Justice Zubda-tul-Hussain, Member.--Pursuant to his qualifying the competitive examination held for the selection/appointment of Civil Judges, the appellant-Sheikh Jafar Ali was appointed as Civil Judge, vide Lahore High Court, Lahore Notification No. 178/R.HC/P.30, dated 4th October, 2002. It was stipulated that he would remain on probation under Rule 8 of the Punjab Judicial Service Rules, 1994 but would have no right of confirmation after expiry of probation period till permanent vacancy became available and he was not otherwise ineligible for confirmation as well. By virtue of the terms and conditions, the appointment of the officer was purely temporary and his services were liable to be terminated at any time of one month notice or on payment on one month salary in lieu of notice, without assigning any reason irrespective of the fact whether he was holding a post other than the one to which he was originally recruited.
2. The officer served as such at Sheikhupura and on the creation of the new District of Nankana Sahib he stood designated as Civil Judge Nankana Sahib. He was still on probation when his services were terminated under Section 10 of the Punjab Civil Servants Act. 1974, vide Lahore High Court Lahore's Notification No. 65/RHC/CJJ dated 17.3.2006. The operative part of the Notification reads as under: The Chief Justice and Judges are pleased to terminate the services of Sheikh Jaffar Ali Civil Judge- cum Magistrate, Nankana Sahib, under Section 10 of the Punjab Civil. Servants Act, 1974, in the public interest, with immediate effect."
3. As is obvious from the above, no specific reason, as such, was mentioned for the termination of the services of the officer except the "public interest". Apparently this was of course in line with what was envisaged under the terms and conditions laid down in the letter of appointment.
4. But that may not be the whole truth. It is alleged by the appellant, and it is clear from the admitted facts and available record, that the real cause for the termination of the service had its inception in the performance of duties by the appellant as Returning Officer during the elections to Local Council held in the year 2005.
5. During the Local Councils Elections 2005, through a formal Notification, the appellant was also assigned the duties of and appointed by the Election Commission of Pakistan as Returning Officer for the Union Councils No. 12 to 21 of Tehsil Shah Kot District Nankana Sahib. The Poll was held and the result was declared on 27.8.2005, which was duly incorporated in the relevant Form No. XIII, XIV and XV. The result was accordingly conveyed to the concerned quarters by virtue of which one Asghar Ali Asghar was declared Returned candidate for the office of Nazim, Union Council No. 19.
6. It, however, so happened that one Maqbool Ahmad Javed submitted an application before the appellant as Returning Officer, for rectification of the result alleging that the result declared on 27.8.2005 which ought to have been based on the result given by Presiding Officer in Form XIII was not properly tabulated and the candidate declared "Returned" was not in fact entitled to be declared so.
7. On receiving this application, the appellant-Returning Officer, as claimed by him, scrutinized the original record, compared it with the copy attached with the application of the said Maqbool Ahmad Javed and found that the application was based on true facts. He therefore, issued corrigendum-dated 24.9.2005 and declared the said Maqbool Ahmad Javed as Returning Candidate in place of Asghar Ali Asghar. This Corrigendum was sent to the Secretary Election Commission of Pakistan. According to the appellant, the copy of the corrigendum was submitted to the District Returning Officer / District and Sessions Judge Nankana Sahib, the Provincial Election Commissioner Punjab and the Assistant Election Commissioner, Nankana Sahib.
8. The situation was obviously retaliated by the said Asghar Ali Asghar and he contested it, moved an application to the District Returning Officer impleading all the relevant 'candidates and prayed for restoration of the status quo-ante.
9. It appears from the record and the pleading of the parties that on the basis of the said application the District Returning Officer sent a report No. A-77/E-I dated 17.10.2005 to the Secretary, Election Commission of Pakistan as well as to the Registrar, Lahore High Court Lahore, wherein besides the other matters he also maintained that copy of the aforesaid disputed corrigendum issued by the appellant was not sent to his office. On the basis of the report of the District Returning Officer, the operation of the corrigendum was withheld by the Election Commission of Pakistan with a direction to administer the Oath of office to Asghar Ali Asghar, the candidate earlier declared successful.
10.The matter did not end up here and certain further proceedings were taken in the matter as well as against the appellant the relevant aspect of which is that as a result of disciplinary action, his services were terminated through the impugned order under Section 10 of the Punjab Civil Servants Act, 1974, though this factor as such was not mentioned in the impugned order.
11.While the learned counsel for the appellant did not dispute the jurisdiction of the competent authority to terminate the services of an incumbent, under Section 10 (ibid) who is on probation, yet his main thrust was that Section 10 ibid in essence did not provide unlimited or uncontrolled discretion to the competent authority to oust an incumbent from the service in all circumstances simply in the name and under the garb of "public interest'. He emphasized that the justification or otherwise of the corrigendum of result of election issued by the appellant could be found only through a regular inquiry. Whether the appellant was in fact guilty of misconduct and, if so, whether the same was bona fide or it was mischievous one and this issue of pivotal importance remained untouched and unattended throughout the proceedings against the appellant. According to learned counsel the factum of adverse remarks in the A.C.Rs is also to be seen in the same context but as the same have no direct nexus with the election could not independently be treated sufficient and a valid basis for an action under Section 10 ibid. The learned counsel for the appellant tried to draw a line between the cases of termination under Section 10 of the Act, which were based on mis-conduct involving factual controversy and the simple cases of unsatisfactory performance. He was of the view that where the opinion of the competent authority for the purpose of Section 10 was to be formed on the basis of satisfactory or un-satisfactory performance, the evaluation of the authority was unquestionable and could be a valid exercise of jurisdiction under Section 10 but where serious controversy of fact was involved and its determination was a prerequisite for holding the incumbent guilty of serious allegation, the summary proceedings could not be taken for his ouster from the service. Rather, in such a situation not only a show-cause notice was inevitable but formal inquiry was also necessitated.
12. Relying upon the cases of Riaz Ali Khan Versus Pakistan (PLD 1967 Lahore 491), Muhammad Siddique Javed Chaudhry versus The Government of West Pakistan (PLD 1974 Supreme Court 393).
The Secretary Government of the Punjab, through the Secretary Health Department Lahore and others Versus Riaz-ul-Haq (1997 SCMR 1552) Abdul Qayyum Versus D.G. Project Management Organization J.S H.Q Rawalpindi and two others (2003 SCMR 1110), it was maintained by him that even in the case of a probationer if the accused-civil servant was charged with misconduct of the nature which could not be proved without regular inquiry, the removal or dismissal from service of such a civil-servant on the basis of summary inquiry or on the basis of summary assessment of performance, was not sustainable in law. With reference to the case of the appellant, the learned counsel emphatically argued that by admitted facts and by the spirit of the proceedings it was not a simple case of unsatisfactory performance which could be found summarily but it had inception in a serious allegation pertaining to change of result of election involving the controversy of fact necessitating factual inquiry and it could not by any stretch of imagination be resolved without holding a regular inquiry. His service in such a situation could not be terminated straightaway by a simple and plain order under Section 10 of the Civil Servant Act, 1974.
13.The learned counsel for the respondents has also taken us through history of the service of the appellant and the details of the facts which became the reason for his termination from service.
These details are also incorporated in the written reply/comments submitted on behalf of the respondents. In the light of it, the learned counsel was of the view that Section 10 of the Civil Servants Act, 1974 was meant, for coping with a situation where a civil servant was not found worthy of continuance in service during the initial probationary period. It may also be mentioned that it is admitted between the parties that by virtue of law applicable to the case of the appellant, the appellant was not confirmed into service on completion of two years period of probation and as such the same stood extended by the operation of law to the period of further two years. As the appellant was admittedly a probationer the learned counsel for the respondents, adopted the argument that by virtue of Section 10 of the Punjab Civil Servant Act, 1974 his services could be terminated without assigning any reason and if the competent authority did it in "public interest", this by itself was a valid reason for his termination.
14.He continued to argue that the order could be passed even without assigning any reason and as such the contention that because of failure to assign reason for termination the impugned order is bad in law, is totally misconceived. The learned counsel added that the termination of service had not put the appellant under the vestige of a stigma because order of termination of service having been passed without assigning any reason, it was simple and harmless in nature and that the contention of the appellant in that behalf was more imaginary than the real. In this behalf the learned counsel referred to the dictum laid down in the case of Muhammad Iqbal Niazi Versus Lahore High Court Lahore through Registrar (2003 PLC (CS) 285, and reiterated that the alleged or apprehended stigma, did not flow from an innocuous order of termination of service. The learned counsel vehemently argued that, firstly, during the period of probation only performance of evaluation of a civil servant was sufficient for the purpose of Section 10 but in the present case there was huge irrebuttable material before the competent authority for formulating its opinion in terms of the satisfactory/ unsatisfactory completion of the probation period and therefore, the order in question was unexceptionable from every angle. In support of his contention the learned counsel also relied upon the judgments of the Honourable Supreme Court in Civil Petitions No. 2100-L, 2101-L. 2102L and 2103-L of 1998 titled Liaqat Ali Shahid and others Versus Government of the Punjab through Chief Secretary, Punjab, Lahore and Civil Petition No 1056-L of 1999 titled Muhammad Suleman versus Lahore High Court Lahore and another and Civil Petition No. 173-L of 2001 Chaudhary Muhammad Hussain Naqashbandi Versus Government of the Punjab others.
15.So far as the judgments relied upon by the learned counsel for the respondents are concerned, the ratio and the dictum thereof cannot be disputed but as would be seen later, the fate of the case of the appellant hinges upon the reasons and the factors which the real cause of his ouster from the service. If it was a simple termination in the light of the circumstances as envisaged by Section 10, the proposition adopted by the learned counsel for the respondents and would prevail in the light of the judgments relied upon by him and the appellant would have no case in his favour but if it come out other way round and the expulsion of the appellant is some-thing more than the simple "termination", then the proposed action shall have a different complexion and a different context.
16.As already stated, the petitioner was still running the extended period of probation when his services were terminated. The appellant has alleged that the impugned order of termination in its true sense is not based upon performance evaluation needed for the purpose of confirmation or otherwise of the probationer but it has originated from the complaint in an election matter dealt with by him as a Returning Officer according to the appellant the result had not yet been notified after the poll when Maqbool Ahmad Javed brought forwarded some record to show that the tabulation of the result was contrary to the factual position whereupon not only the contention of the said Muhammad Maqbool Javed had been examined but the original record of the election had also been scrutinized which led to irresistible conclusion that tabulation/declaration of the result was patently false. The appellant, therefore, proceeded to rectify the mistake in a bona fide manner and it was notthe solitary instance of the nature but he as well as many other officers had carried out various rectifications. This was an allegation and description of the fact which had to be established by some sort of evidence but besides what the appellant relied upon, the contentions raised on behalf of the respondent also seem to have come to his rescue at least to the extent of establishing the fact that there existed serious controversy of fact between the parties.
17.In the written statement the broad and specific details of the circumstances on which the impugned action is based, has been given which also leads to show that the impugned order, was not simple and plane evaluation of the performance of the appellant but in its theme and spirit it was caused by the allegation that the officer had with mala fide intention, or extraneous considerations altered the result of election relying upon the document which other wise could not be sufficient for the purpose. From counter contentions, and with reference to the correspondence and its denial by the authority/officer who according to the appellant, had depicted the wrong side of the situation, it is almost established that the parties were at variance from the very beginning of the issue.
18.It is of course true that a party and for that matter the appellant in this case, is required to prove his own case. Primarily it has stand by its own leg yet it cannot be denied that where a fact is alleged and is either admitted or is not denied the appellant is legally entitled to take its benefit because the fact admitted need not be proved. The Court or a tribunal has to inquire about the facts on which the parties are at issue, not those on which, they are agreed. The reason is very simple that issue of fact arise only when the material proposition of fact is affirmed by one party and denied by the other but where the allegation of fact is made by one party and this allegation is either admitted or is not denied by the no issue as to that effect would arise and on the principle of what is admitted need not be proved, no proof of that fact would be needed applying this principle to the facts of this case one has not to strive hard for arriving at an irresistible conclusion that there existed a serious factual controversy between the parties because when the appellant alleged that his termination proceeded on certain allegations of fact and the same is pleaded by the respondent as a justification for his termination from service, then it is simply obvious that the issue on which or the reason for which the service of the appellant was terminated, it involved determination of the factual controversy which in no case could be liquidated without formal or proper inquiry.
19.Now when it is established that the termination of the service of the appellant during the period of probation was not a' simplicitor performance evaluation but was rather for the allegations leveled against him leading to certain un-inquired conclusion, the only thing that remains to be seem where-in such as situation the provisions of Section 10 ibid could be plainly invoked straightway for his ouster from the service or a complaint which forms the basis of his ouster needed to be looked into through a process based upon principles of natural justice.
20.The principles of natural justice imply various rights such as the right of being heard, right of a show-cause notice before, imposition of the penalty, the right of explaining ones position on the matter agitated against it etc. In the afore cited judgment namely Riaz Ali Khan Versus Pakistan (PLD 1967 Lahore 491) it has been held in unequivocal terms that even the temporary employees or the probationers are also entitled to show-cause notice it was observed by their Lordships that if the termination of a civil servant was not a termination simplicitor in the sense in which termination, is used as distinguished from the dismissal or removal, but is tantamount to removal or dismissal then it cannot be brought about without the formality of a show-cause notice. It was added that a probationer is as much in service or as much holds a civil post as any other employee, the only difference was that his appointment has not yet got a sure footing from the very beginning. Further added that case of his simple termination of his service the incumbent is not eligible for a show-cause notice but if by its nature it is a dismissal or removal for misconduct, or for unsatisfaetory work, then he shall be eligible at least for a show-cause notice.
21.The performance evaluation record in the ACRs which embodies adverse remarks was also an emancipation of the election complaint against the complainant. Every-thing started against him with that complaint and the facts constituting the details of it. It also ended in the same context though apparently in the form of termination during the probation period. Thus from the facts and the circumstances alleged by the appellant and endorsed by the respondent (through in its own style) as well as ultimate result lead to the only one conclusion that the termination of the appellant was not termination simplicter during the probation but for all intents and purposes it was a dismissal or removal from service for the misconduct allegedly committed by him as Returning Officer in relation to the result of election of the local council referred to in the above. If that be the case, and it is essentially so, the dictum laid down in the judgment relied upon by the learned counsel for the appellant is on all fours to his case and as such he was entitled to a show- cause notice and could be proceeded against through inquiry on questions of fact before he could be stigmatized with the termination of service which in reality was an ouster by dismissal. The impugned order is, therefore, not sustainable in law. The appeal is allowed and the impugned order of termination is set aside. The appellant is reinstated into service with immediate effect.
22.We are also conscious of the fact that the appellant has already suffered agony of protracted termination and thus, also suffered sufficient punishment for the alleged delinquency but keeping in view the reasons for which the appeal has been allowed namely absence of show-cause notice, we leave it to the discretion of the competent authority to take or not to take fresh proceedings against the appellant but if it takes a decision for proceeding against the appellant the payment of back benefits shall depend upon the conclusion and fate of such proceedings, otherwise he shall be reinstated into service with all back benefits. For the present there shall be no order as to costs.