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Constitutional Civil Appeal No. 1 of 1957, decided on 20th March 1958.
(On appeal from the judgment and order of the High Court of West Pakistan,. dated the 6th November 1956, in Writ Petition No. 306 of 1956).
Government servant whose first tentative appointment is subject to verification of character and antecedents‑Not entitled to notice before termination of service on ground of failure of condition as to character and antece dents‑Not entitled to pay in lieu of notice.
The first tentative appointment of a Government servant was "subject to verification of character and antecedents", and there was a condition that the service could be terminated on 15 days' notice by either side. As it was, Government made inquiries and were not satisfied as to "character and antecedents" of the incumbent, they, therefore, terminated his service "with im mediate effect, and directed that he should be paid 15 days' pay in lieu of notice.
that the establishment of a satisfactory character and satisfactory antecedents was a condition sine qua non to the com pletion of the contract of employment.
There is no duty upon the employer to give such an employee, whose employment is merely tentative until the contract is completed by satisfaction of all the necessary conditions, an opportunity to clear his character while continuing in such tentative employment. It is not necessary in such a case that there should be any direct or indirect rescission of the contract, because the contract was never completed. It fell through for lack of satisfaction of a primary and precedent condition. In fact there was no service in accordance with the contract, but merely service in advance of completion of the contract for which it would have been sufficient in law if payment had been made ad valorem. On this view, it was quite unnecessary to give any notice in compliance with the contract, and the reference to notice in the Government letter was otiose and the direction for payment of 15 days' salary in lieu of notice must be deemed, to all the circumstances, to be a payment made ex gratia.
It is obvious that a provision for security of tenure of a post cannot be claimed until all conditions precedent to the holding of the post are first satisfied. The relationship between the Government and the respondent failed to reach the stage of being a contract of employment in law, the question of the application of Article 181 subsection (2) of the Constitution was irrelevant to the preset case.
Faiyaz Ali, Attorney‑General (S. A. Mahmud, Advocate Supreme Court with him) instructed by Iftikharuddin Ahmad, Attorney for Appellant.
Muhammad Iqbal, Advocate, Supreme Court, instructed by Saeed Akhtar, Attorney for Respondent.
Date of hearing : 20th March 1958.
This appeal by the Federation of Pakistan is brought before the Court on the strength of a certificate under Article 157 of the Constitution granted by a Division Bench of the High Court of West Pakistan in relation to a writ of mandamus issued by the same Bench in favour of the respondent Raja Muhammad Afzal Khan. By this writ it was declared that the respondent who had been employed as an Assistant Executive Engineer in the Mangla Dam Circle, and whose services had been terminated shortly after the 18th June 1956, a little over two months after he had joined the appoint ment, still continued to be in service "notwithstanding his discharge" to which was added a direction that the petitioner should be reinstated. The latter direction was never carried into effect, for after the grant of the aforesaid certificate, the High Court allowed stay until a stay order was made by this Court.
The following statement of facts will suffice for the disposal of this appeal. On the 15th September 1955, Raja Muhammad Afzal Khan applied to the Chairman, Central Engineering Authority, Government of Pakistan ' at Karachi, for a post in the Mangla Dam Investigation Circle under the Ministry of Industries. He gave a brief statement of his qualifications. He received a reply from the Superintending Engineer, Mangla Dam Circle dated the 19th October 1955, in which he was asked to give details of his academic and practical qualifications and experience. To this Raja Muhammad Afzal Khan replied by letter dated the 26th October 1955 giving a statement of his qualifications and experience in detail. Among the details furnished was the following;----
"(3) Employed in Thai Development as a Civil Construction Engineer in the capacity of a Sub‑Divisional Officer and have worked there on the construction of roads, bridges, residential and industrial buildings etc." '
On the 12th April 1956, the Government of Pakistan in the Ministry of Industries issued an office memorandum with reference to the case of Raja Muhammad Afzal Khan, by which he was offered a temporary post of Assistant Executive Engineer in the Mangla Dam Circle. The terms and conditions of the offer were laid down in detail. It was made clear that the appointment was initially for one year or until the expiry of the sanctioned duration of the Circle, whichever was earlier, and it was further made clear that any extension of appointment beyond one year would require to be made with the approval of the Pakistan Public Service Commission. The conditions under which his services could be terminated were specified with particularity. This included a statement of the circumstances in which his services could be terminated by the Government without previous notice. There was also a provision that at any time, and without assigning any reasons, the contract of service could be terminated upon 15 days' notice of termination given by either side. It is of interest to note, although it is not directly in point in the present case, that it was specified that the Government would be entitled to forego the 15 days' notice provided that the officer paid in lieu thereof, the amount of his emoluments for the period of notice, which amount the Government would be entitled to dedu6t' from any sums due to the officer in such a case. " No provision was made for Government to pay any sum in lieu of notice, but that is the case which has actually arisen: When the service of Raja Muhammad Afzal Khan was terminated, this was done "with immediate effect" and a direction was added that "in lieu of 15 days' notice he should be given 15 days' pay". It is of course an ordinary condition of the contract of employment terminable by notice that in lieu of the notice, the employer may pay to the employee his salary for the period of notice not given as agreed, but in the present case, it is possible to regard the action of the Government in somewhat different light. This is aided by the absence from the written contract of any condition to this effect:
There are other conditions mentioned in the office memoran dum, but it is ,necessary only to consider one which is reproduced below .‑ .
"(v) His appointment will be subject to his being found fit medically and subject to the verification of his character and antecedent."
In the closing paragraph of the office memorandum Raja Muhammad Afzal Khan was asked to report for duty at the Mangla Dam Circle office in Lahore and directed to produce "two character certificates from any two Class I Officers in the proforma attached herewith." It is evident from the wording of the fifth condition reproduced above that mere production of these character certificates from Class I Officers would not suffice to establish the appointee's character to the satisfaction of the Government. It is necessary that his character should also be verified that is to say, to be established to the satisfaction of the Government by necessary enquiry or production of proofs. And it was necessary also that the Government should be satisfied after enquiry that the appointee's antecedents were good. It does not need to be emphasised that when an employer accepts a person for the first time in his employment, he is justified in insisting upon the employee coming to him with a clean record and character. It is impossible to conceive of the employee having .the right in such circumstances to say that although he has a visible stain on his character at the time when he presents himself for employment, it is the duty of the employer to dive him, while in his service, an opportunity to clear that stain upon his character. If the person presenting himself for employment appears to the employer not to have clean record arid character, the employer may immediately decline to receive the aspirant in his service. That is in our opinion the correct view to take in the interpretation of the fifth condition reproduced above. It was a condition precedent to the full and formal acceptance of Raja Muhammad Afzal Khan as an employee of the Government, that his character and antecedents should, upon an enquiry, prove to be satisfactory in the eye of his employer namely, the Government. Without such satisfaction, as to which the Government would necessarily be the sole Judge, the contract remained inchoate, and liable to repudiation at the option of the Government despite the fact that Raja Muhammad Afzal Khan had commenced his duties, for when he did so on the 16th April 1956, he acted in compliance with the office memorandum mentioned above, and must be deemed to have accepted all the terms and conditions contained therein. His arrival report expressly refers to the office memo randum and mentions that the character certificates which he was required to produce were attached. We entertain no doubt that Raja Muhammad Afzal Khan was fully aware that the establishment of a satisfactory character and satisfactory antece dents was a condition sine qua non in relation to the service which he had accepted.
On the 3rd May 1956, a letter issued from the Superintending Engineer, Mangla Dam Project to, the Chairman of the Thal Development Authority in the following terms :‑---
"Government of Pakistan has recently employed Mr. Muhammad Afzal Khan as Assistant Executive Engineer on the Mangla Dam Project. I understand that Mr. Afzal served as Assistant Engineer in the Thal Development Authority a few years back. To verify the antecedents of Mr. Afzal it will be helpful if his qualification report and personal file for the period he was in the Thal Development Authority are forwarded to me for reference. These documents can be returned if so desired."
The enquiry was evidently made because in his letter of the 26th October 1955, Raja Muhammad Afzal Khan had expressly said that he had served in the capacity of a Sub‑Divisional Officer "in Thal Development." The reply by the Thal Development Authority to the enquiry from the Mangla Dam Circle is dated the 22nd May 1956. It was as follows :‑---
"(2) Mr. Muhammad Afzal Khan son of Muhammad Akram joined Thal Development Authority on 11th December 1951, as Apprentice Engineer. He was promoted as Sub -Divisional Officer with effect from the 11th March 1953. While he was working as Sub‑Divisional Officer at Leiah he was found prima facie guilty of cheating, misappropriating Govern ment money and for fraudulently making payment of Rs. 59,771‑8‑0. The case was reported to Police. A copy of Prosecution Order is enclosed herewith which is self -explanatory.
(3) Mr. Muhammad Afzal Khan absconded with effect from the 30th April 1953. He was placed under suspension from this date of his absence vide Authority Resolution No. 30 dated the 12th May 1953.
(4) As reported by Deputy Inspector‑General Police Bahawal pur Range the official has been arrested by the Police and the case is subjudice in the Court of Special Judge Muzaffargarh. I hope this will make the whole position very clear."
It is unnecessary to dwell upon the impression which was probably made upon the mind of the Head of the Department which had recently accepted on its staff on Class I gazetted service a person about whom this letter furnished such damaging details. The writer of the letter was a Superintending Engineer in the Construction Circle of the Thal Development Authority, and he declared that Raja Muhammad Afzal Khan had been in 1953 "found prima facie guilty of cheating, misappropriating Government money and for fraudulently making payment of Rs. 59,771‑8‑0." That this was not a mere allegation, it had been implemented by proper proceedings, was further made clear in the letter, which said that the case had been reported to the Police, that Raja Muhammad Afzal Khan had "absconded" with effect from the 30th April 1953, that he had been placed under suspension from the date of his absence, and further that *he had actually been arrested and his case was being tried in the Court of Special Judge at Muzaffargarh.
There is on the record a document containing information furnished by a highly responsible official, in legal form, from which the full details of the wrongful acts alleged against Raja Muhammad Afzal Khan appear with great clarity. This is the letter of the Chairman of the Thal Development Authority dated the 20th October 1955 sanctioning the prosecution of Raja Muhammad Afzal Khan under section 409, 420 and 468 read with section 109, P. P. C. The sanction states that a first information report of these offences had been recorded at Police Station Lieah on the 1st July 1953. The facts set out in the sanction are briefly that in collusion with a named contractor, Raja Muhammad Afzal Khan misappropriated Government money over which he had dominion and dishonestly and fraudulently made payments by cheques dated 'the 7th April and 11th April respectively in the total sum of nearly Rs. 60,000 "in contravention of the conditions laid down in the supply order" and "in total disregard of his duties regarding payments" and that he further made forgeries In the relevant documents. The sanction was necessary for the purpose of the prosecution of Raja Muhammad Afzal Khan under Pakistan Criminal Law Amendment Act, 1948.
It was stated before us at the hearing of this appeal that Raja Muhammad Afzal Khan was acquitted eventually, on some date in November 1957. It is necessary to add that we were unfavourably impressed by the inability of the learned counsel appearing for the respondent to produce any copy of the judgment. It seems to us that if the judgment had the effect of clearing the respondent's character wholly, there need have been no difficulty in the period, which elapsed between the announcement of the judgment and the hearing of the present appeal, in procuring a copy of that judgment for perusal by the Court. In one of the judgments delivered in the High Court, it was observed regarding this criminal case as follows :‑---
"We do not know the merits of the criminal case, but it is no fault of the petitioner that its shadow has been made to hang so long across his career, and the decision of the authorities concerned to deny him an opportunity of showing cause prevents him from earning a livelihood so long as the criminal case remains undecided".
If the judgment of acquittal which is said to have been pronounced in the respondent's favour had the effect of clearing the shadow which, in the words of the judgment just quoted, "has been made to hang so long across his career" the hearing of the appeal in this Court should have furnished an excellent opportunity for removing that shadow once for all. It is somewhat anomalous that he should not avail himself of that opportunity, and yet should insist on being given an opportunity while still in service to clear his character of the stain which must necessarily fall upon it by reason of accusations so serious as those which appear from the order of sanction just quoted.
Upon receipt of the report from the Superintending Engineer, Thal Development Authority, action appears to have been taken with the result that the letter of the 18th June 1956 issued from the Ministry of Industries at Karachi to the Mangla Dam Circle to say "that Government agreed to terminate the services of the above named officer with immediate effect. In lieu of 15 days' notice he should be given 15 days' pay."
In the view which we take of the case, the establishment of a satisfactory character and satisfactory antecedents was a condition A sine qua non to the completion of the contract of employment. Quite irrespective of the result of the case against the respondent, when the details of the accusations against him and the fact of his arrest and of his being an accused person in a pending case were brought to the notice of the employer, it became impossible that the employer should be satisfied in the necessary sense. A , we have said before, there is no duty upon the employer to give such an employee, whose employment is merely tentative until the contract is completed by satisfaction of all the necessary conditions, an opportunity to clear his character while continuing in such tentative employment. Having received information upon which the employer can reasonably rely, to the effect that the intending employee is unsuitable for the employment in question, the employer may immediately refuse to go on with the contract and thus bring it to an end. It is not necessary in such a case that there should be any direct or indirect rescission of the contract, because the contract was never completed. It fell through for lack of satisfaction of a primary and precedent condition. Even less is it necessary to use such an expression as that employee by the Government viz. "terminate the service". In fact there was no service in accordance with the contract, but merely service in advance of completion of the contract for which it would have been sufficient in law if payment had been made ad valorem. On this view, it was quite unnecessary to give any notice in compliance with the contract, and in our opinion the reference to notice in the Government letter is otiose and the direction for payment of 15 days' salary in lieu of notice must be deemed, in all the circumstances, to be a payment wade ex‑gratia, This payment is not referable to any legal obligation arising out of the offer of service, for as has been seen, a condition to this effect was omitted from the offer.
In this view of the matter, we do not deem it necessary to deal at length with the argument advanced on behalf of the respondent that by the reference to termination of service, and to notice in the order of the l8th June 1956, the Government were conceding that they acted under the contract as if it was a complete contract of service. On the facts it is perfectly clear that the contract was never completed, and the payment in question cannot in our opinion be considered otherwise than as having been made ex‑gratia.
Also, in the view which we have taken above, it becomes quite unnecessary to deal with the principal question which formed the subject of discussion in the two judgments delivered in the High Court, namely whether the action of the Government in getting rid of Raja Muhammad Afzal Khan must be regarded as a dismissal or removal from service, which being made for misconduct, could not be made without allowing the employee concerned an opportunity of showing cause against the order proposed as required by the Constitution. The question may well have arisen if the contract of service had not been left inchoate, and had not continued in that state until failure of the condition precedent, namely, establishment of satisfactory character and antecedents. It might then have been a relevant question for consideration whether such an opportunity was not requisite of the Constitution which could not be avoided. But it is obvious that a provision for security of tenure of a post cannot be claimed until all conditions precedent to the holding of the post are first satisfied. As we entertain no doubt that in this case, the relationship between the Government and the respondent failed to reach the stage of being a contract of employment in law, we consider that the question of the application of Article 181 subsection (2) of the Constitution is irrelevant to the present case, and all observations thereon, whether made with reference to the facts of this case or otherwise, in the judgments delivered in the High Court must be evaluated accordingly.
Before concluding this judgment, we consider it necessary to make some observations regarding a point which has apparently influenced one at least of the judgments delivered in the High Court to an appreciable extent. The point to which we refer is the mention in some of the documents which passed between various officers in relation to the respondent, that he had absconded, in order to avoid prosecution in the case which had been registered against him on the 1st July 1953. In the judgment to which reference has just been made, this matter is repeatedly referred to. In the statement of facts it is said that after the respondent had resigned his post with the Thai Development Authority on the 10th May 1953 and had left for Sweden in the middle of May, "a case for criminal misappropriation was registered against him on the 1st of July 1953 and he was declared an absconder, notwithstanding that he had told the Chairman, Thal Development Authority in a letter written on the 10th of May 1953 that he had received a Government scholarship and was proceeding to Sweden". It was said that "the fact that he was declared absconder though the Government itself had sent him out with a scholarship reflects no good faith in the investigation" and with reference to the letter of, the Superintending Engineer, Thal Development Authority dated the 22nd May 1956, which has been reproduced in full above, that "the charge of ascendance was a malicious accusation". There seems no doubt that the final conclusion of the learned Judge that the notice of termination of the respondent's service "did not rest on good faith" was influenced to a considerable extent by the views which he had formed regarding the allegation that the respondent had absconded.
The record of this case is by no means complete, and yet it contains sufficient material for coming to the conclusion that the respondent's sudden departure from the scene could be regarded as action to evade investigation of the allegations against him, and a possible prosecution to follow. As has been seen, the cheques for about Rs. 60,000 which he passed were issued on the 7th and the 11th April 1953. A document on the record filed by the respondent shows that on the 2nd April 1953 he was one of fifteen persons who were selected by the Government of the Punjab in the P. W. D. Buildings and Roads Branch for practical training in Sweden. A letter from the Secretary to the Punjab Government on this subject issued to the Principal, Punjab College of Engine ering and Technology Lahore, and in consequence thereof on the 28th April 1953, the Principal sent a letter to the respondent informing him regarding his railway ticket to Karachi and giving advice regarding other matters. It is noteworthy however that this letter was not sent through the Thal Development Authority or to the 'respondent at his official address, as an Engineer serving in the Thal Development Authority. It was addressed to him "c/o Mian Muhammad Akram, house No. 157‑A inside Taxali Gate, Lahore."
Shortly after the date of this letter, namely on the 5th May 1953, the Engineer‑in‑Chief, That Development Authority received a note from the Central Design Officer, reporting that on the 4th May 1953 he had inspected the stock of timber purchased by the respondent as Sub‑Divisional Officer, Lieah from certain places, and had found a number of defects viz, that the timber procured was inferior that is to say of anandar wood and not deodar wood that much of it was irregular and full of cracks and of very inferior quality, which appeared to have been taken from some "rejected stuff" and moreover that railway receipts had been tampered with to show larger number of wooden blocks than had been actually received. A copy of this memorandum was forwarded on the 29th May 1953 to the Station House Officer of Police Station Lieah for registration of a case. The subsequent action taken upon this report appears from the following paragraphs con tained in a memorandum of the facts prepared by the Superintend ing Engineer, Construction Circle, Thal Development Authority, for the information of the Chairman of that Authority, on the 30th October 1955. This document is printed as No. 11 of the documents in the paper‑book.
"3. The Engineer‑in‑Chief with his D. O. 37/E‑in‑C dated the 4th May 1953 (copy attached) reported to the Chairman that Mr. Muhammad Afzal was likely to leave the country for studies abroad within the following few days and requested the Chairman to take suitable action to restrain Mr. Muhammad Afzal from leaving Lahore or Leiah till the enquiry into the case against him had been completed.
4. On the receipt of this D. O. the Chairman addressed his D. O. LH Thal 391/St dated the 20th May 1953 (copy attached) to the Deputy Inspector‑General of Police, C. I. D. Branch, Punjab Lahore informing him that Mr. Muhammad Afzal had been placed under suspension as there were charges of embezzlement against him. He had also suggested to the D. I. G. Police that action might be taken to prevent his departure from the country till Mr. Afzal had cleared his position. It appears Mr. Afzal had already left Pakistan before any action could be taken by the Police authorities."
Clearly, events had been moving very rapidly from the 7th April onwards, and by the 5th May, very strong action had been proposed to be taken against the respondent. In the memorandum sent by the Central Design Officer to the Engineer‑in‑Chief, That Development Authority, it was suggested that immediate suspension of the Sub‑Divisional Officer should be ordered. As has been seen already, such an order was made to take effect on the 30th April 1953. That is a significant date in the course of events relating to the disappearance of the respondent from the scene of his duties in the Thal Development Authority as will appear from the following passage contained in the above mentioned memorandum of the Central Design Officer :‑
Mr. Muhammad Afzal Khan S. D. O. proceeded to Lahore on the 30th April 1953 without permission. On the 1st May 1953/2nd May 1953 he sent a Postal Telegram to Divisional Engineer Leiah saying "Suddenly fell Ill. Could not see you. Medical Certificate follows". On the 4th May 1953, he sent a medical certificate signed by Assistant Medical Officer, Leiah recommending him 7 days' casual leave with effect from 30th April 1953 for getting himself X‑rayed for Appendicitis etc."
It is difficult to avoid the conclusion that the respondent's sudden disappearance from the scene had some connection with the discovery of the defects which were found in his work some four days later. He had been asked by the Principal of the Punjab College of Engineering and Technology, Lahore to present himself on any working day before the 7th of May 1953 to receive his railway ticket from Lahore to Karachi. It does not appear that he made use of this letter to obtain leave of absence to go to Lahore, but he put up the excuse of illness and supported it with a medical certificate which suggested so grave an illness as appendicitis. That .did not prevent him from submitting from Lahore on the 10th May 1953, his resignation, on the ground that he was leaving for Sweden soon after, or, as is stated in one of the judgments delivered in the High Court, from leaving for Sweden in the middle of May.
When the conjunction of dates of the activities by the respondent and against the respondent, within a period of about 6 weeks prior to his departure from the country is taken into account, an impression is clearly left on the mind that if the respondent had behaved in a straightforward way and obtained leave of absence in early May, through his superior ‑officers for the purpose of going abroad, he might never have been allowed to go abroad, but probably would have been kept back to face the serious charges against him. In the circumstances, if those who were interested to prevent him from going abroad, and failed to do so, gained the impression that he was absconding from prosecution, that was in our opinion no more than perfectly natural. As for the formal declaration by the Courts that he had absconded, it is to be remembered that the Courts do not always have the same information in relation to a Government Officer who is an accused person, as is possessed by the various Government departments. with whom that officer is concerned. Consequently, we feel it necessary to observe that the various references contained in the documents to the respondent having "absconded", do not necessarily furnish a sufficient ground to sustain an imputation of malice, and that to draw therefrom an inference of absence of good faith, is in our opinion, unjustifiable. In any case, the Thal Development Authority and the Mangla Dam Circle are quite distinct Departments, and whatever the attitude of the Thal Development Authority might have been, it is quite clear that that attitude is in no way relevant to determination of the attitude of the officials of the Mangla Dam Circle when they were called upon to decide whether they were satisfied regarding the antecedents of the respondent as a suitable person for employment in the Government service, and were faced with the report that he had been accused of embezzling about Rs. 60,000, and of falsifying documents, in the discharge of his duties as a Sub‑Divisional Officer of the Public Works Department in the Thal Development Authority.
For these reasons, we consider that the respondent was not entitled to the writ which was granted by the High Court, and we hereby accept the appeal of the Federation of Pakistan and set aside the order of the High Court. In all the circumstances, we leave the parties to bear their own costs.
A. H. Appeal accepted.
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