1984 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN). ‑‑ Mukhtar Ahmad Tarar has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which be has impleaded the Inspector‑General of Prisons, Lahore and the Home Secretary, Government of the Punjab, Lahore, as respondents. 2. By virtue of this appeal he has prayed that the orders dated 13th June, 1982 and 13th September, 1982 respectively, passed by respondents Nos. 1 and 2 be set aside and the appellants be ordered to be reinstated in service with full back benefits. 3. Brief facts of the case are that the appellant was appointed as Assistant Superintendent Jail vide order of Inspector‑General of Prisons, Punjab, dated 1st October, 1978 against a temporary vacancy likely to become permanent; with a clear indication that he had to qualify the departmental examination and during probation he had to show satisfactory performance. It was laid down in the said order that in case he failed to do so, his services would be dispensed with. In clause (f) of the said appointment order, it was further laid down that even otherwise the department was empowered, that if the services of the appellant were not required at any time, he would be served with a notice of one month or surrender his pay in lieu thereof. However, the appellant while he was serving on probation, was served with a show cause notice, captioned as termination of service, in which various allegations like bad reputation, for drinking, womanizing etc, details of which were given and accordingly it was stated that this show‑cause notice be treated as one month's notice for termination of service, in terms of clause (f) of appointment order No. 263 dated 1st October, 1978. The appellant replied to the show‑cause notice, in which he denied all the allegations so levelled against him but his explanation was found unsatisfactory and ultimately he was discharged from service forthwith, vide impugned order dated 13th June, 1982 passed by the Inspector‑General Prisons, Punjab, Lahore. He filed appeal before the Home Secretary Punjab, in which he again denied all the allegations and took a stand that the inquiry so conducted against him, was found baseless by the S. P. Faisalabad, and the same was considered and rejected by the Home Secretary vide order dated 13th September, 1982. He further filed a review petition against the said order before the same authority on 2nd November, 1982 but the result of the same has not been placed on the record. Hence this appeal. 4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance. 5. Learned counsel for the appellant has submitted that the appellant although being a probationer, could not be discharged from service without holding a regular independent enquiry, when the allegations, very serious in nature, were levelled against him vis‑a‑vis his conduct in service as well as personal character. It has been submitted that the first inquiry against the appellant as conceded by the respondents was conducted by S. P. Faisalabad in which it was held that all the allegations against him were baseless but the same had not been considered in his favour and reliance was placed on the inquiry of the Crime Branch which according to the respondents themselves, is a short one, saying that a discreet inquiry was conducted by the said authority and stated that the appellant was not enjoying good reputation was addicted to liquor and was in the habit of mixing with women of bad character. It has been vehemently argued that such like few lines, written by the Crime Branch should not have motivated the respondent I.‑G. Prisons to assassinate the appellant's character and jeopardise his future chances of service any where in Pakistan. Learned counsel for the appellant has assailed the legality of the order on the ground that the I.‑G. P. being the authority should not have arrogated the jurisdiction of Authorised Officer to himself by proceeding to pass the final order of his discharge. In this matter he has relied on the well known ruling of Muhammad Siddiq Javed, Civil Judge, reported as P L D 1974 S C 393 in which their Lordships of the Supreme Court of Pakistan has struck down such like allegations, which were found to be proved against a civil servant at his back without associating him with the enquiry so conducted against him. Even, though it was found that the said civil servant was still a probationer. 6. On the other hand learned District Attorney has submitted that the respondents have conceded in their para-wise comments before this Tribunal dated 24th February, 1983 that the appellant was neither removed nor dismissed from service and was only discharged from service during the period of probation on account of unsatisfactory record of service and for not passing the prescribed departmental examination as envisaged in his appointment order dated 1st October, 1978 as well as sub‑rule (3)(a) of rule 5 of Chapter 11 of the Punjab Civil Servants Act, 1975. He has also submitted that even otherwise the appeal was time barred as the appellant had no business to file a review before the Home Secretary once his appeal stood rejected and no review lie before the said authority. The review had also been filed fully after a lapse of 30 days and thus the appeal would be hopelessly time‑barred. In this way the learned District Attorney has submitted that it was not necessary for the I.‑G. Prisons to recount the facts of certain enquiries by which the appellant was dubbed as womanizer, drunker and a man of horrible moral reputation. This according to the learned District Attorney, could be considered as a redundant material on the record which could be struck down and only the operative order for termination of service be maintained. 7. We have given our anxious thought to the arguments so advanced by the parties and have also perused in this respect the ruling of their Lordships given in the case of Muhammad Siddiq Javed Chaudhry (P L D 1974 S C 393) and have also carefully taken into consideration the appointment order of the appellant, which would be the sheet anchor of this case for determining the terms and conditions of service. 8. The appointment order as mentioned above in the earlier part of bur judgment, fully made it clear to the appellant that he had to pass the examination during the period of probation as well as to prove his worth as Assistant Superintendent Jail during the said period. It is clearly laid down that even otherwise the respondents was empowered to terminate his service by giving him one month's notice or surrendering of one month's pay in lieu thereof, if at all it was decided that his services were no more required, as the status of the appellant's appointment was purely temporary against a temporary vacancy likely to become permanent In view of the above order, there can be no dispute with the stand of the respondents that the services of the appellant were terminated in legal manner, in accordance with the terms and conditions offered to him by the competent authority in his said appointment order. It has also been conceded by the respondents that the discharge of the appellant from service was a discharge simplicitor, which was not made as a matter of punishment, therefore, according to the said submission, it has been prayed that the same may be maintained. ??????????? 9. We have taken into consideration the arguments of the learned counsel for the appellant with regard to the observation made by the Inspector‑General of Prisons, in the show‑cause notice as well as the impugned order and fully agree with him that while termination the services of the appellant in accordance with the appointment order the Inspector‑General of Prisons was not within his competency to refer to certain allegations of misconduct involving moral turpitude etc. as if the person had to be removed/discharged from service on the ground of mis?conduct and on the strength of the said allegations, it was incumbent upon him to hold a regular enquiry into the matter and to associate appellant with the same as well as to give him full chance to defend himself. This being so, the only relief which we can give the appellant in this case would be that we should strike down the mention of such allegations and only uphold the order of discharge from service, which was made in accordance with the terms and conditions of his service as laid down in his appointment order. We are of the considered opinion that under section 5 of the Punjab Service Tribunals Act, 1974 we can do so and this Tribunal has wide powers by substituting itself in place of the competent authority and to set the order right, by varying or modifying the same. 10. Without going into the controversy whether the report of S. P. Faisalabad, on his conduct should have been upheld or the verdict of the Crime Branch should be considered sacrosanct in the case of the appellant, we proceed to modify the impugned order by striking down of the allega?tion of misconduct so made in it by the competent authority and uphold the operative portion of the same by which the appellant has been discharged from service, in accordance with the terms and conditions so laid down in his appointment order. We further hold that the discharge of the appellant from service as Assistant Superintendent Jail, has not been made as a matter of punishment, as conceded by the respondents themselves and he will be considered to be a discharged civil servant without any stigma behind him without jeopardising his further chances of service in any other Department which he might like to seek. 11. In the light of the above, we proceed to dismiss the appeal and uphold the operative part of the impugned order by which the appellant has been discharged from service with a discharge simplicitor. However, there will be no order as to costs. M. I.??????????????????????????????????????????????????????????????????????????????????????????????????? ????? Appeal dismissed.