' BRIG. ABDUR RASHID (MEMBER). -The appellant, Jamil Ahmad Malik a graduate Civil Engineer, in response to an advertisement of POFs Wah, applied for the job of Assistant Works Manager. He was selected. However, the offer of appointment made to him was on contract for a period of three years. On 28th January, 1978, the appellant challenged this offer on the plea that he had applied for a regular appointment.
2. Vide Daily Order Part II No. 2877/1, dated 13th June, 1978, the appellant was appointed as Assistant Works Manager/Civil (grade 17) on contract for a period of three years with effect from 6th of May, 1978 despite his protest.
3. The appellant's contractual appointment was subsequently, converted into a regular one (duly approved by the President and CMLA vide Ministry of Defence U.
0. No. 7/819/79-DP-8 dated 4th July, 1979) effective from 24th June, 1979, and the appellant was allowed to count his contractual service for increment and carry forward of leave. He was placed on probation for one year (with effect from 24th June, 1979, vide POFs Daily Order Part II No. 4084/1 dated 29th July, 1979) which was extendable before the period of expiry. It was laid down in the said D. 0, Order Part II that in case no orders were issued, after the expiry of probationary period as fixed or as extended, the appointment will be deemed to be held until further orders. Preliminary and final suitability reports were to be rendered on the appellant after the expiry of each six months.
4. The appellant, while working as AWM/Civil Sanjwal, was granted 10 days' leave but remained absent from 28th August, 1979 to 16th March, 1980. He resumed duty on 17th March, 1980, and tendered an explanation, whereafter the period of his absence was regularised as extraordinary leave without pay and allowances, vide POFs (Civil Group) D.
0. Part II No. 331/1 dated 19th April, 1980.
5. The preliminary suitability report was due to be written on the appellant on or about 23rd December, 1979. There is a photo copy of one such preliminary report available on the file. It was initiated after the appellant had resumed duty and his absence stood regularised. This inference has been drawn from the general remarks of the Superintendent which say; "the officer remained absent from duty from 28th August, 1979 to 16th March, 1980. However, he worked with this office from 24th June, 1979 to 27th August, 1979. He is intelligent and hard working." The said Superintendent graded the appellant as 'very good' in technical and organising abilities. In 'adaptability', 'control over subordinates' and `initiative,' the appellant was graded "good." He was considered very reliable, tactful and regular.In attendance.
6. The above preliminary probationary report bears the following remarks of the Superintending Engineer, Chief Engineer Works and the Director of Projects :-
(a) SE :-"The Officer remained absent as mentioned above, but he is technically very sound and knows his job."
(b CEW :-"The Officer did not display a good sense of responsibility. He has to settle down and apply his mind to the work. He has yet to prove his usefulness for the department by his work- attitude and hard work."
(c) DOP :-"I agree with CEW. Mr. Jamil has to show a greater sense of responsibility. The officer otherwise, is intelligent and has the requisite technical background."
7. The above report is an example of indifferent staff work in that it bears no date of initiation and the period it covers. What is rather mystifying is that it is purported to have been signed by the Works Manager/Admin-I Mr. Butt, who has signed for the Chief Admin. Officer on 18th June, 1979 as the forwarding officer to the appellant and others vide his No. 4119/8921/0E-1/B. We do not know how this report could have been forwarded on 18th June, 1979, when it talks of the appellant's absence upto 16th March, 1980.
8. The appellant was appointed as Site-Officer Incharge for the construction of 100 `0' type houses at POFs Sanjwal, vide Works Manager's Office Order No. 15/Civil/79-80 dated 9th June, 1980.
9. On 21st June, 1980, the Superintending Engineer, Sanjwal (Mr. Muhammad Shafi Talib) communicated to the appellant his Annual Confidential Report for the year ending December, 1979.
This report has been initiated by Mr. M. S. Qazi, Works Manager and covered the period 1st January, 1979 to 31st December, 1979 but was finalised and signed by the said Works Manager on 22nd December, 1979. The said report was all round good and went to the extent of considering the appellant fit for continuous service upto the year 2003 when he would complete 25 years' service.
This report was initiated treating the appellant as a contract officer whereas he already stood regularly appointed with effect from 24th June, 1979. Mr. Qazi and those above him seem strangely ignorant about this change in the status of one of their subordinates.
10. The next superior Officer SE, POF, Sanjwal remarked about the appellant.
"He is very good Officer and technically very sound but he is absent for a long time."
11. The Chief Superintendent Sanjwal recorded the following remarks on 22nd February, 1980 :- "In view of his absence from duty without intimation, he is considered as "BELOW AVERAGE."
12. The remarks appended by the Chief Engineer Works on 6th March, 1980 and the Director of Projects on 18th March, 1980 simply dittoed those of the Chief Superintendent Sanjwal.
13. Since the appellant had been adjudged as "Below Average," just because he was absent, he was transferred to another section H-2 vide SE Sanjwal letter No. 1800.6/SE-Sanjwal, dated 21st June, 1980 and placed on Special Report for a period of six months with effect from 7th June, 1980. The Works Manager of 14-2 Section was required to forward his report on the appellant by 25th November, 1980.
14. The appellant reported to his new appointment without being relieved. This fact is amply borne out by the handing/taking certificate, appended as Annexure 'C' by the Respondent in his reply wherein it is clearly shown that the appellant handed over charge on 30th August, 1980 although he had been posted out vide WMICP-H-3 letter No. 1800/ 4/WM/CP-He, dated 22nd June, 1980.
15. The appellant challenged the order of placing him on Special Report for six months vide his application dated 23rd June, 1980, which was turned down vide Acting SE Sanjwal letter No. 1800-4- S,E./Sanjwal, dated 19th August, 1980.
16. While on the one hand the appellant was placed on special report which was to be written on him from 7th June, 1980, on the other he was communicated the final probationary report on 3rd August, 1980 which had been initiated by the Works Manager/Civil POF Sanjwal. This report described the technical and organising abilities of the appellant as very good. As to "adaptability" and "control over subordinates," "initiative", he was adjudged as good. The general remarks were: "The officer remained absent from duty from 28th August, 1979 to 16th March, 1980, He reported for duty on 17th March, 1980 since then he is performing his duty very satisfactorily". There is no mention of the date of initiation of this report and the period covered by the report, again, an exhibition of poor staff work.
17. The Superintending. Engineer Sanjwal remarked : "The officer is technically sound, but not putting his heart and soul in the work and as such 3 months period may be extended." There is no date of these remarks of SE.
18. The Chief Superintendent/POF Sanjwal remarked; "Since the probationary period expired on 23rd June, it cannot be extended now. He may be considered fit for retention." No date of these remarks has been given.
19. The Director of Projects, the highest authority in the chain of reporting, remarked; "Extension of probationary period for three months is ordered." Again, there is no date as to when he appended these remarks.
20. Vide Daily Order Part II No. 4052/1, dated 31st July, 1980, communicated to the appellant by SE Sanjwal vide letter 1800/4/SE/SJL, dated 6th August, 1980 he was informed that his probationary period had been extended for three months from 24th June, 1980 to 23rd September, 1980. The appellant challenged the order of his extension of probation in a departmental appeal dated 11th August, 1980 addressed to the Chairman, POF Board through proper channel. The said appeal was turned down vide Chief Admin. Officer's letter No, 4119/8921/0E-1/B, dated 16th November, 1980 where after the appellant's appeal filed on 2nd September, 1980 was admitted for regular hearing on 6th October, 1980 on the ground that the following orders were illegal, arbitrary, malicious and ultra vires:
(a) Order dated 21st June, 1980 placing the appellant on special report for six months and treating him as a contract officer.
(b) Extending the appellant's probation by three months from 24th June, 1980, which was after the expiration of the probationary period.
21. The above are the facts of the appeal which was registered under No. 133(R)180, dated 2nd September, 1980. But before it could be heard and disposed of, the appellant filed another appeal No. 49(R)/81, which was actually a duplication of a good deal of his appeal No. 133(R)/ 80 but its cause of action was the termination of service of the appellant. The two appeals are really one appeal and this judgment shall dispose of both of them.
22. We now advert to the facts of appeal No. 49(R)/1981.
23. Vide Daily Order Part II No. 4876/2 dated 21st September, 1980, the services of the appellant were terminated. The order of termination dated 21st September, 1980 read : "Having been found unsuitable during the probationary/extended probationary period, his services have been terminated by the competent authority with effect from 21st September, 1980 (A.N.) and he is struck off strength of POFs with effect from the same date."
24. The appellant preferred a departmental appeal on 16th October, 1980 to the President of Pakistan through proper channel. Failing to get a reply after ninety days, the appellant filed his present appeal before this Tribunal on the following grounds :
(a) The impugned order of his termination is illegal, inasmuch as, it has not been passed by the competent authority.
(b) The impugned order is based on mala fide intent due to the following reasons-
(1) the appellant complained to the authorities concerned against appointment of Mr. M. S. Qazi as Works Manager. This appointment, according to the appellant, was in contravention of the Pakistan Engineering Council Act, 1975, because the said Mr. Qazi was unqualified and unregistered. It was this complaint coupled with an earlier complaint against serious irregularities where Mr. Qazi had advanced a sum of Rs. 8,00,000 to the contractor without any verification and check, which, according to the appellant brought about his termination.
(ii) The appellant demanded that Court of inquiry be convened to enquire into the above mentioned financial irregularities, which according to the appellant, proved as the last straw and the respondents 2 to 5 decided to get rid of him.
25. Having heard the learned counsel for the appellant as well as the Respondents, we now advert to the case (viz appeals No. 133(R)/80 and 49(R)/81) on merits. We have, also, had the benefit of perusing the relevant record which the POFs were kind enough to make available. The issues involved and requiring adjudication by us could be listed as under; the answers to which be seen at para. 26 onwards
(a) When the appellant had been appointed as regular officer duly approved by the President and CMLA and he was placed on probation for one year with effect from 24th June, 1979, he was to be subjected to two six-monthly reports (known as preliminary and final probationary reports). Was he assessed under these reports?
(b) Could the period of probation be extended retrospectively after its expiry ?
(c) Could the appellant be subjected to any other type of ACRs as was done in this case when he was actually on probation and two probationary reports were to be initiated on him to assess his suitability for retention ?
(d) Could the appellant be placed on "Special Report" during the period of his probation by means of another Annual Confidential Report as was done ?
(e) The appellant, while on probation, absented himself from 28th August, 1979 to 16th March, 1980, when he was granted 10 days' casual leave. After he reported back, his period of absence had been regularised as extraordinary leave without pay and allowance. Once this regularisation bad been effected, was it appropriate and legal for the authorities reporting on him to constantly harp on his absence ?
26. Vide Daily Order Part II No. 4084/1, dated 29th July, 1979 (signed by Mr. A. M. Chowdhry, Chief Administrative Officer), the appellant had been appointed- as Assistant Works Manager/Civil (Grade-17) on regular basis with effect from 24th June, 1979. He was placed on probation for one year and a preliminary report after six months was to be rendered on him. Para. 2 of the order also said that if no orders are passed extending the period of probation beyond one year, after expiry of probationary period, the appointment will be deemed to be held regularly.
27. As per system in vogue in the POFs, there are two six-monthly reports written on a probationer.
The first report is known as the Preliminary Probationary Report and the second as the Final Probationary Report. The form used for both purposes is the same. As far as the Preliminary Probationary Report is concerned, we have dealt with it at length at pares, 5 to 7. What we would like to add to the said three paragraphs is, that this report is actually for two months and covers the period before the appellant went on leave and then absented himself from 28th August, 1979 to 16th March, 1980. No confidential report is maintainable unless it covers a period of at least three months. This principle is so well-settled that it should be known to every responsible official. In the present case, therefore, what should have happened was that the initiating officer should have sought permission to delay writing the preliminary report till the appellant rejoined. If, somehow, the initiating officer was ignorant of this basic knowledge, as he was, then someone above him (and there were three of them viz. Superintending Engineer, Chief Engineer Works and the Director of Projects) should have performed this elementary function. That this did not happen goes to show how a wrong could be easily perpetrated when things take place in a mechanical fashion without application of mind.
28. In any case, the Preliminary Probationary Report did indicate that the appellant, but for his absence, did perform well.
29. The Final Probationary Report was communicated to the appellant on 3rd August, 1980 and has been de eh with by us at pares. 16 to 20 above at length. This report was written after 23rd June, 1980 when appellant's period of one year's probation had already expired. The Superintending Engineer in his remarks said : "The officer is technically sound but not putting his heart and soul in the work and as such 3 months period may be extended." Under no rule could this period of probation have been extended after the 23rd of June, 1980 when no such extension had been ordered before the said date. This is again an issue of everyday knowledge and had been clearly enshrined in Daily Order Part 11 No. 4084/1, dated 29th July, 1979 and reflected at para. 26 above.
The Chief Superintendent, POF, Sanjwal did remark that since the probationary period of the appellant had expired on 23rd June (1980), I could not be extended now and that he may be considered fit for retention. The Director of Projects, however, overruled these legally correct remarks of the Chief Superintendent and ordered three months extension which is simply incomprehensible.
30. The abuse of authority in illegal extension of probationary period by three months is all too obvious but it should surprise no one because there are bigger surprises in store for us in this case when we advert to the fact that a parallel system of reporting on the appellant as Contract Officer was also being followed alongwith the Probationary Reporting System and this is how it happened.
The Superintending Engineer, Sanjwal (Mr. Muhammad Shafi Talib) vide his letter No. 1800/6/S. E.
(Sanjwal), dated 21st June, 1980 conveyed to the appellant his Annual Confidential Report for the year ending December, 1979. This report was initiated by Works Manager Civil (Mr. M. S. Qazi) and although it covered the period 1st January, 1979 to 31st December, 1979 as typed out at the top of the form, it was finalised and signed by the Initiating Officer on 22nd December, 1979. The appellant had been shown as on contract when he had ceased to be on contract with effect from 24th June, 1979 due to his regular appointment on probation.
' In the said A.C.R. For the year ending 1979, the appellant had been shown as having done well, was considered fit for promotion and had been graded A (Good). However, the Initiating Officer in "pen picture" remarked about the appellant "The officer is not interested in service in. POF. He is absent from duty with effect from 28th August, 1979, without intimation."
31. The remarks of others in ascending order on this ACR are :
(a) SE :-While agreeing with the report, the SE remarked : "He is very good officer and technically very sound but he is absent for a long time."
(b) Chief Superintendent, Sanjwal remarked dated 22nd February, 1980: .
"In view of his absence from duty without intimation, he is considered unreliable and untrustworthy.
Categorised as "Below Average."
(c) Chief Engineer remarked dated 16th March, 1980: "I agree with CS/Sanjwal."
(d) Director of Projects remarked dated 18th March, 1980: "I agree with CS, Sanjwal."
32. The robot-like mechanical agreeing with CS, Sanjwal is there but that is not the point. The point is that the same set of superiors knew or should have known that the appellant was on probation for one year since 24th June, 1979 who was subject to two probationary reports only and that no other type of report could have been written on him. The consequence of this illegal A.C.R. Ending December, 1979, in which all the officers from the initiating Officer to the Director of Projects are involved from head to heel, brought about the transfer of the appellant from H-3 Section to 11-2 Section, under a different reporting officer and he was placed on a Special Report for six months with effect from 7th June, 1980, retrospectively vide SE, Sanjwal letter No. 1800/6/S. E. Sanjwal, dated 21st June, 1980.
33. The appellant had been graded "Below Average" solely because, when the report had been written in December, 1979 he had been absent. In other words, the appellant was condemned unheard. However, when the appellant resumed duty on 17th March, 1980, and his period of absence was regularised; rather than his services being terminated which could have been done, the remarks of the Chief Superintendent and others above him had become infructuous, presuming that the respondents had acted lawfully. But since they acted illegally and without lawful authority and their A.C.R. On the appellant for the year 1979 was void ab initio because he was on probation and probationary reports were to be written on him, we need not pursue the matter any further. In this connection the reply filed by the respondents justifying the unjustifiable in appeal No. 133(R)/80 is worthy of reproduction. The A.C.R. For the year 1979 of the appellant was not initiated specifically as a Contract Officer. The word 'Contract Officer' could not be deleted from the A.C.R. Form due to an oversight otherwise the facts of his appointment on regular basis were fully known to the reporting officer. The mere word 'Contract Officer' in no way changed the basic position. The appellant was in employment since 6th May, 1978, on contract and his A.C.R. For the year 1978 was initiated as usual. His A.C.R. For the year 1979 was rightly initiated nevertheless he was on regular basis w.e.f. 24th June, 1979, and placed on probation. This procedure is always followed in the case of officer appointed on contract initially and subsequently appointed on regular basis with the approval of the appointing authority. The appellant was correctly categorised as below average in his A.C.R. For the year 1979 which was completed by the final Countersigning Authority viz. D.
0. P. On 18th March, 1980 whereas the unauthorised absence of the appellant who had resumed duty on 17th March, 1980 was covered by treating the period as without pay and allowances on 19th April, 1980.
' Having been graded below average in his A.C.R. For the year 1979, the appellant was placed on special report for a period of six months and was transferred under a different reporting officer according to the Standing Orders on the subject. The appellant handed over the charge of his duties on 30th August, 1980,'
34. All that we would like to say with regard to the above reproduced reply of the respondents is that it is sad enough what they have done but when they try to justify it, it gets worse. The maximum leeway that we shall grant them is that they could have reported on the appellant as a Contract Officer from 1st January, 1979 to 23rd June, 1979 only. From 24th June, 1979 he had been appointed on regular basis and was placed on probation for one year and he could be treated in no other way except as a probationer and subject to two six-monthly probationary reports.
35. However, it is funny for us to say so but this is the conclusion we have reached when we point out that those in authority in the POFs treated the appellant as two persons, as would be seen from the following tabulation :
(a) Appellant placed on Special Report for six months with effect from 7th June, 1980. And transferred under a new superior as a result of Annual Confidential Report for 1979.
' Appellant's probationary period extended for three months from 24th June, 1980 to 23rd September, 1980 as a result of his final probationary report. It would be seen that the appellant was placed on Special Report for six months with effect from 7th June, 1980. At the same time his probation was extended retrospectively from 24th June, 1980 to 23rd September, 1980. As stated, this treatment could not be given to one person and hence our conclusion that the appellant was treated as two persons in one.
36. We have no doubt that the appellant behaved rather imprudently when he insisted on an enquiry into the financial irregularities of Mr. M. S. Qazi as well as demanded that the said Mr. Qazi be removed because he being unqualified and unregistered could not be appointed as Works Manager in accordance with the Pakistan Engineering Act, 1975. By his deeds which were doubtlessly motivated by his desire to be honest, the appellant became a persona non grata, 37.
As stated at para. 23, the services of the appellant were terminated with effect from 21st September, 1980, because of appellant's unsuitability during the extended period of probation.
There are two issues involved here. First, whether the period of probation could be extended retrospectively. We have already held that this could not be. The appellant stood regularly appointed with effect from 23rd June, 1980, because his period of one year's probation had expired on the said date. N orders could, therefore, be issued by anyone extending the period of probation after 23rd June, 1980. The second issue involved is whether the termination order had been issued by the competent Authority. During the course of hearing we were told that the services of the appellant had been terminated by the Director of Finance who, at the time, had been acting as Chairman of the POF Board. We were informed by the departmental representative that the services of the appellant had been terminated under clause 7 of the, Ordinance promulgated on 15th May, 1961 (as Defence No. XVII of 1961 the relevant portion of which reads as under:- Investment of the Board with certain powers . -Notwithstanding anything contained in any law, regulation, rule, order, notification, agreement or other instrument for the time being applicable to any factory, or any officer or other employee appointed or engaged in, or in connection with, any factory, the Board may, in relation to such factory, officer or employee exercise the following powers of the Central Government or of any officer authorised for the purpose by the Central Government, that is to say-
(a) to determine the terms and conditions of service, recruitment, promotion, transfer, posting, dismissal, discharge, demotion and other disciplinary actions of all officers and other employees : ' Provided that the terms and conditions of service of any officer or other employee appointed or engaged before the commencement of this Ordinance shall not be varied to his disadvantage and that he shall not be dismissed or removed from service or reduced in rank by any authority subordinate to that by which he was appointed:"
' From the above quotation, it is clear that the Board has been invested with the powers of the Central Government which are nowhere defined. Clause 7 is, therefore, not attracted. Since the enactment of the Civil Servants Act, 1973, the abovementioned powers vest in the President or in the Establishment Secretary for grades 17-19 (as the delegate of the President) vide Rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. It was, presumably, due to this reason that appellant's appointment on regular basis was made only after obtaining the approval of the President. Since power to appoint also means power to suspend or dismiss as given in Clause 16 of the Central Clauses Act, 1897, it was only the President who could have terminated the service of the appellant. The same principle is inherent in proviso to the above quotation when it says that an officer or employee shall not be dismissed or removed from service or reduced in rank by any authority subordinate to that by which he was appointed. Taking the plea of the respondents to be genuine in that they acted under Clause 7 of Ordinance XVII of 1961, we find that here, too, they have violated the proviso to the said clause because the services of the appellant, who had been appointed by the President, were terminated by the Acting Chairman, POF Board.
These services were, obviously, terminated by an authority not competent to do so and hence the nullity of such an action.
38. We would now like to summarise, as under, the irregularities and illegalities committed by the top hierarchy of the POF which leave us flabbergasted and force us to conclude that if on the one hand such serious lapses do not reflect a good administration, on the other, they do not rule out mala fide intent either :
(a) The appellant was appointed on regular basis with effect from 24th June, 1979. He was placed on probation for one year. He was subject to two six-monthly probationary reports (preliminary and final). He was still under preliminary probationary report and had done only about two months when he absented himself from his leave. His absence stretched from 28th August, 1979 to 16th March, 1980. He rejoined on 17th March, 1980, and his period of absence was regularized as EOL without pay and allowances. However, the preliminary probationary report only for two months had been written on him in his absence. It would have been only right if those at the helm of affairs had initiated the preliminary probationary report for at least three months which alone would have been maintainable.
(b) No Annual Confidential Report on the appellant could have been written. The report for the year 1st January, 1979 to 31st December, 1979 (and dealt with at paras. 30 to 34) treating the appellant as a contract officer has been illegal and his subsequent placement on six months Special Report equally so.
(c) The extension of three months probationary period as a result of Final Probationary Report ordered after 23rd June, 1980, when the period of one year's probation had already expired is illegal.
(d) Placing the appellant on three months extended probation from 24th June, 1980 to 23rd September, 1980, and, at the same time placing him on six months' Special Report' from 7th June, 1980, (under a different officer) would have been all right if the appellant had been two persons, one of whom were on probation and the other on regular assignment without probation. Since we have already held the extension of probation as well as the 1979 A,C.R. To be illegal and ultra vires, everything following therefrom becomes equally so.
(e) Once the absence of the appellant had been regularised it was quite illogical to keep repeating it as a stigma.
( f ) The orders of appellant's termination could not have been passed by anyone other than the President. Termination orders passed by the Acting Chairman are a nullity in the eyes of the law.
39. In view of the foregoing detailed averments, we order that :
(a) The appellant who was regularly appointed with effect from 24th June, 1979, shall be deemed to have successfully completed his probationary period on 23rd June, 1980 as a result of two probationary reports taken cumulatively. The order extending his three months probationary period and issued retrospectively vide Daily Part If Order dated 31st July, 1980 is set aside as being illegal.
(b) The Annual Confidential Report from 1st January, 1979 to 31st December, 1979, written on the appellant as a contract officer and which resulted in his being placed on six months' Special Report is declared to be illegal and ultra vires. This report shall be taken out of the A.C.R. Dossier of the appellant and destroyed.
(c) The remarks of appellant's absence from 28th August, 1979 to 16th March, 1980, wherever occurring in the two probationary reports, shall stand expunged:
(d) The order of appellant's termination issued vide Daily Order Part II No. 4876/2 dated 21st September, 1980, is hereby set aside as being incompetent and a nullity.
(e) The appellant shall stand reinstated into service with effect from 21st September, 1980 (A.N.) with the following benefits :
(1) Full pay and allowances for the period he remained out of job excluding such earnings which may have accrued to the appellant during the period of his termination by his assignments elsewhere.
(ii) His seniority shall be fixed in a manner as if he had been in continuous regular employ from 24th June, 1979 onwards.
(iii) His right to promotion shall remain undisturbed and shall be protected.
40. No order as to costs.
41. Parties in Appeals 133(R)/80 and 49(R)/1981 respectively, be informed accordingly.