2007 PLP (C (PLC(CS))

JUSTICE MUHAMMAD MOOSA K. LEGHARI (CHAIRMAN).

Through this appeal the appellant, Mrs. Abida Parveen Channer, has impugned the order, dated 1-11-2003 whereby her services were dispensed with on account of unsatisfactory performance as well as the order, dated 30-1-2004 whereby her review application/ representation was rejected by the learned Chief Justice.

2. Brief facts for disposal of this appeal are; that the appellant was appointed as Judicial Magistrate vide Notification dated 11-12-2001 on the terms and conditions regulated by the Sindh Civil Servants Act and the Rules framed thereunder viz. Sindh Judicial Services Rules, 1994. During the probationary period of the appellant, her services were dispensed with on account of unsatisfactory conduct vide order, dated 1-11-2003. Appellant moved a representation dated 20-11-2003 which was also rejected and such fact was intimated to the appellant vide letter dated 30-1-2004, hence this Service Appeal.

3. We have heard learned counsel for the appellant and learned Additional Advocate-General Sindh.

4. It was contended by the learned counsel for the appellant that there is no material to prove the unsatisfactory performance by the appellant during probationary period, that the order whereby services of the appellant were dispensed with was passed without issuing any show-cause notice or affording opportunity of hearing to the appellant which is against the principles of natural justice. In support of his contentions, learned counsel relied upon the cases reported in PLD 1974 SC 393, 1991 SCMR 400, 2004 PLC (C.S.) 792, 2000 PLC (C.S.) 886-and 1998 PLC (C.S.) 1402.

5. Learned A.A.-G. supported the impugned order contending that it is within the competence of the competent authority to dispense with the services of the employee even without issuing any show-cause notice if his performance during the probationary period is found unsatisfactory.

6. We have considered the arguments advanced before us and examined the material available on the record.

7. It is an admitted position that the appellant was probationer having been appointed against substantive vacancy.

8. The probation has been defined in Rule 9 (Part-III condition of service) of the Sindh Judicial Service Rules, 1994. It will be advantageous to reproduce said rule. "

9. 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, the High Court may, notwithstanding that the period of probation has not expired dispense with his service. (3) On completion of the period of probation of a member of the service, the High Court 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 the High Court not been satisfactory

(a) dispense with his services; or (b) extend the period of the 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. Explanation-I If no orders have been made by the day to following the completion of the initial probationary period, the period of probation shall be deemed to have been extended. Explanation-II. If no orders have been made by the day on which the maximum period of probation expires, the probationer shall be deemed to have been confirmed in his appointment from the date on which the period of probation was last extended or may be deemed to have been so extended. (4) No person shall be confirmed in the service unless he successfully completes such training and possess such departmental examinations as may be prescribed by the High Court from time to time. (5) If a member of the service fails to complete successfully any training or pass any departmental examinations prescribed under c sub-rule (4), within such period or in such number of attempts as may be prescribed by the High Court, the High Court may dispense with his services."

8. The bare reading of sub-rule (2) of Rule 9 makes it abundantly clear that if the work or conduct of a member of the service during the period of probation is found to be unsatisfactory, the High Court may, dispense with his services. Sub-rule (3) however, authorizes the High Court to extend the period of probation for a period not extending two years.

9. Word "probation" as contained in Chambers 21st Century Dictionary inter alia means "a trial period during which a new employee is observed on the job, to confirm whether or not they can do it satisfactorily". According to Black's Law Dictionary, "the initial period of employment during which a new, transferred, or promoted employee must prove or show that he is capable of performing the required duties of the job or position before he will be considered as permanently employed in such position". The term "probation" as defined in Whartons Law Lexicon (Fourteenth Edition) inter alia means "(2) suspension of a final appointment to an office untill a person temporarily appointed (who is called a "probationer") has by his conduct termed himself to be fit to fill it".

10. Let it be recounted that the concept of probation in service matters was not in existence when the relationship of master and servant was governed by traditional and archaic law of hire and fire. However, after changing times, with the advent of security in service when termination or removal of a servant became the subject-matter of judicial review, the concept of probation was invented and introduced. After the development of law an employee could not be removed from service by way of punishment unless he is given a opportunity to meet the allegation necessitating his removal from service and an enquiry has to be conducted to prove the allegation. The change in scenario put the employer on guard. I order to avoid foisting upon master incompetent and inefficient servant, the idea of probation was introduced as it is easy to allege incompetence or inefficiency but difficult to prove. As such plausibly and quite comprehensibly in order to guard against error of human judgment in selecting suitable personnel for service, the new recruit was put on test for a certain period before he is absorbed in service or gets a right to take post. In, fact period of probation was meant to give a sort of a locus poenitentiae to the employer to observe the work, ability, efficiency, sincerity and competence of the employee, and if he was found not suitable, the employer reserved a right to dispense with his service during or at the end of prescribed period which is termed as period of probation. Keeping in view this aspect, termination of service of a probationer during or at the end of a period of probation will not ordinarily and by itself be punishment to warrant judicial review of the matter, because the employee so appointed has no right to continue to hold such a post any more.

11. Precisely it is the initial period of employment during which a new, transferred, or promoted employee must prove or show that he is capable of performing the required duties of the job or position before he will be considered as permanently employed in such position. Obviously the purpose of putting an employee on probation is to determine his suitability to hold that post substantively or permanently in the sense that he thereafter gets a right to hold the post.

12. In Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan reported in PLD 1974 SC 393, it has been clearly laid down that probationer is a person who is taken in service subject to the condition that it will attain a sure footing only if during the period he is on probation he shows that he is a fit person to be retained ill service. In the above case, it has further been held by the Honourable apex Court that if the service of probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in accordance with the 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 from service or dismissal as it will be a stigma in his favour.

13. Above rule makes it manifestly clear that if a probationer is terminated from service on account of unsatisfactory work and conduct he will not be entitled to any show-cause notice and/or hearing. However, in case the action of removal from service is contemplated in consequence of certain allegations constituting misconduct, causing stigma or blot on the career of a civil servant, the Authority shall be under legal obligation to serve a show-cause notice to afford a proper and reasonable opportunity of defence to such civil servant so as to enable him to vindicate his position and to rebut the charges/levelled against him before a final action is taken. The bare perusal of the order impugned in this appeal whereby services of the appellant were dispensed with, clearly shows that the action was taken on account of unsatisfactory performance as such no stigma or blot was caused in favour of the appellant.

14. There can be no cavil to the principles of law enunciated in the case-law cited by learned counsel for the appellant, however, the appellant could not be benefited from it, as the facts of the appellant's case are distinguishable, she having not been removed on the ground of misconduct.

15. Accordingly the order of termination of the appellant impugned in this appeal is legally valid. It does not call for interference. The appeal being devoid of merit, is therefore, dismissed. H.B.T./A-47/K Appeal dismissed.