MUNICIPAL COMMITTEE, PATTOKI Versus MUHAMMAD ANWAR
ORDER
This is a revision petition calling in question an order, dated 30th May, 1983 of Mr. Javeed Iqbal Siddiqui, Additional District Judge, Kasur, whereby be accepted an appeal from a decree, dated 12th May, 1982 of Ch. Nawaz Ahmad Ghuman, Civil Judge, Chunian, dismiss in the respondent/plaintiff's suit.
2: The respondent was an employee of the petitioner-Municipal Committee as Octroi Moharrir on probation for two years. He was once found short of some cash in a surprise check and was served with a notice Exh. P. 3 to show cause why his services should not be terminated. Later, however, instead of proceeding against him to hold a regular enquiry to determine the charge, a notice-clause in the appointment letter was invoked whereby his services were terminated. He brought a suit which was dismissed by the Civil Judge holding that the relationship of the parties was that of master and servant and that the relief only for damages would lie. In appeal, however, the learned Additional District Judge held otherwise observing that since the action taken under the garb of notice-clause was preceded by a show-cause notice containing allega tions of dishonesty, etc., it was a case in which full-dress enquiry should have been conducted and that it was not permissible to give a cloak to the true intent by invoking notice-clause in the course of probation period.
3. Kh. Mushtaq Ahmad, counsel for the petitioner seriously assailed the findings of the learned Additional District Judge referring to a number of authorities like the Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustam Ali and another (P L D 1966 S C 848), Lt.-Col. Shujauddin Ahmad v. Oil and Gas Development Corporation (1971 S C M R 566) Dr. Iqtidar Hussain Zaidi v. University of the Punjab (P L D 1978 Lah. 298). S. Atiqad Hussain Naqvi and S others v. Chief Officer, Karachi and another (1971 C L C 391) and Nazim Hussain v. Government of Punjab, etc. (1981 S C M R 831), to show that a pro bationer had no right to claim any enquiry, etc. before the expiry of the period of his probation and that his services could be terminated in the exercise of a clause contained in his terms of employment. He stressed further that the relationship essentially was that of master and servant and that the civil Court had no jurisdiction.
4. On the other hand, the latest authority on f the point was The Evacuee Trust Property Board and another v. Muhammad Nawaz (1983 S C M R 1275), in which it was ruled that if action taken was preceded by an intended disciplinary measure on the ground of misconduct, the Department could not be allowed to cloak its action by invoking the so-called notice-clause. It was thought that such an action in a typical background of poisoned mind could not be styled fair and that in any such event the law jealously required that an opportunity be given to the affected official to establish his innocence. It is a case governed by Rules. There is no gainsaying the fact. The Municipal Committee is a statutory person being governed by law. Its dealings with its employees are equally governed by Efficiency and Disciplinary Rules. The learned Additional District Judge was right in observing that it was not a case of master and servant. All the authorities cited on behalf of the petitioner did not specifically relate to a case in which intention could have been shown by serving a notice to take disciplinary action on the ground of mis conduct. There is no cavil about the preposition that where the depart mental authorities are not satisfied with the performance of a probationer, it is always open to them to put an end to his services without assigning any reason, but then the situation will be different if once it is decided to call upon him to show-cause in the context of any misconduct. If that course of action is not followed and subsequently the easier mode of putting an end to his services by resorting to notice-clause is adopted, it may be patently an outrage on the Rules which cannot be permitted. Where rules are applicable, their observance is a must. This is exactly what the authority relied upon by the respondent laid down, and is the distinguishing point vis-a-vis those cited by the petitioner.
5. In this case, notice Exh. P. 3 was served on the respondent accusing him of dishonesty and what not. It should not have been abandoned to adopt a new course. Termination of his service was, therefore, not free from violation of the Rules and could not be upheld. There is no merit in the revision petition and the same is dismissed in limine.
A. E. Revision dismissed.