PROVINCE OF PUNJAB Versus MOHAMMAD AWAIS SHAHID

ORDER

The respondent was appointed as a Civil Judge in the West Pakistan Civil Services (Judicial Branch) by an order dated 14‑12‑1964. Paragraph 3 of his letter of appointment stated that he would be considered on probation for a period of two years with effect from the date he actually resumed charge of his duties. He joined service on 15‑1‑1965. Thus his initial period of probation expired on 14‑1‑1967. However, no orders with regard to his successful completion of the probationary period were passed before 14‑1‑1967, with the result that in accordance with another rule, his period of probation stood automatically extended by another two years, that is till 14‑1‑1969. By a notification dated 15‑4‑1967, his services were dispensed with on the ground that his work and conduct had been found unsatisfactory during the probationary period. He filed a civil suit challeng ing his discharge from service on the footing, mainly, that he had not been given a show cause notice before his services were terminated. The suit was decreed by an Additional District Judge at Hyderabad on 1‑8‑1973. The Provincial Government filed an appeal against the decision of the Additional District Judge in the High Court of Sind & Baluchistan. The appeal was still pending when the Punjab Administrative Tribunals Act came into force. Section 8 of the Act had the effect of abating all appeals in respect of matters which fell within the jurisdiction of a Tribunal created under section 3 therefore. Consequently a Division Bench of the said High Court recorded an order of abatement on 6‑8‑1974. The Provincial Government has now come in appeal before this Tribunal.

2. The sole question for consideration in this appeal is whether the respondent was entitled to a show‑cause notice before his services were terminated. It is submitted by Mr. A. G. Humayun, who appears for the appellant, that the appointing authority had a right to dispense with the services of the respondent during the period of his probation if his work and conduct were found unsatisfactory. He further argues that such a termination does not tantamount to either dismissal or removal from service. Thus the constitutional protection of getting an opportunity to show cause, which was enjoyed by the Government employees under the 1962 Constitution, was not available to the respondent.

3. We consider that the point raised by the learned counsel for the appel lant stands concluded by the decision of the Supreme Court in Muhammad Siddiq Javaid Chaudhary v. Government of Pakistan (PLJ 1975 SC 1). In this case their Lord ships considered the status of a probationer and also the question whether he was entitled to a show‑cause notice before his services were discharged. In expressing the opinion of the Court, Waheeduddin Ahmad, J. observed:

"In the light of the above discussion, it appears to me that a pro bationer is a person who 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. I agree with the view expressed in Muhammad Afzal Khan v. The Superintendent of Police, Montgomery P L D 1961 Lah. 808 and Riaz Ali Khan v. Pakistan, that a person who is on probation is subject to all checks to which a permanent servant is subject. He cannot, for example, refuse to obey orders, keep his own hours of duty, or indulge in any malpractice. In my opinion, if the service of a probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in 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 or dismissal. It will be a stigma in his favour. In the last mentioned case, the probationer will be protected by the provisions of Article 117 of the Constitution of 1962 and will be entitled to a show cause notice and a proper enquiry against him must be made."

It is common ground between the parties that the respondent was not given an opportunity to explain his conduct before his services were terminated. In view of the observations made by the Supreme Court, the only question for consideration before us is whether the services of the respondent were termi nated on the ground of misconduct.

4. The relevant office file has been placed before us by the learned counsel for the appellant. It appears that at the relevant time the respondent was serving within the jurisdiction of the Karachi Bench of the High Court of West Pakistan. On 16‑12‑1966, the Additional Registrar of the said Bench addressed a D. O. Letter to the Registrar of the High Court in Lahore. The relevant portions of the said letter are as follows :‑

"The report about the satisfactory completion or otherwise of, the probationary period of Mr. Shahid was not sent earlier, because several complaints against him as to his unsatisfactory work, tactlessness and misconduct and the counter‑allegations made by him against certain Advocates and local administration, were under consideration. The allegations and counter‑allegations, as summarised in the annexure to this letter, were considered by the Senior Judge and Judges of the Administration Committee. Their Lordships are of the view that their correctness can be tested in an appropriate enquiry only but prima facie the work and conduct of Mr. Awais Shahid appears to be unsatisfactory and calls for suitable action against him. Their Lordships have further observed that two courses are open, either to proceed against Mr. Shahid in accordance with the Efficiency and Discipline Rules. 1960, or, to take action under rule 8 (3) (a) of the West Pakistan Civil Services (Judicial Branch) Rules, 1962, and to dispense with his service. In either of the two alternative orders of the Government will be necessary. I am, therefore, desired to request that the views of their Lordships together with the summary of the allegations against Mr. Awais Shahid and the counter‑allegations made by him, may please be submitted to hi3 Lordship the Chief Justice, for such orders as his Lordship may deem fit to pass."

5. Upon the basis of this letter the Registrar of the High Court addressed a letter to the Provincial Government on 18‑3‑1967. The relevant portion of this letter is in the following terms:‑

The Karachi Bench has reported in letter No. 760/ARK, dated 13/16‑12‑1966, that there have been several complaints against this Officer as to his unsatisfactory work, tactlessness and misconduct. In view of the fact that his work and conduct has been found unsatisfac tory during the period of probation, the Chief Justice recommends that under rule 8 (5) (a) (as amended by letter No. S. O. XII (S&GAO) 2‑133/64, dated 12‑8‑1963 from the Additional Chief Secretary to Government of West Pakistan) of the West Pakistan Civil Service (Judicial Branch) Rules. 1962, the service of Mr. Muhammad Awais Shahid, Civil Judge, Hyderabad, be dispensed with.

6. It is thus clear that the services of the respondent were terminated not alone on account of unsatisfactory work but that the competent authority also took into consideration certain allegations of tactlessness and misconduct which were being levelled against him. It is also manifest from the D. O. letter of the Additional Registrar that the Senior Judge and the Judges of the Administration Committee of the Karachi Bench were reluctant to express their views on the correctness of the allegations in the absence of a proper enquiry. It was, therefore, all the more necessary in this case that an enquiry should have been held and an opportunity given to the appellant to explain his position before the allegations of tactlessness and misconduct were taken into account in dispensing with his services. At this stage it cannot be said whether the unsatisfactory work alone could have induced the competent authority to make the order of termination of services of the respondent.

7. For the reasons stated above, we are of the opinion that the rule laid down by the Supreme Court in the case of Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan, fully applies here and on that account we decline to interfere with the judgment and decree of the learned Additional District Judge, Hyderabad. We accordingly dismiss this appeal with costs.