1998 PLP 916 (SCMR)

MUNAWAR AHMAD MTRZA, J.

Relevant facts leading to present appeal briefly mentioned are that the appellant alongwith 17 others was appointed as Additional District and Sessions Judge' vide Notification, dated 6th October, 1987 issued by the Government of Punjab initially on probation for a period of two. years, which was, however, further extended. Subsequently, through Notification, dated 11th January, 1990 services of appellant were terminated under section 10(1) of the Punjab Civil Servants Act, 1974. Feeling aggrieved, he filed representation before the competent authority, which was rejected. Appellant then approached the Punjab Subordinate Judicial Service Tribunal by way of Appeal No. 18 of 1991, which was, however, dismissed in limine on 8th July, 1991: The concluding portion is reproduced below. "The initial appointment was subject to the condition that the appellant shall have to be on probation for a term of two years and after the expiry of such tenure, it was not considered to extend the aforesaid period and it was deemed proper to terminate his services. Hence such course of action cannot be objected to nor any exception can be taken to the decision of the respondent because no Tribunal or Court can thrust a person upon an unwilling employer. Nature of the services of probation was considered by the Supreme Court in the judgment reported as Muhammad Siddique Javed Chaudhri v. The Government of West Pakistan (PLD 1974 SC 393), and it was observed 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. It was further observed that termination of the services of a probationer on the ground of unsatisfactory work does not mean dismissal or removal from service but would be covered within the domain contract or Rules made by Government. In this view of the matter, it is evident that the appellant after his first appointment had to remain on probation for two years, since his work was considered to be unsatisfactory, termination within the meaning of the terms and conditions laid down in the letter of his appointment is not open to any exception. Question of serving any show-cause notice of holding of any enquiry was not at all relevant because services of the appellant were not terminated on account of misconduct. Hence, we do not find any substance in this appeal and the same is hereby dismissed." Aggrieved by above decision, appellant filed C.P.L.A. No.36(L) of 1992 before this Court, which was dismissed vide order, dated 2nd December, 1992 and leave declined. Relevant observations are reproduced below:

"...From the above-quoted rule, it is evident that under sub-rule (3) it has been provided that if no orders have been made by the day following the completion of the initial probationary period, the period of probation shall be deemed to have been extended; whereas, sub-rule (4) lays down that subject to the provision of sub-rule (2), if no orders have been made by the day on which the maximum period of probation expires, the probationer shall be deemed to have been confirmed in his appointment from the date on which the period of probation was last extended or may be deemed to have been extended. In our view, the above sub-rule (4) will be attracted to upon the expiry of the extended period and not on the expiry of the initial probationary period, which is governed by sub-rule (3) pointed out hereinabove.

6. Reverting to the last submission of Mr. Hamad Khan, it may be observed that the petitioner did not raise any such objection before the Tribunal and, therefore, it will not be just and proper at this stage to allow the petitioner to raise the above objection, particularly when we are satisfied that the impugned order is in accordance with .law and no prejudice has been caused to the petitioner. Leave is, accordingly, refused."

2. It is the case of the appellant that meanwhile three Additional District and Sessions Judges, namely, Mr. Sardar Muhammad Choudhry, Mr. Nazar Muhammad Fatiana and Mr. Muhammad Siddique Sikandar, whose services were similarly terminated, filed Service Appeals Nos.15, 33 and 34 of 1991 before Punjab Subordinate Judiciary Service Tribunal, Lahore, which were initially admitted and then kept pending to await the amendment in the law on the statement made by Advocate-General Punjab; therefore, before enforcement of new amendment, the Tribunal had no jurisdiction to hear or decide the appeal filed by the appellant. According to him order, dated 8th July, 1991 dismissing his appeal was nullity and corum non judice. In this background of circumstances, appellant filed an application under section 12(2), C.P.C. before said Tribunal on 22nd September, 1994 praying for recalling order, dated 8th July, 1991. The aforesaid application under section 12(2), C.P.C., filed by appellant was eventually dismissed in limine by the Tribunal vide order, dated 14th December, 1995. Appellant being aggrieved filed petition for leave to appeal, which was granted on 3rd November, 1997 in following terms:

"5..The case had come up for hearing again on 28-10-1997 when it was pointed out by Mian Nusrat Ullah, learned Senior Advocate Supreme Court for the petitioner, that besides the above jurisdictional defect in the Tribunal on the relevant date, even otherwise the petitioner has been discriminated inasmuch as three other Additional District and Sessions Judges, whose services were also terminated during the probationary period and who were similarly placed, have been re-inducted into service.

6. Mr. Abdul Majid Sh., learned Advocate Supreme Court appearing for the State, was asked to make his submissions on the above two points.

7. Today we have heard Mian Nusrat V11ah, learned Senior Advocate Supreme Court for the petitioner, and Mr. Abdul Majid Sh., learned Advocate Supreme Court for the Government. The latter is unable to demonstrate that the Tribunal had the jurisdiction on 8-7-1991. On the contrary he submitted that the amendment in the aforesaid Act was made subsequent to the above decision as to include inter alia the petitioner, whose services were terminated. He was also unable to controvert the factum that three other Additional District and Sessions Judges, whose services were terminated similarly, have been re inducted into service.

8. We are inclined to grant leave to consider, as to whether the Tribunal was justified to decline the aforesaid Civil Miscellaneous filed by the` petitioner. Leave is, accordingly, granted'. The appeal arising out of the above petition may be fixed for hearing at an early date.

3. Mr. Muhammad Ismail Qureshi, Advocate Supreme Court appearing for the appellant. contended that Punjab Subordinate Judicial Service Tribunal had no jurisdiction unless the amendment was incorporated in section 2(e) of the Punjab Subordinate Judicial Service Tribunal Act, 1991. Therefore, according to him, order of the Tribunal, dated 8th July, 1991 dismissing appeal of the appellant was coram non judice. He further contended that petition under section 12(2), C.P.C., filed before the Tribunal praying for recalling its earlier void order was competent, but the Tribunal seriously erred in law by dismissing the petition vide Judgment, dated 14th December, 1995 wrongly denying the dictum laid down in case Ghulam Muhammad v. Chief Settlement Commissioner (PLD 1964 SC 829). To supplement his submissions, reference was made by him to the observations in cases (i) PLD 1975 SC 450, (ii) PLD 1975 SC 331 and (iii) PLD 1983 SC 1

243. Learned counsel further convassed about the discrimination by the Tribunal as regards three other judicial officers whose services were similarly terminated by the Government but. their cases were admitted for hearing and finally disposed of on the statement given by the Advocate-General, Punjab. It was contended that facts and legal aspects as regards grievances of the appellant and three other judicial officers whose names are given above during narration of fact; were same and they had identical grievances, but the treatment meted out to the appellant was clearly discriminatory and, therefore, contravenes the principles of justice.

4. Mr. Altaf Elahi Sheikh, learned Additional Advocate-General vehemently opposed the appeal. It was argued by him that undisputedly appellant was on probation and his services were terminated simpliciter, therefore, notification issued in that behalf by the Provincial Government of Punjab on 11th January. 1990 did not suffer from any legal defect. He also referred to the documents filed by the appellant himself, which indicate communication of adverse remarks and copy of the annual confidential report. He placed more emphasis on the remarks by way of pen-picture relating to the integrity of the appellant given by the reporting officer. He further argued that most of the objections being raised by the appellant were factually decided by this Court in earlier round vide judgment, dated 2nd December, 1992 passed in C.P.L.A. 36(L) of 1992, therefore same points cannot be reagitated

5. We have carefully perused the record. It may be seen that appellant had raised following three objections before this Court while arguing the matter in C.P. 36(L) of 1992 challenging order of the, Tribunal, dated 8th July, 1991:

"(i) that since the record would indicate that there were allegations of corruption against the petitioner, the termination of petitioner's services was not simpliciter but was because of the above allegation and, therefore, the petitioner was entitled to proper hearing including issuance of show-cause notice etc.; (ii) that since no order for extension of probationary period was passed on or before 23-10-1989, it would be deemed that the petitioner was confirmed; (iii) that the learned Judge, who presided the Tribunal, was the Reporting Judge in respect of the petitioner, and therefore, he was not qualified to hear the appeal. " All these points were repelled by giving detailed reasons and leave was consequently refused vide order, dated 2nd December, 1992 concluding portion whereof has already been reproduced above. Obviously, same points which have already been adjudicated upon cannot be reagitated. Additionally, notification, dated 11th January, 1990 causing termination of the services of the appellant was without any reference to the conduct of the officer, therefore, simplicter termination during probation does not require show-cause notice or any other legal formality. This aspect has also been discussed in case Riaz Ali Khan v. Pakistan (PLD 1967 Lahore 491 at page 504); sideline His reproduced herein below:

"A perusal of the above passage will show that a probationer was held as much in service and as much holding a civil post as any other employee. If what takes place is simple termination of his service, then he is not eligible for a show-cause notice but if it is a dismissal or removal, as for example for misconduct or for unsatisfactory work, then he is eligible for a show-cause notice." The other case PLD 1980 SC 292 which also was relied upon by learned counsel for appellant relates to premature retirement without adopting procedure, which is also clearly distinguishable from the facts of instant case which purely relates to termination of service without any stigma during probation period. We may further observed that detailed facts of other officers and nature of accusations adjudicated before the Tribunal with regard to their grievances are not before us, therefore, no definitive opinion can be given without having detailed comparison. Besides, surprisingly appellant has pressed hard his claim on the ground of discrimination pointed out that though the other three judicial officers mentioned above had adverse entries in the service record, yet the Tribunal and Provincial Government have completely ignored the same while reinstating them. Therefore, according to him, on the principle of parity and discrimination irrespective of any adverse entries existing in his service record he was entitled to restoration in service. We are afraid that such construction with regard to principle of discrimination instead of doing general good would tend to promote the mischief rather than remedying the wrong. We are not pursuaded to stretch the principle of discrimination to the extent that if three persons are wrongfully restored despite adverse entries Whether justifiably or not, any wrong attributable to appellant must be ignored. Such construction, in our opinion, would certainly be detrimental to the principle of fairness and complete justice. For the above reasons we do not find any merits in this appeal which is consequently dismissed. There shall be, however, no order as to costs. A.A. /M-119/S Appeal dismissed.