Provincial Government and his appointing authority thus became the Governor of West Pakistan.
On 11th August 1967, the Extra Assistant Commissioner, Quetta, terminated his services and directed him to hand over the charge. The petitioner made a representation to the officer concerned requesting him to let him know the cause of termination of his services. The Extra Assistant Commissioner made endorsement on the back of the application asking him to hand over the charge and make representation to the Commissioner as he had talked with the Deputy Commissioner who apprised him that the action had been taken against him on the orders made by the Commissioner, Quetta Division. This application is Annexure `B' while the endorsement on it is Annexure `C'. On 12th August 1967 the petitioner made a representation to the Deputy Commissioner with regard to the wrongful termination of his services. Thereafter several representations were made by him to different authorities from 15th November 1967 to 6th May 1968. They are also placed on the file. None of the officers informed him of the cause regarding the termination of his services and none from the hierarchy in the Administration granted him audience. On 11th June 1968 he applied for the grant of copy of the order which was refused by an endorsement that since it was not a judicial case the copy of the order could not be supplied. His case was referred to the Governor on 16th February 1968 who approved the order of the termination of his services. We have been told by the Assistant Advocate-General that one of the representations made to the Governor was rejected without hearing the petitioner in January or February 1970.
2. The earlier order has been challenged on two grounds, firstly that the E. A. C. Had no power to terminate the services of the petitioner and secondly that the action being penal the petitioner should have been afforded an opportunity to show cause against the proposed action.
3. It is conceded that the appointing authority of Risaldars under the Levies Rules is the Governor of West Pakistan. The order made by the E. A. C. Terminating the services of the petitioner in any case is without jurisdiction.
Regarding the order passed by the Governor on 16th February 1968, suffice it to say, that he while approving the proposal made by the officers, terminating the services of the peti--tioner, did not apply his own mind. Where a public functionary has to perform an act he has to apply his own mind for doing the same. Mere approval of a proposal would not tantamount to the application of mind of the relevant authority for the disposal of the matter. Moreover, the approval made by the Governor was for the termination of the services of the petitioner which is obviously a disciplinary action under rule 19 of the Levies Rules. Appeal would lie to the Agent to the Governor-General (now the Governor of West Pakistan) in case of employees whose appointments are made by the Political Agents, but no appeal is provided where a disciplinary action is taken by the Governor. In the absence of right of appeal provided under the rules, the principle of audi alteram partem would be attracted. Before, taking disciplinary action the petitioner had to be called upon to show cause. His services have been terminated on the ground that his eye-sight has gone weak, he has become sick and infirm to perform the duties. When such an allegation has been made, the petitioner had to be given a reasonable opportunity to show that he was fit enough to perform such duties. Even under Article 177 of the Constitution of Islamic Republic of Pakistan there exist two constitutional guarantees i.e., a person who holds a civil post in connection with the affairs of the Centre or of a Province shall not be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed and no such action shall be taken in similar circumstances unless he has been given an opportunity of showing cause against the action proposed. Admittedly the service to which the petitioner belongs is one of the service of Pakistan as defined under Article 242 of the Constitution. No penal action could, therefore, be taken against the petitioner without the above procedure. Article 178(3)(b)(iii) provides that a person whose service is to be terminated will have a right of appeal to the Governor or President where an order is made by a person other than the President or the Governor. In case such an order is made by these two persons he shall have the right to apply to the President or Governor as the case may be for review of the order.
4. The various representations made to the officers bore no fruit and the Governor, as we are told, as mentioned above, rejected his representation in January or February 1970 long after the filing of this writ petition in this Court. Even in disposing that review petition no opportunity of hearing was afforded to the petitioner.
5. It is nobody's case that the petitioner has been retired from the service on account of his reaching the age of superannuation. The action, therefore, could not be brought within the purview of Article 178(4) of the Constitution. The order made by the E. A. C. Clearly mentions that his services were terminated and the Governor approved the proposal of termination of his services.
Termination of services carries with it a stigma while retirement is considered an honourable discharge from duties after its performance up to the age of superannuation. It has its advantages and there is prestige attached to it. If the petitioner had been made to retire he would have no grievance, but the orders disclose that his services were terminated. In such circumstances he was entitled to show cause notice and hearing before such a disciplinary action could be taken against him. Therefore, both the orders passed against the petitioner are invalid and without lawful authority.
6. Before parting with the case we would like to point out that this service has its own peculiarities.
Rule 11 provides rule of primogeniture and rule 15 right of nomination of son or relation an the performance of duties on account of inability to perform the duties by the employee concerned. It would, therefore, be more apt in the circumstances that before removing the Risaldar, Who represents his own tribe in the administration in order to avoid the resentmeat of the tribe concerned, he should have been afforded an opportunity of hearing before removing him from the position which he was holding to assist the Government in the administration in peculiar circumstances, of Baluchistan area.
7. For the foregoing reasons we accept this petition, set aside the orders being invalid and without lawful authority. It would be open to the Governor of the new Province of Baluchistan to consider the case of the petitioner and pass such orders which he may deem necessary in the circumstances of the case. We make no order as to costs.
K. B. A.