1983 PLP 1829 (CLC)

This writ petition calls in question the, order dated 20th November, 1968 of the Secretary, Evacuee Trust Property Board, Government of Pakistan, Lahore.

2. The facts relevant for the disposal of the writ petition may be briefly stated. The petitioner was under temporary employment of Evacuee Property Trust Board, Government of Pakistan, Lahore. His services were terminated w. e. f. 24th May, 1967 on account of misappropriation of) Evacuee Trust Board's money and wilful absence from duty (Annexure 'I') Subsequently, it appears that he was appointed as Sub‑Inspector against a newly created temporary post in the District Evacuee Trust Committee, Hyderabad in the scale of 125‑7‑275 w. e. f. 1st July, 1968. His appointment eras on purely :temporary basis and terminable at' any time without' assigning any reason therefor. Four month; thereafter, his services were again terminated by order, dated 20th November, 1968 of the Secretary of the respondent Board (Annexure `J'). The termination order read thus :‑ "The services of Mr. Zahoor Hussain, Sub‑Inspector, District Evacuee Trust Committee, Hyderabad ate no longer required and are hereby terminated in accordance with the term: and conditions of his services with immediate effect."

3. It is admitted by the learned counsel for the parties that the term and conditions of persons in the temporary employment of the respondent Board were to be regulated by the provisions of the Temporary Employment Rules, 1965. These rules were adopted by the Evacuee Trust Property Board pending the framing of regulations by the respondent Board. Rules 4(1) provides that the Government may terminate the services of a temporary employee at any time without assigning any reason by giving a notice in writing or a sum equivalent to his pay for fourteen days or for the period by which the notice falls short of fourteen days.

4. The sole grievance of the petitioner is that the impugned order of termination was not a termination simpliciter but contained a stigma and, therefore, the respondent ought to have conducted an enquiry before inflict ing the major penalty. Malik Saeed Hassan learned counsel for the peti tioner submitted that in determining the question as to whether the impugned termination order was termination simpliciter or by way of penalty, the Court should not confine itself to the impugned order alone, but take into consideration the previous history of the case coupled with the written statement filed by respondent Board. Learned counsel submitted that in the first instance, the respondent illegally terminated the services of the petitioner on account of charge of mis‑appropriation and later with mala fide intention re‑employed him and again terminated his services by way of stigma. It is submitted that if the petitioner was really guilty of misappropriation, there was no occasion to re‑employ a corrupt man under the employment of the Board. In this connection reference may be made to the averments made in paragraph 10 of the writ petition which reads thus :‑ "That the petitioner again made representation against the termination order dated 1st November, 1967. That the respondent No. 1 return ed the petitioner by appointing him as Sub‑Inspector District Com mittee, Hyderabad from 1st July, 1968 but services were again termi nated on 20th November, 1968 without giving any notice whatsoever, and providing any reasonable opportunity of explaining the position, and is attached as Annexure `J'.". The respondent's reply as given in the written statement reads thus :‑ "It is submitted that the appointment as Sub‑Inspector was purely temporary and fresh appointment terminable at any time without notice or assigning any reason. The petitioner again committed mis appropriation of public money during the period he remained at Hyderabad. His services were again terminated in accordance with the terms of his appointment,"

5. Learned counsel respectfully submitted .that a bare perusal of the impugned order read with the reply to paragraph 10 of the written statement would show that the impugned order was not an order of termination simpli citer, but on account of alleged misconduct and, therefore, the petitioner ought to have been provided an opportunity to show cause against the penalty imposed upon him as envisaged by the Rules. He further submitted that the writ petition did not suffer from ]aches and that it is a fit case for condoning the delay as the petitioner had been bona fide pursuing the departmental remedies and every time the representation was made by him, the respon dent Board gave him the hope that his case was under consideration. In this connection, reference may be made to paragraph 13 of the writ petition where the petitioner specifically stated that he has been making repeated applications for the redress of his grievance. The reply of the respondent to para. 13 as given in the writ petition may also be reproduced as under :‑ "It is submitted that the petitioner did not make any representation against the order dated 1st November, 1967. The petitioner, however, filed a belated appeal before the Secretary, Government of Pakistan, Rehabilitation and Works Division, Islamabad, on 30th June, 1971. His appeal was considered and was filed by the Government and he was informed accordingly. Later on after three years he represented his case to the Chairman, Evacuee Trust Property Board on 24th July, 1973, 4th October, 1973 and 27th November, 1974.. After due consideration the representations were consigned to record and he was duly informed vide letter Nos. E‑18/3/66, dated 19th January. 1974 and 15th January, 1975 (copy enclosed)" The learned counsel 'strongly placed reliance on The Evacuee Trust Property Board, Government of Pakistan, Lahore v. Muhammad Nawaz (P L D 1979 Lah. 903). The precedent case was also of a temporary employee of the Evacuee Trim Property Board. The ratio of the case is that where termination of service of a temporary employee was based on a finding of misconduct which leaves a stigma on the incumbent, then the Board must follow the prescribed pro cedure before imposing a penalty.

6. Ch. Fazal‑e‑Hussain learned counsel for the contesting respondent vehemently contended that the services of the petitioner were terminated by the respondent Board strictly in accordance with his terms and conditions of his service without any stigma and no allegation of mala fide has been specifically pleaded in the writ petition. Therefore, a presumption is attached to the impugned order of termination in terms of section 114 of the Evidence Act that all official acts arc presumed to have been regularly performed. He further submits that no allegations of mala fide have been pleaded in the writ petition and, therefore, on the basis of bald allegation made for the first time in writ jurisdiction, the validity of the impugned order cannot be tested on the ground of male fide. Learned counsel sub mitted that the petitioner failed to prove the onus which lay heavily on him that the impugned order was passed male fide or by way of penalty and, therefore, in view of the ratio laid down in The Federation of Pakistan v. Saeed Ahmad Khan, and others (P L D 1974 S C 151) that the Courts should not hold any enquiry on the basis of vague allegations of mala fide levelled for the first time during the course of arguments before this Court. He further sub mitted that the petitioner is not an aggrieved person within the meaning of Article 199 of the 1973 Constitution;, to that, a temporary employee has no vested right to continue in the service of the Board and even assuming but not conceding that the order of termination was passed illegally or it suffered from any legal defect, the petitioner cannot competently invoke the constitutional jurisdiction of this Court and the only remedy for him would be to file a suit for damages .

7. I have given my anxious consideration to the submission made by the learned counsel for the parties and perused the record with the assistance of the learned counsel for the parties. It is clear from the previous history of the case and the events preceding the final termination order that the alleged charge of misappropriation of public money played part in the decision of the respondent Bard while passing the impugned order of termination. This being so, the termination is clearly by way of penalty and not in accordance with the terms and conditions of the employ ment of the petitioner. This, being so, the impugned order of termination liable to be struck down not because the same was passed ex parte but on the ground that the authority concerned has abused the power vested in it to terminate the temporary employment of the petitioner by way of penalty without giving a show‑cause notice, This view finds support from the authoritative pronouncement of the Supreme Court in Muhammad Ibrahim v. Government of Pakistan (P L D 1972 S C 332). The relevant portion at page 336 reads thus . "Government has the legal authority to terminate an officiating appointment at any time and it may do so for any reason relatable to exigencies of service. No show‑cause notice is necessary in such a case. But if it is intended to revert an officer to an inferior post by way of penalty, a show‑cause notice is necessary, notwithstanding that the appointment to the superior post was in an officiating capacity. Reversion in that case amounts to reduction in rank within Art. 177(1)(b). Equally if an order of reversion is made male fide, Courts will strike it down not because no show‑cause notice was given, but on the ground that the authority concerned has abused the power vested in the Government to terminate an officiating appointment without giving a show‑cause notice. Neither condition is fulfilled in the present case."

8. As regards the question of laches, the respondent Board has admitted in the written statement that every time the representation was made by the petitioner, the same was considered and the final representation was rejected on 15th January, 1975, Thereafter, the writ petition was filed in this Court on 11th May, 1975. In the facts and circumstances of the case, I am, therefore, inclined to condone the laches in filing the writ petition before this Court. For the reasons stated above, the impugned order dated 20th November, 1968 terminating the services of the petitioner is hereby declared as without lawful authority and of no legal effect. The writ petition is accepted with costs. K. M. A. Writ petition accepted.