary in the P. I. A. C. Union, his relations with the Management were strained and therefore, the services of the respondent were terminated. The letter of termination was also communicated to the respondent through the address of said Muhammad Afzal Hussain. In rebuttal Muhammad Zafar--ullah Khan the Personnel Officer stated that the respondent was not termina--ted on account of any victimization. It was not within the knowledge of the witness that the respondent related to M. Afzal Hussain, Traffic Supervisor. The letter of termination was sent to the respondent at the address of the said M. Afzal Hussain because the same address was provided to the Manage--ment by the respondent. This explanation has been accepted by the learned Court below.
8. In view of the parties evidence, we find that the respondent has failed to prove alleged mala fides. It is therefore concluded that the termination of the respondent is not malicious.
9. So far as the respondent's plea that he was a permanent employee and his services could not be terminated without complying with the provisions of Standing Order 12, it is to be seen as to what was true nature of the employment of the respondent. This is a common ground between the parties that originally the respondent was employed on 13th play 1974. In this respect the original nothings Exh. RW I/I of the Personnel Department, Lahore Airport have been produced. According to the contents of this document the person--nel officer recorded a note on Nth April 1974 to the effect that there were shunted two salesmen and it was necessary to engage a salesman on daily wages basis at Rs. 7 per day. Mr. Abdul Hameed respondent applied for the post. He was matriculate and 18 years of age. He had experience of salesman in the Commodors hotel. He was recommended that he might be engaged on daily wages basis. Industrial Relations Manager recommended that the pro--posed appointment might be approved for 30 days and in the meantime proper action for recruitment of salesman might be taken by the employment section.
This proposal was accordingly agreed to by the Director Administration. This appointment came to end on the expiry of 30 days terra on 12th June 1974 Abdul Hameed respondent filed an application Exh. R. A. requesting that he might be appointed again for a period of 30 days on daily wages basis.
His application was considered and with the approval of Director Administration the respondent was again appointed for a period of 30 days on daily wages basis @ Rs. 7 per day with effect from 15th June t 974 to 16th July 1914. According to the order Exh. R. W. 1/4 first termination of the respondent was ordered with effect from 13th June 1974 on the expiry of 30 days tenure of service.
Again, vide order Exh. R. W. 1/4 which is dated 12th July 1974 the daily waged employment of the respondent was terminated with effect from 15th July 1974, on the expiry of the period of 30 days. It appears that subsequently the respondent was appointed by the Local Administration, with effect from 17th July, 1974 without obtaining the approval of the Direc--tor, Administration. This irregular appointment continued till 14th October, 1975. In the meantime the matter was discussed with the head office. It transpires from the contents of Exh. R/3 that the Head Office sent a signal to the D1strict Manager, Lahore referred his discussion in the Head Office and requiring to take necessary action accordingly on this signal. D1strict Manger made an endorsement to the Personnel Officer which reads as follows. ---If there is no vacancy please dispense with the services of staff concerned."
(Sd.)
The 16th October, 1976 Consequently, vide order dated 15th October, 1974 R, W. /1 Exh. R. W. 1/7, the services of the respondent were terminated with immediate effect.
10. From the aforementioned documentary evidence it is amply proved that Abdul Hameed respondent was appointed on purely temporary basis as daily waged employees as salesman in the staff Canteen till the arrival of regular incumbent. On first two occasions this arrangement was made with the approval of the competent authority. Director Administration for fix terms of the 30 days each. On the expiry of such term the respondent was terminated and appointed after gap of 2/3 days. Lastly he was appointed on the same temporary basis without the approval of the competent authority i.e. the Director, Administration.
11. In this view of the matter it cannot be said that the respondent was a permanent employee and as such was entitled to the protection afforded by the Standing Order 12. Findings recorded on this behalf by the learned lower Court are therefore not sustainable.
12. The third plea raised by the respondent challenging the order of his termination is that according to the contents of his termination, his services were terminated for unsatisfactory performance, as such could be terminated on this account after observing (sic).
It is however noteworthy that in the letter determination it is also provi--ded that the respondent was employed on purely casual temporary basis and on account of his unsatisfactory performance, his services were terminated with immediate effect. It is stated in the written statement that actually the remarks about the performance were inadvertently written in the order of termination and actually the services of the respondent were terminated because the regular replacement had arrived and there was no vacancy. It appears from the contents of Exh. R W 1/3 that the D1strict Manager wrote to the Personnel Officer that if there was no vacancy, services of the staff concerned could be dispensed with. But nevertheless it is expressly stated in the order of termination that performance of the respondent had been quite unsatisfactory. It is, therefore, to be seen as to whether these remarks tanta--mount to charges of misconduct calling for observance of the procedure laid down in Standing Order 15(4) of the Standing Orders Ordinance.
The acts and omissions which are to be treated as misconduct are enumerated in clause (3) of Standing Order 15. Un-satisfactory performance would not appear to be covered by any of the action detailed in Standing Order 15(3) ibid. I have already concluded above that the respondent was not a permanent incumbent His employment was purely temporary and casual one. He could, therefore, ordinarily be terminated during the course of such temporary and casual ap--pointment without having regards to the procedure meant for the termination of permanent employees. Of course even in a case of temporary employee, termination on the ground of misconduct can only be ordered after the procedure laid down in Standing Order 15 (4) is observed. In the under consideration case the only remarks contained in the termination order made against the respondent are that his performance was not satisfactory. These remarks as stated earlier do not constitute misconduct. It would, therefore appear that such remarks would not call for holding of domestic enquiry and observance of the other procedure prescribed in Standing Order 15. In Muhammad Siddique Javed Choudhry v. The Government of the West Pakistan (PLD 1974 SC 393) it has been held by the Supreme Court of Pakistan that if the service of a probationer was terminated on the ground of unsatisfactory work that would not amount to dismissal or removal from service, such termination would be in the term of contract but if the service of a probationer was terminated on the ground of misconduct that would not amount to removal or dismissal. It would be a stigma in his favour. This shows that the mere assertion that the performance of the probationer was not satisfactory does not amount to stinger or accusation of misconduct calling for the observance of procedure laid down in Standing Order 15(4).
13. In the light of what has been stated above, I accept the appeal, set aside the order and dismiss the application filed by the respondent before the learned Court below under section 36-D of the I.
R. O. The other objections filed by the respondent are accordingly dismissed.