THE SECRETARY, GOVERNMENT OF THE PUNJAB, Through Secretary, Health

ORDER

AJMAL MIAN, ACTG. C.J.---This is an appeal with the leave to this Court against the judgment dated 30-11-1994 of the Punjab Service Tribunal, Lahore, hereinafter referred to as the Tribunal, passed in Appeal No.657 of 1992, filed by the respondent against the termination of his service by an order dated 29-5-1991 while working as a Stenographer in the Office of the Project Director, Paediatric Hospital/Institute, Lahore, hereinafter referred to as the Institute, allowing the same as follows:-- "18. Section 10(3) ibid prescribes 30 days' notice and not 10 days. Obviously it did not meet the requirement. In any event section 10 had no application inasmuch as it was not an ad hoc appointment. Parties were agreed that it was regular employment though they differed as to the precise date of joining it on the part of the appellant. Thus, 10 days' notice did not improve the situation.

19. As a result the appeal is allowed. The impugned order is set aside and the appellant is re- instated with back benefits. "

2. The brief facts are that the respondent was employed on 26-4-1986 on contract basis by the Health Department at the behest of the Project Director of the Institute. It seems that at the the of the respondent's induction into service, there were no rules to govern terms and conditions of the staff of the Institute. The rules were subsequently framed, which came into force with effect from 28-10-1988. It appears that after the framing the aforesaid rules, the respondent's services were regularised by an order dated 8-1-1989 retrospectively i.e. From the date when he joined the Institute on 26-4-1986. It was also stated in the aforementioned order of regularisation that like others, the respondent would also be treated as a civil servant and governed by the rules applicable to them. It further seems that the respondent's services were terminated by an order dated 18-5-1991. However, the above termination order was not acted upon and the respondent was served with a show-cause notice, calling upon him to explain as to why he observed local holidays without permission and why he used to leave the office without permission while his officers were still working in the office and thereby committed an at of misconduct and indiscipline.

He was required to submit his reply within 10 days. It appears that before the expiry of above period of 10 days, the department served another notice dated 22-5-1991 upon the respondent, further charging him with defiance of orders of the superiors, being rude to his colleagues, having concealed the factum of having a job of a Stenographer with the Board of Excellence of Education by making a formal application there etc. It seems that the respondent refuted all these allegations. He also expressed his apprehension that he would not get justice from appellant No.4 Project Director of the Institute and requested that an Enquiry Officer might be appointed to look into the charges. It was further asserted by him that he was no more on probation and he had become a regular incumbent, whose services could not have been terminated especially by aforesaid order dated 18-5-1991. On receiving the above reply from the respondent, the Project Director of the Institute (i.e. Appellant No.4) by his afore stated order dated 29-5-1991 terminated the respondent's services. After that the respondent filed a departmental appeal and then approached the Tribunal through the aforementioned appeal, which was upheld in the above terms. Thereupon, the appellants i.e. The Government of the Punjab and other officials, filed a petition for leave to appeal, which was granted to consider, as to whether the respondent's services could be terminated under section 10(3) of the Punjab Civil Servants Act, 1974, hereinafter referred to as the Act, by serving 30 days notice as he was a temporary employee.

3. In support of the above appeal Mr. Ehsan Sabri, learned Assistant Advocate-General, Punjab, has vehemently contended that since the respondent was employed on contract basis and as he was a temporary employee, his services could have been terminated by serving 30 days' notice and, therefore, the respondent, at the most, was entitled to one month's salary in lieu of the notice period. '

On the other hand, Malik Amjad Pervaiz, learned Advocate Supreme Court for the respondent, has strongly urged that factually the respondent was a permanent employee of the Institute as he was inducted against a permanent post and his services were regularised after the enforcement of the rules with effect from 28-10-1988. His further submission is that even if it is to be held that the respondent was a temporary employee of the Institute, his services could not have been terminated under section 10 of the Act read with Rule 7 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, hereinafter referred to as the Rules, particularly by condemning the respondent without holding an enquiry.

4. In order to appreciate the respective contentions of the learned counsel for the parties, it may be pertinent to reproduce the above termination order dated 29-5-1991, which reads as under:-- "Whereas Mr. Riaz ul Haq Stenographer of this office was served with Memo. No.PF/4182/PH & I, dated May 18, 1991 to put up his defence in writing or' otherwise as to why his services may not be terminated during probation under section 10 of the Punjab Civil Servants Act, 1974 read with Rules 7 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 on account of his work and conduct during the probation period being not satisfactory.

And whereas, he submitted a representation dated 26-5-1991 in this behalf which was given due consideration and he was also heard in person on the same day.

And whereas, the representation of the official having not been found satisfactory and he having not been able to prove his innocence in this behalf, therefore, in exercise of the powers conferred under section 10 of the Punjab Civil Servants, 1974, I hereby terminate his services with immediate effect in the public interest. "

A perusal of the above order indicates that the respondent's services were terminated on the ground that his performance was not found satisfactory and that he failed to prove his innocence.

Reference has also been made to the show-cause notice and the reply submitted by the respondent, and it has been stated that the respondent's reply was given due consideration and was also afforded personal hearing.

5. It will not be out of context to refer to the aforesaid order dated 8-1-1989, whereby the respondent's services were regularised. The above, order is at pages 35 and 36 of the paper book, which indicates that the respondent's services were regularised on the following terms and conditions:- "(1) that your service will be governed by the provisions of the Punjab Civil Servants Act, 1974 and all Rules/Regulations/Instructions framed thereunder; (2)that you will be required to undergo a medical examination if not already done on your first entry into Government service, and your appointment will be subject to the conditions that you are declared medically fit by the competent medical authority.

(3) that your appointment will be subject to verification of your character and antecedents to the satisfaction of the Government.

(4) that your appointment in the Paediatric Hospital/Institute will be on temporary basis liable to terminate on 30 days notice or pay in lieu thereof on either side.

(5) that you will be governed by such rules and orders relating to leave, T.A., Medical Attendance, Pay etc. As may be issued by the Government from the to the for the category of Government servants to which you will belong."

6. It is evident from the above quoted terms and conditions that the respondent's services were to be governed by the provisions of the Act and of the Rules/Regulations/Instructions framed thereunder. It is also manifest that the respondent's services were on temporary basis, which were liable to be terminated on 30 days' notice or pay in lieu thereof on either side.

7. Without going into the controversy, as to whether the respondent's claim that he was a permanent employee, we may observe that there is a marked distinction between simpliciter termination of services in accordance with the terms of appointment and the termination of services on the ground of misconduct. There is no doubt that if a person is employed on contract basis and if the terms of employment provide the manner of termination of his services, the same can be terminated in terms thereof. However, if a person is to be condemned for misconduct, in that event, even if he is a temporary employee or a person employed on contract basis or a probationer, he is entitled to a fair opportunity to clear his position, which means that there should be a regular enquiry in terms of the Efficiency and Discipline Rules before condemning him for the alleged misconduct. In this regard, reliance has been placed by the learned counsel for the respondent on the case of Muhammad Siddique Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393), in which Waheeduddin Ahmad, J. Has succinctly brought out a distinction between termination of services of a probationer on the ground of unsatisfactory performance and the ground of misconduct as follows:-- "In the light of the above discussion, it appears to me that a 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 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 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 177 of the Constitution of 1962 and will be entitled to a show-cause notice and a proper enquiry against him must be made. "

8. The above view was reiterated by this Court in the case of Pakistan (Punjab Province) v. Riaz Ali Khan (1982 SCMR 770) as under:-- "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 Siddique Javaid Chaudhry 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."

9. We respectfully agree with the proposition of law as enunciated in the above reports. The same is in line with the view which we are inclined to take and which has been highlighted hereinabove.

It may be observed that in the present case, inter alia, the respondent vas charged with defiance of the orders of his superiors, being rude to his colleagues, having concealed the factum of having a job of a Stenographer with he Board of Excellence of Education etc., which the respondent had denied and, therefore, there was a factual controversy which could not have been resolved without holding regular departmental disciplinary proceedings. In this regard, reference may be made to the following cases: -- (i)Deputy Inspector-General of Police, Lahore and others v. Anis-ur-- Rehman Khan (PLD 1985 SC 134); (ii)Alamgir v. Divisional Forest Officer, Multan and others (1993 SCMR 603); (i.e)Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another (1993 SCMR 1440); (iv)Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (PLD 1994 SC 222); and (v)Ghulam Muhammad Khan v. Prime Minister of Pakistan and others (1996 PLC (C.S.) 868); In all the above reports, it has been held that if an accused civil servant/employee is charged with misconduct of the nature which cannot be proved without holding of a regular enquiry, the removal or dismissal from service of a civil servant on the basis of a summary enquiry is not sustainable in law. It will suffice to reproduce para. 5 from the last report, which reads as under:-- "5. It has been consistently held by this Court that there is a marked distinction between Rule 5 and Rule 6 of the Rules, inasmuch as under the former Rule, a regular inquiry can be dispensed with, whereas the latter Rule envisages conducting of regular inquiry which will necessitate the examination of witnesses in support of the charges brought against the accused civil servant, his right to cross-examine such witnesses and his right to produce evidence in rebuttal. The question, as to whether the charge of a particular misconduct needs holding of a regular inquiry or not, will depend on the nature of the alleged misconduct. If the nature of the alleged misconduct is such on which a finding of fact cannot be recorded without examining the witnesses in support of the charge or charges, the regular inquiry could not be dispensed with. Reference may be made in this behalf to the case of Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (PLD 1994 SC 222)."

10. The above cases support the view of the Tribunal that the respondent's services could not have been terminated in the manner which was resorted to in the present case.

11. The upshot of the above discussion is that the instant appeal has no merits and the same is, accordingly, dismissed. However, there will be no order as to costs.