1. ' M. SALEM CHAUDHRY (CHAIRMAN).-In this case the respondent was appointed on 5th July, 1969 as temporary Assistant on probation for 2 years in the office of the Blood Transfusion Unit. On 11th February. 1970 the appellant was served with a Show-Cause Notice on the ground that he was neither conversant with the rules, nor had the knowledge of Government instructions with respect to the establishment matters etc. To which he replied on the 14th February, 1970. Since his reply was found unsatisfactory, therefore, his services were terminated on 12th May, 1970 by the order of Divisional Blood Transfusion Officer as the same were no longer required. However, while endorsing the order to the Provincial Blood Transfusion Officer, it was observed by the Competent Authority that the work as well as the conduct of the present respondent was unsatisfactory. It is common case that the endorsement was never conveyed to the appellant. The termination order purported to have been passed in terms of condition No, 2 contained in his appointment order dated 5th July, 1969 according to which his services were "liable to termination without notice and without assigning any reason". It appears that the Provincial Transfusion Officer on 18th May, 1970 advised the Divisional Transfusion Officer to withdraw the termination order as before passing the same no notice was served upon the appellant. The aforesaid advice was resisted by the Divisional Transfusion Officer who on 23rd May, 1970 replied back that the direction could not be complied with as the Divisional Transfusion Officer was the competent authority and the Provincial Blood Transfusion Officer, had no jurisdiction in the matter. Moreover, the termination order was not a penalty and had been passed in accordance with the terms and conditions of the service of the appellant. Consequently, on 3rd June, 1970 the Provincial Transfusion Officer, withdrew his advice dated 18th May, 1970. The appellant feeling aggrieved of the aforesaid order filed a civil suit on 24th June, 1971 which was decreed on the 10th of April.
2. 1974. The learned trial Court relying upon the decision of Supreme Court of Pakistan reported as PLD 1974 SC 393, according to which if the services of any civil servant were terminated on the ground of the misconduct, it carried a stigma in his favour and, therefore, it was tantamount to removal and, hence, the necessary procedure for imposing the penalty was attracted. The Government filed an appeal against the decree and judgment of the trial Court, before the Additional District Judge, Lahore, which was declared to have abated on the 3rd of September, 1974 after the establishment of this Tribunal. Ultimately, the present appeal was instituted on the 9th of October, 1974.
3. ' The learned Government Pleader vehemently argued that the appellant in his plaint never set up the case that he has been removed from service on the ground of misconduct. He pointed out that the case of the appellant as disclosed before the civil Court was that the order dated 12th May, 1970 passed by the Divisional Transfusion Officer and order dated 3rd June, 1971 passed by the Provincial Transfusion Officer, were illegal, inoperative and were mala fide and had been passed by the incompetent authority and were in violation of the principles of natural justice. He also argued that no issue was framed nor any evidence was adduced by the parties to that effect. Thus the learned trial Court misdirected himself while proceeding to decree the suit on that basis. He also submitted that the written statement could not be read as evidence. As such notwithstanding the averment in the written statement that "the services of the appellant were terminated on the ground of misconduct", the judgment could not be solely sustained upon the same. He submitted that the fact whether the appellant was accused of misconduct was never the issue. Since there was no case of misconduct, therefore, the judgment of the trial Court on that issue was legally untenable.
4. He placed reliance, on the authorities reported as PLD 1969 SC 201 and PLD 1969 Azad Jammu & Kashmir 15 in this regard. He also argued that in fact the respondent was a temporary hand and was still on probation, thus his services were liable to be terminated in accordance with his terms and conditions of service. He also placed reliance on the decisions of the Supreme Court of Pakistan reported as PLD 1968 SC 357 and 1970 SCM R 64 and 241 to contend that the services of a probationer could be terminated according to the terms and conditions of service. He thus pressed for the acceptance of this appeal.
5. ' The respondent on the other hand, argued that the two issues framed by the trial Court were comprehensive enough to include the question framed by the trial Court as to whether or not the service of the appellant could be terminated on ground of misconduct without holding any inquiry in accordance with the Efficiency and Discipline Rules. It was submitted that although there was no specific allegation in the plaint, but it was covered by the general allegation about the misconduct.
6. Similarly, the respondent relied upon the contents of the written statement in which it had been admitted that the work and conduct of the respondent was found unsatisfactory. He also claimed that he was not a temporary employee. Reliance was also placed upon the West Pakistan Government (Temporary Employment) Rules, 1968, rule 2(3) of which defined the temporary employment, 2(3) "temporary employment" means employment by Government of a person in a civil capacity otherwise than "(a) On a permanent basis ; or
(b) as a probationer ; or
(c) on probation ; or
(d) on a temporary basis ;
(f) for an indefinite period ; or
(ii) against a post continued from year to year or for successive period unless a fresh order of appointment specifically stating that the employment shall continue to be subject to these rules ; is issued to the incumbent of the Post each time the post is extended ; or
(e) on contract ; or
(f) as a workman as defined in the Industrial Disputes Ordinance 1959 (LVI of 1959).
(g) on deputation from the Central Government, and
(h) "temporary employee" means a person who is in temporary employment."
7. ' He also alleged that the evidence was lead to prove the allegations that he was dismissed from service on the basis of misconduct and unsatisfactory work. He also relied upon PLD 1969 Dacca 30 to contend that if the record shows that the services were terminated due to misconduct, it was tantamount to removal. He also argued that the termination was not by the competent Authority. It was argued that the respondent was appointed by the Senior Blood Transfusion Officer which Was a post equivalent to the Director. He also placed reliance that on appeal he was reinstated on the ground that in terms of rule 4(1) of 1968 Rules, he was entitled to 14 day's notice. He also argued that the order dated 3rd June, 1970 was in excess of the powers of the Competent Authority.
8. ' After hearing both the parties, we are inclined to agree with the learned Government Pleader that this was not a case in which the misconduct was involved. We have seen the record and we find that the appellant was served with a Show-Cause Notice on the ground of inefficiency only. No doubt the Divisional Blood Transfusion Officer while, endorsing the termination order to the Provincial Blood Transfusion Officer observed that "the work as well as the conduct of the respondent was unsatisfactory" but the observation appeared to have been used rather loosely and there was nothing on record to suggest any stigma against the appellant as held by the Supreme Court of Pakistan in PLD 1974 SC 393. We are not in agreement with the learned trial Court's findings as it has failed to take into consideration the following observations of the Supreme Court of Pakistan :- "In my opinion if the services of a probationer are terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service as the termination will be in terms of the contract or the rules made by the Government, but if the services of the probationer are terminated on the ground of misconduct, that will amount to removal or dismissal. It will be a stigma in his favour."
9. ' There was no legal evidence placed before the trial Court that the services of the respondent were terminated on the ground of misconduct. Thus in or view the above decisions had no application to the facts of the case. His services were never terminated on the basis of his conduct. We agree with the learned Government Pleader that the trial Court misdirected itself on the aforesaid question. In or view the facts on record which lead to the termination order rather than the averment in the endorsement were material and crucial. We accordingly hold that the services of the appellant, who was still on probation, could be terminated in accordance with the condition No, 2 in his letter of appointment. As such the impugned order was unexceptionable. The Provincial Transfusion Officer acted correctly in withdrawing his order dated 18th May, 1970 which evidently proceeded on erroneous premises. Thus the appeal succeeds. However, there will be no order as to costs.