MUHAMMAD NAEEM ANWAR, J.- By invoking the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, through instant petition, the petitioner has questioned the order dated 28.10.2010 of respondent .No.1, whereby his services were terminated and order dated 05.11.2019 whereby his departmental appeal was dismissed.
2. Mr. Noor Muhammad Khattak, Advocate for petitioner contended that the petitioner was appointed as Chemistry Teacher in UPS & college SBBU Dir Upper initially for one year on contract basis vide order dated 08/05/2010 and thereafter, his services were regularized by the respondents vide order dated 23/10/2010 with effect from 15.07.2010. He added that the petitioner was falsely charged in case FIR No. 279 dated 10/09/2010 registered under sections 302/3241148/149 PPC at police station Gandigar; that thereafter, petitioner become absconder due to threats to his life from the complainant party; that later on, the petitioner surrendered himself before the local police and faced the trial in the above-mentioned FIR and was finally acquitted of the charge by the trial court vide its judgment dated 10/03/2017; that after acquittal from the above-mentioned criminal charge, the petitioner submitted application before the respondents for accepting arrival report but no response was received; that thereafter petitioner submitted another application to right to information commissioner for providing service record and copy of appeal but that was also not responded; that feeling aggrieved, the petitioner filed Writ Petition No, 5247-P of 2017 before this Court with the prayer to direct the respondents to accept arrival report from petitioner, however, the respondents produced the impugned termination order before the Court along with comments on the basis of which the aforementioned writ petition was dismissed being infructuous, with observations that petitioner would be at liberty to challenge his termination order before proper forum. He added that feeling aggrieved from the impugned order dated 28/12/2010, the petitioner filed departmental appeal before respondents and the same was followed by Writ Petition No. 2371-P/2018, which was disposed of with directions to respondents to decide departmental appeal of petitioner within 30 days vide judgment dated 25/09/2019. The petitioner, after obtaining attested copy of judgment dated 25/09/2019, approached to the respondents through his application but the same was dismissed by the authority vide order dated 05/11/2019. He contended that the order of termination from service and dismissal of appeal by the respondents is illegal and unwarranted. He further submitted that no show cause notice was issued or served upon the petitioner and that the respondents were required to determine as to whether the absence from service was willful or for some compelling reasons because even the probationer employee could not be terminated without fulfillment of legal procedure. In support of his submissions, he placed reliance on the case of "Aziz Ullah Memon Vs. Province of Sindh" (2007 SCMR 229), "Province of Sindh through Secretary Education and others Vs. Saima Pano" [2003 PLC (CS) 365], "Secretary Government of Punjab Vs. Riaz-ul-Haq" (1997 SCMR 1552), "Chief Secretary Government of Punjab Vs. Muhammad Ali Saqib" [2020 PLC (CS) 1291], "Divisional Forest Officer Kasur Vs. Zahid Alf (2011. SCMR 1618) and "Naseeb Khan Vs. Divisional Superintendent Pakistan Railways, Lahore" (2008 SCMR 1369).
3. As against that, Barrister Dr. Adnan Khan, learned counsel for respondent-university contended that the petitioner, who was on probation, absented himself from duty since 14.09.2010 without any permission or leave or information to the concerned authority but even then, notice was issued to him on 04.11.2010 which was not responded by the petitioner, as such, he was terminated from service on 28.12.2010 after the period of three months and 14 days. He further submitted that the vacant post was filed after adopting all codal formalities and now there is no vacant position for the reinstatement of petitioner. To fortify his submissions, he relied on the cases of "Federation of Pakistan throujh Secretary, Ministry of Law and Justice Division, Islamabad Vs. Mamoon Ahmad Malik" (2020 SCMR 1154) and "Naeem Asehar Naeem and others vs. Province of Punjab and others" [2016 PLC(CS) 155]
4. Arguments heard and record perused.
5. It is indisputable that the petitioner was appointed by the respondents on 08.05.2010 and it is also an admitted fact that the services of petitioner were regularized on 23.08.2010 however, he was placed on probation for one year. Record reflects that just after 04 months and 2 days from his employment on fixed pay and after 18 days from regularization he was booked in criminal case FIR No. 279 dated 10.09.2010 registered under sections 302, 324, 109, 148 & 149 of PPC at Police Station Gandigar. Judgement of Criminal Case reveals that he was arrested on 30.07.2015 and charged was framed against him on 23.11.2015 and remained in custody till 10.03.2017 i.e., the date of his acquittal. However, neither prior to his arrest nor after framing of charge, he or anyone on his behalf informed the respondents about his alleged involvement in the criminal case. Though, the petitioner has annexed an application dated 14.04.2016 by mentioning therein that he was falsely implicated in the criminal case and was acquitted on 10.03.2017. The contents of application are self-repelling for the simple reason that it was drafted on 14.04.2016 and mentioned in it that he has been acquitted on 10.03.2017. Another application dated 25.10.2017 bears no diary number of the respondents for its receipt, which as per petitioner's contention was sent through post but postal receipt speaks otherwise. On 13.12.2017, he filed W.P No. 5247-P of 2017 before this Court, which after hearing was dismissed on 13.04.2018 leaving the petitioner at liberty to challenge his termination order. Once again, the petitioner filed another W.P No. 2371-P of 2018 before this Court however, which was disposed of on 25.09.2019, with the directions to respondents to decide his appeal within 30 days, positively. The departmental appeal of the petitioner was dismissed and now the petitioner is before this Court. From the above state of affairs, the following points require to be adjudged: i. Whether the petitioner, who was on probation, could be terminated without issuing of notice or regular inquiry, if so, Under what circumstances? ii. Whether the petition is hit by laches?
Undeniably, the petitioner was on probation, and within a couple of months from regularization of his services from fixed pay, he absented himself from duty and a notice was issued but allegedly the petitioner was not served with any such notice, as such, he was terminated from service. The petitioner before attaining the status of confirmed employee was terminated. Regular/confirmed employee could be removed from service after conducting the full-fledged inquiry and even the probationer if there are allegations of misconduct, corruption or malpractice only be removed from service subject to providing an opportunity of hearing but if the termination is simpliciter, it does not require, issuance of any notice for termination during probation. Lahore High Court in the case of "Nadeem Asghar Nadeem and others versus Province of The Punjab and others (2015 PLC 1509)" has held that "The jurisprudence evolved over the years on the requirement of notice prior to terminating the services of the probationer is that the services of a probationer can be terminated without notice, in case of termination simpliciter but where there are allegations of misconduct or inefficiency levelled against the probationer, in such an eventuality, it is mandatory that the officer is put on notice. Reliance with advantage is placed on Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393), Muhammad Amjad v. The Chief Engineer, WAPDA and another (1998 PSC 337), Ch. Muhammad Hussain Naqshbandi v.
Government of the Punjab and others (2004 SCMR 44), Muhammad Iqbal Khan Niazi v. Lahore High Court, Lahore through Registrar (2003 PLC (C.S.) 285) and Rehan Saeed Khan and others v.
Federation of Pakistan and others (2001 PLC (CS.) 1275)."
6. The petitioner in the case in hand was appointed on 23.08.2010 on regular basis and for his continuance absence from duty w.e.f. 08.09.2010, without any intimation was terminated from service on 28.12.2010 being followed by a notice without any response from the petitioner. The order reflects that the termination of the petitioner was simpliciter which reads as: "Now for the above said reasons and being guilty of unauthorized absence from duty during probation period, your services are terminated with immediate effect". In consonance with the principle laid down by the apex Court in the case of Secretary, Ministry of Education, Government of Pakistan, Islamabad and another Versus Muhammad Azam Ch. and another (2009 SCMR 194), the service of an employee could be terminated during probation subject to notice and with reasons therein. The petitioner was served with notice and thereafter was terminated by mentioning reasons in the impugned order. In the case of "Engineer Majeed Ahmed Memon Versus Liaquat University of Medical and Health Sciences Jamshoro and others" (2014 SCMR 1263), the allegation against the employee who was on probation were of malpractice where the apex Court has held that in such circumstances holding of regular inquiry by providing an opportunity to defend himself on the allegations made against him in the show-cause notice, was necessary. But in the case in hand, no such allegations were against the petitioner being punitive in nature regular inquiry was not the requirement of law.
7. More-so, the absence from duty has not been denied by the petitioner rather he contends that his absence from duty was due to unavoidable circumstances for being booked in criminal case as soon as he was acquitted from the case, he approached to the respondents for his reinstatement in service whereas, in such an eventuality, it was held by the Supreme Court that when the absence from duty was admitted there is no need for regular inquiry. Reliance is placed on the case of "Tasawar Hussain Vs. Deputy Commissioner Jehlum and others" "(2023 PLC CS 69), wherein the apex Court has held that: "It is now well settled that where the absence from duty is admitted, there is no need to hold regular inquiry. This aspect has been taken care of by this Court in a recent judgment reported as National Bank of Pakistan v. Zahoor Ahmed (2021 SCMR 144) wherein while relying on an earlier judgment of this Court, it has been held as under: - "In the face of such absence from duty of the respondent, which being admitted, there was no need to hold a regular enquiry because this Court in the case of Federation of Pakistan through Secretary Ministry of Law and Justice Division, Islamabad v. Mamoon Ahmed Malik (2020 SCMR 1154), has already held that where the fact of absence from duty being admitted on the record, there was no need for holding of a regular enquiry for that there was no disputed fact involved to be enquired into."
Reliance may also be placed of on the case of "Chief Engineer, Gujranwala Electric Power Company (GEPCO), Gujranwala Versus Khalid Mehmood" (2023 SCMR 291), wherein it was held by the apex Court that regular inquiry is only needed when there are disputed questions of facts otherwise there is no need for holding a regular inquiry.
8. Adverting to the laches, no doubt the petitioner was involved in the criminal case and has faced the full trial of criminal case but could better approach the respondents and intimate them for his absence even before or after of his arrest in the criminal case. Judgement of the criminal case reflects that petitioner was arrested in the criminal case and supplementary challan was submitted against the petitioner on 30.07.2015 whereas, he remained absent from duty from 08.09.2010 and was terminated from service on 28.12.2010 and was acquitted of the charges of criminal case on 10.03.2017 and file the earlier petition on 13th December, 2017, thus, even the earlier petition was suffering from laches being filed after seven years. Reliance in this regard is placed on the case of "Member (S & R) Chief Settlement Commissioner Board of Revenue versus Sved Ashfaque"Ali (PLD 2003 SC 132), wherein it was held that "writ jurisdiction is undoubtedly discretionary and extra ordinary in nature which may not be invoked by a party who demonstrates a style of slackness and laxity on his part. Furthermore, i f a party does not choose legal remedy available under the Statute strictly speaking Constitutional jurisdiction of the High Court cannot be exercised in his favour. Law is well-settled that a party guilty of gross negligence and lathes is not entitled to the equitable relief" During the course of arguments, it was submitted, that he approached the respondents on 14.04.2016 through his application but this stance is repellant to his contentions because it is obvious from the application that it was submitted on 14.04.2016 wherein it was mentioned that he has been acquitted from the criminal case on 10.03.2017. How could the petitioner mention the date of acquittal earlier to the decision of the case, which shows that no such application was ever submitted to the respondents as alleged by him. Hence, in the above circumstances, the case law relied upon by the learned counsel for petitioner is of no help to the petitioner.
9. In view of the above, the instant petition being devoid of merits, is hereby dismissed.