1991 PLP (C (PLC(CS))

2. The learned counsel for the appellant contended before the Tribunal that the appellant had been condemned unheard and was not provided any opportunity to show cause and to offer his defence which amounted to denial of natural justice to him. He, therefore, prayed that the impugned orders passed by the respondents be set aside and the appellant be reinstated in service. The learned District Attorney opposed the above contention of the learned counsel for the appellant and argued that since the Chowkidar was still on probation, he could, therefore, be discharged under section 5(3)(a) of the Punjab Civil Servants Act, 1974 for which proceedings under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 were not necessary. He further explained that under the terms and conditions of his appointment order dated 7-5-1988 the appointment of the Chowkidar was purely temporary and as such his services could be terminated without assigning any reason at any time. The learned D.A., therefore, pleaded that the appeal be dismissed out of hand being not maintainable.

3. We have carefully considered the contentions and the points raised by the learned counsel for the appellant and the learned District Attorney. We have also consulted the relevant record placed before the Tribunal including the written objections filed by the respondents. The contention of the learned District Attorney that the appellant's services were terminated under section 5(3)(a) of the Punjab Civil Servants Act, 1974 as he had failed to complete the probationary period satisfactorily, would have been unassailable if the impugned order dated 3-6-1989 had only been an order in simpliciter within the meaning of section 5(3)(a) of the Punjab Civil Servants Act; 1974. However, the aforementioned impugned order dated 3-6-1989 clearly carries the stigma of misconduct against the appellant and sounds more like an order which though passed under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 but has been issued without going through and completing the requirements of the provisions of these rules. The opening paragraph of the impugned order contains the following allegation of absence from duty against the appellant which can only be categorised as misconduct: "The Supervisor, Circuit House, Faisalabad has made repeated complaints about the absence from duty of Mr. Riaz Ahmad, Chowkidar, Circuit House. On 24-5-1989 the Assistant Commissioner (General) paid a surprise visit to the Circuit House at 18-30 hours and found Mr. Riaz Ahmad absent from duty without permission."

4. Even the second paragraph of the impugned order speaks of habitual absence from duty by the Chowkidar which again amounts to misconduct. Ironically, this is also the position taken by the Commissioner, Faisalabad Division (respondent No. 2) In response to para. 7-A of the appeal in which it was contended "that the allegation does not amount to misconduct and does not call for such a severe action", the respondent has clearly admitted in the written objections submitted by him that "the attitude of the appellant was found objectionable which amounts to misconduct as he was warned to be careful on account of absence from duty on many a time". Having so stigmatised the appellant of misconduct, the authority could not dispense with his services under section 5(3)(a) of the Punjab Civil Servants Act, 1974. This view has been upheld by this Tribunal in 1987 P L C (C.S.) 915, Muhammad Azam v. Secretary, Food and others and by the learned Lahore High Court in the case of Riaz Ali Khan v. Pakistan P L D 1967 Lah.

491. In the latter case it was held as under:-- "Just as a person who is a temporary employee is also in service or holds a civil post, similarly a probationer is also in civil service and holds a civil post. He is equally subject to all checks to which a permanent Government servant is subject. He cannot, for example, refuse to obey orders, keep his own hours of duty or indulge in any malpractice. If his termination of service is not a termination simpliciter in the sense in which termination is used as distinguished from dismissal or removal, but tantamount to removal and dismissal, then it cannot be brought about without the formality of a show-cause notice and he too is eligible to a show-cause notice. As for example, where it is due to the conduct of the employee then the agreement or appointment letter, which placed him under probation, as we have stated earlier, will not be permitted to contract out of the provisions of the Constitution so as to say that as you are on a probation, therefore, even though you are being dismissed or removed from service, you will not be given a show-cause notice. This will be allowing to do that indirectly which the Constitution has prohibited to be done directly ." 5.The point has further been elaborated in P L D 1974 S C 393, Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan as under: "In the light of the above discussion, it appears to me that a probationer is a person who is taken in service subject to the condition that it will attain a sure footing only if during the period that he is on probation he shows that he is a fit person to be retained in service. I agree with the view expressed in Muhammad Afzal Khan v. The Superintendent of Police, Montgomery and Riaz Ali Khan v. Pakistan that a person who is on probation is subject to all checks to which a permanent servant is subject. He cannot for example, refuse to obey orders, keep his own hours of duty, or indulge in any malpractice. In my opinion, if the service of a probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in terms of the contract or the rules made by the Government but if the service of a probationer is terminated on tile ground of misconduct that will amount to removal or dismissal. It will be a stigma in his favour. In the last-mentioned case, the probationer will be protected by the provisions of Article 177 of the Constitution of 1962 and will be entitled to a show-cause notice and a proper enquiry against him must be made. Taking now the facts of each case, it will be noticed that the authorities concerned in the case of Muhammad Siddiq Javaid Chaudhry and Mumtaz Hussain Malik, appellants, terminated their services on the ground of unsatisfactory work and conduct. The record shows that there were allegations against them of corruption. In these circumstances, the order terminating their service amounts to removal and dismissal within the meaning of Article 177 and they were entitled to a show-cause notice under Article 177 of the Constitution of Pakistan, 1962."

6. The 1973 Constitution does not have any provisions corresponding to those, which were contained in Article 177 of the 1962 Constitution. However, the Punjab Civil Servants Act, 1974 clearly contains a mandatory provision in section 15 which lays down that "a civil servant shall be liable to such disciplinary action and penalties and in according with such procedure as may be 1irescribed." This procedure has been prescribed in detail in the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. Thus since the appellant had, clearly been accused of misconduct, which fact was also mentioned in no ambiguous terms in the aforesaid impugned orders, it could only be considered as a stigma and nothing else. He was, therefore, evidently eligible for protection of section 15 of the Punjab Civil Servants Act, 1974 and was entitled to a show-cause notice and a proper enquiry under the Punjab Civil, Servants :(Efficiency and Discipline) Rules, 1975.

7. On these findings we accept the appeal and hold that the services of the appellant were terminated in violation of section 15 of the Punjab Civil Servants Act, 1974 and that he is still in service. It is, however, open to the respondents to hold a proper enquiry against him strictly in accordance with the Punjab Civil Servants (E&D) Rules.

8. In the result, the appeal is accepted with no orders as to costs. The period of absence, after the termination of services of the appellant, is left to be determined by the competent authority. M.Y.H./324/Sr.P Appeal allowed.