P L D 1967 Lahore 491 (PLP)

CHAUHAN, J.‑This is a Letters Patent Appeal against the judgment of a learned Single Judge of this Court dated the 25th of November 1957 (reported in P L D 1958 Lah. 22), whereby, appeal of respondent, Federation of Pakistan, was accepted and judgment and decree of the Senior Civil Judge (first Appellate Court) were set aside and that of the trial Court were restored. The facts of the case are few and simple. The appel lant was appointed as a Senior Clerk in the Punjab Veterinary College on the 1st of November 1952, with a probationary period of two years. His confirmation was made subject to his, quali fying the Public Service Commission Examination. His services were terminated after 8 months and seventeen days on the 17th of August 1953 without a formal show‑cause notice on the ground that his work was unsatisfactory. The appellant filed a civil suit for declaration that his removal from service without show‑cause notice, as required under section 240 of the Government of India Act, 1935, was illegal. The trial Court dismissed the suit holding that the termination of the services of a probationer did not amount to dismissal or removal from service. On first appeal, however, the learned Senior Civil Judge, reversing the decree of the trial Court and holding that this was a case of removal from service, granted to the appellant the declaration prayed for by him. On second appeal to this Court, as indicated earlier, the appeal of the Federation of Pakistan was accepted and the suit of the appellant was dismissed.

2. The only question which arises for determination in this appeal is as to whether a probationer is also entitled to the safe guards of a show‑cause notice guaranteed against dismissal or removal from service, under section 240 of the Government of India Act, 1935. The relevant provisions of sections 240 and 241 are as follows:‑ "

240. Tenure of office of persons employed in civil capacities in Pakistan.‑ (1) (2) (3) No such person as aforesaid shad be dismissed 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 subsection shall not apply‑ (a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where any authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably prac ticable to give to that person an opportunity of showing cause. (4) Notwithstanding that a person holding a civil post under the Crown in Pakistan holds office during His Majesty's pleasure, any contract under which a person not being a member of a civil service of the Crown in Pakistan, is appointed under this Act to hold such a post may, if the Governor‑General, or, as the case may be, the Governor deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post." "

241. Recruitment and conditions of service.‑ (1) (a) (b) (2) Except as expressly provided by this Act, the conditions of service of persons serving His Majesty in a civil capacity shall, subject to the provisions of this section, 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 Governor General or by some person or persons authorised by the Gover nor‑General to make rules 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 or persons authorised by the Governor to make rules for the purpose Provided that it shall not be necessary to make rules regulat ing the conditions of service of persons employed temporarily on the terms that their employment may be terminated on one month's notice or less, and nothing in this subsection 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. (3) (a) (b) (i) (ii) .. (iii) (c) (4) (5)

3. From a perusal of the above provisions, the following conclusions can be drawn :‑ (a) That the above noted provisions do not contain a clause of the general kind like, subject to the provision of any contract to the contrary. Such a method of drafting is fully known to those who are concerned with drafting of statutes and wherever they want to save contracts to the contrary they expressly say so. The absence of such a phrase in the provisions of section 240 shows that here the intention was to give these pro visions a paramount status. This means that the provisions of show‑cause notice are mandatory and cannot be bartered away or contracted out. If for example there was a contract taken from an employee, which might contain a clause that even if the employee was dismissed or removed from service, he shall not be eligible for the show‑cause notice, then such a contract would be illegal and void. This conclusion is true for two reasons. One is the absence of a provision subjecting the afore said safeguards to a contract to the contrary, and the other is that these provisions are not meant really so much for the benefit of an employee, as their real aim is to regulate the public policy of procuring and preserving efficient service. It is obvious that a service will not be efficient unless its incumbents are protected against arbitrary and capricious orders and unless there is safeguard of their tenure and status, etc., and a feeling of confidence against arbitrary actions of their employer. It is well‑settled that provisions of the kind of a public policy can never be contracted out or bartered away and there can never be an estoppel against invoking such provisions. Reference may be made to Prem Prakash v. Pt. Mohan Lal and another A I R 1943 Lah. 268 and Rajindara Kumar v. Central Government through P. M. G., Punjab, Lahore, etc. A I R 1944 Lah. 168, where it was held that safeguard against attachment of the pay of a public servant as contained in section 60, C. P. C. is based on public policy and, even if a civil servant may contract to get his pay attached, such a contract would be void being against public policy and hit by section 23 of the Contract Act and that he, in spite of the contract, may still invoke the statutory pro tection contained in section 60 of the Civil Procedure Code. In our view, same is the position of the safeguards guaranteed in sections 240 and 241 of the Government of India Act.

4. Following extracts from the judgment of the Supreme Court in Khawaja Ghulam Sarwar v. Pakistan through the General Manager, P. W. R., Lahore (P L D 1962 SC 142), are relevant for the purpose of understanding the nature of the safeguards contained in section 240 of the Government of India Act, 1935, and for the proposition that they cannot be contracted out:‑ Per Cornelius, C. J. at p. 162:- "Therefore, it seems to me to be difficult to maintain that the power of the Government to engage persons for the public service on contract, on special terms, varying from those appli cable to members of the regular service and others, as set out in the existing rules, was exercisable so as to avoid all the provisions of the Act of 1935 as well. On the contrary, that Act by expression and implication embraces the case of such contract servants, and assures to them rights to protection in respects, directly touching their retention of office." Then at p. 165, his Lordship writes:‑ "The employer, namely, the Government, acting through a competent authority, cannot affect to ignore the requirements of the Constitution of 1935 and plead the letter of any clause in a contract in bar of a protection which is provided by that Constitution in the particular case." Earlier at p. 162 his Lordship observed,‑‑ "it seems to me that the conclusion is inescapable that section 240 (4) contemplates conditions under which the removal, even of a contract servants, cannot be accomplished otherwise than by the procedure applicable to all public servants. For it must be remembered that section 240 is by expression given the widest application to every person who is a member of a civil service of the Crown in Pakistan or holds any civil post under the Crown in Pakistan, and its provisions are not to be avoided by reference to any rule, whether of earlier or of later date. Section 276 expressly gives validity to Civil Service Rules of earlier date, but only to the extent that they are consistent with the Act of 1935." As per Fazl‑i‑Akbar, J.: After posing the question at p. 167, his Lordship writes:‑ "The main question in this case is: Can a notice clause for termination of service in the service agreement, which is the subject‑matter of this suit, co‑exist with the protection afforded to a civil servant under section 240 of the Government of India Act, 1935?" After examining the notice clause in the said case, his Lordship reached the conclusion that the said clause was inconsistent with the provision of section 240 of the Government of India Act, 1935, and at p. 168 held as follows:‑ "The provisions of section 240 and the rules made under section 241 thus give a guarantee of employment to the Govern ment servants and the guarantee continues throughout the period of their service. It is, therefore, clear that the Government cannot act in a high‑handed manner and award punishment to its servants without following the proper procedure." His Lordship further held that protection of section 240 (3) was available even to a contract employee and at p. 171 held:‑ "I, therefore, venture to think that the provisions of sub section (3) of section 240 cannot be evaded by saying that the action taken under the notice clause of the service agreement is not a punishment. In conclusion, I must say that in this case the Railway Administration did not handle the case with scrupulous regard to their statutory duties and to the rights of the appellant." Per Kaikaus, J., at p. 186, his Lordship wrote as follows :‑ "Suppose the Government were to enter into a simple agree ment with every permanent employee to the effect that section 240 will not apply to him, will the agreement be valid? I do not feel any difficulty in holding that it would be invalid. To proceed further step by step, suppose the contract said, the servant shall not be entitled to any show‑cause notice in case of dismissal or removal ; will the agreement be valid? The answer has still to be in the negative. But if instead of the agreement being worded as above it contained a clause to the effect that service would be terminable at the will of the Govern ment without notice, or on notice for a particular period, will the agreement become valid just because of a difference in the words used? The effect of such an agreement would be the same as that of the two agreements mentioned above." Per Hamood‑ur‑Rehman, J. at p. 197, his Lordship wrote:‑ "I am, therefore, unable to agree with the learned Attorney General that wherever there is a contract of employment pro viding for the termination of service on one month's notice or less, the employment is by its nature temporary. To accept this contention would amount to rendering nugatory the protec tion given by subsection (3) of section 240, for, then, it would be open, notwithstanding those provisions, for the appointing authority to obtain from every person recruited to the civil service or appointed to a civil post under the Government his signature to a contract providing for the termination of his service on one month's notice, and thus defeat the object of subsection (3) of section

240. To that extent, therefore, I also agree with the decision in Mrs. A. Y. Isaacs' case." Then at p. 198, his Lordship says :‑ "I do not find it necessary to go to the extent of saying that the capacity of the Government to enter into contracts of service with non‑temporary servants has also been taken away by these provisions for subsection (4) of section 241 indicate that the Government has the capacity to enter into contracts of service. It is sufficient, for my purpose, to say that although the capacity to enter into such a contract is there, but no contract which has the effect of taking away or curtailing either the protection given by the Act itself or the right required to be given by the rules framed under the Act, can be valid or binding. At any rate, a contract which seeks to curtail or take away these protections and rights must to that extent be held to be void. To hold otherwise, would lead to the absurd result that even though a legislative measure of an appropriate Legislature in India could not deprive a person of those protection and rights, a contract would lawfully produce that result. Again, if it could be possible by a contract to deprive a servant of Govern ment of the rights and protections given to him by those provisions of the Act of 1935, then it would logically follow that even the pleasure of the Crown which is safeguarded by the same provisions could be equally curtailed or taken away by a contract. I, for my part, find it impossible to hold that this could ever have been the intention of the framers of the Government of India Act, 1935." Then at page 201, his Lordship says‑ "But, if I am right in the view that I have taken of the intention of sections 240 and 241 of the Act of 1935, then no term in such a service agreement can prevail, if it has, in any way, the effect of depriving a railway servant of the rights and protections guaranteed to such a public servant under the Act itself. The rules cannot override the provisions of the Act. The provisions, therefore, in the Railway Establishment Code, and any contract entered into between a Railway servant and the Railway Administration which purport to put an end to the service of a non‑temporary employee without giving him the protection guaranteed to him under the provisions of section 240 must to that extent be held to be void and inoperative." Per Murshed, J. at page 219:‑ "The termination of the service of the appellant in accordance with paragraph 3 of his contract of service, namely, termination of service on a month's notice or a month's salary in lieu thereof, has also been assailed on another ground. It has been admitted that such are the usual terms of the service in respect of every Railway servant (there may be perhaps very few exceptions). This being the case, it has been contended by the learned Advocate. General of West Pakistan, that `even if it were permissible in the case of a permanent civil servant to provide in his contract of service for its termination on a month's notice, the introduction of such a term in the contract of employment of Railway servants, generally, would amount to an evasion of the express terms of section 240 (3) of the Constitution Act of 1935 by shift and contrivance.' It was submitted that this being a fraud on the statute' the Courts of law would set it at naught." Then at page 221 after dealing with this point, at length his Lordship writes :‑ "Applying the aforesaid principle to the facts of this case, the argument of the learned Advocate‑General, may be stated thus: Although the Constitution Act has provided, for the protection of civil servants under the Crown, that they cannot be dismissed without being given a reasonable opportunity to show‑cause against such dismissal, the importations in the contract of services of civil servants generally, of a term that their service can be terminated on a month's notice is nothing but a shift and Contrivance to evade the protection given to civil servants under the Constitution Act of 1935. I would like to observe that there is substance in this contention and that I would be prepared to uphold it, if called upon to do so; but I may add that this question can only arise if it is held that such a term in the contract of a permanent civil servant is permissible. It can then be argued that the manner in which such a term is imported into the contract of service of all Railway servants generally would amount to an evasion of the mandatory requirement of section 240 (3) of the Constitu tion Act of 1935 and would be discountenanced by Courts. As I have already held that such term is void, it is unnecessary for me to decide this point." Per one of us (Inamullah Khan, J.), at page

231. In Paragraph 21, his Lordship writes:‑ "It was contended by Mr. M. Anwar, the learned Advocate General that paragraph 3 of the service agreement and Rule 148 of the Railway Rules in respect of termination of service and periods of notice of permanent servants would be a fraud on the statute inasmuch as it would make the provision of sub section (3) of section 240 nugatory. In this connection he relied on a passage at page 74 of Craise On Statute Law' 5th Edition. The passage runs as under: It is a well‑known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance' consequently, as Lord Coleridge said in Wright v. Davies, if a contract is `framed so as entirely to defeat the object of an Act of Parliament', such a contract, `though not within its express prohibition, might very well be held to be impliedly forbidden by it. We, accordingly, find that a Court of law will not tolerate such an evasion of an Act of Parliament as amounts to a positive `fraud upon the Act,' such an evasion being, as Lord Eldon described it in Fox v. Bishop of Chester, `a fraud on the law or an insult to an Act of Parliament. I am of the view that in the case of permanent employees (I express no views in the case of temporary employees) the termination of the services either in terms of the service agreement or in terms of Rule 148 without complying with subsection (3) of section 240 would be a fraud on the statue. I think I am further supported by the Privy Council decision in the case of Mr. Lal, that the provision in subsection (3) of section 240 as to a reasonable opportunity of showing cause against the action is mandatory and necessarily qualifies the provision of subsection (1) and provides a condition precedent to His Majesty's exercise of his power of dismissal provided by subsection (1). If that be so how can an agreement, however, solemn or rule be given effect to in the face of the Constitutional safeguard. The service agreement or the rule, therefore, can be given effect to only after the service of a show‑cause notice as provided under subsection (3) of section 240 of the Act." As per Bashir Ahmad, J., his Lordship at page 240 writes:‑ "After giving the matter much serious thought the conclusion arrived at by me would be summarised thus. The word dismissal in subsection (3) of section 240 of the Act of 1935, covers all cases of severance of any kind of service which are in the nature of a punishment or penalty imposed for any defect in the quality of service, even though ostensibly they rest on innocuous terms of the agreement. In all such cases, the employee has the right to claim the benefit of the consti tutional provision. The power of the Crown to enter on a contract which qualifies the constitutional protection afforded by subsection (3) to the employee can rest only on the provisions of subsection (4) and the present agreement does not fall within the ambit of that subsection. There is similarly no power in the Crown by entering an agreement to render nugatory the constitutional protection which extends to a service in terms of subsection (3) of section 240 of the Act of 1935." All the above‑noted passages are uniform on the point that the provisions of section 240 of the Government of India Act, 1935, as regards a show‑cause notice are mandatory and their effect could not be overridden either by any contract or rules to the contrary. This should be true both of permanent or temporary employees, and it is on this basis that a show‑cause notice is necessary even for removal or dismissal of a temporary employee as well. It is no doubt true that the above‑noted case was a case of a permanent employee, but in Abdul Majid Sheikh v. Mushafe Ahmad and others (P L D 1965 S C 208), it has been held that, "This Court has held in the case of Ghulam Sarwar (cited above) that the termination of a Railway employee's employ ment, by notice, purporting to issue under a term in his contract of employment, where the facts showed that he had incurred the displeasure of his superior officers, but without a show‑cause notice, was a violation of the guarantee of employment conveyed by section 240 (3) of the Act of 1935. The employment in that case was permanent, but in this respect, an employee holding an appointment, indefinite in duration, although not in a substantive capacity, but expressly described as temporary, is in no worse case, as was held in the case of Noor‑ul‑Hassan cited above." (b) The aforesaid sections make no distinction between permanent or temporary employment. So long as a person holds civil post (as distinct from a defence post) or is in civil service (as distinct from defence service) whether permanent or temporary, he is eligible to a show‑cause notice if it is a case of dismissal of reduction in rank in spite of a provision in any rule or contract that service may be terminated on some periodic notice. Reference in this connexion may be made to Noor‑ul‑Hassan v. The Federation of Pakistan P L D 1955 Sind 200, Yusuf Ali Khan v. The Province of the Punjab P L D 1949 Lah. 219, Noorul Hassan v. The Federation of Pakistan P L D 1956 S C (Pak.) 331, federation of Pakistan v. Mrs. A. V. Issacs P L D 1956 S C (Pak.) 431, Punjab Province v. Syed Athar Ali P L D 1956 Lah. 886; Federation of Pakistan v. Shamsul Huda P L D 1957 Dacca 148, Muhammad Moslemul Haque v. The Commissioner of Income‑tax, East Pakistan P L D 1962 Dacca 175 and Abdul Majid Sheikh v. Mushafee Ahmad and others P L D 1965 S C

208. Reading section 241 (2) with section 240, it is clear that though power is given as not to frame rules with regard to persons employed temporarily on condition of termination of service on a fixed notice, it does not mean that show‑cause notice safeguard is not available to them. It is to be remembered that show‑cause notice safe guard is against dismissal or removal from service and reduction in rank. The corollary, therefore, firstly, is that the authority to employ temporarily on condition, etc., grants only one exception, namely, that for those persons, rules need not be framed. But it nowhere says that when they are to be dismissed or removed from service or reduced in rank, then they shall not be eligible to a show‑cause notice. Secondly, the authority recognized is for making appointments on condition, etc., that service shall be "terminable" (and not that the man shall be dismissable or removable from service or reduced in rank) on some periodic notice. The termination here is termination simpliciter and does not cover cases of dismissal or removal from service or of reduction in rank. The moment, therefore, a person is able to show that what has in effect taken place is not termination simpliciter, but dismissal or removal from service, then he can at once say that such a dismissal or removal without show‑cause notice is illegal. Reference may be made to the above‑cited cases which lay down that in case of dismissal or reduction in rank show‑cause notice is essential even to temporary employees and even in cases where there is a clause for terminating services on some periodic notice. (c) That 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 hold 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 simplicitor in the sense in which termination is used as distinguished from dismissal or removal, but tantamounts 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 misconduct 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. (d) That the provision that a person cannot be dismissed or removed from service by an authority lower in rank than the one which appointed him is as much applicable to a pro bationer as to any other employee as per Muhammad Afzal Khan v. Superintendent of Police, Montgomery, and others P L D 1961 Lah. 808 to which we shall presently refer in detail. (e) That though the words dismissal, removal or reduction in rank, are not used in any technical sense, but whatever the scope of their meaning may be, this has never been doubted that when action on the basis of misconduct, inefficiency, unsatisfactory service, or misbehaviour has been taken then definitely it is not a case of simple termination of service, but either of dismissal or removal from service. Reference may be made to Khawaja Ghulam Sarwar v. Pakistan through the General Manager, P L D 1962 S G 142.

4. After having laid down the above principles, we now proceed to analyse the reasoning of the judgment under appeal. In the judgment under appeal, it has been held that since a probationer is not yet taken in service, therefore, dispensing with his services cannot amount to removal from service. According to the judgment, it simply means a refusal to take him into service or to employ him. Refusal to take him into service, according the learned Single Judge, cannot mean removal from service. It will thus appear that the main reason of his Lordship is that a probationer is not in service. With utmost respect and regards, we do not agree. A probationer is as much in service or as much holds a civil post as any other employee. The only difference is that his appointment has not yet got a sure footing from the very beginning. But that is a different matter altogether. The judgment under appeal on this aspect of the matter came up for discussion in Muhammad Afzal Khan v. S. P., Montgomery, where the learned Judges wrote as follows:‑ "The plea that the termination of the service of a person on probation did not amount to either dismissal or removal from service may now be dealt with. The position of a person who has been taken on probation is that he is in service but his service is 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. No one can doubt 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. Reliance in support of the plea that the termination of the service of a Government servant who was on probation did not amount to either removal or dismissal from service was placed on Federation of Pakistan v. Riaz Ali Khan P L D 1958 Lah. 22 (Note. This is the judgment under this appeal). The decision relied upon is to the effect that the termination of the service of a person who was on probation did not amount to removal or dismissal from service and for that reason that part of section 240 of the Government of India Act, 1935, which enjoined that no person in the civil service of the Federation of Pakistan or one holding a civil post under the Government of Pakistan could be removed or dismissed from service without his being afforded an opportunity to show cause against the action proposed to be taken was not applicable to his case. What was said does not amount to saying that in no case could the termination of the service of a Government servant on probation amount to removal or dismissal from service. In my view the termination of the services of a Government servant, for the purposes of the provisions making an inquiry necessary, can be divided into four categories, namely dismissal from service, removal from service, termination of service, in terms of the contract between the Government and the employee and the termination of service during the period of probation. The terms `dismissal' and `removal' from service have attained technical meaning for the purposes of public service. Dismissal from service, which is invariably the result of proved mis conduct, ordinarily debars the person dismissed from future employment under Government. Removal from service generally results from some fault but does not debar the person from future employment under Government. Termination of service in terms of the contract though it may have resulted from a fault of the employee, does not amount to removal or dismissal from service unless the order terminating the service mentions that the terms of the contract were enforced because the employee had been guilty of misconduct. Termi nation of service during the period of probation does not amount to either removal or dismissal from service unless the order terminating the service mentions that it was terminated because of misconduct of the employee. Ever since the first of April 1937, when some parts of the Government of India Act, 1935, came into force the law has contained statutory provision that no order of removal or dismissal from service can be passed without affording the person affected an opportunity to show cause against the action proposed to be taken against him. If the termination of service of a person employed by Government on contract is expressed to be either removal or dismissal from service, the rules of affording an opportunity to show‑cause against the action contemplated will apply as in an ordinary case of removal or dismissal from service and the position will be precisely the same when the Government servant, whose services are to be terminated, is on probation for a stated period. If, however, the services of a person engaged by Government on a contract are terminated for no misconduct on his part but purely in terms of the contract he entered into, no opportunity to show‑cause against the termi nation of service need be given to him and the position is the same in cases of person on probation. It follows, therefore, that the decision in Federation of Pakistan v. Riaz Ali Khan, cannot but be held to have laid down the law correctly because all that is said was that termination of the service of a Govern ment servant on probation did not amount to either removal or dismissal from service. It does not, however, follow from that decision that the provision of law which enjoin that a person in any of the civil services of Pakistan or holding a civil post under Government in Pakistan could not be removed or dismissed from service by an authority lower than the one that made the appointment did not apply to cases in which service is terminated during the period of probation. I have shown in an earlier part of this paragraph that a person who is employed on probation is in service just as much as a person who holds a permanent post and I have no hesitation in adding that as long as the law is as it is at present, an order of termination of service of a person who is on probation cannot be passed by an authority lower than the one that made the appointment because the termination of service during probation though it does not debar the person so affected from future employment under Government has the same result as removal from service. I might add that rules regarding removal and dismissal from Government service when providing for inquiries almost invariably mention that termination of service during probation is not to be regarded as either removal or dismissal from service for the purpose of rules which enjoin the necessity of an inquiry." 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.

5. To the same effect is the law laid down by the Supreme Court in Nooral Hassan and others v. The Federation of Pakistan (P L D 1956 S C (Pak.) 331) where at page 384, Cornelius J. (as then his Lordship was) with whom the other Hon'ble Judges agreed wrote as follows:‑ "On the other side, reference was made to certain circulars issued by the Government of Sind in which the policy of that Government in relation to the dismissal of temporary Government servants was stated with clarity. Exh. 5/19 at page 105 of the paper‑book is a circular issued by the Govern ment of Sind to the effect that section 240, subsection (3), Government of India Act, 1935 makes no distinction between a permanent and temporary Government servant, and, therefore, if the object be to dismiss or reduce in rank a permanent or a temporary Government servant, all formalities required by section 240, subsection (3) of the Government of India Act, 1935 and rule 55 of the Civil Services (Classi fication, Control and Appeal) Rules must be carried out as a condition precedent. In another order, which is Exh. 5/22, the same Government laid down that District Superintendents of Police should disabuse themselves of the wrong notion that section 240, subsection (3) of the Constitution Act is not applicable to the subordinate ranks of the police force and tile requirements of the section being mandatory no Government servant irrespective of the length of his service whether he is permanent, probationary or temporary and whether departmental proceedings are held or not can, therefore, be discharged, removed, dismissed 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.' I find it difficult to suppose that this attitude was peculiar to the Government of Sind, and is not shared by other Provincial Governments, or by the Central Government in relation to its own services. The plaintiffs were careful also to place on the record several decisions by the Administrator of Karachi in the capacity of Inspector‑General of Police, Karachi, in appeals brought by officers of the same category as the present appellants, i. e., temporary officers of the same subordinate police, appointed for an indefinite period, who had been summarily dismissed. Exhs. Nos. 5/20 and 5/21 are documents of this nature, and in each case the Administrator found that the appellant had been dismissed without being afforded an opportunity to show cause under section 240, subsection (3). In each case the appellant was re‑instated." "These circular orders and administrative decisions are of course not conclusive, for the purposes of the decision of the present cases, but they do show that provincial administrations in the Province of Sind and also in the Province of Karachi have over a considerable period accepted a certain position which is entirely contrary to the position that was pressed before us on behalf of the Federation of Pakistan. I consider that the view of the law which is so clearly expressed in the circular orders and the administrative appellate orders mentioned above is entirely in line with the statutory provisions on the subject." This shows that their Lordships approved those circulars as being entirely in line with the statutory provisions on the subject which laid down that no Government servant irrespective of his length of service, whether he is permanent, probationer or temporary, can be discharged, removed or dismissed except after a show‑cause notice. It is further to point out that the Supreme Court case was in appeal from the judgment of the Sind Chief Court in Noorul Hassan v. The Federation of Pakistan. When reliance was sought to be placed on the observations of the Sind Chief Court in the said case before the learned Single Judge, he refused to follow them holding that they have no relevancy as that was not a case of a probationer. That criticism no longer remains available, as it is now the Supreme Court which in Noorul Hassan v. The Federation of Pakistan, at page 384 has laid down the law with regard to a probationer as well and from which the above‑noted passage has been reproduced.

6. In Syed Nisar Ali v. The Secretary, Ministry of Healh, Government of Pakistan and others (P L D 1958 Kar. 369), a Division Bench of this Court wrote as follows while dealing with a case of a probationer who was discharged from service without a show cause notice and by an authority subordinate in rank to his appointing authority, as was required under the relevant rule 17:‑ "Before parting with this case, we bad the painful duty to observe that in this case the Department has not followed the principles of natural justice before terminating the service of the petitioner. If they propose to take any such action in future, they must call upon the petitioner to answer any allegation made against him and thereafter, in accordance with Rule 17 they will be perfectly justified either to termi nate his services without assigning any reason or to take disciplinary action against him." "We accordingly issue a writ directing that the petitioner's services were not rightly terminated and he is till in the service of respondents as Medical Officer. The respondents are ordered to pay the costs of this petition."

7. All this will show that to hold that a probationer is not in service or not a holder of civil post, and that in case of his dismissal or removal no show‑cause notice is necessary is not a correct proposition of law.

8. The next reason given in the judgment under appeal is that since in Rule 1410 of the C. S. R. and Rule 8 (2) of the Punjab Department Subordinate Services Rules, 1933, it is laid down that the discharge of a probationer during the period of probation is not a removal and since the said rules form a part of contract agreement of service or employment with the appellant, therefore, the termination of the services of the appellant, within the terms of the said rule or contract did not amount to removal from service. This argument has two implica tions. Firstly, that the words `removal' or dimissal from service, as used in the Government of India Act, 1935, are to be given the same meaning as are given to them in various Service Rules and if in the various Service Rules any process is declared as not a removal from service, then it will not be a removal from service. In other words it means that these words are used in the Act of 1935, in a technical way (as used in various Service Rules) and not in any general sense, and, secondly, that even if in the Government of India Act, 1935, these words may have wider connotation, scope and meaning, their effect can be destroyed by making rules or agreements to the contrary, which may declare any process to be a removal or not a removal from service. With great respect, we do not agree to any of the aforesaid concepts. There was formerly a good deal of con troversy over point as to whether the words `dismissal' or `removal' were used in the Government of India Act, 1935, in any technical sense (in which these words were understood or explained in various Service Rules) or not. Reference may be made to minority judgment of M. Munir, C. J., in Noorul Hassan and others v. The Federation of Pakistan. But recently, this controversy has been set at rest in the above‑referred to case of Khawaja Ghulam Sarwar v. Pakistan through the General Manager, P. W. R., Lahore, where seven Judges of the Supreme Court held that these words were not used in any technical sense in which they were understood in the Civil Services (Classification, Control and Appeal) Rules. It was held that these words were of a wide and general import and were not restricted in their meanings. The question came up for discussion with respect to Rule 49 of the aforesaid Rules which reads as follows:‑ C. S. (C. C. A.) R. 49‑The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the clauses (1) to (5) specified in rule 14 namely: (i) Censure. (ii) Withholding of increments or promotion, including stoppage at an efficiency bar. (iii) Reduction to a lower post or time‑scale or to a lower stage in a time‑scale. (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. (v) Suspension. (vi) Removal from the civil service of the Crown, which does not disqualify from future employment. (vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment. Explanation: the discharge,‑ (a) of a person appointed on probation, during the period of probation. (b) of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appointment. (c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule."

9. Their Lordships were dealing with clause (c) of the afore said Rule and held that this clause was ultra vires of the provisions of section 240 (3) of the Government of India Act, 1935, vis‑a‑vis permanent employees, because, according to their Lordships, provisions for putting an end to the service of a permanent employee by a periodic notice were inconsistent with the safe guard against removal from service without a show‑cause notice. It is true that that was a case of a permanent employee, but so far as the meaning of the words dismissal or removal is concerned, the interpretation given by their Lordships will hold good for all types of civil employees. From this it follows that merely because in some service rules a certain process is not described as a removal from service it is no justification as not to call it a removal from service. One of the criteria for a process being removal from service is to see whether it is removal for blame, inefficiency, misconduct or unsatisfactory. work, etc. If termination of service is for this reason, then it will remain r removal notwithstanding the fact that in any Service Rule or contract this is not called a removal. It is here where provision of Constitution Act can be saved from being overridden by Rules, or contracts to the contrary. Because if that were not so then Constitutional guarantee can be destroyed by such like devices, 1 Just as clause (c) of Rule 49 of Civil Services (Classification,) Control and Appeal) Rules, was held to be repugnant to the provisions of the Constitution in Khawaja Ghulam Sarwar v. Pakistan Same is the position of clause (a) as well where it is sought to be applied to the termination of service of a probationer for misconduct or any other kind of blame or stigma on his part. It is interesting to note that in Former Province of Sind, in various Service Rules, even a Probationer was entitled to a show‑cause notice as suggested by Cornelius, J. (as then his Lordship was) in Noorul Hassan and others v. Federation of Pakistan. While in Punjab Rules, quoted in the judgment under appeal, it is written that discharge of a probationer is not removal from service. The position thus seems to be really anomalous. It means that the same process in one branch or part of Government may amount to removal from service. While in another branch or part it may not amount to removal from service. The corollary, therefore, is that Service Rules, are no sure guide for holding a process to be removal from service. The approach in judgment under appeal which is just based on the ground that since in Service Rules, such a process is not described as a removal, is thus not correct. For that different tests will have to be applied. Once if it is accepted that a probationer is also in service and that he also can be said to be holder of a civil post, and that safeguards of section 240 (3) are available to all types of civil employees, then termination of service of such a person, which is brought about for blame, inefficiency, misconduct or un-satisfactory work, will amount to removal from service and any provision in any contract or rule to the contrary cannot prevail so as to hold it otherwise. The use of any natural terminology either in the contract or in the rules or in any relevant order saying for example that your services are dispensed with or that your services are no longer required, or that you are discharged, etc., will not save the order from being called an order of removal from service. The judgment under appeal, which is based on the reasoning that since in Service Rules it is not called a removal, it was not a removal, cannot be sustained, inasmuch as, it will tantamount to hold that word `removal' has been used in the Government of India Act, 1935, in a technical sense, which proposition no longer holds good. The judgment under appeal was given at a time when one school of thought held that these words were used in a technical sense. But after the seven Judges of the Supreme Court in Khawaja Ghulam Sarwar v. Pakistan, held to the contrary, this view is no longer correct and the judgment under appeal cannot be maintained, based as it is, on the old state of law.

10. Before parting with this legal proposition, a little may have to be said about Muhammad Afzal Khan v. Superintendent of Police, Montgomery and others, from which a passage has been quoted in para. 4 ibid of this judgment. In the said judgment, there is a passage (while differing from the judgment under appeal in some other respects), to the effect that the judgment, under appeal correctly held that the discharge of a probationer is not a removal from service. This observation will no longer hold good, in view of what we have stated above and the judgment in Muhammad Afzal Khan v. Superintendent of Police, Montgomery, and two others, shall have to be subjected to the modification brought about in the connotation of the word `removal' or `dismissal' from service, by the seven Judges' judgment of Supreme Court in Khawaja Ghulam Sarwar v. Pakistan.

11. Adverting to the facts of the present case, it has been admitted by the defendant Government in the written‑statement that the termination of the service of the plaintiff took place due to unsatisfactory work. It is also commom‑ground between the parties that the plaintiff was never charge‑sheeted, no enquiry was held, and merely after taking explanation of the plaintiff, his services were put to an end. It means, it is clearly a termination for fault. If for example, afterwards, when plaintiff' seeks em ployment somewhere else, and gives a reference, that he served this Department for such and such period and when this Department is asked as to how his services were put to an end, the reply, obviously, would be that it was for unsatisfactory work. The present termination would thus be a clear stigma always standing against the plaintiff' and it could not have been brought about without complying with the requirements of the Constitu tion. It has been held by their Lordships of the Supreme Court in Captain Muhammad Azhar v. Commissioner of Karachi and another (P L D 1966 S C 253), that where the Commissioner had come to a finding that the Government Servant concerned was guilty of misconduct and had on that ground, passed an order of his removal, the mere fact that the Commissioner added at the end of his order a reference to clause (1) of the appointment letter (termination of service on fifteen days' notice) it could not convert an order passed in exercise of disciplinary authority into an order of discharge on fifteen days' notice. It was further held that removal, which is based on a finding of misconduct carries with it a stigma and is quite different in its effect from a simple order of termination of service. In other words, it was held by their Lordships that removal for misconduct cannot be converted into termination of service on basis of fifteen days' notice even though the term in the agreement of service, i.e. of fifteen days' notice is also referred to in the order of removal. The facts of the present case are fully covered by the law laid down in this authority of the Supreme Court because here also the removal for inefficiency and unsatisfactory work could not be converted into a termination of service under a probationary clause.

12. In view of what has been said above, we accept this appeal, set aside the judgment of the learned Single Judge and restore that of the First Appellate Court and grant the plaintiff appellant a decree for the declaration prayed for by him in his plaint. There will be no order as to costs. K. M. A. Appeal accepted.