1974 PLP 243 (PLC)

WAHEEDUDDIN AHMAD, J. This judgment will dispose of Civil Appeals Nos. 295 of 1969, 14 of 1970 and 97 of 1970, in which a common question of law is involved. In Civil Appeal No. 295 of 1965, the appellant was appointed by letter dated the 25th September 1963, as Civil Judge in the West Pakistan Civil Service(Judicial Branch). He was to be considered on probation for a period of two years with effect from the date he actually resumed duty. He was also required to pass departmental examination prescribed in the West Pakistan Civil Services (Judicial Branch) Rules, 1962 and in case, he failed to do so, his services were liable to be terminated without notice. According to para. 7 of his appointment letter, he was governed by the Government Servants Conduct Rules and such other Rules as may have been or may be enforced by the Government in this behalf. The appellant joined service on the 9th November 1963. He passed the departmental examination, which was notified in the official Gazette of 23rd June 1964 and 29th January 1965. The services of the appellant were dispensed with on the 19th June 1965, under rule 8 of the West Pakistan Civil Services (Judicial Branch) Rules, 1962 on account of his work and conduct having been found unsatisfactory during the initial probationary period of two years. According to the service record of the appellant produced, by the High Court, it appears that the allegation against him was that he was corrupt and he himself admitted that he gained a reputation for corruption. The relevant rule 8 is reproduced below: "Rule 8: Probation.

(1) A person appointed to the service against a substantive vacancy shall remain on probation for a period of two years. Explanation. Officiating service and service spent on deputation to a corresponding or a higher post may be allowed to count towards the period of probation. (2) If the work or conduct of a member of the service during the period of probation has been unsatisfactory, Government may, not withstanding that the period of probation has not expired, dispense with his services. (3) On completion of the period of probation of member of the Service, Government may, subject to the provisions of sub-rule (4), confirm him in his appointment, or if his work or conduct has in the opinion of Government, not been satisfactory- (a) dispense with his services; or (b) extend the period of probation by a period not exceeding two years in all, and during or on the expiry of such period pass such orders as it could have passed during or on the expiry of the initial probationary period." The appellant moved a petition before the Governor of West Pakistan, bringing to his notice the alleged injustice done to him. No decision, however, was taken on it and no reply was sent. Thereafter, the appellant challenged the order of termination of his service under Article 98 of 1962 Constitution of Pakistan in the' former High Court of West Pakistan, Lahore, in Writ Petition No. 1231 of 1965, on the ground that the appellant was entitled to protection of Article 177 of the Constitution and in so far, as no opportunity was afforded to him, his dismissal from service was without lawful authority. It was further pleaded that the provisions of natural justice has been violated. His writ petition along with Writ Petition No. 2096 of 1964, came up for hearing before a Division Bench of the former High Court of West Pakistan, Lahore and these petitions were dismissed by a single judgment dated the 31st January 1967, for the reasons stated in Writ Petition No. 2096 of 1964. The grievance of the appellant is that his case was not considered by the High Court and the High Court has mixed up his case with the case of Mumtaz Hussain Malik in the connected appeal. The appellant challenged the order of the High Court in Civil Petition for Special Leave to Appeal No. 92 of 1967 and leave was granted to him to consider the question whether the order terminating his services could not have been made without a prior show-cause notice as held in the case of Riaz Ali Khan v. Pakistan (P L D 1967 Lah. 491.), that a probationer has the same right as a permanent member of a service. Leave was -granted to consider the correctness of this decision. In Civil Appeal No. 14 of 1970, the appellant was approved as candidate for appointment as Assistant Sub-Inspector of Police on three years' proba tion on the 1st March 1962, with toe approval of the Deputy Inspector General of Police, Multan Range. His appointment was made by the Superintendent, of Police, Muzaffargarh, vide Gazette Notification No. 5261 dated the 24th March 1962. He was sent to the Police Training Institute for the completion of Inter-Class Course and was declared successful. He was posted for the completion of `D' Course to Police Station, Khan Garh. During his posting at Police Station, Khan Garh, a complaint was received against him by S. H. O. Khan Garh who conducted an inquiry into the allegations. Thereafter, the respondent deputed the District Inspector, Alipur, to, probe into the allegations against the appellant. The said Officer reported that the appellant has demanded Rs. 40 as illegal gratification from Ghulam Sarwar and Khuda Bakhsh for showing them favour in his Daily Diary Report No. 14 dated the 15th June 1965. It was alleged that the appellant summoned these persons knowing that he was taking cognizance of a non-cognizable offence. The appellant was charge-sheeted and a summary of allegations against him was sent to him. lie was called upon to show cause as to why major penalty under Government (Efficiency and Discipline) Rules, 1960, may not be imposed against him. The appellant submitted his reply on the 26th February 1965. After considering the reply, the appellant was discharged from service vide order dated the 27th February 1965, on the ground that he was not likely to make a good Police Officer and there were complaints of corruption and misconduct against him. The appellant filed an appeal against this order before the Deputy Inspector General of Police which was dismissed on the 13th July 1465. He took up the matter in revision before the Additional Inspector-General of Police but was unsuccessful there also. Thereafter, the appellant filed Writ Petition No. 2005 of 1965 in the former High Court of West Pakistan, Lahore, which was dismissed by a Division Bench on the 25th February 1967. The appellant filed Civil Petition for Special Leave to Appeal No. 148 of 1967 and leave was granted to him to consider the question whether a probationer has an assurance of continuance in service equal to those of a permanent employee and cannot be removed on a mere declaration of unsatisfactory service. In Civil Appeal No. 97 of 1970, the appellant was appointed Civil Judge in the West Pakistan Civil Services (Judicial Branch), by letter dated the 27th July 1961. - lie took charge on the 1st September 1961. He was to be considered on probation for a period of two years. lie was also required to pass departmental examination, prescribed in the West Pakistan Civil Services (Judicial Branch) Rules, 1962 and if he fails to do so, his services were liable to be terminated without notice. Under Clause VI1 of the letter of his appointment, the appellant was governed by the Government Servants Conduct Rules and such other Rules as may have been or may be enforced by the Government in this behalf. Under Clause IX of the letter of appointment, his services were liable to be terminated on the following grounds: (a) During the period of probation or on its conclusion or even thereafter without notice, if your work or conduct is proved to be unsatisfactory or if you fail to pass the departmental examination within the pres cribed period, (b) in circumstances other than those mentioned in (n) above, without assigning any cause, by one month's notice from you to Government or vice versa provided that one month's pay may be forfeited or granted, as the case may be, in lieu of notice. The services of the appellant were dispensed with under rule 8 of the West Pakistan Civil Services (Judicial Branch) Rules, 1962, on account of his work and conduct have been found unsatisfactory during the period of pro bation. The remarks made in his service record show that he was indifferent. He was unpunctual and difficult to work with and he was reputed to be corrupt. Relevant rule 8 has already been reproduced while giving the facts in CM1 Appeal No. 295 of 1969. The appellant challenged the order of termination of his service dated the 18th August 1964 by a Writ Petition No. 2096 of 1964 in the former High Court of West Pakistan, Lahore. The writ petition was dismissed by a Division Bench of the High Court on the 31st January 1967, on the ground that a probationer has no constitutional protection The appellant fled Civil Petition for Special Leave to Appeal No. 124 of 1967, which was dismissed on the 19th April 1967. On a review petition, this Court granted leave to the appellant on the 30th June 1967, to consider the correctness of the decision of the High Court in Riaz Ali Khan v. Pakistan (P L D 1967 Lah. 491). The learned counsel for the appellants have contended that a probationer Is also entitled to the safeguard of the show-cause notice guaranteed against dismissal or removal from service under Article 177 of the Constitution of Pakistan, 1962. They further contended that just as a person, who is a temporary employee, is also in service or holds the civil post, similarly a probationer is also in civil service and holds a civil post. It is also contended that any rule or terms of contract, which is contrary to the constitutional guarantee will not apply to a probationer. In support of their contention, the learned counsel for the appellant have relied o, Riaz AU Khan v. Pakistan and Khawaja Ghulam Sarwar v. Pakistan through the General Manager, P. W. R., Lahore (P L D 1962 S C 142). In the second case, it was held that the termination of a Railway employees employment, 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. This case was further considered in Abdul Majid Sheikh v. Mushafee Ahmad and others (PLD1965SC 208). It was held in that case that the decision in Ghulam Sarwar case was also applicable to an employee holding an appointment; indefinite in duration, although not in a substantive capacity, but expressly described as temporary. In the case of Riaz Ali Khan v. Pakistan, it was held as under: "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 holds 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 simpliciter in the sense in which termination is used as distinguished from dismissal or removal, but tantamount 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 his conduct 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 riot be given a show cause notice. This will be allowing to do that indirectly which the Constitution has prohibited to be done directly." The learned counsel for the appellants also referred to the cases of Muhammad 4fzal Khan v. Superintendent of Police, Montgomery and others (P L D 1961 Lah. 808) and Syed Nisar All v. The Secretary, Ministry of Health, Government of Pakistan and others (P L D 1958 Kar. 360) In the last mentioned case, it was held that in a case of probationer if the Department wants to terminate the services of the Government servant then the principles of natural justice should be followed on the case of Muhammad Afzal Khan v. Superintendent of Police, Montgomery, it was held as under. "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. 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. The termination of the services of a Government servant, for the purposes of the provisions making an enquiry necessary, can be divided into four categories, namely, dismissal from service, removal froth service, termination of service in term4 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 meanings for the purposes of public services. Dismissal from service, which is invariably the result of proved misconduct, ordinarily debars the person dismissed 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. Termination of service during the period of probation does not amount to either removal or dismissal from service unless the order terminat ing the service mentions that it was terminated because of misconduct of the employee." Mr. Kamal Mustafa Bokhari, learned Assistant Advocate-General, Punjab for the respondents, has referred to the cases of The Federation of Pakistan v. Mrs. A. V. Isaac (P L D 1956 S C (Pak.) 431), Noorul Hassan and others v. The Federation of Pakistan (P L D 1956, S C (Pak.) 331), The Federation of Pakistan v. Raja Mohammad Afzal Khan (P L D 1958 B C (Pak.) 258), Mohammad Mumtaz Khan v. Government of, West Pakistan (P L D 1968 S C 357) and Mohammad Ashraf v. Dr. Arshad Malik, Chairman, District Family Planning Board, Sargodha (1970 S C M R 241). All these cases are under section 240 of the Government of India Act. The trend of decision of some of these cases is that if a temporary Government servant is discharged from service on account of misconduct, it was an order of dismissal within the meaning of section 240, Government of India Act and that if the opportunity required by that section was not given to him the order of dismissal would be void, irrespective of whether the respondent was permanent or temporary employee. In the case of Raja Mohammad Afzal Khan, it was, held that the first tentative appointment of the Government servant concerned, was "subject to verification of character and antecedents" and there was a condition that the service could be terminated on 15 days' notice by either side. As it was, Government made enquiries and were not satisfied as to "character and antecedents" of the incumbent, they, therefore, terminated his service "with immediate effect" and directed that he should be paid 15 days' pay in lieu of notice ' It was held that the establishment of a satisfactory character and satisfactory antecedents was a condition sine qua non to the completion of the contract of employment. In the case of Mohammad Mumtaz Khan, cited above, it was held that a Government servant was appointed in a temporary capacity to class I post on specified terms, two of which were: (1) although temporary, the ' post was likely to continue indefinitely, and (2) the appointment was liable to be terminated at any time on a month's notice on either side. The employee failed to give a satisfactory amount of himself during the brief tenure of his office in the new post. The Government terminated his appointment on one month's notice and thereafter he was taken back in his previous post. The employee in due course filed a writ petition. It was contended that because his employment was in a post which though temporary was to continue for an indefinite period, he could not be regarded as a temporary officer and his services could not, therefore,' be terminated by notice. This Court held that the employee Cues I post contained no element of permanency for the post itself was temporary and he had been appointed to it in a temporary capacity. His s removal from that post was effected in an ntirely straightforward manner on the basis that his work showed that he was inadequate to the requirement of the post. It was further observed as under: "He had been informed of this at an intermediate stage, and given an opportunity to show better work over a period of three months. On account of his failure to do better, his services were terminated in the Class I appointment, and be was restored to his original Class II appoint ment for which at the state of his efficiency had been reached, he appears to have been suitable. His removal was in no sense a punish ment. It represented acceptance of the fact that a mistake had been made in appointing him to a post for the requirements of which he did not possess the necessary ability, and the conclusion to that effect was not reached hastily or on any ulterior ground, but after actual trial and issue of a notice to the appellant that he was under special report for the purpose of judging whether he could prove his adequacy for the post. Therefore, nothing in the nature of a punishment was involved in his removal." In the case of Mohammad Ashraf v. Dr. Arshad Malik, Chairman, District Family Planning Board, Sargodha, it was held that persons appointed purely on temporary basis as Supervisors in Family Planning Department removed for insufficiency and dereliction of duties constitutional protection under Article 177 was not available to such employees in 'view of provisions of Article 179 of the Constitution of 1962. It appears to me that the real question for decision in this case is what is the position of a probationer in service. This aspect of the question was considered in the cases of Federation of Pakistan v. Riaz Ali Khan (P L D 1958 Lah. 22), Tasnim Ali Mir v. The Federation of Pakistan (P L D 1959 Kar. 62), Riaz Alt Khan v. Pakistan (P L D 1959 Kar. 62) and Mohammad Afzal Khan v. Superintendent of Police, Montgomery and others. In the former two decisions, it was held that in the case of a probationer-the question as to whether he is or is not to be employed has not yet been finally decided * whereas in the case of a temporary employee the question of employment has certainly been decided. Only he is not a permanent employee and the period of his employment is regulated by his agreement. It was further held that the question of removal or dismissal arises only when the question whether a person is to be employed has been finally decided and secondly it is only where the order of discharge by itself finds a person to be blames worthy, or deficient that it cap be regarded as removal or dismissal. To such a removal or dismissal a stigma attaches, but if all that has happened is that the real reason of discharge is the unsatis factory work of an employee but the Government does not proceed on the basis that he is guilty or deficient and simply terminates his services in accordance with the terms of his agreement of service, that would not be a removal. Contrary view was taken in the latter two decisions, which have been cited earlier. The position of a probationer was also considered in Mohammad Naseem Ahmad and others v. Miss Azra Feroze Bakht and others (P L D 1968 S C 37). Hamoodur Rahman, J. one of us (as he then was), has, in this connection, observed as under: "Where conditions are prescribed for confirmation an officer remains a "probationer" until he has fulfilled those conditions and cannot be treated as a person substantively appointed to a permanent post. Nor has he any right to be confirmed from the date of his original appoint ment, no matter when he qualifies for confirmation. Although in the normal course, if there is nothing against the officer concerned, the general rule followed appears to be that he is confirmed from the date of his original appointment provided a permanent post is avail able. But it would appear from the Establishment Manual, Government of Pakistan, Volume-1, that this is in the discretion of Government and that it has on occasions laid down a different rule or procedure." it was further observed as under: "There is no rule or practice of general application with regard to confir mations and the Government has reserved to itself the right to deter mine how, when, in what manner and with what effect from what date confirmations will be made. There is also no unreasonableness in this, for it is only the employer who can say when a probationer is to be considered to have become fit for permanent retention according to his requirements and until then the probationer can have no lien to or right of retention in the service. But all other conditions being fulfilled confirmation can and does in most cases relate back to the date of original induction into service." In the light of the above discussion, it appears to me 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 tae period that he is on probation he shows that he is a fit person to be retained in service. I agree with the view express ed in Mohammad Afzal Khan v. The Superintendent of Police, Montgomery and Riaz Ali Khan v. Pakistan, 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. In my opinion, if the service of a probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in terms of the contract or the rules made by the Government but if the service of a probationer is terminated, on the ground of misconduct that will amount to removal or dismissal. It c will be a stigma in his favour. In the last mentioned case, the probationer, will be protected by the provisions of Article 177 of the Constitution of 1962 and will be entitled to a show-cause notice and a proper enquiry against him must be made. Taking now the facts of each case, it will be noticed that the authorities concerned in the case of Mohammad Siddiq Javaid Chaudhry and Mumtaz Hussain Malik appellants, terminated their services on the ground of unsatisfactory work and conduct. The record shows that there were allegations against them of corruption. In these circumstances, the order terminating their services amounts to removal and dismissal within the meaning of Article 177 and they were entitled to a show-cause notice under Article 177 of the Constitution of Pakistan, 1962. Similarly, in the case of Abdur Rashid Abbasi, appellant, the allegations of corruption were made against him and an enquiry was also held but instead of completing the enquiry, his services were terminated on the ground that he is not likely to become a good officer. It was also mentioned in the order that there were complaints of corruption against him. In these circumstances, the order terminating his services amount is to removal and dismissal and he was entitled to the protection of Article 177 of the Constitution of 1962. On these findings, I will accept all the appeals and will hold that the services of all the appellants were terminated in violation of Article 177 of the Constitution of 1962 and they are still in service. It is, however, open to the respondents to hold proper enquiry against them after show-cause notice is issued. In the result, the appeals are accepted with no order as to costs. HAMOODUR RAHMAN, C. J. I agree. SALAHUDDIN AHMED, J. I agree. S. A. H. Appeals accepted.