1980 PLP 876 (SCMR)

G. SAFDAR SHAH, J‑By order, dated 5‑7‑1969, passed by the Senior Blood Transfusion Officer, Institute of Blood Transfusion, West Pakistan, Lahore, the petitioner was offered the post of Head‑Clerk/Assistant in the Office of the Divisional Blood Transfusion Unit Lahore, inter alia, on the following conditions: ‑ "(1) that the post was purely temporary and that his services were liable to be terminated without notice and without assigning any reason, at any time irrespective of the fact that he was holding a post other than the one, to which he was originally recruited; (2) that in case he wished to resign at any time, he shall serve a month's notice on the Department, or in lieu thereof deposit a month's salary; (3) that he will be governed by such Rules and Orders relating to discipline, leave traveling allowance, medical attendance and pay etc. as issued by the Government of West Pakistan from time to time ; and (4) that in case the said conditions were acceptable to him, he should report for duty to the Divisional Blood Transfusion Officer, 20 Wahdat Road, Lahore, immediately (not later than 12‑7‑1969) and produce before him a blank service book with original certification in connection with his qualification, domicile and‑age, are" Upon receipt of the said offer, the petitioner reported for duty to the Divisional Blood Transfusion Officer, Wahdat Road, Lahore, and took the charge as Head‑Clerk/Assistant in that Office. By an order, dated 12‑5‑1970, passed by the Divisional Blood Transfusion officer, however, he was informed that "Your services are no longer required in this office and further you are hereby directed to hand over the complete charge including cash etc. under your custody today dated the 12th May, 1970 to Mr. Nawab Din Gill, Store‑Keeper of this unit". A copy of the said order was endorsed, amongst others, to the Provincial Blood Transfusion Officer and Ex Officio Director, National Institute of Haematology and Blood Transfusion Service, West Pakistan, Lahore, for information with the endorsement that "The official work as well of conduct of Mr. Abdul Razzaq was unsatisfactory. Since he is on probation period from 5‑7‑1969 for two years therefore his services have been terminated with immediate effect". When the petitioner received the said order, he instituted a civil suit against the respondents in the Court of Mir Muhammad Azal, Civil Judge, Lahore, for declaration that said order terminating his service was null and void; and that he continued to remain in service and consequently entitled to all the service benefits. In the written statement filed by them, the respondents denied the claim of the petitioner with the result that the trial Court framed in the suit the solitary issue to the effect; Whether the impugned order dated 12‑5 1970 and 3‑6‑1970 were without lawful authority, void and inoperative?" Upon this issue, the parties adduced their respective evidence, but preferring the evidence tendered by the petitioner, the trial Court decreed his suit. Being aggrieved, the respondents went in appeal to the Court of the District Judge, Lahore. But during the pendency of it, the Punjab Service Tribunals Act (IX of 1974, was promulgated with the result that according to section 8 of it, the said appeal got abated. However, in view of the proviso to the said section, by which respondents were given the right to file an appeal against the judgment of the learned Civil Judge before the Service Tribunal, they, accordingly filed an appeal, which was subsequently allowed by the Service Tribunal, vide the impugned judgment. It is in this background that the petitioner has come up to this Court praying for leave to appeal against the said judgment. The main contention urged by petitioner'' Abdul Razaq, who argued his case personally, is that notwithstanding the fact that the post of Head‑Clerk/ Assistant, to which he was appointed in the Office of the Divisional Blood Transfusion, Lahore, was purely temporary and his services were liable to be terminated without any notice, yet he had' actually been removed on account of `misconduct' in which behalf, however, he was neither served with a show‑cause notice nor was any inquiry made under the Rules. He, therefore, contended that the impugned action taken against him was without jurisdiction, and so the Service Tribunal was in error to endorse the same. Now in respect of the same/very contention, which was urged by him before the Tribunal, the view taken was that from the examination of the Departmental record, it was found "that the appellant was served with a show‑cause notice on the ground of inefficiency only. No doubt the Divisional Blood Transfusion Officer while endorsing the termination order to the Provincial Blood Transfusion Officer observed that "the work as well as the conduct of the respondent was unsatisfactory" but the observation appeared to have been used rather loosely and there was nothing on record to suggest any stigma against the appellant as held by the Supreme Court of Pakistan in P L D 1974 S C

393. We are, not in agreement with the learned trial Court's findings as it has failed to take into consideration the following observations of the Supreme Court of Pakistan: ‑ "In my opinion if the services of a probationer are terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service as the termination will be in terms of the contract or the rules made by the Government, but if the services of the probationer are terminated on the ground of misconduct, that will amount to removal or dismissal. It will be a stigma in his favour." We are' inclined to agree with the said finding recorded by the Tribunal. The petitioner has not disputed the fact that before terminating his services, notice had been issued to him in which he was asked to explain as to why his services should not be terminated on account of inefficiency only The fact that the said notice was served on him would show that the Authority had no intention to remove him on account of `misconduct' Furthermore, in the copy of the order, dated 12‑5‑1970, endorsed to the Provincial Blood Transfusion Officer and Ex Officio Director, West Pakistan, Lahore, all that was mentioned was that the work, as well as the conduct of the petitioner was "unsatisfactory", but that could hardly be construed as tantamounting to misconduct, as held in P L D 1974 S C

393. The petitioner next contended that whereas he had been appointed as Head Clerk/Assistant by the Senior Blood Transfusion Officer, Institute of Blood Transfusion, West Pakistan, Lahore, his services were terminated by the Divisional Blood Transfusion Officer, who was evidently not the competent' Authority. In meeting this objection, the learned Assistant Advocate‑General pointed out that the incumbents of both these offices are equal in rank, status, salary and have been delegated the same power in respect of the dismissal and removal of employees belonging to Class III/IV depending of course whether they were serving in the Institute of Blood Transfusion, West Pakistan or in the Divisional Blood Transfusion Office. In this behalf he referred to the relevant Rules, and the petitioner was unable to meet the point made by the learned Assistant Advocate General. Quite apart from this position, the case does not seem to involve a substantial question of law of public importance for the consideration of which, question leave is invariably granted by this Court. Therefore, even if the Division Blood Transfusion Officer was strictly not the `competent' Authority of the petitioner, we would still be disinclined to grant leave, as in view of the facts and circumstances of the case it is not a fit case in which leave, ought to .be granted. This petition, therefore, fails and is dismissed. Petition dismissed.