1. SIDDIKY, C. J.-This is an application by Pakistan National Oils Ltd., under Article 98 of the late Constitution of Pakistan challenging the validity of an order passed by the Second Labour Court of East Pakistan.
2. The facts in short necessary for disposal of this application are that respondent No. 3 Kazi Anwarul Islam applied for the post of the Operation Supervisor-cum-Fire Supervisor under the petitioner- Company on the 10th of September 1966. In that application he gave his qualification to be a Matriculate from the P. A. F. Public School at Lower Topa, Murree and to have served in the Pakistan Air Force for 10 years as Fire Fighting and Crash Tender Operator and then as Fire Squadron Leader in Fenchuganj Fertilizer Factory of the East Pakistan Industrial Development Corporation. He was a non-Commissioned Officer in the Pakistan Air Force. On this application the petitioner-Company on the 20th of September 1966, appointed him as a probationer on a basic salary of Rs. 350 per month and Dearness Allowance of Rs. 140 per month for a period of 12 years. Clause 4 of the letter of appointment dated 20th September 1966, was to the following effect:- "4. You will be on probation for a period of twelve months.
3. During probationary period, the Company will be at liberty to dispense with your services without notice. The management reserves the right of extending the probationary period at its discretion."
4. Respondent Na. 3 then accepted this appointment as a probationer and joined the Company on the 30th September 1966. On the 3rd of August 1967, the Company terminated the services of the respondent No. 3 in accordance with clause 4 of the letter of appointment quoted above.
5. Thereafter respon--dent No. 3 filed a complaint case before the Second Labour Court of East Pakistan praying for termination benefits under section 19 of the East Pakistan Employment of Labour (Standing Orders) Act, 1965 (hereinafter referred to as the Act). In that petition of complaint respondent No. 3 did not any where contend that he was a worker within the definition of the Act.
6. The Company entered appearance and filed a written objection in which it took the stand that the respondent No. 3 was not a worker within the definition of the Act, that he was a Supervisor on probation and that his services not being found to be satisfactory within the probationary period, his services were terminated in terms of clause 4 of the letter of appointment.
7. No oral evidence was tendered by either party before the learned Labour Court. The petitioner- Company filed only a few letters to show the nature of the work that the respondent No. 3 was doing and would have done had he been made permanent after the successful completion of his probationary period. The learned Labour Court held that the respondent No. 3 was a worker as defined in the Act on the reasoning that he had no power of hiring and firing in addition to all other powers which he could exercise independently for the better management of the concern and enter into contracts with outside agencies and concerns and also taking decision in respect of the financial commitments of the concerns. It further found that since section 4(2) of the Act lays down that the probationary period shall be only three months and respondent No. 3 having served for namely eleven months, he shall be deemed to be a permanent worker and, as such, was entitled to the termination benefits under section 19 of the Act.
8. Mr. Kamruddin Ahmad, learned Advocate, appearing for the petitioner-Company has contended before us that the learned Second Labour Court is wrong in its findings, with regard to the finding of the learned Labour Court that respondent No. 3 was a worker. Mr. Ahmad has submitted that the reasons given by the learned Labour Court for holding that respondent No. 3 was a worker are wholly ,untenable, because the law does not any where says that the criterion of a person employed in administrative or managerial or supervisory capacity must necessarily have the power to appoint and dismiss or to be in a position to enter into contracts on behalf of the concern indepen--dently with outside agencies or to have any control over the financial commitments of the concern. According to Mr. Ahmad, an employee without having the powers contemplated by the Second Labour Court may as well become a member of the supervisory or managerial or administrative staff. The distinction that he draws between a worker as defined in the Act and a member of the administrative staff or managerial or supervisory staff is that a worker is he who does manual work either in any technical line or in office as a clerk but it is to be noted that one who supervises the work of the manual worker or that of the clerks cannot be said to be a worker and must necessarily be said to be either supervisor or a member of a managerial staff. To be so he need not have the powers of controlling the finance of the concern or entering into a contract with outside agencies on behalf of the concern or to take independent decision with regard to the policy matters of the concern or even to appoint or dismiss an employee. Without these- powers also one can be either a Manager, or an Administrative Officer or a Supervisor. We are in agreement with the submissions of Mr. Ahmad that the learned Second Labour Court is wholly wrong in finding that an employee comes within the excepted categories of sub-clauses (i) and
(ii) of clause (v) of section 2 of the Act only when he has the powers which it has referred to in its judgment, i.e. Appointment, dismissal etc. With regard to the second finding of the learned Labour Court that the respondent No. 3 shall be deemed to be a permanent hand on account of the provisions of subsection (2) of section 4 of the Act, that is the probationary period shall be only three months, all that we need say is that the learned Second Labour Court has not given a finding as to whether respondent No. 3 was at all appointed against any permanent vacancy. It is the case of the petitioner-Company that there is no permanent post of Supervisor in the establishment of the company which is a new concern and respondent No. 3 was appointed as Supervisor on his application and not against any permanent post.
9. The definition of probationer given in clause (p) of section 2 of the Act reads as follows:- "(p) `probationer' means a worker who is provisionally employed to fill a permanent vacancy in a post and has not completed the period of his probation."
10. A probationer does not ipso facto become permanent even though appointed against a permanent vacancy unless the employer has, on the conclusion of the probationary period, c allowed the probationer to continue in service either expressly on impliedly after the expiry of the period of probation. In the present case, far from respondent No. 3 having been made permanent in the manner, as stated above, his services were terminated prior to the completion of his probationary period, as laid down in clause 4 of the letter of appointment on the ground of his probationary period not being satisfactory.
11. We accordingly make the rule absolute and set aside the impugned order of the learned Second Labour Court, East Pakistan. We, however, make no order as to costs in this rule.
12. K. HOSSAIN, J.-I agree.