Find a Lawyer

Present: Justice Shah Abdur Rashid, Chairman and Muhammad Irshad Khan, Member

Appeal No.6(K) of 1983, decided on 29th February, 1984.

‑‑‑S.11(i)‑‑Government Servants (Efficiency ands Discipline) Rules, 1973, R.4‑‑Termination of service of a probationer‑‑Termination if made due to allegation of misconduct would amount to removal from service and order could not be passed except by procedure prescribed under Government Servants Efficiency and Discipline Rules, 1973‑ Probationer placed under suspension with direction that proceedings under Efficiency and Discipline Rules had been initiated‑‑No further proceedings undertaken to reach any logical conclusion and services terminated on plea of his being a probationer‑‑Termination order, held, was arbitrary, totally unjustifiable and mala fide and was set aside by Service Tribunal‑‑Order of termination though did not say so, but facts clearly indicated that appellant was being punished for allegations of misconduct for which he was suspended and an impression could not be avoided that said order was passed in colourable exercise of power, and action was taken in fraud of the law which established a malice in law.

P L D 1974 S C 393 and P L D 1969 Dacca 930 rel.

‑‑‑S.11(3)‑‑Termination of service not on 14 days notice or with pay in lieu thereof, held, could not be said to have been made under S.11(3) of the Act.

‑‑‑ Malice, inference of‑‑Malice in law is to be inferred when an order is made contrary to the objects and purposes of the relevant statute‑ Not enough that order is passed under a colour of the power conferred but it must be done in actual exercise of it and no power is conferred to make such an order in abuse of law.

Niaz Ahmed Khan for Respondent.

Date of hearing: 28th February, 1984.

‑‑The relevant background of the case, briefly speaking is that the appellant then in the service of Education Department, Government of Sind, applied through proper channel for the post of UDC in the Customs Department, Government of Pakistan, and he was so selected and appointed as UDC in the respondent‑department vide appointment letter dated 27‑12‑1981 and he joined on 31‑12‑1981. As averred in para 6 of the memo. of appeal his probationary period was one year from the date of appointment. An Office Order No.270/82‑ESTT (A) dated 23‑9‑1982 was served on him to the effect that as there existed a prima facie case of misconduct against the appellant, he is placed under suspension with immediate effect and till further orders as provided under the Government Servants (Efficiency and Discipline) Rules, 1973. On 25‑9‑1982 yet another Office Order was issued which is reproduced below:‑

"UDC Mr.Iqbal Wasti son of Mr.Mushir Wasti was appointed in the office of Collector (Appeals), Appraisement vide office order No.13/82‑Estt (A) dated 13‑1‑1982 and joined his duties on 31‑12‑1981 in response to the offer of Appointment No.8‑40‑38/ 75‑Estt, dated 27‑12‑1981.

He was appointed on purely temporary basis and was working on probation. During the probationary period his working and conduct has not been satisfactory. In terms of clauses (i), (iv) & (x) of offer of appointment his services are therefore terminated forthwith."

The appellant filed a departmental appeal against the above order on 24‑10‑1982 and when no reply thereto was received by him, even on expiry of the statutory period of 90 days, he filed the present appeal before this Tribunal.

2. We have heard the learned counsel for the parties and perused the record. The learned counsel for the appellant has assailed the impugned order on a number of grounds. On the other hand, Mr.Niaz Ahmed Khan, the learned counsel for the respondent department, has first contended that the appellant, at the relevant time, being a probationer, his services could be competently terminated without notice as provided by section 11(1) of the Civil Servants Act, 1973, and, therefore, the impugned order is unexceptionable. In this context it may be advantageous to reproduce a dictum of the Supreme Court laid down in P L D 1974 Supreme Court 393 (relevant portion at page 401):‑

"...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.

Taking now the facts of each case, it will be noticed that the authorities concerned in the case of Muhammad Siddiq Javaid Chaudhry and Mumtaz Hussain Malik appellants, terminated their services on the ground of unsatisfactory work and conduct. The record shows that there were allegations against them of corruption. In these circumstances, the order terminating their services amounts to removal and dismissal within the meaning of Article 177 and they were entitled to a show‑cause notice under Article 177 of the Constitution of Pakistan, 1962.

Similarly, in the case of Abdur Rashid Abbasi, appellant, the allegations of corruption were made against him and an enquiry was also held but instead of completing the enquiry, his services were terminated on the ground that he is not likely to become a good officer. It was also mentioned in the order that there were complaints of corruption against him. In t hers circumstances, the order terminating his services amounts to removal and dismissal and he was entitled to the protection of Article 177 of the Constitution of 1962."

3. Respectfully following the above view we hold that since there was an allegation of misconduct against the appellant, the order terminating his services amounts to removal and could not be passed except by following the procedure prescribed by the Government Servants (Efficiency and Discipline) Rules, 1973. In fact, the suspension order clearly speaks that the proceedings under the (Efficiency and Discipline) Rules were initiated against the appellant by suspending him under the said Rules but without taking those proceedings to a logical conclusion a slipshod method was used to get rid of the appellant which cannot be sustained.

4. It was next contended by Mr.Niaz Ahmed Khan that the appellant was a temporary hand and his services were liable to termination in accordance with the terms and conditions contained in his letter of appointment and in view of the provision of subsection (3) of section 11 of the Civil Servants Act, 1973. It is to be seen that the condition No. (i) in the appointment letter of the appellant mentions that "the post is purely temporary. If the post expires your services will be terminated without any notice". It clearly means that, according to the appointment letter, temporary was the post and not the services of the appellant which were liable to termination only on the abolition of the post. It, therefore, follows that the terms and conditions contained in the appointment order confer no power on the, relevant authority for termination of the appellant's services without justifiable reasons except in case of abolition of his post. It is, however, quite clear that while passing the impugned order the powers conferred either by subsection (3) of section 11 of the Civil Servants Act or by condition No. (ii) of the appointment order were not invoked simply because both the said provisions, authorise the termination only with a condition of 14 days' notice or pay in lieu thereof. Since the impugned order has not been passed in such terms it can by no stretch of law or imagination, be said an order under the said provisions.

5. Be that as it may, an identical question came up for consideration before the erst‑while Dacca High Court in the case reported as P L D 1969 Dacca 930 and the Honourable Judges observed as follows:‑

"In the case of Noorul Hassan and others v. The Federation of Pakistan P L D 1956 S C (Pak.) 331, it was held by their Lordships of the Supreme Court that requirement of a show cause notice shall have to be satisfied even in the case of termination of temporary Government servant when he was holding the post for an indefinite period and when his termination was the result of some punishment. Although the order in question does not say so, the facts as reveitied in the case, clearly indicate that he was being punished for certain allegations made against him. Apart from the question of malice he was entitled to an opportunity to show cause against the proposed action."

The appellant's case is on all fours with the above cited case. In the present case also though the impugned order does not say so, the facts on record clearly indicate that the appellant was being punished for the allegation of misconduct for which he was suspended.

6. We also venture to approach the matter from another angle. It is a well established legal position that the person who inflicts a wrong or an injury upon a person in contravention of the law is not allowed to say that he did so with an innocent mind. It is "malice" in law, although so far as his mind is concerned, he may have acted honestly or innocently. The malice in law is to be inferred when an order is made contrary to the objects and purpose of the relevant statute. It is not enough that the order is passed under a colour of the power conferred. It must be done in actual exercise of it and no power is conferred to make such an order in abuse of the law. In the circumstances of the present case an impression cannot be avoided that the impugned order was passed in colourable exercise of power that is to say, for collateral purposes not authorised by law under which it is purported to have been passed and thus is an action taken in fraud of the law, which establishes a malice in law.

7. The up‑shot of the above discussion would be that we are quite clear in our mind that the impugned order' was passed on consideration of the charge of misconduct for which the appellant was suspended. Therefore, it was but incumbent upon the relevant authority to proceed against the appellant under the Efficiency and iscipline Rules. Termination of the appellant's service in an arbitrary and slipshod manner, is totally unjustifiable, unlawful and mala fide. We, therefore, accept the appeal and set aside the impugned order. It is directed that the appellant shall be reinstated into service forthwith and shall be deemed to be in service from the date of his suspension and be paid accordingly. He shall also be entitled to all consequential benefits.

A.E./376/Sr.F.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.