PAKISTAN (PUNJAB PROVINCE) vs RIAZ ALI KHAN

1. MUHAMMAD HALEEM, ACTG. C. J.-The respondent herein was employed on 1st of November, 1952, as Senior Clerk-cum-Accountant in the Punjab Veterinary College, Lahore, on probation for a period of two years and further subject to passing the qualifying examination of Punjab Public Service Commission. Before the expiry of the probationary period, his services were terminated on 17th of August, 1953, on the ground of unsatis--factory work. But before this order was passed, he was issued a notice to explain if he had to say anything against this ground, which he attempted to explain in his written representation, which was not accepted. Being dissatisfied he filled a suit on 9th of March, 1954, claiming Constitutional protection under section 240 (3) of the Government of India Act, 1935 and sought a declaration therefore that the termination of his services was illegal as he was denied this protection. His suit was dismissed on 31st of January, 1955 but he succeeded in appeal as it was accepted on 9th of June, 1956. The appellant went in second appeal to the High Court which was accepted by a learned Single Judge in Chambers by judgment dated 25th of November, 1957. The respondent filed a Letters Patent Appeal which was allowed' on 29th of April, 1966. The Letters Patent Bench, however, granted a certificates by order dated 27th of November, 1972, and the certificated appeal was, thereupon, filed in this Court.

2. The learned Single Judge in the High Court, held that the discharge of a probationer was not a removal or dismissal from service within the meaning of the Constitutional provision as by the exact nature of his employment on probation, he could not be said to be a temporary or permanent employee until he was found fit and acceptable for confirmation. The learned Single Judge next relied on an explanation appended to Rule 14.10 of the Civil Service Rules, which provided that the discharge of a probationer did not amount to removal or dismissal from service and to the same effect was rule 3 (2) of the Punjab Civil Department Subordinate Service Rules, 1933. Both these provisions were applicable to his case as they formed part of a contract between him and his employer. The learned Judges of the Letters Patent Bench, however, held that the probationer was as much in service as any other employee holding a civil post except for the distinction that his employment did not find a "sure footing" unless accepted by confirmation.

3. Further they held that unsatisfactory work connoted a fault and, therefore, he was entitled to the constitutional protection.

4. From the pleadings of the parties, it is clear that there was no latent stigma of misconduct but the sole ground of termination of service was his unsatisfactory work, which was also apparent from the explanation submitted by the respondent. Therefore, the result of this appeal is concluded by a judgment of this Court reported as Muhammad Siddiq Javid Chauhadry v. The Government of West Pakistan (PLD 1974 SC 393). It was observed in this case at Page 401 that a probationer is taken in service 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 and if the service of a probationer is terminated on the ground of unsatisfactory work, it 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 in that behalf, However, a distinction was drawn that if such termination was on the ground of misconduct then it will be subject to the Constitutional protection which is not the case here.

5. The learned counsel for the respondent was unable to distinguish this case from the facts of the present case. Accordingly, we have no hesitation it in holding that the Letters Patent Bench was in error in concluding, as did, that he was entitled to the protection of the Constitutional provision.

6. The appeal is, therefore, allowed and the impugned judgment is set aside but with no order as to costs.