2011 PLP (C (PLC(CS))

SH. AHMAD FAROOQ, J., MEMBER

Through this judgment, we intend to dispose of two Service Appeals, one filed by Ms. Nadia Siddique (Service Appeal No.5 of 2006) and the other filed by Ms. Saima Riasat (Service Appeal No.7 of 2006), as these have arisen from a single Notification No.133-RHC/CJJ, dated 25-6-2005, whereby the services of both the appellants were terminated by Lahore High Court, Lahore, under section 10 of the Punjab Civil Servants Act, 1974.

2. Brief facts, essential for the proper adjudication of the lis in hand are that the appellants were appointed as Civil Judge-cum-Judicial Magistrates, vide Notification No.480/RHC-C-I, dated 28-4-2004, and they assumed the charge at Lahore on 1-7-2004. After receiving training at Federal Judicial Academy, Islamabad they had been performing duties at Lahore. Within first year of their period of probation, their services along with two other Civil Judges-cum-judicial Magistrates were terminated, without assigning any specific reason.

3. It would be advantageous to narrate the proceedings, which culminated in the termination of the services of the present appellants. The appellants assumed the charge on 1-7-2004 and the first letter was issued on 9-7-2004 by Lahore High Court, Lahore to all District and Sessions Judges of the Punjab, wherein the newly recruited Civil Judges had been posted, requiring them to obtain declarations of assets from such Officers and forward the same to Lahore High Court, Lahore. It appears that out of 24 Districts, only four learned District and Sessions Judges complied with the instructions and, so, a reminder was issued on 11-10-2004 by Lahore High Court, Lahore to the learned District and Sessions Judges of 20 Districts of Punjab. Despite that, the requisite information was not received from Lahore and Okara Districts and another letter was issued on 13-11-2004, wherein, names of nine Civil Judges-cum-Judicial Magistrates, who failed to provide the declarations of assets, were mentioned, which included the names of both the present appellants. Simultaneously, it was communicated therein that disciplinary proceedings would be initiated in case, information was not received within fifteen days from the date of receipt of such letter. Ms. Saima Riasat/appellant submitted her declaration of assets, vide letter dated 3-1-2005, through learned District and Sessions Judge, Lahore. She was directed by Lahore High Court, Lahore, vide letter dated 18-1-2005, to provide documentary proof of her assets as required in the light of instructions contained in a previous letter, issued by Lahore High Court, Lahore on 9-7-2004. Ms. Saima Riasat/appellant made reply thereto on 1-2-2005 containing her explanations, which was forwarded to the Registrar, Lahore High Court, Lahore by the learned District and Sessions Judge, Lahore on 2-2-2005. Thereafter, a letter was issued by the Lahore High Court, Lahore on 8-2-2005 to the learned District and Sessions Judge, Lahore, wherein, it was mentioned that four Civil Judges-cum-Judicial Magistrates including both the appellants, neither submitted their declarations of assets, nor responded to letters, issued by the Lahore High Court, Lahore, within the target date and as such, the matter was placed before the Hon'ble Chief Justice and Judges, who were pleased to direct to call for explanations from the delinquent officers for delay in the submission of declarations of assets. Ms. Saima Riasat/appellant responded to the said letter on 14-2-2005, through the learned District and Sessions Judge, Lahore, contending that the delay in submission of reply was not deliberate.

4. Likewise, Ms. Nadia Siddique/appellant has taken the plea that in pursuance of the aforementioned letters, she had submitted her declaration of assets on 4-1-2005, through the learned District and Sessions Judge, Lahore, which was forwarded to Lahore High Court, Lahore on 12-1-2005. She submitted in her reply, dated 12-2-2005, that only one letter, dated 13-11-2004, regarding the submission of declaration of assets, was communicated to her on 23-12-2004 after expiry of date for submission of declaration mentioned therein. However, after winter holidays, she submitted her declaration of assets on 4-1-2005. She regretted the delay w.e.f. 23-12-2004 to 4-1-2005 and contended that on the last working day, prior to the winter vacations, she had to attend funeral of her paternal aunt. Both the appellants forwarded the statements of their Ahlmads, wherein, it was stated that the earlier letters were either not received by them, or could not be communicated to the Officers in time.

5. Learned counsel for both the appellants have contended that the order of termination in question was not an order of termination simplicitor, rather, it was based upon allegation of negligence/ misconduct as made out from the record of respondent and, thus, the appellants were prejudiced as no right of hearing was extended to them and the order of termination, in essence, was an order of imposition of penalty of removal from service, necessitating a regular inquiry and fair opportunity of hearing to be given by the learned Authority. They further submitted that departmental appeals/review petitions, filed by the appellants to the learned Authority, were disposed of without touching the merits of their contentions and they were intimated, vide letters Nos.348/RHC/C-I and 350/RHC/C-I, dated 25-3-2006, respectively, that they may seek remedy by filing Service Appeal before this Tribunal.

6. On the contrary, the learned counsel for the respondent has contested the averments vehemently and submitted that under section 10 of the Punjab Civil Servants Act, 1974, the learned Authority was competent to dispense with the services during the period of probation without assigning any reason and no illegality or prejudice was caused to the appellants. He further submitted that explanations were called for from the appellants from time to time on the issue of non-submission of declaration of assets, and statutory provision of termination of services during probation was duly activated and discretion, vested in the learned Authority, was thus, exercised legitimately.

7. We have heard the learned counsel for the parties, in addition to examining the record.

8. In the present case, two important aspects were ignored. The first one is that no inquiry was conducted into assertions made by the appellants that earlier letters seeking declarations of assets were not communicated to them and secondly, even after the submission of declarations, an impression was created that no declaration was ever filed. If, it was a simple question of late submission of declaration of assets, and the reasons, advanced by the appellants for such delays, were not acceptable, the learned Authority could have issued appropriate warning to them to be careful in future. In case, it was a matter of fake declarations or gross misconduct, running counter to sacred assignment of administration of justice, then, it could not be termination simplicitor as it was bound to bring stigma and in that eventuality, the learned Authority ought to have given a right of hearing to the appellants through regular inquiry and take appropriate action in consequence thereof. In this regard, we would like to refer to the case of Mrs. Abida Parveen Channar v. High Court of Sindh at Karachi (2009 SCMR 605), wherein, it has been declared that a right to notice is not to be premised merely upon the question whether the order of termination indicated a stigma, but whether allegations of misconduct had any bearing upon the mind of the competent authority passing the order. The Hon'ble Supreme Court of Pakistan in the case of Pakistan State Oil v. Muhammad Tahir Khan (PLD 2001 SC 980) has held that a Service Tribunal is required to hold an enquiry into the question whether it was termination simplicitor or 'termination' in the garb of dismissal. Similarly, in the case of Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 Supreme Court 393), it was declared that in case the services of a probationer is terminated on the ground of misconduct, it amounts to removal or dismissal and issuance of a show-cause notice and proper enquiry against the probationer is necessary. In the case of Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others (2002 SCMR 1034), Supreme Court of Pakistan laid down that principle enshrined in the maxim "Audi alteram partem" had to be applied in all judicial and non-judicial proceedings notwithstanding the fact that right of hearing had not been expressly provided by the statute governing the proceedings. Issuance of a show cause notice before terminating the services of an employee is incumbent.

9. From the record, it is proved that except non-filing or delayed filing of declarations of assets as required under Rule 12 of the Punjab Government Service (Conduct) Rules, 1966, there was no other ground for termination of services of both the appellants during their probation period. Rule 12 ibid requires every government officer while entering into the service to make a declaration, through usual channel, of immoveable and moveable properties including shares, certificate, jewelry etc. held by civil servant himself, as well as by members of his family, individually or collectively.

10. The Departmental Appeals/Review Petitions of the present appellants were disposed of, vide letters dated 25-3-2006, which did not disclose any reason or showed that any serious consideration was given to the contentions, raised in the review petitions by the appellants, and as such, the said order fell short of requirement of section 24-A of General Clauses Act, 1897, as interpreted by the Hon'ble Supreme Court of Pakistan in the case of Government of Sindh through Land Acquisition Officer and others v. Muhammad Juman and others (2009 SCMR 1407), wherein, it has been held that Court must pass a speaking judicial order manifesting by itself that the court applied its mind to issues involved in the case. In case of Federation of Pakistan and others v. Tahir Latif (2007 SCMR 152) it was held that it is the duty and obligation of competent authority to award minor punishment after application of mind with reasons. If such review petitions were considered on merits and grounds taken by the appellants were examined fairly and justly, there might not be an occasion of filing of instant appeals.

11. There is another dimension of this case, which also needs consideration. It is revealed from the letter dated 8-2-2005, issued by the Registrar, Lahore High Court, Lahore to the learned District and Sessions Judge, Lahore, that the explanation of the present appellants as well as two other Civil Judges, namely, Mr. Muhammad lmran Sheikh and Miss Shumaila Yaqoob was called for in respect of the delayed submission of declaration of assets. However, services of Mr. Muhammad Imran Sheikh and Miss Shumaila Yaqoob, Civil Judges-cum- Judicial Magistrates, were not terminated, through Notification dated 25-6-2005, and they were allowed to complete their probation period. It is significant to note that Miss Shumaila Yaqoob, Civil Judge, Lahore also submitted her declaration of assets on 3-1-2005 and advanced similar reasons for the delay but no action was taken against her. Civil servants, who are similarly placed, cannot be treated differently. Hence, we are constrained to observe that the present appellants were treated discriminately in violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, which guarantees equality to all citizens before law and equal protection of law.

12. Before parting with this judgment, we would like to observe that abrupt termination of service on probation must be done in exceptional circumstances, which are detrimental to very objective of the employment, for which such employee was recruited, and any omission so noticed must be dishonest and damaging to the goodwill of the institution, or against the public interest. There is no allegation against the present appellants that they concealed their assets from the learned Authority or delayed submission of declaration of assets with some ulterior motive, or possessed assets beyond known sources of income, which could justify the extreme step in the shape of termination of their services. The appellants joined service after qualifying a competitive exam and were performing their duties as Civil Judge, Lahore, after obtaining training from the Federal Judicial Academy, Islamabad. There was no complaint regarding their integrity or competency or efficiency. The termination of the services of the present appellants only due to their alleged negligence and delay in the submission of declaration of assets is too harsh. Needless to mention here that the punishment should commensurate with the gravity of the acts of omission or commission.

13. For the foregoing reasons, the order of termination of services of both the appellants, dated 25-6-2005, is not tenable in law and liable to be set-aside. Resultantly, the instant Service Appeals are accepted and the appellants are ordered to be reinstated in service. However, the entitlement of the appellants to claim back-benefits, shall be decided by the learned competent Authority because no civil servant can claim benefits, particularly the salary, without performing any duty. Even otherwise, in order to claim back benefits, the appellants had to prove before the learned competent Authority that they had not made earning by engaging themselves into any profit oriented activity during the period of termination of their services. In case, any representation is made to the learned competent Authority for claiming back benefits by the present appellants, the same shall be disposed of within a period of two months in accordance with the relevant law & rules. However, the appellants would continue to be treated as probationer on resumption of duties and acceptance of their appeals in no way would relieve them of conditions for confirmation, like clearance of departmental examinations, etc. H.B.T./N-32/L Appeal accepted.