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Appeal No. 206(R) of 1983, decided on 15th June, 1985,

‑‑Better employment‑Vested right‑Appellant serving yet on pro bation making application for higher post under a Bank but his application refused to be forwarded‑Appellant making application directly and on being selected submitting resignation and joining new appointment under the bank‑Penalty of dismissal from service imposed on charge of absence and for making direct application for new appointment‑Held : (i) Appellant was well within his right to resign at short notice particularly when he had informed the depart ment about his intention to apply for another job, (ii) seeking a better employment was his vested right hence not forwarding his application and not accepting his resignation was not appropriate Tribunal modifying penalty of dismissal to that of removal from service‑Service Tribunals Act (LXX of 1973), S. 4.

T. B. Ansari for Appellant.

Muhammad Amir Akbar Khan, State Counsel for Respondents.

Date of hearing : 12th June, 1985.

‑This is the appeal by S. M Ali Shah, ex‑Key Punch Verifying Operator, the appellant, against the im pugned order of his dismissal vide Federal Bureau of Statistics Office Order No. FBS‑ADMN. 11. P‑5(40)/82, dated the 25th April, 1983. The appellant appealed departmentally against the impugned order to the Secretary, Ministry of Planning and Development (Statistics Division), Islamabad which was rejected vide Memorandum No. FBS. SO.P. 12‑(90)81, dated 2nd October, 1983.

2. The facts of the case are that the appellant was appointed on 6th May, 1981 as Key Punch Verifying Operator (Grade‑7) in the Statistics Division, Islamabad. According to his appointment letter, the appellant was to be on probation for a period of one year extendable for a further period of one year. Sub‑para. (3) of his appointment letter is reproduced below

"His/her appointment in the first instance will be on probation for a period of one year extendable by order before or immediately after its expiry for a further period of one year. On satisfactory comple tion of the probationary period to be so declared the appointment shall be deemed to be held on temporary basis until further orders. Provided that his/her period of probation shall not be deemed to have been completed satisfactorily until his/her character and ante cedents have been verified as satisfactory in the opinion of the appointing authority. Provided further that his/her services may be terminated at any time without notice and without assigning any reason during the initial or extended period of probation."

While the appellant was still on probation, he requested respondent No. 2 (Director‑General, Federal Bureau of Statistics) to forward his application for employment with the Agricultural Development Bank of Pakistan which was refused. Meanwhile the appellant applied directly to the A. D. B. P . and was selected in Grade‑14. The appellant, therefore, submitted his resignation to respondent No. 2 on 9th December, 1982 whereas he joined' his new job with effect from 5th December, 1982. Respondent No. 2 issued the appellant a show‑cause notice vide No. FBS. SO. P‑12(90)/81, dated 8th March, 1983 which reads as under :

Whereas you Mr. S. M. Ali Shah, a temporary K. P. V. O. in the Federal Bureau of Statistics, Islamabad, have committed the follow ing acts of gross misconduct :‑

(1) You have been absenting from duty since 5th December, 1982.

(2) It has been reported that while employed by this Bureau you secured employment in the Computer Department of the A.D.B.P., Islamabad, w.e.f. 12th December, 1982.

(3) You made false statements to the A. D. B. P. and suppressed the fact that you were already in Government service when you secured employment with them w.e.f. 12th December, 1982.

2. And whereas you have rendered yourself liable to imposition of major penalty of dismissal from Government Service under the Government Servants (Efficiency and Discipline) Rules, 1973.

3. Now, therefore, you Mr. S. M. Ali Shah is called upon to show cause within fourteen (14) days from the date of receipt of this show‑cause notice as to why the penalty of dismissal from service under the Government Servants (Efficiency and Discipline) Rules, 1973 should not be imposed upon you. If you fail to submit any written defence within the prescribed period, the case will be decided ex parse. You are also required to submit as to whether you want to be heard in person.

(Sd.)

M. R. Abbasi.

Director (Admn.)."

3. The appellant gave written reply to the show‑cause notice but it was found unsatisfactory by respondent No. 2 and he was dismissed from service vide the impugned order already mentioned. The appellant appealed against this impugned order to the Secretary, Ministry of Plan ning and Development Division but it was rejected being time‑barred.

4. The learned counsel for the appellant contends that the impugned order of dismissal was not conveyed to the appellant. He came to know about his dismissal only when his services were terminated by the A. D. B. P. supposedly on the information conveyed by the Statistics Division. The learned counsel also contends that the order of dismissal was not sent to the appellant by post as is evident from the copy of the dismissal order in which it indicated as if he were not to be sent the copy at all. He got the copy of the letter of dismissal only when he visited the Statistics Division personally to find out the facts of the case.

5. The learned counsel for the State as well as the departmental representative could not show any postal receipt under which the impugned order of dismissal was ever sent to the appellant, The learned counsel for the appellant, therefore, contends that the departmental appeal as rejected being time‑barred is not considered in order. We agree with the view.

6. The facts of the case are that the appellant is an inexperienced youngman and he was not yet a temporary‑employee as envisaged in sub para. (3) of his appointment letter cited above. He was still on probation when he resigned his job. We consider that the appellant was well within his rights to resign at a short notice particularly when be had informedl'4 respondent No. 2 about his intention .to apply for another job in the A. D. B. P. The proceedings leading to his dismissal are actually conduct ed under sub‑para. (4) of the appointment letter which only applies to the temporary employees who have completed their probation period. Sub para. (4) of his appointment letter is also reproduced below :‑

During the period of temporary employment his/her services may be terminated by Government at any time without assigning any reason by giving a notice for a period not less than 14 days or on payment, in lieu of the notice, or for a period by which the notice falls short' of 14 days. In case he/she wishes to terminate his/her service under the Government at any time he/she shall resign in writing and shall thereafter continue to serve the Government until his/her resigna tion is accepted and he/she absents himself/herself from duty with out assigning any reason in writing or before acceptance by Govern ment of his/her resignation he/she shall be liable to disciplinary action which may involve disqualification from future employment."

7. The appellant had not completed his probation period and, there fore, cannot be termed as a temporary employee. Since the services of the appellant could be terminated without any notice while on probation, his intention to resign vide his resignation, dated 9th December, 1982 should also be treated on the same basis. All that the appellant has tried to seek is a better employment and this, we consider, is his vested right. We do not consider it appropriate that the appellant's vested interest be jeopar dised by not forwarding his application as requested by him and also not accepting his resignation while still on probation. The appellant at this early age is merely trying to seek better career and we consider that the punishment awarded in this case is too severe. The impugned order of dismissal debars the appellant from Government service for the rest of his life in view of the stigma of his dismissal. We do not consider it appro priate that the appellant should continue to suffer on account of this rather disproportionate punishment whereas his guilt is indeed minor. We, therefore, modify this punishment of 'dismissal' into removal from service' with the remarks that he will not be debarred from Government service. We further direct that a copy of this order be sent to the A. D. B. P. for re‑considering the re‑employment of the appellant, if possible.

8. No order as to costs.

A. E

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