' A.
0. RAZIUR RAHMAN (MEMBER).-The. Appellant Iftikhar Ahmed Malik, was an Assistant Soil Survey Research Officer (Grade 16) in the Sofi Survey of Pakistan, when by an order dated 8th 1978, issued by the Director-General, Soil Survey of Pakistan, he was discharged from service, with effect from the same date, on account of alleged unsatisfactory work and conduct. The order, which was duly notified in the Gazette of Pakistan, is reproduced below :- "Government of Pakistan Soil Survey of Pakistan, P. O. Shahnoor Multan Road, Lahore.
' Lahore, dated the 8th July, 1978 ' NOTIFICATION ' No, F, 2-57/78-Admn,-Mr. Iftikhar Ahmed Malik, Assistant Soil Survey Research Officer under probation, is discharged from service with effect from 8th July, 1978 (A. N.) on account of unsatisfactory work and conduct.
(Sd.)
' M. BASHIR CHOUDHRI, Director-General."
2. At first the Appellant had, actually, been appointed on ad hoc basis, but, later, by an order dated 31st December, 1977, on the recommendation of the Federal Public Service Commission, he was placed on regular basis, subject to probation for a period of one year extendable by a further period not exceeding six months. Before he had completed his period of probation, a notice, dated 25th June, 1978, was served on him, requiring him to show cause why he should not be removed from service on the ground of misconduct. The notice was issued under rule 5(1) (iii) of the Government Servants (Efficiency and Discipline) Rules, 1973, and it contained details of his alleged 'Misconduct. Since these details are relevant for the disposal of this appeal, the show-cause notice is reproduced below : "Show-Cause Notice.-(1) Mr. Iftikhar Ahmed Malik. Assistant Soil Survey Research Officer, was deputed to take up detailed soil survey of Chakanwali Reclamation Farm by the Director. Soil Survey (Interpretation) vide his Office Order No. F. 4-14/73-Int., dated 16th January, 1978. After about two months, Mr. Iftikhar Ahmed Malik submitted an application stating that his health did not allow him to carry out field work. The application was supported by a medical certificate from a private medical practitioner. Mr. Iftikhar Ahmed Malik was then referred to the Civil Surgeon, Central Government Dispensary for medical examination who found him medically fit to attend to his duties.
(2) Vide his Office Order of even number, dated 14th May, 1978, Director, Soil Survey (Interpretation) attached Mr. I. A. Malik with the detailed soil survey party working in Hyderabad and directed him to report for duty to the Officer Incharge of the party. Mr. Malik did not comply with these orders.
(3) Vide his letter of even number, dated 31st may, 1978, Director, Soil Survey (Interpretation) asked Mr. I. A. Malik to explain reasons for not complying with orders to proceed on tour to Hyderabad. Mr. Malik did not care to give any reply.
(4) He was again called upon by the Director, Soil Survey (Interpretation) vide his letter No. F. -57/78, dated 17th June, 1978 to explain reasons for not reporting for duty at Hyderabad. Instead of giving a proper reply, he made an irrelevant request that he may be supplied a copy of the medical certificate submitted by him earlier.
(5) Mr. I. A. Malik is guilty of gross misconduct in disobeying the orders of the Director and in his failure to carry, out the duties assigned to him. The facts of the case are so clear that the undersigned is of the opinion that it is not necessary to have any enquiry conducted through an Enquiry Officer or Enquiry Committee,
(6) It is proposed to remove Mr. Iftikhar Ahmed Malik, Assistant Soil Survey Research Officer, from the Government service for misconduct. As provided in rule 5(1)(iii) of Government Servants (Efficiency and Discipline) Rules, 1973, he is given an opportunity to show cause, within eight days of the receipt of this notice, why such an action should not be taken against him.
' MR. IFTIKHAR AHMED MALIK. (Sd.) M. BASHIR CHOUDHRI.
' Asstt. Soil Survey Research Officer. ' Director-General, ' Soil Survey (Interpretation), ' Soil Survey of Pakistan.
' Lahore."
3. Reply to the show-cause notice was submitted by the Appellant on 2nd July, 1978. In this reply, the Appellant attacked the show-cause notice on the ground that it had not been given either by the Authority or by the Authorised Officer, whereas, under the rules, it was for the Authority to pass order for initiation of the disciplinary proceedings and then the show-cause notice could be issued only by the Authorised Officer. He also took the plea that he was not guilty of dereliction of duty, because, according to him, there was a general order of the Director. Survey of Pakistan by which, due to extreme rise in temperature that year, survey and field work had been stopped during the months of May and June. He also submitted that he had been suffering from a serious disease, "Nervous Asthenia" due to which he had been rendered physically and mentally incapable of undertaking hard journey and arduous duty. In this connection, he referred to the certificate issued by a medical practitioner, according to whom he was not in a fit stage to undertake field work. It was further contended by the Appellant that the charge of disobedience of order to resume duty was also not maintainable, because he had submitted his programme for proceeding on tour on 29th June, 1978, which was not approved by the Director, Soil Survey, under whom he was working and, therefore, the responsibility for his not proceeding on tour did not lie with him but with the officer who prevented him from proceeding on tour. In addition, the Appellant also stated that, in case his explanation was not considered satisfactory and the show-cause notice filed, he may be supplied with a copy of the letter of the Director-General suspending Survey and field work during the months of May and June, in order to enable him to submit further detailed explanation in reply to the show-cause notice.
4. After the Appellant bad replied to the show-cause notice, the impugned order of discharge from service was issued against which he made a departmental representation to the Secretary, Ministry of Food, Agriculture, Co-operative and Land Reforms on 25th July, 1978. This representation was rejected. Rejection was conveyed to the Appellant by Memo. No. F. 1-20/78 W M (SSP), dated 29th July, 1979. Against this order, appeal before this Tribunal was filed on 20th August, 1979. It was heard on 11th May, 1982 and is being disposed of by this judgment.
5. The main grounds urged in the Memo. Of appeal are as noted below:-
(1) The Appellant was discharged from service during the period of probation. The ground of discharge, however, was given out as "Unsatisfactory work and conduct." Since termination of service during the probation, according to the Appellant's contention, tantamounts to removal from service and not termination simpliciter, it amounted to violation of the law on the subject, since the Appellant had not been given an opportunity to know the exact allegations of misconduct levelled against him and to prefer his defence accordingly.
(2) As his discharge from service actually amounted to removal, proceedings should have been drawn up against him by the prescribed "authority" or "authorised officer," in accordance with the Efficiency and Discipline Rules, 1973. But, since this was not done, the orders are without jurisdiction and competency.
(3) The Appellant was not given a personal hearing either at the stage before the passing of the impugned order or at the appellate stage.
(4) The punishment is excessive and harsh.
(5) The proceedings were mala fide, since the Appellant was punished in retaliation for the protest made by him against the inadequate scale of pay for the post which he was holding.
6. The Director-General (Respondent No. 1 in the case) filed parawise objections on the appeal which were both elaborate, lucid and logical. He was also represented by the Administrative Officer, Muhammad Nasir, who clarified a number of points raised from the Appellants side and helped us in with relevant information pertaining to the case. The main points that emerge from the parawise objections and the information furnished by the Administrative Officer may be summarised :
(1) The Appellant having failed to comply with an order for carrying out the detailed soil survey of a particular place, which was issued to him as early as 16th January, 1978, continued to defy the orders given to him in this behalf and for similar work elsewhere, in spite of repeated reminders.
(2) When called upon, on 31st May, 1978, to explain his conduct, he avoided a reply and, when given a final notice to furnish his reply within 3 days, he continued to refuse to submit the same but, instead, asked for a copy of the medical certificate he had submitted earlier in connection with his inability to take up the first assignment referred to in (1) above.
(3) Since more than 6 months had elapsed from the time the first assignment was given to him and, throughout this period, the Appellant bad not only shown disinclination to work but also deliberately defied the orders of his superiors, the Director-General decided to proceed against the Appellant whom he considered as having been guilty of gross misconduct.
(4) The show-cause notice was, no doubt, issued under the Efficiency and Discipline Rules, 1973, but his services were terminated for unsatisfactory work and conduct during the period of his probation. This was covered by rule 11(1)(I) of the Civil Servants Act, 1973, read with rule 5(b) of the Recruitment Rules for the post of Assistant Soil Survey Research Officer.
(5) ' Since the impugned order was passed under the rules pertaining to termination of service during the period of probation, the order was not incompetent.
(6) The question of regular enquiry did not arise, in view of the facts of the case being clear and unassailable.
7. Having heard both the parties in detail and considered their arguments and counter-arguments and record of the case we are satisfied that the contention of the Director-General, Soil Survey of Pakistan that the facts of the case being very clear and unambiguous the appointment of an Enquiry Officer or Enquiry Committee was out of the question and the only question before the relevant authority was whether to remove the officer from service or deal with him less severely. If the appointment was on regular basis, and not one on probation, one of the major penalties, not excluding dismissal from service, could have been inflicted after giving him an opportunity of personal hearing. But, since he was on probation, he could be removed from service on ground of unsatisfactory work and conduct. Since this was actually done, it is difficult to assail this decision on the merits of the case. The only point of objection that can reasonably be taken into account is whether termination of service on this around could legally be sustained when a show-cause notice had been issued under the Efficiency and Discipline Rule;. The question can be resolved by finding out whether the issuance of the show-cause notice under the Efficiency and Discipline Rules caused any prejudice to the case of the accused when it was not followed up by regular proceedings under those rules, but, instead, the removal, effected under the normal rules pertaining to satisfactory completion of the period of probation. In the present case, we are fully convinced that no such prejudice has been caused and that the Appellant, who was acquainted with the allegations against him, and called upon to explain his conduct, having failed to satisfy the concerned authorities on the point, was removed from service when his overall conduct, both in relation to the performance of his duties and in the matter of furnishing his explanation with regard to the allegations against him, was found to be unsatisfactory. In this connection, the contention of the appellant is that termination of his service is not termination simplicity but actually removal as a punishment. We are unable to "accept this contention, for the simple reason that the order of termination itself says that he is discharged from service and not removed, which means that the termination does not carry with it the same stigma which would have attached to an order of removal or dismissal.
8. From the above, it is clear that, although technically speaking, the show-cause notice was issued under the Efficiency and Discipline Rules, the termination of the service of the Appellant, after considering the explanation offered by him and other facts and circumstances reflecting on his work and conduct during the relevant period, was within the competence of the Director-General, who was the appointing authority in respect of the Appellant and thereby competent to discharge him from service under the Rules. In this connection, rule 11(1) (1) of the Civil Servants Act, 1973 and rule 5(b) of the Recruitment Rules for the post of Assistant Soil Survey Research Officer are relevant.
These are reproduced below : Rule I1(1)(i) of the Civil Servants Act, 1973 : "The service of a civil servant may be terminated without notice : (I) during the initial or extended period of his probation. Rule 5(b) of the Recruitment Rules for the post of A.S.S.R.0: "(b) If in the opinion of Government the work or conduct of an officer on probation is unsatisfactory or shows that he is unlikely to become efficient, Government may either revert or discharge him forthwith or extend his probation for such further period not exceeding one year as Government may think fit."
9. Considering all aspects of the matter, we are convinced that, although issuance of a show- cause notice under the Efficiency and Discipline Rules was not only unnecessary but also extraordinary in the circumstances of the case, it has not resulted in any way in miscarriage of justice, since, from the facts, it is clear that the conduct and performance of the Appellant, who was a probationer in Government service, were unsatisfactory during the period of his probation and, therefore, his discharge from service was fully justified on merit, besides being within the four corners of law.
10. In the result, we find no reason for interfering with the impugn end order and, therefore, dismiss the appeal.
11. No order as to costs. Appeal dismissed.