1988 PLP (C (PLC(CS))

It is claimed by the appellant that he had 14 years standing at the Bar when he was selected as Additional District and Sessions Judge, as a result of his successfully taking the examination arranged by the Lahore High Court. He alongwith 16 others was appointed vide order of the Government of the Punjab dated 10‑3‑1984, as Additional District and Sessions Judge. The appellant reported for duty at Faisalabad on 23‑8‑1984 (FN).

2. The appointment of the appellant was in Grade‑18, subject to medical fitness and the appellant remained on probation for a period of two years. The relevant portion of appointment order reads as under:‑ "They will be on probation for a period of 2 years and will be governed by the terms and conditions of appointment as applicable to other Government servants of their rank and status. " The appellant was transferred from Faisalabad to Mianwali and then to Rahimyar Khan, from where his services were terminated a/s 10(1) of the Punjab Civil Servants Act, vide Notification dated 26‑1‑1987, and the same reads as under:‑ "The services of Mr. Tatheer Hussain Shirazi, Additional District and Sessions Judge, Rahimyar Khan, are terminated with immediate effect during the probation period under section 10(1) of the Punjab Civil Servants Act, 1974." The appellant has assailed this notification through this appeal a/s 4 of the Punjab Service Tribunals Act, 1974. The appeal came up for preliminary hearing on 24‑6‑1987, and I issued pre‑admission notice to Respondent No.l, and also sent for record in order to appreciate the arguments of the learned counsel for the appellant. Mr. A. G. Humayun, District Attorney and Malik Azam Rasool, Advocate, appeared on behalf of Respondent No.l.

3. Learned Counsel for the appellant argued that it is not a case of dispensation of service during probation period but in fact this is dismissal with stigma. In order to substantiate his argument learned counsel for the appellant referred to the endorsement No.5 to the main notification as under:‑ "The Registrar Lahore High Court, Lahore, with reference to his D.O. No.1670/RHC dated 18‑11‑1986." It is submitted, that according to the instructions of the appellant, the allegation of corruption made the basis of termination of his service in this D.O., therefore, the services of the appellant could not be dispensed with, without a show‑cause notice and formal inquiry. The learned counsel has placed reliance on ruling of the Supreme Court of Pakistan reported as P L D 1974 S C 393, in support of his argument. On the other hand Mr. A.G. Humayun, District Attorney assisted by Malik Azam Rasool, Advocate, on behalf of the Respondent No.l has submitted that the allegation that appellant was accused or removed on such charge in devoid of truth and a sheer fabrication. It is added that it is totally incorrect that charge of corruption was mentioned in the D.Q. On the other: hand it is submitted that D.O. contained only the opinion of the learned Chief Justice, Lahore High Court and nothing else.

5. On a perusal of the D. O. dated 18‑11‑1986 written by Registrar, Lahore High Court, Lahore, to the Chief Secretary, I find that the allegations of the appellant lack factual basis. Relevant portion reads as under:‑ "After consideration his performance as Additional District and Sessions Judge on probation, the Hon'ble Chief Justice is of the view that he is not a fit person to be retained in service and that his services may be terminated immediately a/s 10(1) of the Punjab Civil Servants Act, 1974." This is not all. Learned District Attorney has placed the entire record of the appellant before this Tribunal. I have gone through the summary submitted to the Chief Minister Punjab and find nothing as to the charge of corruption or any other accusation amounting to misconduct or carrying a stigma. I, therefore, conclude that there is no merit, whatsoever, in the plea of the learned counsel for the appellant.

6. The second line of attack to the notification was that it is clear from the reading of the order of Hon'ble Chief Justice passed in Criminal Misc. 1726‑B/86 Muhammad Sharif v. Ghulam Abbas etc dated 14‑10‑1986, that the appellant was not guilty of any offence. It was at the most simple error of judgment and it is further argued that the earlier order of the learned Chief Justice was not brought to the notice of the appellant. The reply of learned District Attorney is that the judgment of the learned Chief Justice cannot be made subject‑matter of the argument because this is not the forum to challenge the same. I am in agreement with him. The Tribunal in all propriety would not enter the field of sitting in judgment over judicial pronouncements of the High Court and that too in collateral

7. Learned Counsel for the appellant next cited case of Abdul Haye Khan v. State etc. reported in P L D 1958 S C 169, dealing with contempt and granting of bail. I have carefully gone through the cited judgment, which has no application to the present appeal. The argument of the appellant seems to suffer from fallacy of approach as I am not hearing an appeal against the orders of learned Chief Justice passed either in the bail application or contempt matter.

8. Thirdly, it was argued that the appointing authority of the appellant was Governor of Punjab while the notification of termination of service has been issued by the Chief Secretary, therefore, the same is void ab initio, coram non judice and of no legal effect. This was not a ground taken originally in the memo of appeal. The appellant moved an application for amendment of memo on 9‑7‑1987, in order to take this additional ground. Since the record was available with the Tribunal, therefore, I allowed the learned counsel to address the arguments on this point too. The precise reply of the learned counsel for the respondent is that the argument is falicious and misconceived because the order was passed by the Chief Minister, who is competent authority to pass such order for Grade‑18 officers, to which category appellant belonged and not by the Chief Secretary as urged by the learned counsel for the appellant. I have gone through the summary of the case submitted to the Chief Minister and find that the order was passed by the Chief Minister. The Chief Secretary only issued notification in pursuance of the orders of the competent authority. This course adopted by the Chief Secretary has sanction of law Therefore, there is no merit in the contention of the learned counsel for the appellant.

9. Fourthly, it was submitted that in case of stigma a show cause notice was necessary and in its absence the order dispensing with services of the appellant is bad in law. Learned Counsel for the appellant in support of this argument relied on 1984 P L C (C. S.) 752, and 1981 P L C (C.S.)

483. In the first mentioned case the order of termination of service was passed on account of misconduct. While in the other case the appellant was also proceeded on the basis of misconduct, therefore, it was held that show‑cause notice was essential. Both these cases cited have no bearing on the case of the appellant. The learned counsel for the appellant has further referred to P L D 1966 Lah. 910 headnote (b) which relates to the mode pf corruption and thus least relevant for the purpose of this appeal. The learned counsel has also referred to certain extracts of Supreme Court Labour and Services Digest 1979‑1982, by Surendra Malik. I have gone through these extracts but the same are altogether irrelevant for the discussion of present appeal.

10. The argument of the learned counsel presumes that the action against him proceeded on the allegations of corruption. This is factually incorrect in view of findings already recorded by me. The appellant has to lay factual basis before relying on a law point and citing precedents. The argument in fact is repetition of argument already dealt with. It is an established fact that the appellant was not proceeded against on the basis of corruption. Therefore, the argument is without any force.

11. Learned Counsel for the appellant has, also relied on the case Anderson v. Gorrie and others reported as 1985 QB

668. He also, pressed into‑ service Judicial Protection Act of 1850. I have carefully perused the precedent case and the provisions of law relied upon. I am constrained to observe that they too are neither relevant nor of any avail to the appellant.

12. The matter in my humble view stands clinched by latest pronouncement of Supreme Court of Pakistan in re: CP 313/1986 Furrukh Amin v. Government of Punjab and others, decided on 19‑10‑1986, wherein it has been authoritatively laid down as under:‑ "The order communicating the termination of service of the petitioner does not contain any reference of corruption, therefore, there was no question of serving a show‑cause notice upon the petitioner. It was a termination of service simpliciter. The authority relied upon by the petitioner reported in Muhammad Saddiq Javed Chaudhry v. Government of West Pakistan (supra) was rightly held to be inapplicable in the case in hand because in the reported case the order of termination of service contained a reference to corruption and, therefore, the issuance of a show‑cause notice was held to be essential. " I have further noted that a similar argument that the order was not passed by the competent authority, was also raised by the petitioner in the cited precedent but repelled. I, therefore, following the law laid down by the Supreme Court of Pakistan, dispel the plea of the appellant as lacking total merit.

13. In the end it was argued that probation period was extended and at the same time the case for dispensing with his service was moved, therefore, both the actions are contradictory and destructive of each other. The argument is against record and passed on wrong assumption of facts. The fact of the matter is that Mr. Justice Dr. Javid Iqbal, the then Chief Justice of Lahore High Court recommended the extension of probation period for one year. It is sheer common sense that probation of an officer is extended for the third year when his performance for two years was not satisfactory. The appellant, therefore, cannot get premium on that account. Thereafter, the present Hon'ble Chief Justice Mr. Justice Ghulam Mujaddid Mirza while deciding the bail application referred to above, was pleased to observe as under‑.‑ "I am further of the view that the officer Syed Tathir Hussain Sherazi posted at Rahimyar Khan is not fit to be entrusted with criminal work. The Sessions Judge Rahimyar Khan shall be informed to withdraw criminal cases from said officer." The law is now well‑settled that services of a civil servant on probation can be dispensed with at any time during probationary period. The case of the appellant more aptly appears to be covered by case of Abdul Razaq v . Province of Punjab reported as 1980 S C M R 876, therefore, no show‑cause notice and other formalities envisaged under the Efficiency and Discipline Rules were required to be observed.

14. The appellant being on probation period, therefore, his services could be legally dispensed with a/s 10(1) of the Punjab Civil Servants Act, 1974. The Government is the sole judge and has absolute powers u/s 10(1) of the Punjab Civil Servants Act, 1974, to dispense with simpliciter the service of a civil servant on probation. I am fortified in my view by .latest judgment of Supreme Court of Pakistan in Federation of Pakistan v. Hashim Shah Qureshi (1987 S C M R 196), where their lordships of Supreme Court of Pakistan after referring to Abdul Karim v. The West Pakistan Province (P L D 1956 S C 298) and Fed. of Pakistan v. Sirajul Islam (P L D 1975 S C 77) held:‑ "....As termination of his service was in accordance with the conditions of his employment... the respondent could not seek redress against it." I respectfully following the dictum of Supreme Court of Pakistan hold that the impugned order is legal and suffers from no legal or other infirmity. I have satisfied myself that it is not a case of any stigma and the appeal is without any merit.

15. Before parting with this judgment I would like to make it clear that even otherwise when two powers are concurrently available to the authority, one of dismissal, removal, termination of service with stigma and other termination of service without stigma in accordance with terms and conditions of employment, it is open to the employer to adopt either one. This principle was upheld by the Supreme Court of Pakistan in Abdul Karim v. Government (P L D 1956 S C 298). The relevant portion is as under:‑ "The only other point urged on behalf of the petitioner viz. that the termination of petitioner's service with one month's notice was mala fide is equally devoid of force. It is easy to conceive of cases where the authority competent to dismiss a public servant employed on the same conditions as the petitioner comes after an enquiry, to the conclusion that the drastic steps of dismissal which would effect his employability is not called for though his further continuance in service is not desire able in the public interest. There is nothing on record before us to show that this was not one of such cases. From the mere fact that no action was taken on the enquiry held against the petitioner, it cannot be reasonably concluded that the action of Superintending Engineer Thal area was mala fide." This decision was followed in the recent case of Hashem Shah Qureshi referred to above. Therefore, even if there were allegations of corruption and the appellant was liable to be proceeded against under the Efficiency and Discipline Rules, 1975, this was never made a ground for termination of service. I, therefore, respectfully following the judgment of the Supreme Court of Pakistan hold that the allegations of corruption levelled independently did not in any case impair the power of Authority to proceed against the appellant in accordance with the terms and conditions of his service.

16. The appeal is dismissed in limine being without any merit. A.A./181/Sr.P Appeal dismissed.