1980 PLP (C (PLC(CS))

Nemo for Respondent. Date of hearing : 28th January, 1980. NASIM HASAN SHAH, J.‑The petitioner was appointed as Civil Judge in the Sind Civil Service (Judicial Branch) in August, 1972 on a purely temporary ad hoc basis and was posted as Civil Judge 3rd Class at Karachi by the order of the Chief Justice and Judges of Sind and Baluchistan High Court Karachi. However, on 26th September, 1973 the petitioner was appointed on regular basis in a substantive post as Civil Judge upon selection by the Sind Public Service Commission on the terms and condi tions regulated by the Sind Service Tribunal Act, 1973 and the rules framed thereunder. His services were placed at the disposal of the High Court of Sind and Baluchistan for posting orders. He was transferred to Sukkur where he continued to serve until his services were terminated by an. order of termination dated 20th October, 1975 which reads as follows :‑ "In exercise of powers conferred by section 11 of the Sind Civil Servants Act, 1973 and the rules thereunder, the Governor of Sind is pleased to direct that the services of Mr. Wajihuddin Memon, Civil Judge, Sukkur shall stand terminated on expiry of 14 days from the date of receipt of this order." Aggrieved by the above order, the petitioner preferred an appeal before the Sind Service Appellate Tribunal before whom it was admitted that he was a probationer but the main submission made was that he had been punished and removed from service for some misconduct and that even a probationer could not be removed from service without an enquiry in case of removal on account of misconduct. In support of this contention reliance was placed on P L D 1974 S C

393. To establish his contention he also made an application for summoning the record but this plea was rejected on ground that there was nothing on the record before the Tribunal to show that the removal of the petitioner was based on misconduct. Hence there was no justification for calling the record. The Tribunal ultimately held that since the petitioner was a probationer and the impugn ed order showed that it was a simple discharge from service and there was no element of misconduct involved in the case, no show cause notice or enquiry was necessary and the Government was competent by the rules to terminate the services of an employee during the period of probation. Consequently, the impugned order did not call for any interference. The appeal was, accordingly, dismissed vide order passed on 3rd February, 1979. Hence this petition for special leave to appeal. Mr. S. M. Abbas, learned Advocate‑on‑Record for the petitioner raised two contentions before us. In the first instance he submitted that the petitioner was not a probationer and, therefore, he could not be dis charged from service as was done in his case. He was working on a permanent and regular post after his selection by the Public Service Com mission and as such his services could not be terminated under section 11 of the Sind Civil Servants Act, 1973. It was next submitted that even the petitioner was deemed to be a probationer the Tribunal had erred in not allowing him to establish his plea that action had been taken on account of misconduct which he could have proved from the record; which the Tribunal refused to summon and as the termination of his services was actually for misconduct, show cause notice and inquiry were necessary before the petitioner could be thrown out of service. So far as the first contention is concerned we observe that the petitioner has admitted before the Tribunal that he was a probationer when his ser vices were terminated and that his sole plea before the Tribunal was that it was not a termination of service simplicitor but that he had been punished and removed from service for some misconduct which was never brought to his notice, and no inquiry was held. Thus, the plea taken before us that the petitioner was not a probationer cannot be urged for the first time before us. Even otherwise this plea does not appear to be correct because according to the appointment order the terms and conditions of the selectees were to be regulated by the Sind Civil Servants Act, 1973 and section 6 thereof reads as follows :‑ "An initial appointment to a service or post referred to in section 5, which deals with appointments to a civil service of the Province, not being an ad hoc appointment, shall be on probation as may be prescribed." The letter of appointment issued to the petitioner on his appointment has not been placed on record nor the rules framed under the Act shown to us and in these circumstances we can assume that the normal rule for the appointees on their initial appointment to serve on probation was appli cable to the case of the petitioner. Mr. Abbas also tried to argue that this was not a case of initial appointment. The expression `initial appoint ment" is defined in section 2 (1) (d) to mean appointment made otherwise than by promotion or transfer. As the appointment of the petitioner was obviously neither by promotion nor transfer it was clearly an initial appointment. There is, thus, no force in the first contention. As for the second contention that the Tribunal had illegally refused to summon the record which could enable the petitioner to show that his services were not terminated simplicitor but that he had been punished and removed from service for some misconduct, the petitioner relied upon section 5 (2) (b) of the Sind Service Tribunals Act, 1973 which reads as follows :‑ "5.‑(2) The Tribunal shall, for the purpose of deciding any appeal, be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 including the powers of‑ (a) .................. ............................ (b) compelling the production of documents." The learned A. O. R. could not tell us the alleged misconduct committed by the petitioner for which he was punished and removed from service and it was after such probing and questioning that the petitioner himself informed us that the action had been taken against him because of a complaint made before the Chief Justice and the Judges of the Sind and Baluchistan High Court that he had decided an ejectment application after receiving order of transfer. But this aspect was not placed before the Tribunal nor even before us until we started interrogating the petitioner on the subject. The Tribunal appears to be correct that there was no material before it to show that the removal of the petitioner was based on misconduct and hence there was no justification for calling, the record. Even otherwise as section 5 (2) (b) of the Sind Service Tribunal Act, 1973 indicates that the Tribunal has been given power to call for the documents and record but it is for the Tribunal itself to decide in which case g it would like to exercise the power. It being discretionary with the Tribunal to summon or not to summon the record in the facts and circumstances of any particular case this discretion cannot be interfered with by us. In fact, under section 212 of the Constitution an appeal to this Court from an order of the Tribunal is competent only if this Court is satisfied that the case involves a substantial question of law of public importance. The question whether the record should be summoned or not in any given case cannot by any stretch of imagination be said to involve a substantial question of law of public importance. The result is that there is no force in this petition which is accordingly dismissed. Petition dismissed.