' SABIHUDDIN AHMED, J.--- This appeal by leave of the Court is directed against the judgment of the learned Sindh Subordinate Judiciary Service Tribunal, Karachi dated 5-4-2007 upholding the order of the Honourable Chief Justice terminating the appellant's services during the period of probation.
2. Briefly the relevant facts appear to be that the appellant was appointed as Judicial Magistrate on the basis of recommendations of the Provincial Selection Board on regular basis on 11-12-2001 and was required to undergo a period of probation for two years. She was posted at Thatta. She was granted maternity leave for 90 days with effect from 8-9-2003 and during the period of such leave, her services were terminated vide order dated 30-10-2003 with the observation that during the 1 year 10 months and 15 days of service, her conduct had been unsatisfactory and her retention in service was not desirable. The appellant after submitting an application for review, which came to be dismissed, approached the Service Tribunal which also dismissed her appeal vide the impugned order. Leave to appeal however was granted by this Court, inter alia, on the grounds that the appellant was condemned unheard and the law declared by this Court in the case of Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan reported in PLD 1974 SC 393 had been misapplied.
3. We have heard Mr. M.M. Aqil Awan, learned counsel for the appellant and Mr. Abdul Fateh Malik, learned Additional Advocate General on behalf of the respondent respectively and have also gone through the record.
4. As regards the first ground upon which leave was granted, with profound respects we are not inclined to subscribe to the contention of Mr. M.M. Aqil Awan inasmuch as rule .9 of the Sindh Judicial Service Rules, 1994 explicitly empower the dispensing with the services of an officer on probation before the expiry of his probationary period as correctly recorded in the order of the then Chief Justice. It is well-settled IA as has also been observed in the above case of Muhammad Siddiq Javaid Chaudhry (supra) that appointment of a probationer can only acquire a sure footing if he successfully completes the period of probation and the B appointing authority is fully satisfied with his conduct and performance of duties. In this respect the findings of the learned Service Tribunal appear to be unexceptionable.
5. Nevertheless the second contention of learned counsel appears to have substantial force. In this context learned counsel referred to a six page report dated 24-7-2009 brought on record pursuant to permission granted in the leave granting order containing a variety of allegations against the appellant, which, according to learned counsel appear to be the real basis for the termination of her services. The contents of such report and the contention of its having impacted the decision of the Honourable Chief Justice were not seriously disputed. Apart from the others the report contained the following allegations:--- "(4) One Abdullah son of Abdul Aziz Khuwaja had addressed your Lordship sending fax and telegram dated 23-9-2002 regarding undue favouritism to accused by the above said Judicial Magistrate and the copy was endorsed to the different authorities including the then District Judge Mr. Rasheed Ali Mirza who asked the mover of application to file his affidavit which was filed on 12- 10-2002 and comments of Judicial Magistrate were called which were submitted and discreet enquiry was ordered by Honourable High Court through Member Inspection Team. In response of discreet enquiry the then District & Sessions Judge submitted his reply vide letter dated 6-2-2003 (Copies enclosed Mark 12 to 17).
(6) It has also come to knowledge that she during her posting at Thatta has acquired a plot No,D/290-D in Unit No,2 admeasuring 229.2 square yards in Makli Co-operative Housing Society on 2-10-2002 (within seven months of her posting at Thatta). It is yet to ascertain whether the said plot has been acquired with the permission of the Honourable High Court or the same has been disclosed in her declaration of assets. She encroached upon the area other than the allotted one by misusing her position being a Judicial Magistrate and such letter was initiated by the Chairman of the said Co-Operative Society (Copies enclosed Mark 25 and 25-A) which is self explanatory."
6. Learned counsel argued that the allegations of granting undue favour to a litigant before her acquiring property through misuse of office on the part of a Judicial Officer clearly amounted to misconduct and could have only been established through a proper enquiry or the appellant should have at least been accorded opportunity of being heard.
7. Mr. Abdul Fateh Malik on the other hand argued that the order of termination did not refer to any misconduct allegedly committed by the appellant and did not carry any stigma. As such the findings of the Service Tribunal were entirely unexceptionable. He further stated that by assailing the impugned order the appellant might invite the risk of being removed with a stigma but Mr. Awan contended that she was prepared to take that risk as she was certain that the allegations were baseless and could never be established in a fair enquiry.
8. We have carefully gone through the judgment of the Honourable Service Tribunal and that of this Court in the reported case of Muhammad Siddiq Javaid Chaudhry (supra). Mr. Awan pointed out that in the aforesaid precedent the order of termination in cases of all the probationers only spoke of their work and conduct having been found to be unsatisfactory and such orders on their face did not show anything entitling them to show-cause notice. Nevertheless when it was discerned from the record produced before the Court that allegations of corruption or misconduct existed, their Lordships held them entitled to notice and set aside the orders of termination. The law declared by this Court, therefore, appears to be that a right to notice is not to be premised merely upon the question whether the order of termination indicated a stigma but whether allegations of misconduct had any bearing upon the mind of the competent authority passing the order.
9. Reading the impugned judgment in the context of the above pronouncement it appears that the conclusion recorded simply on the basis of the order of termination was not open to any exception.
Nevertheless their lordships erred in confining themselves merely to the order without calling for the entire record and attempting to discern the real grounds for such action. We can certainly appreciate that they were handicapped by the fact that the report of the District & Sessions Judge was not available before them. Nevertheless they fell into an error by failing to summon the entire record when the appellant had levelled allegations of bias against the Sessions Judge in a guarded language in her Memo of Appeal and her departmental application annexed to the same.
In para.10 of the latter she had categorically alleged that she had applied for supply of certain documents but nothing except the order of termination was made available to her.
10. It needs to be kept in view that all public powers must be exercised reasonably and honestly for the purpose for which it is conferred. When serious allegations of misconduct are levelled against the judicial officers it is highly improper to record conclusions on the basis of "discreet enquiries".
Indeed such inquiries may be permissible for the purpose of enabling the competent authority to determine whether appropriate action should be initiated so as to prevent unnecessary harassm ent. Nevertheless there could be no justification to come to definite conclusions on the basis of such enquiries. Mr. Aqil Awan also urged that even in respect of employees of State owned commercial enterprises, whose terms of service are only governed by contracts, this Court has held in Pakistan State Oil v. Muhammad Tahir Khan, PLD 2001 SC 980 a Service Tribunal is required to hold an enquiry into the question whether it was termination simplicater or 'termination' in the garb of dismissal. We are inclined to think that this principle would apply with greater force in respect of public authorities in view of the inherent constraints on exercise of public powers.
11. At the same time we are constrained to observe that the report of the District and Sessions Judge dated 24-7-2003 was submitted barely two months after having assumed charge as is evident from its face. Moreover it contains several allegations relating to period prior to his appointment and some unrelated to her performance of duties. As such a possibility of bias cannot be altogether ignored. Judicial Officers must remember that they should honestly and faithfully report the failings of their subordinates to enable the authority to apply his independent judgment rather than attempting to foist their own prejudices.
12. For the foregoing reasons we would allow this appeal and set aside the order of the Service Tribunal as well as that of the Honourable Chief Justice and direct that the appellant be reinstated in service. However, since the matter is very old we have refrained from passing any order with respect to back benefits, which may be decided by the Honourable Chief Justice after determining whether the appellant has been engaged in gainful employment during the intervening period. At the same time we would order that the Honourable Chief Justice may initiate enquiry into the allegations of misconduct in case he considers it fit to do so.