' SHAHID ANWAR BAJWA, J.--- With the consent of learned counsel, this Constitutional Petition was finally heard at Katcha Peshi stage and is being decided accordingly.
2. Petitioner was employed vide order dated December 14, 2009 on contract basis as I.T.
Administrator, BS-17 by respondent No,3. It was stated in the notification of employment that he was put on probation for a period of one year. On December 7, 2010 petitioner was issued suspension order placing him on suspension with immediate effect. However three days later.
Memorandum dated 10-12-2010 was issued and in the memorandum it was stated as under:--- "MEMORANDUM ' With the approval of the Competent Authority services of Syed Majid Hussain s/o Syed Wazir Hussain Shah, IT Administrator (BPS-17) Dow University of Health Sciences, on probation are hereby terminated with immediate effect.
Sd/- (Professor Zeenat Ayoob) Registrar Dow University of Health Sciences Karachi."
3. This Constitutional Petition has been filed and the following prayers have been made:---
(i) To set aside the impugned Suspension and Termination order dated 7-12-2010, 10-12-2010 respectively issued by the respondent No,5.
(ii) To direct the respondents Nos.2 and 5 to restore the petitioner as a I.T. Administrator in BPS-17 the same from dated 11-12-2010 with all back benefits in the interest of justice.
(iii) Any other relief which this Honorable Court may deem fit in the circumstances of the case."
4. Learned counsel for the petitioner submitted that before terminating employment of the petitioner no charge-sheet was issued and no inquiry was held. Learned counsel submitted that being aggrieved by the termination of employment he filed Departmental Appeal and that Departmental Appeal has not yet been decided. Learned counsel referred to Counter-Affidavit where it has been stated as under:--- "The appellant was suspended due to his involvement in criminal case lodged with Police Station Risala Section concerning the abduction of girl and being probationer his services were terminated without any notice as provided in the general conditions of service Statutes 2007."
5. Learned counsel submitted that the F.I.R. Referred to in the Counter-Affidavit (in the C.A. It is stated that F.I.R. Bearing No,377/2010 under section 365-B, P.P.C. Regarding alleged kidnapping/abduction of girl was lodged against the petitioner). That the F.I.R. Has been disposed off in 'A' class. Learned counsel referred to Section 34 of the Dow University of Health Sciences Act, 2004 and submitted that termination of employment of the petitioner is violative of section 34.
Section 34 is reproduced as under:--- "34, except as otherwise provided in this Act, no officer, teacher or other employee of the University shall be reduced in rank, or removed or compulsorily retired from service, unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him."
6. Learned counsel submitted that employment of petitioner has been terminated for mala fide reasons and therefore is not sustainable. In this connection he relied upon Messrs Pakistan State Oil Co. Ltd., and others v. Muhammad Tahir Khan and others PLD 2001 SC 980. Learned counsel submitted that action against the petitioner amounts to abuse of power vested in competent authority. Learned counsel relied upon Mrs. Abida Parveen Channar v. High Court of Sindh, 2011 PLC
(CS) 836.
7. Mr. Afaq Saeed, learned counsel for the respondent University submitted that employment of the petitioner was terminated during probation and it is always available to the competent authority to terminate employment of an employee who is on probation. Learned counsel further submitted that the appellant was involved in a heinous crime. Regarding disposal of F.I.R. In 'A' class, learned counsel submitted that it was so disposed off because the petitioner had exercised influence over the complainant.
8. We have considered the submission made by the learned counsel and have also gone through the record.
9. As far as contention of learned counsel for the University that the petitioner was involved in an offence under section 365-B, P.P.C. Is concerned, the contention is without force; firstly because the F.I.R. Has been disposed off in 'A' class. No doubt, learned counsel contended that the F.I.R. Was got disposed off in 'A' class because the petitioner prevailed over the complainant and it was on that basis that Court disposed of F.I.R. In 'A' class, Order of the Magistrate disposing of the F.I.R. In 'A' class is available on record and the complainant made further statement that her daughter had already been married to someone else and she did not want to pursue the F.I.R. No material whatsoever has been placed on record by the learned counsel for the respondent University to substantiate his statement that the petitioner prevailed over the complainant. Secondly it is stand by the University that service of the petitioner was terminated during probation and not for any misconduct therefore the allegations in the F.I.R. Are totally irrelevant at this stage.
10. Learned counsel for the petitioner referred to Muhammad Tahir Khan's case (Supra). This was a case of an employee of P.S.O. Counsel for the employees placed on record particulars of officers appointed/posted in management grades posts/management positions after termination of services of the petitioners and contended that the order of termination was mala fide. It was contended by the counsel for PSO that the petitioners were employed on contract and they were on probation and also that the persons appointed were appointed on merits. The Hon'ble Supreme Court observed as under:- "Be that as it may, even in case of a trainee or a probationer, if his services are terminated on grounds of mala fide in law or fact, they are entitled to show-cause notices not on the basis of principles of natural justice but on the ground that the authority concerned has abused the power vested in it."
11. In Mrs. Abida Pareeen Channar's case (Supra), she was appointed as Judicial Magistrate and she was on probation for a period of two years and during probation period her employment was terminated on the ground that during probation her conduct has been unsatisfactory and retention in service was not desirable. Appeal was dismissed by the Service Tribunal. The Supreme Court regarding employment on probation firstly observed as under:- "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 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 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."
Thereafter the Supreme Court noticed that there was material available on record which did carry allegations regarding certain alleged irregularities and acquiring of property through unfair means of her office, consequently the Supreme Court laid down the law as under:--- "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 conclusion 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 contract, 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."
12. In the present case on the one hand it is contended by the counsel for the University that the appellant is allegedly involved in an offence of serious moral turpitude and on the other hand he states that he was on probation and therefore his employment has been terminated on the ground of unsatisfactory performance. No material whatsoever has been placed by the University that performance of the petitioner was assessed independently of any allegation which subsequently became subject matter of F.I.R. And thereafter Authority came to the conclusion that the petitioner's performance was not satisfactory and therefore decided to terminate his service. Even in the counter Affidavit filed by the university it has been stated as under:--- "The circumstance leading to the termination of Syed Majid Hussain, Ex-I.T. Administrator during probation are: his involvement in a Criminal case lodged with Risala Police Station through F.I.R.
No,377/2010 under section 365-B, P.P.C. (Annex-III) regarding kidnapping/abduction of girl named Roheena Kamal, a candidate for admission in DUHS and also that his appointment was still on probation. Also there have been complaints against Syed Majid Hussain regarding immoral activities with the members of the- security staff as per statement of Security Officer (Annex-III). All this amounts to unsatisfactory behaviour/conduct of Syed Majid Hussain being on probationer."
13. A reading of the above clearly indicates that what prompted termination during probation period was not his performance but certain allegations against the petitioner. Therefore termination is a case of colorable exercise of power. Consequently this Constitutional Petition is disposed of in the following terms:---
(1) Order dated 10-12-2010 is set aside and the petitioner is ordered to be reinstated in service.
(2) The petitioner shall be on probation and it shall be available to the Departmental Authority to take disciplinary action against the petitioner and if the petitioner is proved guilty in accordance with the rules, to take action in accordance with the rules.
(3) Needless to observe that till disciplinary action continues the petitioner shall continue to be on probation.
(4) It shall be also available to the Departmental Authority to independently of any allegations of misconduct and fairly assess petitioner's performance during the period of probation and if the Departmental Authority is not satisfied with the performance of the petitioner, to terminate the employment during probation. Allegations against the petitioner as stated in the Counter-Affidavit filed by the University regarding what became the subject-matter of the F.I.R. And complaints regarding immoral activities as referred to in para 3 of the comments shall not be taken into consideration while assessing performance during period of probation.
' The above exercise shall be completed within a period of three months.