' MUHAMMAD AMBER BHATTI, J/MEMBER.--- The appellant has called in question order dated 30th October 2004 whereby the appellant was terminated by the competent authority and departmental appeal filed by him also met with the same fate.
2. The brief facts of the case necessary for decision of this appeal are that in pursuance of notification dated 4-10-2002, the appellant joined subordinate judiciary as Civil Judge-Cum- Judicial Magistrate on 4-10-2002. Thereafter he remained in Federal Judicial Academy Islamabad till 1-1-2003 and then he re-joined at Gujranwala. The first Annual. Confidential Report for the period consisting of year 2003 was recorded by the then District and Sessions Judge, Gujranwala where he, though, recorded the appellant as honest as well as useful for further retention in service but the work and conduct of the appellant was not found up to the mark. The appellant challenged these remarks for expungment through representation which were treated as advisory in nature by the Administration Committee. The appellant was thereafter transferred to Dem Ghazi Khan, where he worked under the supervision of the District and Sessions Judge (Sher Zaheer Ahmad Khan) till the passing of the impugned order (termination order dated 30-10-2004). It is noticed that before passing the termination order, report from the District and Sessions Judge Dera Ghazi Khan regarding the work and conduct of the appellant along with two other probationers was obtained, who vide letter dated 17-9-2004 observed as under--- "I found all three officers honest, hardworking and obedient. Their conduct and character at the station has been perfectly alright. There is no complaint against them in any manner either from the public or from the Bar. Their performance during their stay at the station has, as per record, been quite satisfactory. In my dispassionate view, they fully deserve being conferred with 2nd Class powers and also having successfully completed their initial probationary period."
' In presence of this report, the order of termination challenged through this appeal does not appeal to a prudent mind, therefore, the respondent was asked to provide all that material on the basis of which the services of the appellant were terminated in view of the law laid down by the Hon'ble Supreme Court of Pakistan in the case reported as Mrs. Abida Parveen Channar v. High Court of Sindh at Karachi (2009 SCM R 605). The respondent submitted that conditions of appointment, agreed to by the appellant, empowered the authority to dispense with recording of any reason while terminating the services during the probationary period, therefore, the authority had not committed any illegality while passing the termination order, whereas it is an admitted fact that no material was available on the record which persuaded the Authority to pass the impugned order of termination of the appellant from the service. As it is a fundamental right of every employee to be treated in accordance with law. It is, therefore, an obligation of the competent authority to dispense justice fairly, justly and reasonably and to at least provide an opportunity of hearing, before taking the extreme step of termination so that no one should be condemned unheard. The appellant was neither provided any opportunity of hearing nor any material was available on record, which forced the authority to pass the termination order of the appellant whereas the comments/report submitted by the District and Sessions Judge Dera Ghazi Khan where appellant was lastly posted (having worked for ten months under his supervision) revealed that the appellant was performing his duty very efficiently and the said District and Sessions Judge/reporting officer was satisfied from his performance. Furthermore, he recommended for the confirmation of the 2nd Class power through a material report upon the appellant. In this backdrop the authority without any reason and legal justification, issued the order impugned of the appellant's termination. To our mind, the respondent has failed to substantiate passing of the impugned order.
3. The contention of the learned counsel for the respondent that clause 14 of the appointment order empowered the authority to terminate the appellant without recording any reason is not tenable.
The inclusion of this clause in the appointment letter does not mean that the authority has been entrusted with unfettered authority to terminate any judicial officer without any material on the record. The rationale behind it is that on the basis of the material available with the authority, the authority may pass such order without assigning any reason but if any of the affectee challenges that order, then it must be proved by producing the relevant record. For this reason, the Hon'ble Supreme Court of Pakistan in reported judgment referred ibid held that this Tribunal is bound to decide the matter after summoning the relevant record and giving it due consideration.
4. Another aspect of the case is that the material available on the record as produced by the respondents comprises of merely two reports of two different reporting officers. In one report, the District and Sessions Judge passed remarks relating to "improvement" but declared him useful for the judiciary, whereas the other report invited from the then District and Sessions Judge Dera Ghazi Khan (which is most relevant) shows that he was satisfied with the performance and conduct of the appellant, besides he requested for conferment of power of 2nd Class Judge. It is, therefore, apparent from the record that by ignoring these reports, the impugned termination letter was issued, which amounts to overlooking the reports submitted by the reporting officers, contrary to the law laid down by the Hon'ble Supreme Court of Pakistan reported as F.Q. Matiullah Khan Alizai v.
Chief Secretary, Government of N.-W.F.P and 5 others (1994 SCM R 722), .Wherein it was held that unless any allegation of mala fide and the reporting officers own reputation is not clouded, their evaluation as to the performance of their subordinates should be accepted. The dictum laid down by the Hon'ble Supreme Court of Pakistan according to Article 189 of the Constitution of Islamic Republic of Pakistan having binding force not only on the Courts of the country but also all the organs are duty bound to follow it. Therefore, it was further held in the case reported as Ch. Shabbir Hussain and others v. Registrar, Lahore High. Court Lahore and others (PLD 2004 SC 191) that interference in the reporting officers' opinion in recording of ACR without any material was unwarranted unless any mala fide is alleged and proved. Applying the same dictum of the Hon'ble Supreme Court of Pakistan, ignoring the reports of the reporting officers when no contrary material was available on the record, amounts to deviation from the dictum laid down, by the Hon'ble Supreme Court of Pakistan, hence passing of the order impugned was unwarranted.
4. For what has been discussed above, we are of the considered view that the impugned termination order is not sustainable in the eye of law. This appeal is allowed and the order of the authority/respondent is set aside. The appellant is directed to be reinstated in service. However, we refrain ourselves from passing any order in respect of back benefits as it may be decided by the Authority after determining whether the appellant was engaged in a gainful employment during the intervening period.