P L D 1957 (W (PLP)

KAYANI, J.‑

The petitioner Raja Muhammad Afzal Khan, seeks relief against an order terminating his services as Assistant Executive Engineer attached to the Mangla Dam Circle. The petitioner obtained an engineering degree in 1951, and in December following was employed by the Thal Development Authority until the 2nd of April 1953, when he was selected by the Provincial Government for a course of studies in mechanical engineering in Sweden. Irrespective of this selection, he had already applied for two year's study leave on the 7th of July 1952, but, on having been selected by the Provincial Government, he resigned his post with the Thal Development Authority on the 10th of May 1953 and left for Sweden in the middle of May. In his absence, a case for criminal misappropriation was registered against him on the 1st of July 1953 and he was declared an absconder, notwithstanding that he had told the Chairman, Thal Development Authority in a letter written on the 10th of May 1953 that he had received a Government scholarship and was proceeding to Sweden. Nothing, however, was done until the petitioner's return and, as it was intended to arrest him at the port of debarkation, his brother applied to the High Court for bail before arrest and obtained an order grant ing bail on the 30th of May 1955. This order was passed by me and is to the following effect :‑ "The order forbidding arrest was passed to enable him to disembark at Karachi without fear of arrest and to have an opportunity of presenting his case. It must be borne in mind that the proceedings have taken place during his two years' absence from the country. (The fact that he was declared absconder though the Government itself had sent him out with a scholarship reflects no good faith in the investigation.) If subsequently it appears to the Special judge, that he should be arrested, the Special judge can use his discretion." The petitioner himself says that a case was put up in his absence by Mian Abdul Aziz, Chief Engineer, and Chaudhri Muhammad Ashraf, Divisional Engineer, Thal Development Authority "who have malice towards the petitioner because the petitioner did not accede to their unjust demands". The case is still pending and I believe the trial has not started yet. "Upon his return the petitioner was employed by the Karachi Sui Gas Company on the 1st of June 1955 and remained in service till the 23rd of February 1956, when he was discharged. During this period the Chairman, Thal Development Authority, sent a letter on the 2nd of November 1955 to the Secretary, Pakistan Industrial Development Corporation, informing the latter that a case of misappro priation was pending against the petitioner and suggesting "suitable action". The Corporation forwarded this letter to the Sui Gas Company. Although in a letter which the Corporation wrote to the nest employer of the petitioner the reason given for termination of services was want of "necessary aptitude", the petitioner believes that in actual fact it was the letter of the Thal Development Authority which had injured his career with the Sui Gas Company. However, on the 15th of September 1955, the petitioner applied to the Chairman, Central Engineering Authority, Karachi, for a technical post in the Mangla Dam Circle and was appointed an Assistant Executive Engineer on the 16th of April 1956, initially for a period of one year or until the expiry of the sanctioned duration of the circle, whichever .was earlier. The conditions of his service are contained in an office memorandum of the Ministry of Industries (page 49 of the paper‑book). Condition No. (iii) which is relevant here is to the following effect :‑ "(iii) The services of Mr. Muhammad Afzal Khan will be terminable as under :‑ (a) without previous notice if the Government is satisfied from the report of the Medical Hoard constituted for this purpose that he is unfit, or is likely for a considerable period to remain unfit by reason of ill‑health or physical disability for the proper and efficient discharge of the duties assigned to him, (b) without previous notice if he is found guilty of any insubordination, intemperance or misconduct or of breach of any rules pertaining to the branch of public service to which he may belong, (c) any time with 15 days' notice on either side without assigning any reasons provided that the Government may, if it thinks fit, forego the full period of notice or the un expired period thereof, on payment by him of sum equivalent to the emoluments due to him for the corres ponding period, in default of which Government will be entitled to deduct this sum from any amount due to him from the Government." On the 3rd of May 1956, the Superintending Engineer of Mangla Dam Circle asked the Thal Development Authority for the petitioner's: confidential file. The Superintending Engineer of the Thal Development Authority thereupon sent a letter to the Superintending Engineer of Mangla Darn Circle informing him that the petitioner had been prima facie found guilty of cheating to the extent of Rs. 59,000 and had been reported to the police and that he had absconded with effect from the 30th of April 1953. Here again, I cannot help observing that the charge of abscondence was a malicious accusation. In consequence of this letter the Superintending Engineer of Mangla Dam Circle wrote to the Secretary, Ministry of Industries, Karachi, on the 4th of June 1956, a letter which was read out to us by the Assistant Advocate‑General but for which he claims privilege as a confidential document. This letter said among other things, that the character and conduct of the petitioner were undesirable and that his services should be terminated under condition No. (iii) (c) of his terms of appointment. On the 18th of June 1956, the Ministry of Industries wrote the following letter to the Superintending Engineer, Mangla Dam Circle, and sent a copy thereof to the petitioner :‑- "With reference to your letter No, 2836/24‑E, dated the 4th June 1956, on the above subject, I am directed to say that Government agree to terminate the service of the above‑named officer with, immediate effect. In lieu of 15 days' notice he should be given 15 days' pay." The petitioner claims that the reference to the Superin tending Engineer's letter clearly showed that he had been turned out of service on account of some alleged misconduct or embazzlement on his part and that he had been given no opportunity to show cause why these allegations should not be disregarded. The dismissal, being mala fide and arbitrary, was liable to be quashed. We have not insisted on the confidential document being produced before us, but we would not be prepared to say that a document containing accusations against a public servant which he claims to have resulted in his discharge, can be treated as "matters of State", particularly when the very question to be decided is whether the order of discharge had resulted from an allegation of misconduct. The question for us to decide now is whether a "show‑ cause" notice is necessary in this case. It is a vexed question and has in recent years claimed the earnest attention of the Courts, both here and in India, largely because the arbitrary action of the administrative departments has in many cases threatened the security of the public services. We have, therefore, found it necessary to approach Articles 181 and 182 of the Constitution with a fresh mind, and it is profitable to reproduce the relevant passages thereof in extenso: 181.‑(1) No person who is a member of a civil service of the Federation or of a Province, or of an All‑Pakistan Service, or holds a civil post in connection with the affairs of the Federation, or of a Province, shall be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed. (2) No such person us aforesaid shall be dismissed or removed from service, or reduced in rank, until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him Provided that this clause shall not apply‑ (a) where a person is dismissed or removed from service or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where an authority empowered to dismiss or remove from service a person, or to reduce him in rank, is satisfies that for some reason, to be recorded by that authority, it is not reasonably practicable to give that person an opportunity of showing cause; or (c) where the President or the Governor, as the case may be, is satisfied, for reasons to be recorded by him, that in the interest of the security of Pakistan or any part thereof, it is not expedient to give to that person such an opportunity. 182.‑(1) Except as expressly provided by the Constitution or an Act of the appropriate legislature, appointments to the civil services of; and civil posts in the service of, Pakistan shall be made‑ (a) in the case of services of the Federation and posts in connection with the affairs of the Federation, by the President or such person as he may direct ; (b) in the case of services of a Province and posts in connection with the affairs of a Province, by the Governor of the Province, or such person as he may direct. (2) Except as expressly provided by the Constitution, or an Act of the appropriate legislature, the conditions of service of persons serving in a civil capacity shall, subject to the provisions of this Article, be such as may be prescribed‑ (a) in the case of persons serving in connection with the affairs of the Federation, by rules made by the President, or by some person authorized by the President to make rubs for the purpose ; (b) in the case of persons serving in connection with the affairs of a Province, by rules made by the Governor of the Province, or by some person authorized by the Governor to make rules for the purpose: Provided that it shall not be necessary to make rules regulating the conditions of service of persons employed temporarily on the condition that their employment may be terminated on one month's notice or less and nothing in this clause shall be construed as requiring the rules regulating the conditions of service of any class of persons to extend to any matter which appears to the rule‑making authority to be a matter not suitable for regulation by rule in the case of that class: It appears to us clear that Article 181 contains two provisions which may be regarded as the absolute conditions of service firstly, that no person holding a civil post shall be dismissed or removed or reduced in rank by an authority subordinate to that by which he was appointed; secondly, that dismissal removal or reduction shall not take place until the servant has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The proviso to this Article enumerates three instances in which such opportunity may not be given. It is equally clear that the next Article devotes itself in the first clause to the authorities who shall recruit civil servants and in the second clause to the authorities who shall prescribe their conditions of service. But these conditions shall be subject to the provisions of the Constitution' or an Act of the Legislature. In other words, so far as is relevant here, there shall be no condition which hits Article 181, that Article not being subject to any other provision of the Constitution of an Act of the Legislature.) Next, (there is a proviso to this Article which makes it unnecessary to frame rules in respect of persons employed temporarily "on the condition that their employ ment may be terminated on one month's notice or less Now this proviso is often made a foundation for the argument that where service is made subject to a month's notice or less, Article 181 does not apply. This argument, we clearly see, overlooks the absolute character of the conditions laid down in Article

181. One thing, however, we must concede at this stage. The Constitution does contemplate temporary services which may be made subject to one month's notice or less. If, therefore, such notice is given, is it not in effect a removal from service ? Here again we are faced with a formid able list of cases where, to get over the difficulty, it is stated ingenuously that termination of services by notice does not amount to removal. Removal, it is argued, necessarily results from misconduct, and if the notice does not allege misconduct, Article 181 is not attracted. Removal, dismissal and reduction, we are told, are "technical" words. For my part, I am not inclined to confine these terms to cases of misconduct. We shall see later in this judgment that judicial authority has included within the scope of these terms cases of inefficiency and incapacity or unwillingness to work also. And in our own departmental sphere we have sometimes reduced persons in rank because, notwithstanding the best intention on their part, they were not found equal to the rank they were holding. But if this Article is intended to be a check on arbitrary conduct as it certainly is‑then I have no doubt that the context to which these terms apply should not be confined in meaning in any direction, for it is not unlikely, in the jungle of arbitrariness that envelops our affairs, that a person should be removed from service for reasons unconnected with his official duties. On the other hand, if every case of termination of service, in .the case of temporary servants subject to a month's notice, were to be treated as removal, no temporary service could possibly be made subject to such term. If we thought there was a contradiction between Article 181 and the proviso to Article 182, which assumes the existence of temporary services subject to one month's notice, there is no doubt that the former, in its absoluteness, will prevail, But the contradiction is more apparent than real. It is useful and convenient to have temporary services subject to notice, so that if one of the two parties‑the employer and the employed‑has no use for the other, he can give notice and disencumber himself. The employer may have no work left, in which case it would be idle to require him to keep the employee‑and keep him out of employment. The employee may want to better his prospects elsewhere, and if he can obtain a discharge at a month's notice, his employer should have a reciprocal right to discharge him. But the intention of such a contract would be to enable each party to adjust himself to his own needs, and if the employer's notice is given in good faith, that is to say, in fulfilment of the object which occasioned that particular clause in the contract, we should be able to say in all conscience that such a notice did not entail removal from service. If, however, the notice is not in good faith, and a clause in the contract is being used as a pretext for' getting rid of a person who has made himself undesirable for some reason, then the object is to remove him from service, and the case falls under Article

181. That, in our opinion, is the only way in which the assumption as to the existence of a temporary service subject to one month's notice, contained in the proviso to Article 181, can be reconciled to Article

182. Observe that in Article 181 there is a proviso which excludes the operation of the main section from three cases ‑where the misconduct resulting in dismissal or removal has led to a conviction, where it is not practicable to give an opportunity of showing cause, and where it is inexpedient in the interest of the security of Pakistan to give such opportunity. If it had been intended to exclude from it temporary services subject to one month's notice, a fourth case could very properly have been added to the proviso. Having formed this view of the meaning of Articles 181 and 182, I am concerned to see that it does not militate against any law that may have been declared by the Supreme Court on the same subject. In this connection our attention has been drawn to two cases, and on one of these, Noorul Hassan v. The Federation of Pakistan (P L D 1956. S C (Pak.) 331) both sides rely. This deals with the case of certain police officers holding temporary posts in the subordinate ranks of the Karachi Police force, whose services were "dispensed with" because their work was found "unsatis factory". The term of service of these officers was renewed from year to year, pending the finalisation of rules relating to a new Force, and there was no provision for a month's notice or less. The question in that case largely was whether. the Constitutional safeguards in section 240, Government of India Act, were available to police officers whose Conditions of service were regulated by rules framed under section 243, and the present question, therefore, was not directly involved. It ‑is useful, however, in so far as it throws some light on the meaning of the term "removal". The petitioner's counsel relies on the following passage at page 370 of the report, in the judgment of Cornelius, J. with whose reasoning two other Judges agreed: "The question whether the order terminating the services of the seven plaintiffs was an order of dismissal or removal within the meaning of the Government of India Act, 1935, does not offer any particular difficulty. The formula employed was that of saying that the, services of these persons were 'dispensed with', and there is, of course, no specific provision in that Act dealing with the process of dispensing with' the services of persons holding `civil posts under the Crown in Pakistan'. Yet, it seems to me that, by its effect. the formula is clearly one by which an effective removal of the incumbent of a civil post in Pakistan was brought about. Clearly the service of each of the seven plaintiffs was determined by means of the order which they sought to challenge. Both effectively as well as categorically, the order is indistinguishable from an order of dismissal or removal. It is supported by a statement of the reason for the determination of service in each case, viz., that the work of the public servants in question had been found unsatisfactory". Again, at page 383. it is observed : "I have already held that the purported dispensing with services, on grounds of dissatisfaction with the work of incumbents is, in material respects, indistinguishable from dismissal". The Assistant Advocate‑General, on the other hand, relied on certain passages in the judgment of the learned Chief Justice, and we must say that such passages as these‑ "Suppose, for example, a person is employed for a year to a post which is either a permanent post or which has been sanctioned for a period of five years, one of the conditions of his employment being that his services may be terminated on one month's notice. Before the expiry of the year the servant misbehaves or the authority competent to terminate his services believes that he has misbehaved and without any inquiry into the matter he is given a month's notice of discharge. In such a case, it cannot possibly be contended that because the reason for the termination of his services was suspected misbehaviour, the order terminating his services was illegal or wrongful and that he had a right. to come to a Court of law for reinstatement or for compensation". do support his case. But it is pointed out for the petitioner that this is not the meaning which the majority of the judges place on the term removal. If their Lordships were not declaring any law on the present subject and were making these remarks incidentally‑as I believe they were am free to point out very respectfully that the notice of discharge in a case of what the discharging authority regards as misbehaviour, will not have been given in good faith and will be contrary to the intention of the provision relating to notice. It will expose a person to a charge which he has not had the opportunity of meeting. It is, in practice, futile to say that a veiled notice of discharge, without being worded offensively, does not injure the person who is affected by it. By some secret means information travels to the next office where he intends to seek employment, and he gets no employment. A discharge in suspicious circum stances is in some cases more injurious than an open inquiry. The second case is Abdul Karim v. The West Pakistan Province (P L D 1956 S C (Pak.) 298) where the facts were similar to those of the present case. A temporary employee of the P. W. D., whose services could be terminated on one month's notice, was served with charges of misconduct and asked to show cause why he should not be dismissed. He answered the charges, but no action was taken on the basis of that inquiry. Some time later he was served with a notice terminating his services on the expiry of one month's notice. He contended in a civil suit that the notice was mala fide because no action had been taken against him as a result of the inquiry and that consequently he was entitled to a reasonable opportunity to show cause under section

240. The learned Judges observed that the argument was without force, as "it is easy to conceive cases where the authority competent to dismiss a public servant employed on the same conditions as the petitioner comes after an inquiry to the conclusion that the drastic step of dismissal which would affect his employability is not called for, though his further continuance in service is not desirable in the public interest. There is nothing on record to show that this is not one of such cases. From the mere fact that no action was taken on the inquiry held against the petitioner it cannot be reasonably concluded that the action of the Superintending Engineer Thal Area was mala fide". Although this case was cited by the learned Assistant Advocate‑General to support his case, I think there is much in it which supports the argument of the petitioner. It shows that if mala fides could be indicated, the case would fall under section 240. (As a matter affecting service rules, I might point out with great respect that when it is intended, as a result of a departmental inquiry, not to resort to the drastic step of dismissal, the delinquent is "removed" from service, and that removal does not affect future employability. For the purpose of section 240, however, both processes are on the same footing). I now revert to the present case. It is clear that the reference in the letter of the Assistant Secretary to the Government of Pakistan, dated the 18th June 1956, to the letter of the Superintending Engineer Mangla Dam, dated, the 4th June 1956, was the basis of the petitioner's discharge, and since the Superintending Engineer had recommended discharge on the ground of the petitioner s "undesirable" character and conduct, the notice did not rest on good faith. The petitioner was being removed from service for misconduct without being given an opportunity to show that the Thal Development Authority was vindictively stalking his path to all future employment. I really do not understand why it hurts some administrative departments to give a "show -cause" notice, when the ultimate power to accept or not to accept the explanation lies with them alone, and not with the Courts. In this particular case, the petitioner was declared an absconder when in actual fact he was pursuing a course of studies in Sweden with the aid of a scholarship bestowed by the Government itself. We do not know the merits of the criminal case, but it is no fault of the petitioner that its shadow has been made to hang so long across his career, and the decision of the authorities concerned to deny him an opportunity of showing cause prevents him from earning a livelihood so long as the criminal case remains undecided. I would, therefore, accept the petition and declare that the petitioner continues to be in service notwithstanding his discharge. The learned Assistant Advocate‑General prays that since the employment was for a year and it terminates next April, we may not force the petitioner's services on the department. I think the exact object of a writ petition is to force a decision on the department, and I would, therefore, direct the petitioner's reinstatement. The petition is accepted with costs. MUHAMMAD SHARIF, J.‑--The circumstances in which this writ petition by Raja Muhammad Afzal Khan has arisen have already been stated at length in the judgment of my brother. I wish, however, to advert to the principal arguments of the learned counsel for the petitioner which arguments stated categorically are to the effect :‑ (1) That sub‑article (2) of Article 181 of the Constitution applies both to permanent as well as to temporary servants in all its incidents; (2) That the "removal" contemplated in Article 181 need not necessarily be for some fault or misconduct. According to him, it also includes removal without F, assignation of any reason therefore i.e., on grounds which might have nothing to do with the discharge of the duties of a public servant but are based wholly on the mood and S, caprices of the removing authority ; (3) That the safeguards enumerated in the said Article are themselves in the nature of fundamental conditions of service and as such no rule can be framed under Article 182 in derogation thereof ; (4) (a) That even in case of a temporary public servant, the proviso to sub‑article (2) of Article 182 will not override the provisions of sub‑article (2) of Article 181 if he is dismissed or removed or reduced in rank ; (b) That even if there be a stipulation in the conditions of his service that he can be removed after giving him one month's notice or a notice for a shorter period, that stipu lation holds good only where his services are terminated in good faith either because the post to which he was appointed or the department in which that post had been created has become unnecessary or the work assigned to him has been completed earlier than was originally envisaged or that a stage has reached when the work has so diminished that some persons in the cadre to which he had been assigned have to be retrenched in the interest of economy and not merely to overcome the statutory safe guards provided in Article 181 ; and (c) Consequently where it appears from the document itself that he has been removed for some fault or, in the absence of any such allegation being contained in it, the Court is otherwise satisfied after inquiry that he has been so removed, the Government cannot avail itself of the proviso to sub‑article (2) of Article 182 of the Constitution, and action would lie in Court against such removal. I shall now deal with them ad seriatim. In order to appreciate the arguments of learned counsel for the parties, it is necessary first to reproduce the relevant potions of Articles 181 and 182 of the Constitution which, it may be added, are the same as those incorporated in sections 240 and 241 of the Government of India Act, 1935 :‑ 181. (1) No person who is a member of a Civil Service of the Federation or of a Province, or of an All‑Pakistan Service, or holds a civil post in connection with the affairs of the Federation, or of a Province, shall be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed from service, or reduced in rank, until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him Provided that this clause shall not apply‑ (a) where a person is dismissed or removed from service or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where an authority empowered to dismiss or remove from service a person, or to reduce him in rank, is satisfied that for some reason, to he recorded by that authority, it is not reasonably practicable to give that person an opportunity of showing cause ; or (c) where the President or the Governor, as the case may be, is satisfied, for reasons to be recorded by him, that in the interest of the security of Pakistan or any part thereof, it is not expedient to give to that person such an opportunity. 182 (1) .. (2) . Provided that it shall not be necessary to make rules regulating the conditions of service of persons employed temporarily on the condition that their employment may be terminated on one month's notice or less ; and nothing in this clause shall be construed as requiring the rules regulating the conditions of service of any class of persons to extend to any matter which appears to the rule‑making authority to be a matter not suitable for regulation by rule in the case of that class Now, on the plain interpretation of these provisions, a mass of judicial precedents apart, it is impossible to hold that sub‑article (2) of Article 181 does not cover the cases of removal of persons appointed to hold temporary posts unless those cases are covered by some other provisions of the Constitution. (Article 181 itself makes no distinction between members of permanent services and temporary servants.) As members of both the services, whether temporary or permanent, can undoubtedly be dismissed or removed for misconduct (I am not using the word "mis conduct" in its technical sense as envisaged by the Civil Service Rules), there does not appear to me to be any valid reason for holding that sub‑article (2) of Article 181 does not apply to temporary services. (Of course; the removal, of a temporary servant under the terms of his contract, provided the terms' do not take away the statutory protection conferred on him by sub‑article (2) of Article 181, is always permissible). This point, however, will be elaborated at its proper place. The next question to be determined is whether the word "removal" used in sub‑article (2) of Article 181 contemplates removal for fault or removal without fault, i.e., removal simpliciter. There can be no manner of doubt that the argument of the learned counsel for the petitioner, when he contended that the word "removal" includes even removal without fault or without attaching of any blame‑worthy conduct to it, is based on false assumptions and is wholly untenable. Such a removal is so repugnant to common sense that no persons engaged in the task of framing the Constitution of this country could have even entertained the idea of the civil servants being thrown out of their posts without any fault or misconduct having been established against them. The action is always proposed to be taken against defaulters and not against those whose labours are honest and whose conduct during the discharge of their official duties is beyond reproach. Then there are clear words in the clauses (a) and (b) of sub‑article (2) of Article 181 which cannot possibly be reconciled with the definition of the word "removal" as proposed by the learned counsel for the petitioner. Clauses (a) and (b) are as follows :‑ (a) where a person is dismissed or removed from service or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. (b) where an authority empowered to dismiss or remove from service a person, or to reduce him in rank, is satisfied that for some reason to be recorded by that authority. it is not reasonably practicable to give that person an opportunity of showing cause. The phrase "dismissal or removal or reduction in rank" should be read conjunctively and not disjunctively for the purposes of understanding the proper meaning of the word "removal" and any attempt in the opposite direction would make the reading of the whole Article ridiculous. Such violence to the language of a statute is not permissible under any canons of construction relating to the interpretation of statutes. Surely the framers of the Constitution cannot be accused of imputing bad faith to the Government and it is hardly necessary to point out that the removal of a public servant, without attributing to him some sort of fault, is not an act of good faith. If the learned counsel for the petitioner intends to bring a simple termination of service of a temporary public servant in good faith under the terms of his contract within the definition of the word "removal", he cannot be permitted to succeed in that effort. It is idle to dwell at length on the third proposition, because if the protection afforded to a civil servant in Article 181 was given to him only to be taken away by the enactment of another provision to the contrary, why should it have been enacted at all? This, however, may not be understood to mean that no provisions could be enacted in the Constitution to create just exceptions to the rule. The difficult question which now remains to be deter mined relates to the removal of a temporary servant and is tabulated at No.

4. Now, it is obvious that if a temporary servant is dismissed or removed or reduced in rank for fault and not in accordance with the terms of his contract, such dismissal or removal or reduction in rank would be hit by sub‑article (2) of Article 181 if no show‑cause notice is given to him before such punishment is inflicted on him. The difficulty, however, arises when the services of a temporary servant are terminated in accordance with the terms of his employment, no matter whether or not the notice refers to some blame on his part for such termination. The learned counsel for the petitioner contends that the conditions of service of a temporary servant must be in consonance with the protection given to him under sub‑article (2) of Article 181, i.e., the quit notice must be given in good faith and not in order to overcome the fundamental conditions of service, as laid down in that sub‑article According to him, if it is apparent on the face of the notice itself or from the facts which might otherwise come to the notice of the Court during the hearing of the case that the removal of the petitioner in a given case is in reality a removal for miscon duct or fault and that fact has been deliberately omitted to be mentioned in the notice, the Court should give proper relief to him under sub‑article (Z) of Article

181. Now, there is no doubt that if the removal or, to describe it more aptly, the termination of services, of a temporary employee is in accordance with the conditions on which he was employed, there cannot possibly arise any conflict between the proviso to sub‑article (2) of Article 182 and sub article (2) of Article

181. The real difficulty will arise only in a case where the termination of service is in bad faith and the quit notice is alleged to have deliberately concealed the real reasons for such termination in order to nullify the protection afforded to a temporary servant under sub article (2) of Article

181. Now it can hardly be denied that the distinction between "removal" and "dismissal" which exists in the service rules is nowhere .to be found in the language of the two Articles under consideration and in the absence of that distinction it is only proper to include the removal for some fault even of temporary servants among the removals or dismissals of persons holding permanent posts. In my opinion, Article 181 is intended to be a check on arbitrary conduct and does, therefore, apply both to holders of permanent a well as temporary posts and should not be restricted in its application only to the former. The argument that this line of reasoning is likely to nullify the effect of the proviso to sub‑article (2) of Article 182 because the plea of bad faith is likely to be urged in every case of removal of a temporary servant, is not without force, but this difficulty is more apparent than real because in such cases good faith, will always be presumed and the High Court will grant relief in writ petitions only if that presumption is satisfactorily rebated without the necessity of holding an elaborate inquiry and digging deep into the alleged grounds of removal, as for example, where the notice itself alleges that the removal had been brought about for some blame worthy conduct or certain facts have been placed on the file by the parties themselves which can assure the Court in unmistakable terms that the removal was for no other reason than for some fault on the part of the petitioner in the discharge of his duties as a public ser vant. I am thus respectfully endorsing the views of Cornelius, J. in Nur‑ul‑Hasan's case that the purported dispensing with services, on grounds of dissatisfaction of the work of temporary incumbents, is, in material respects, indistinguish able from dismissal. This, in my humble opinion is the only way in which the apparent conflict between the proviso to sub‑article (2) of Article 182 and sub‑article (2) of Article 181 can be resolved. It is not necessary to show that the petitioner has successfully rebutted the presumption of good attaching to the order of his removal from service and entitled to a declaration that the order dated the 18th of 1956, dispensing with his service is illegal, void and inoperative, and as the petitioner was appointed till the 16th of April 1957, I direct that he should be reinstated in service notwithstanding his discharge. In the result this petition is accepted with costs. KAYANI AND SHARIF, JJ.‑

We certify, for the purposes of appeal to the Supreme Court, that a substantial question of law as to the interpretation of the Constitution is involved in this case. A. H. Petition accepted.