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Regular Second Appeal No. 422 of 1956, decided on 25th November 1957, from the decree of Zia Ullah Khan, Senior Civil Judge, Lahore, dated the 9th June 1957, reversing that of Zafar Ahsan Mahmood, Civil Judge, IV Class, Lahore, dated the 31st January 1955.

Ss. 240 & 240 (3) Nature of employment on probation‑Discharge from service of probationer‑Whether amounts to dismissal‑Show‑cause notice whether necessary‑Position of a probationer whether that of a temporary employee‑Discharge from service when amounts to removal within meaning of S. 240 (3)‑Temporary employee whose set vice according to contract is liable to be terminated with one month's notice when and on what ground can challenge his discharge.

A person employs another on probation when lie is unable at the moment to decide whether he would retain him. In effect he says to the person who seeks employment: "I cannot say whether you are fit for the job for which you are applying. I will try you. If I find your work satisfactory I will retain you but I will finally decide the question as to whether I am going to employ you, only after I have seen your work." When a person is employed on probation the question as to whether he is to be employed has not yet been finally decided and when the employer-terminates his services before confirmation he is only saying that he refuses to employ him. A mere refusal to employ is not a removal from service. Or in other words, an employment on proba tion is an employment subject to a condition which will become absolute only if the condition of confirmation is fulfilled. As long as the condition is not fulfilled, the matter is in suspense and when there is refusal to confirm the employment has failed to take place. A refusal to confirm a probationer is a refusal to employ him. Hence so far as an ordinary case of probation is concerned, the discharge of a probationer is not removal or dismissal from service within meaning of section 240 (3) of the Government of India Act, 1935 and no show‑cause notice is necessary.

If one were to hold that even in the case of a discharge of a probationer, a notice to show cause is necessary, the result would be to deprive the Government of the authority of employing persons on probation at all, for in that case the person employed as a probationer would not be liable to have his services terminated unless either misconduct or some kind of deficiency was established. Section 240 of the Government of India Act envisages a removal or dismissal only on proper proof of unfitness. It is not merely a formal provision which would be regarded as fully complied with if a notice is only served. There is no meaning in showing cause unless the object be that there is to be a finding against the employee and it is on the basis of the finding that he is to be removed. If section 240 were to be applied to a pro bationer, the result would be that even for refusal to confirm there will have to be the framing of a charge, an enquiry and a finding. That hardly could be the intention of the law.

The case of a probationer is different from that of a temporary employee. In the case of a probationer the question as to whether he is or is not to be employed has not yet been finally decided whereas in the case of a temporary employee the question of employment has certainly been decided. Only he is not a permanent employee and the period of his employment is regulated by his agree ment.

The question of removal or dismissal arises only when the question whether a person is to be employed has been finally decided and secondly it is only where the order of discharge by itself finds a person to be blameworthy or deficient that it can be regarded as removal or dismissal. To such a removal or dismissal a stigma attaches, but if all that has happened is that the real reason of discharge is the unsatisfactory work of an employee but the Government does not proceed on the basis that he is guilty or deficient and simply terminates his services in accordance with the terms of his agreement of service, that would not be a removal.

In the case of a temporary employee, if by the agree ment the employer or the employee or both can terminate the period of employment by one month's notice, then the moment that option has been validly exercised in accordance with the agreement the period of the employment becomes fixed and the result is same as it would have been if the length of the period had been fixed in the original agree ment. In such cases the only way to challenge an order of an officer of the Government who puts an end to the service of an employee is to impeach the exercise of option by him as invalid. Such exercise of option cannot be challenged on the ground that there is no show‑cause notice. It may be challenged on the ground of mala fides, for an order passed mala fide is an order without jurisdiction. Such mala fides would be established if the exercise of option was not in fulfilment of the object of the clause which provides for one month's notice but for a collateral purpose.

rr. 8 (2) & 249, note 2‑Definite conditions of Probation‑Condition of satisfactory work or conduct‑Whether a definite condition.

A person, was appointed a senior clerk in a college on probation for a period of two year:. Before the expiry of the probationary period, he was discharged from service on the ground that his work was most unsatisfactory. Relying upon note 2 under rule 2'49 of the Punjab Civil Veterinary Department Subordinate Service Rules, it was urged that according to note 2 only a definite condition could be attached to the appointment of a probationer and the condition of satisfactory work or conduct was not a definite conduct.

Held, that such a condition cannot be said to be indefinite.

Held, further that even if it were to be assumed that Note 2 is inconsistent with the condition of satisfactory work and conduct, that would make no difference for the note is not a part of any rule. In any case, it cannot override rule 8 (2) which is a part of the Punjab 'Civil Veterinary Department Subordinate 'Service Rules under which the discharged person was appointed.

Federation of Pakistan v. Mrs. A. V. Issacs P L D 1956 S C (Pak.) 431 ref.

Tribhuwannath v. Union of India A I R 1953 Nag. 138 Noorul Hassan v. The Federation of Pakistan P L D 1955 Sind 200; Shyamlal v. State of U P, A I R 154 S C 369; Noor ul Hassan v. The Federation of Pakistan P L D 1956 S C (Pak.) 331 and Raja Muhammad Afzal Khan v. The Federation of Pakistan P L D 1957 Lah. 17 distinguished.

M. B. Zaman for Appellant.

S. Aftab Hussain for Respondent.

Date of hearing: 23rd October 1957.

Riaz Ali Khan, the respondent in this second appeal, was appointed a senior clerk in the Punjab Veterinary College, on the 1st of November 1952, on proba tion for a period of two years with a condition that he was to pass the examination of the Public Service Commission. His services were terminated on the 17th of August 1953, on the ground that his work was most unsatisfactory, without a formal notice to show cause. The suit out of which this appeal arises was filed by Riaz Ali Khan, challenging the order of termination of his employment on the ground that he was entitled to a show‑cause notice in view of section 240 of the Government of India Act, 1935. The trial Court dismissed the suit, holding that the termina tion of the services of a probationer did not amount to dismissal. On appeal, however, the learned Senior Civil judge held that the discharge even of a person on proba tion amounted to dismissal under section' 240 (3) of the Government of India Act, 1935, and this is the sole question involved in this second Appeal which has been filed by the Province of West Pakistan.

Whether there is any special condition of probation which takes this case out of the ordinary rule is a matter which I will presently consider, but so far as an ordinary case of probation is concerned, there can be little doubt that the discharge of a probationer is not removal or dis charge. To determine what is the effect of such a discharge, let us consider the exact nature of employment on probation. A person employs another on probation when he is unable at the moment to decide whether he would retain him. In effect he says to the person who seeks employment: "I cannot say whether you are fit for the job for which you are applying. I will try you. If 1 find your work satisfactory I will retain you but I will finally decide the question as to whether I am going to employ you only after I have seen your work." When A a person is employed on probation the question as to whether he is to be employed has not yet been finally decided and when the employer terminates his services before confirmation he is only saying that he refuses to employ him. A mere refusal to employ is not a removal from service. Or we may say that an employment on probation is an employ ment subject to a condition which will become absolute only if the condition of confirmation is fulfilled. As long as the condition is not fulfilled, the matter is in suspense and when there is refusal to confirm the employment has failed to take place.

In the present case, there is another reason why the respondent is not in a position to contest that his discharge is not removal. By an explanation to rule 14.10 of the Civil Service Rules, it has been provided that the discharge of a person appointed on probation during the period of his probation does not amount to removal or dismissal. To the same effect is rule 8 (2) of the Punjab Civil Department Subordinate Service Rules 1933. The employment of the respondent is subject to rules framed by the Government. What is contained in rule 14.10 and rule 8(2) can be regarded as a part of the contract between him and the State. At the same time these rules have been framed by the Govern ment under the authority of the law, that is, section 241 of the Government of India Act, 1935, and they would be valid until and unless it could be shown that they are in conflict with that Act or some other statute. Learned counsel for the respondent does contend that they are not consistent with section 240 of the Government of India Act. I am not prepared to agree. As to when a person is to be regarded as having entered service is a matter which can properly be provided by rules. Section 240 does not provide that an employment on probation must be regarded as a full‑fledged appointment.

I have asked the learned counsel for the respondent to tell me as to what would be the contents of the show‑cause notice if a notice were in fact to be given in a case like the present. The notice certainly could not require the respondent to show cause as to why he should not be dismissed or removed. All that 'it could call upon the respondent is to show cause would be as to why the officer empowered should not refuse or fail to confirm him. Obviously such a notice is not required by any law.

An argument has been put forward than the termination of the service of a person on the ground of unsatisfactory work without allowing him an opportunity to show that his work was satisfactory is against the spirit of section 240 The object of section 240, it is contended, is that if the employment of a civil servant is to be affected by some misconduct or some deficiency, he should be given an opportunity to show cause that he is not guilty of such misconduct or that such deficiency does not exist because it would be unfair to penalise him unheard.

The argument is plausible enough. It does appeal to one that no person should be penalised on grounds with respect to which he has had no opportunity of showing cause. Yet it is obvious that it is not the intention of the Legislature to grant such opportunity except in a case of dismissal or removal. It is not regarded as practicable to extend this opportunity to all cases where a person suffers on account of the opinion that is held in respect of him by an officer of the Government. For instance, in cases where the question is as to whether a person be appointed to a post or not, the refusal to appoint, him or a preference given to another person may proceed on grounds with respect to which no show‑cause notice has ever been served upon him. This too looks like a case where a person is condemned unheard. Yet the law does not regard this as illegal. The case of a probationer i similar. A refusal to confirm a probationer is a refusal to employ him.

If one were to hold that even in the case of a discharge) of a probationer, a notice to show cause is necessary the result would be to deprive the Government of the) authority of employing persons on probation at all, for in that case the person employed as a probationer would not be liable to have his services terminated unless either misconduct or some kind of deficiency was established Section 240 of the Government of India Act, it should be observed, envisages a removal or dismissal only on proper proof of unfitness. It is not merely a formal provision which would be regarded as fully complied with if a notice is only served. There is no meaning in showing cause unless the object be that there is to be a finding against the employee and it is on the basis of the finding that he is to be removed. If section 240 were to be applied to a probationer, the result would be that even for refusal to confirm there will have to be the framing of a charge, an enquiry and a finding. That hardly could be the intention of the law. The Senior Civil judge relied in support of his conclusion that the discharge of a petitioner amounts to dismissal on Tribhuwannath v. Government Union of India (A I R 1958 Nag 138) and Noor ul Hassan v. The Federation of Pakistan (P L D 1955 Sind 200). The first cited case is, no doubt, one relating to the discharge of a probationer but in that case there was a specific rule framed b the Government saying that even the discharge of a probationer would be equivalent to removal or dismissal. I do not see how the learned Senior Civil judge could have relied upon this authority which is based only upon a specific rule framed by the Government. Not only does that rule not exist in the present case, but there is a directly contrary rule applicable. Noor ul Hassan v. The Federation of Pakistan is not a case of a probationer and learned counsel relies on the simple fact that there is in this judgment a reference to the judgment in Tribhuwannath v, Government, Union of India with implied approval. That,) hardly of any assistance in the decision of this case. I may, on the other hand, refer to the decision of the Supreme Court in The Federation of Pakistan v. Mrs. A. V. Issacs (P L D 1956 S C (Pak.) 431) where there are obser vations definitely leading to the conclusion that a dis charge of a temporary employee whose employment can, in accordance with his agreement, be terminated on one month's notice would not be removal or dismissal, although the true reason for it is some misconduct or unfitness if the Government purports to act in exercise of this power. In that case a charge‑sheet had been served but the provisions of section 240 had not been complied with. Their Lordships held that it was a dismissal because the ground of termination service was misconduct and at no stage of the proceedings had the Railway expressed the intention of proceeding under that clause of the agreement which entitled them to terminate the service on one month's notice. The implication is that had they expressed an intention of proceeding under that provision, although the true reason was misconduct or unfitness, the order of discharge would have been valid.

It has been urged by learned counsel for the respondent that even to a case of temporary employment, section 240 applies, and it should be applicable to a probationer because the case of a probationer is at least that of a temporary employee. I am unable to accept this argument. I have already said that in the case of a probationer the question to whether he is or is not to be employed has not yet been finally decided. In the case of a temporary employee the question of employment has certainly been decided. Only, he is not a permanent employee and the period of his employment is regulated by his agreement.

Learned counsel for the respondent relies upon Shayaralol v. State of U. P. (A I R 1954 S C 369) wherein it has been held that a discharge is tantamount to a removal if the officer concerned has been found to be blame‑worthy or deficient. This definition of removal, he says, has been approved in Noor ul Hassan v. The Federation of Pakistan (P L D 1956 S C (Pak.) 331). There are two answers to this argument. The first is that the question of removal or dismissal arises only when the question whether a person is to be employed has been finally decided. The second is that it is only where the order of discharge by itself finds a person to be blameworthy or deficient that it can, according to observations in Mrs, Issac's case be regarded as removal or dismissal. To such a removal or dismissal a stigma attaches, out if all that has happened is that the real reason of discharge is the unsatisfactory work of an employee but the Government does not proceed on the basis that lie is guilty or deficient and simply terminates his services in accordance with the terms of his agreement of service, that would not be a removal. After all, the true reason for the discharge of one whose services can be terminated after notice will generally be unsatisfactory work or the undesirability of retention to service of the employee and to hold that if the reason of such discharge be unfitness or misconduct, a notice to show cause is essential would be tantamount to nullifying the clause for discharge after notice. Reliance has been placed by learned counsel for the respondent on Raja Muhammad Afzal Khan v. The Federation of Pakistan (P L D 1957 Lah. 17) for the proposition that whatever the true reason for a discharge is some defect in the employee it is a case of dismissal or removal even though the clause for termination of service by notice is resorted to. That was a case of a temporary employee whose service according to his contract was liable to be terminated on one months notice. The employee was discharged after such notice and without opportunity to show cause and he filed a suit challenging the discharge. The learned judges found that the clause relating to discharge after notice had been used as a pretext for getting rid of an undesirable person and that such use of he clause was not "in fulfilment of the object which occasioned that particular clause in the contract" and was therefore not in good faith. That was not a case of a probationer and a simple answer to it is that in such a case the question as to whether a person is or not to be employed has not yet been decided and no show‑Cause notice should be necessary merely for finally deciding such question. But, although it is easy enough to distinguish that case from the present case, there is no doubt an element of similarity between the two cases and for that reason, I would explain the logical basis of the non‑existence of removal or dismissal in the case of temporary employees. The Principle involved in that there can never be any removal tar dismissal it the employee completes leis period of employment In case the length of period of service is fixed by the original agreement, the services come to an end on the expiry of such period. But in case where the agreement between the parties gives an option to either or both parties to determine the period, then the moment that party exercises the option the period becomes fixed arid on the expiry of that period the employ ment automatically comes to an end. If by the agreement the employer or the employee or both can terminate the period of employment by one month's notice, then the moment that option has been validly exercised in accordance with the agreement the period of the employment becomes fixed and the result is the same as it would have been if the length of the period had been fixed in the original agreement. In such cases the only way to challenged an order of an officer of the Government who puts an end, to the service of the employee is to impeach the exercise o option by him as invalid. Such exercise of option cannot be challenged on the ground that there is no show-cause notice. It may be challenged, however, on the ground of mala fides for under passed mala fide is an order without jurisdiction. Such mala fides would be established if the exercise of option was not in fulfilment of the object of the clause which provides for one month's notice but for a collateral purpose. Raja Muhammad Afzal Khan v. The Federation of Pakistan would therefore be correctly decided if it could be shown that the impugned order was passed for a collateral purpose. Whether it was in fact passed for a collateral purpose is a matter into which I need not go.

I come now to the second point urged by learned 'counsel for' the respondent. The contention is that the probation boas in the 'present case subject only to one condition, namely, the passing of an examination of the Public Service Commission. If the respondent passed the examination be was entitled to be, confirmed anal only for his failure to pass the examination could confirmation be refused. Satisfactory work was not a condition of the probation at all.

If it were correct that probation of the respondent was subject only to the condition of passing the examination there would be a good argument that his discharge without reference to the passing of the examination would be dismissal or removal. I have no doubt, however, that it was a case of an ordinary probation with the additional condition that the examination was to be passed. The examination was a qualifying examination and unless it was passed, no question of confirmation, arose. This is clear from the order of appointment and from rule 8 (2) of the Punjab Civil Veterinary Department Subordinate Service Rules, 1933. The order of appointment runs

Order No. 203/52

Mr. Riaz Ali Khan is appointed as Senior Clerk (Accountant) in the scale of Rs. 75‑6‑105/7‑175 in B. P. Section on two years' probation. His confirmation will, however, be subject to leis qualifying the Public Service Commission examination.

(Sd.) S. D. Ahmad,

29-10‑1952. Principal

Punjab Veterinary College, Lahore (2) runs:‑‑

Rule 8 (2) runs:--

"It the work or conduct of any member during his period of probation is in the opinion of the appointing authority specified in rule 4, not satisfactory, the appointing authority may dispense with his services or revert him to his former post if he has been recruited otherwise than by direct appointment. This course shall riot be deemed to be dismissal or removal or reduction to a lower post."

Even the order by itself is clear that the appointment is not subject merely to the passing of the examination but rule 8 (2) clinches the matter. Learned counsel for the respondent places reliance upon note 2 under rule 2.49 of the Punjab Civil Service Rules. I reproduce below the rule along with the notes:‑

"2.49. Probationer means a Government servant employed on probation in or against a substantive vacancy in the cadre of a department. This tern, does not, however, cover a Government servant who hold; substantively a permanent post in a cadre and is merely appointed "on probation" to another post.

(1) The status of a probationer is in he considered as having the attributes of a substantive status except where the rules prescribe otherwise.

(2) No person appointed substantively to a permanent post in a cadre is a probationer unless definite conditions of probation have been attached to his appointment, suet, as condition that he must remain on probation pending the passing of certain examination".

It is urged that according to note 2 only definite con dition can be imposed and the condition of satisfactory work or conduct is not a definite condition. I am unable to see why such a condition is indefinite. I do not think the intention of Note 2 was to say something inconsistent with this ordinary condition of probation which exists even expressly in rules relating to different services. But were to assume that Note 2 is inconsistent with the condition of satisfactory work and conduct that would make no difference for the note is not a part of any rule. III ally case, it cannot over‑ride rule 8 (2) quoted above which should prevail in case of inconsistency, for the appointment of the respondent was under the rules of which rule 8 (2) is a part.

This appeal is accepted and the suit dismissed; but there is no order as to costs.

K. B. A. Appeal accepted.

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