P L D 1957 (W (PLP)

S. A. RAHMAN, C. J.‑

This is a Letters Patent Appeal from the judgment and decree of Muhammad Sharif J., dated the 18th of July 1955, passed in a second appeal. The relevant facts are as follows. The plaintiff‑appellant instituted a suit for a declaration that the order, of his removal from service passed by the Chief Engineer, P. W. D., Buildings & Roads Branch, Punjab, on the 16th of January 1951 and communicated to him on the 17th of January 1951, by means of letter No. 26‑C, dated the 16th of January 1951, was illegal, mala fide, without jurisdiction and, there fore, void in law and that consequently he still continued to be an employee of the department. The claim was decreed by the trial 'Court but on first appeal, the learned Senior Civil Judge, Lahore, reversed the decision and dis missed the plaintiff's suit. The second appeal was also dismissed by Muhammad Sharif J. but he certified the case to be a fit one for appeal under clause 10 of the Letters Patent. The appellant was appointed as an overseer‑storekeeper on the 23rd of June 1950 in the P. W D., Buildings & Roads Branch, Punjab. The appointment letter was issued to him by the Superintending Engineer vide copy Exh. P. 4 and it contained stipulations to the effect that the service was temporary, terminable by a month's notice on either side. There was also a provision for a three month's probation period which evidently was allowed to expire on the 23rd of September 1950, without any orders. On the 16th of January 1951 the plaintiff was served with a notice dis pensing with his services and ordering payment to him of one month's salary in lieu of notice vide copy Exh. P.

6. The learned Single judge dismissed the appeal mainly on the ground that the appellant was a temporary employee 'and his services had been terminated in accordance with a clause in his contract providing for such termination with a month's notice. Such an order, in the learned judge's opinion, could not be regarded as a removal or dismissal within the meaning of section 240 (3) of the Government of India Act, 1935. Only two points have been urged before us in appeal by Mr. Abdullah Anwar Beg on behalf of the appellant. His first contention is that the order dispensing with his services, of which Exh. P. 6 is a copy, did not take effect or was invalid in law because it was not signed by any competent authority. This was not one of the grounds on which the case was laid in the trial Court, but even if it were allowed to be agitated, it is clear that it has no substance in it. Exh. P. 6 was produced by a witness called by the plaintiff himself in the trial Court, namely, P. W. Muhammad Akhtar, Record Keeper of the Public Works Department. He deposed that this was a correct copy of the original order conveyed in a letter sent by the Superintending Engineer to the Executive Engineer. A copy of that letter must have been endorsed to the appellant as `' it was necessary to inform him that his services were being terminated. This in fact is not denied. The original letter must have been signed by the proper authority, and we confess we are unable to see any ground for holding that merely because the copy Exh. P. 6 is not signed by an officer, the original order also lacked authenticity. Alternatively, learned counsel tried to urge that the appointing authority in the plaintiff's case was the Superintending Engineer, whereas the copy, Exh. P. 6, itself shows that the order had been passed by the Superintending Engineer on a direction issued by the Chief Engineer. At the most, this would imply that the order of termination of service was passed by the Chief Engineer, but that cannot be accepted as a contravention of the constitutional guarantee A contained in subsection (2) of section 240 of the Government of India Act. That subsection provides that no person in the civil service of the State or holding a civil post under it shall be dismissed from service by any authority subordinate to that by which he was appointed. The Chief Engineer being the superior officer of the Superintending Engineer who was admittedly the appointing authority in this case, the vices of the order could not be challenged on this ground. It was then contended that the petitioner's service could not have been terminated without a show‑cause notice as required by subsection (3) of section, 240 of the Govern ment of India Act. This is a claim which is clearly untenable in view of the fact that the service of that appellant was terminated in accordance with a clause in his contract providing for a month's notice. Nothing was said in the notice of termination, which could attach any stigma to the appellant in respect of his efficiency or conduct. There is e ample authority for the view that such a termination of service does not attract the provisions of subsection (3) of section 241 of the Government of India Act. Reference, in this connection, may be made to Abdul Karim v. West Pakistan Province (PLD1956SC(Pak.)298), Federation of Pakistan v. Sirajul Islam (P L D 1957 S C (Pak.) 77) and Shamsul Huda v. Federation of Pakistan (Constitutional Civil Appeal 1‑D of 19.56) decided by the Supreme Court on the 21st of November 1956. Certain observations of the learned Chief Justice of Pakistan in Noorul Hassan's case (P L D 1956 S C (Pak.) 331 at pages 352 and 353) may also be cited in support of this view. The mere fact that an enquiry against the conduct of the appellant was also pending at the time that the decision was taken to invoke the clause in the contract of service providing for its termination with a month's notice, would be an irrelevant consideration in these circumstances. After all, the employer must be dissatisfied in some manner with the employee if he decides not to retain him in service any longer. The order of termination of service proceeds on the ground that the action was being taken in accordance with the terms of the employment and, as the learned Chief Justice of Pakistan has remarked in Nooral Hasan's case, to give effect to the contention that it would be open to the appellant to show by independent evidence that his services were in fact terminated for misconduct, inefficiency or unfitness, would be to give to a temporary employee the status of a permanent employee. Our attention was also invited to a Division Bench decision of this Court reported as Muhammad Afzal Khan v. Federation of Pakistan (P L D 1957 (W. P.) Lah, 17). In that case it was held that the notice of termination of service was mala fide and that the employee was really removed from service for misconduct without being given an opportunity to show cause against his removal and was, therefore, illegal and inoperative. The learned judges drew a distinction between a notice to a temporary civil servant given in good faith and one affected by mala fides. In the latter case, they thought, that even if the notice did not mention any other ground than a clause in the service contract by which service could be terminated but that other facts tended to show that the order was a mere cloak for dismissal, the question could be allowed to be agitated before the Court. We do not con sider it necessary to comment on this ruling which is the subject of an appeal to the Supreme Court. In view of the authorities of the Supreme Court mentioned above, we are of the opinion that in the circumstances of this case the termination of service could not be designated as removal or dismissal within the meaning of subsection (3) of section 240 of the Government of India Act and no show cause notice was necessary prior to an order of that character being passed. The appeal, therefore, fails and is hereby dismissed. In the peculiar circumstances of the case, we leave the parties to bear their own costs. K.B.A. Appeal dismissed,