Justice Abdus Sattar Asghar, Member.--This appeal under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act 1991 is directed against the impugned order/notification dated 10.11.2003 passed by the respondent whereby services of the appellant were dispensed with terminating the extended period of probation under Section 10 of the Punjab Civil Servant Act 1974.
2. Shorn of unnecessary details brief facts essential for adjudication of this appeal are that appellant was appointed as Civil Judge-cum-Judicial Magistrate vide notification 13.11.2000 and posted as such at Pattoki District Kasur. Vide same notification 114 other Civil Judges were also appointed in the Province. The appellant assumed the charge of the post on 30.11.2000. During his posting at Pattoki on 11.12.2002 he was Incharge of Police Station Sarai Mughal Appellant was on leave on 10.12.2002. The appellant informed the learned District and Sessions Judge Kasur in writing that on 11.12.2002 the reader of Mr. Faiz Ahmad Ranjha Civil Judge-cum-Judicial Magistrate namely Muhammad Yousaf telephonically summoned the police file of a criminal case titled 'State vs. Amjad Ali' FIR No, 260/2002 dated 04.10.2002 under Section 11 Offence of Zina (Enforcement of Hadood) Ordinance, VII of 1979 registered with the Police Station Sarai Mughal from the said police station at about 4.00 p.m. on 11.12.2002 and Mr. Faiz Ahmad Ranjha Judicial Magistrate passed the order with regard to the refusal of the discharge report submitted by the police however order was shown to have been made on 10.12.2002 on which date the appellant was on casual leave; that on 12.12.2002 this fact about passing an ante-dated order by Mr. Faiz Ahmad Ranjha Judicial Magistrate came to the appellant's knowledge; that on 13.12.2002 appellant called the concerned officials and recorded their statements and reported the same to the learned District and Sessions Judge Kasur with regard to the misconduct of the Duty Magistrate namely Mr. Faiz Ahmed Ranjha along with statements of Moharrar, ASI and SHO Police Station SaraiMughal who deposed that Moharrar delivered the file to the Court of Mr. Faiz Ahmed Ranjha Civil Judge on 11.12.2002 at 4.00 p.m. after Court hours when allegedly the said order was passed. The learned District and Sessions Judge got inquired into the complaint through the Additional District and Sessions Judge Kasur who submitted the report that complaint of the appellant was false and concocted to malign his colleague. Consequently learned District and Sessions Judge prima facie formulating the opinion that appellant was himself guilty of gross misconduct proposed regular inquiry into the matter and submitted the report to the respondent vide letter dated 15.1.2003 for necessary orders. The matter was placed before the learned Authority. The learned Authority ordered initiation of disciplinary proceedings under the Punjab Civil Servants (Efficiency and Discipline) Rules 1999 against the appellant appointing Mr. Abdus Salam Khawar, Member Inspector Team as Inquiry Officer. The Inquiry Officer after perusing the record instead of conducting the regular inquiry proposed that as the appellant was on probation therefore his services may be terminated under Section 10 of the Punjab Civil Servants Act, 1974. The learned Authority consequently passed the impugned order dispensing with the services of appellant terminating his probation period. Being aggrieved appellant filed representation to the respondent on 24.12.2003. Simultaneously appellant also filed this appeal.
3. Learned counsel for the appellant argues that in the background of allegation of misconduct against the appellant necessitating a regular inquiry as ordered by the learned Authority the impugned order of termination without conducting a regular inquiry as well as without notice and providing opportunity of hearing to the appellant is illegal, against principle of due process, untenable and liable to set aside.
4. Conversely learned counsel for the respondent contended that under Section 10 of the Punjab Civil Servants Act, 1974 the learned Authority was competent to dispense with the service during the period of probation and therefore no illegality or prejudice was caused to the appellant. Further submits that Clause (4) of the appellant's appointment letter dated 13.11.2000 clearly manifests that his employment was purely temporary and his services could be terminated at any time without assigning any reason. He also contends that impugned order is an order of termination simpliciter bearing no stigma; that statutory provision of termination of services during probation was duly activated and discretion vested with the Authority was exercised legitimately; that the impugned termination order does not suffer from any legal infirmity or jurisdictional error therefore appellant has no case to call for interference by this Tribunal.
5. We have given patient hearing to learned counsel for the parties and examined the record.
6. It is on the record that District and Sessions Judge Kasur had proposed regular inquiry into alleged misconduct of the appellant and on that basis the learned Authority had ordered regular inquiry against the appellant in terms of Punjab Civil Servants (Efficiency and Discipline) Rules 1999 by appointing Mr. Abdus Salam Khawar MIT/Inquiry Officer who instead of conducting the inquiry in accordance with law indicated that the officer was in probation period and proposed appellant's termination under Section 10 of the Punjab Civil Servants Act 1974 whereupon the impugned order of termination was passed by the learned Authority. It is therefore obvious that the impugned order is not an order of termination simpliciter rather it was based upon allegation of misconduct.
Appellant therefore appears to be prejudiced of the termination order as no right of hearing was extended to him. The impugned order of termination in fact was an order of imposition of penalty of removal from service necessitating a regular inquiry and fair opportunity of hearing to be given by the Authority to the appellant.
7. At this juncture reliance is made upon Mrs. Abida Parveen Channar vs. High Court of Sindh at Karachi 2009 SCM R 605). It will be expedient to reproduce an extract of the above said dictum which reads below: "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."
8. The Hon'ble Supreme Court of Pakistan in another case titled Pakistan State Oil Co. Ltd. vs. Muhammad Tahir Khan others (PLD 2001 Supreme Court 980) has candidly laid down that a Service Tribunal is required to hold an inquiry into the question whether it was termination simplicitor or termination in the garb of dismissal. In this case since the serious allegation of misconduct was pending inquiry against the appellant therefore in view of the above quoted dictums laid down by the Hon'ble. Apex Court appellant's termination even during period of probation could not be ordered without finding truth of the allegation by providing an opportunity of hearing to the appellant through due process of law. Needless to say that right of due process and fair trial is fundamental right of each and every citizen of this country duly safeguarded and guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan 1973 which cannot be denied in any case.
9. For the above reasons we allow this appeal and set aside the order dated 10.11.2003 regarding dispensing with the services of appellant. The appellant is ordered to be reinstated in service. The entitlement of the appellant to claim back benefits, however, shall be decided by the learned Authority because no civil servant can claim salary and other benefits without performing the duty therefore learned Authority will determine as to whether appellant is engaged in gainful employment during the intervening period. Needless to say that the learned Authority may probe into allegation of misconduct against the appellant if deemed appropriate. The appellant would continue to be treated as probationer on assumption of duties and acceptance of his appeal in no way would relieve him of conditions for confirmation in accordance with relevant law and rules.