1. ABDUL KADIR SHAIKH, J.--The petitioner, Mrs. Razia Abbas claims to have been originally appointed as a Professor of Persian in the Lady Brabourne College, Calcutta on the 11th of September 1939; she was however, appointed as a Senior Lecturer in Persian in the Central Government College for Women in Karachi, by the Ministry of Education and Industry (Education Division) Government of Pakistan on 10th of March 1951. She was confirmed in that post by the order dated the 10th of March 1951, with effect from the date of appointment. During her service she also officiated as the Principal of the said Institution for ten months from 1st April 1950. While serving in the College, she fell ill, and proceeded on medical leave w,e,f, 6th February 1956, for 4 months, which period was extended up to the 30th of June 1958. It is the case of the petitioner that she was not declared physically fit by the Physician to resume duty, and she had to apply from time to time for the extension of leave on medical ground until the 31st of December 1962, but she was suddenly informed by the Director of Education, Karachi, under letter dated the 14th of March 1962, that having remained continuously absent from duty for more than five years, she ceased to be in Government service.
2. Against this order she made representation to the Government challenging its legality and the propriety with the result that on the 20th of November 1962, the Provincial Governor issued a fresh order under the provisions of Fundamental Rule 18 to the effect that "she ceased to be in Government employ for continued absence from duty, whether with or without leave, for more than 5 years from 6-2-1956."
3. Against this, she again made several representations to the Government, but all these were rejected and she was finally informed by the impugned order dated the 7th of December 1964, that she was not even entitled to pension or gratuity.
4. In this Petition under Article 98 of the Constitution, she has challenged the order by which she "ceased to be in Government service" on several grounds, inter alia : (i)that Fundamental Rule 18 is in conflict with Articles 177 (1) (a) (b) and 178(2) (3) of the Constitution, and, therefore, the action taken thereunder is ipso facto unconstitutional.
5. (ii)that the Provincial Governor was not the competent authority to pass an order in respect of the petitioner's service under Fundamental Rule 18, because only the President of Pakistan had such authority, if any, (iii)that there has been a clear violation of the Rules of Natural Justice, in that the petitioner was not even heard before the order was passed, which has the effect of making the removal of the petitioner from service without lawful authority.
6. It is admitted that the petitioner was confirmed as the Senior Lecturer in Persian in the Central Government College for Women in Karachi with effect from the 8th of August 1950, and that she was on leave up to the 30th of June 1958. It is however asserted on behalf of the respondents that when she applied for further extension of leave, the Director of Health Services, East Pakistan, Dacca was requested by the Directorate of the Central Government Educational Institution, Karachi, through letter dated the 4th of June 1960, to arrange for the medical examination of the petitioner, and furnish her medical report; so that the question of her further leave could be decided. In furtherance thereto, the Director, Health Services, East Pakistan, Dacca "reported that the petitioner was being asked to arrange to appear before the Board on 31-10-60".
7. It is the case of the respondents that the petitioner failed to appear, and as no medical report was received, the leave was not granted to the petitioner beyond the 30th of June 1958, and as she had remained continuously absent for a period of more than 5 years, action under Fundamental Rule 18 was permissible in law. It is, however, admitted that before the impugned order dated 20-11-62 was passed neither any Departmental Enquiry was conducted nor was the petitioner given a chance of being heard.
8. As to the first order in the series, passed L y the Director of Education, Karachi on 14-3-1962 declaring that the petitioner having continuously remained absent from duty for more than five years, she ceased to be in Government service, there can be no doubt that it is illegal because the Director of Education, not being the Officer who had appointed the petitioner, was not competent in law to remove her, or otherwise terminate her service. This seems to be the position of the Department itself as it was obviously for this reason that the Provincial Governor passed the subsequent order dated the 20th of November 1962, under the provisions of Fundamental Rule 18.
9. The question that firstly arises is whether this order could have been passed in law without a Departmental Enquiry in other words, whether it violates the constitutional guarantees contained in Article 177 (1) (b) of the 1962-Constitution.
10. It was the contention of Mr. A. K. Brohi, the learned counsel for the petitioner, that the Provincial Governor had not even the authority to pass the order under Fundamental Rule 18, as the petitioner was an employee of the Central Government and continued to be governed by the rules that were applicable to her on the day she was appointed. He contended that even if it is assumed that after the merger of Karachi into the Province of West Pakistan, the petitioner was deemed to be an employee of the Provincial Government, yet the terms and conditions of service on which she was appointed authorised only the President of Pakistan to take action under Fundamental Rule 18. This rule reads as follows : "Unless the Governor-General in view of the special circumstances of the case, shall otherwise determine, after five years' continuous absence from duty; elsewhere than on foreign service in Pakistan, whether with or without leave a Government servant ceases to be in Government employ."
11. The learned Additional Advocate-General, on the other hand vehemently argued that under the provisions of the West Pakistan Administrative (Merger of the Federal Territory of Pakistan) Order, 1961, the petitioner became the employee of the Provincial Government, and the Provincial Governor had power to award any punishment or penalty to her under the authority specifically granted to him under paragraph 8 (2) (c) of the Order. But even if the contention of the learned Additional Advocate-General is assumed to be correct, the question would yet arise if the impugned order violated the guarantee contained in Article 177 (a) (b) of the 1962-Constitution, and we would rather examine this question first.
12. In order to do so, it would be convenient to reproduce the impugned order dated the 20th of November 1962.
13. "Under the provisions of Fundamental Rule 18 of section 1, Chaprer II, as applicable to Karachi area, the Governor of West Pakistan is pleased to order that Mrs. Razia Abbas Ahmed, Senior Lecturer in Persian, Central Government College for Women, Karachi, ceases to be in Government employ for continuous absence from duty, whether with or without leave, for more than five years from 6-2-56.
14. The officer concerned shall however be entitled to gratuity/pension as may be admissible to her under the rules."
15. It was vehemently urged by the learned Additional Advocate-General that this order does not amount to an order of removal of the petitioner from service and, therefore, the provisions of Article 177 of the Constitution are not attracted. We are not impressed by this argument for the simple reason that although the order is couched in different words, namely, that the petitioner "ceases to be in Government employ," yet it has the clear effect of directing petitioner's removal from service.
16. The order does separate the petitioner from the office she was holding on permanent basis. It is well settled that in order to examine if an order amounts to "dismissal", "removal", or 'reduction in rank', what has to be seen is the substance, not the phraseology, and if the order has the effect of making the severance of the holder of the post from the post or service, it would amount to removal, even though ostensibly the order is couched in innocuous terms. It would be further seen that the order passed against the petitioner was for the reason that she had remained on leave, with or without permission, for a period beyond five years ; it was thus passed as a result of penalty or punishment being imposed on her. This would even amount to an order of dismissal of the petitioner from service.
17. In any case, since it operates as a severance of the petitioner from the post she was holding, over which she had a lawful claim on permanent basis, it is clearly an order of removal of the petitioner from service in the meaning of Article 177 of the Constitution.
18. It was further argued that the order was not as a result of penalty or punishment, so as to require a Departmental Enquiry. But it would be seen that the Constitution makes no difference' between a removal from service as a punishment, and the one without punishment. The mandate clearly is that a holder of a civil post "shall not be dismissed or removed from service, or be 'B reduced in rank, unless he has been given reasonable opportunity) of showing cause against the action proposed to be taken in respect to him".
19. It was held by Mr. Justice B. Z. Kaikaus of the Supreme Court in Ghula'n Sarwar v. Pakistan that-- "Every termination of service is a punishment for the employee because it inflicts harm on him. That is the criterion for deciding whether it is punishment or not and not whether it is a result of disciplinary proceedings. The servant places a value upon his employment and if he is deprived of it he stands punished. The Classification Rules do not at all envisage that such a punishment be imposed without going through the proceedings provided i1 the rules and the same is the assumption of section 240."
20. In the words of the then Chief Justice of the Supreme Court, Mr. Justice A. R. Cornelius in the same case--1 "the claim to an absolute and unfettered power of discharge by notice, without assignment or even ascertainment of reasons is inconsistent with the provisions of section 240 (3) (Government of India Act, 1935)."
21. Since admittedly no opportunity whatever was given to the petitioner of showing cause against the proposed action, before the impugned order was passed by the Provincial Governor on the 20th November 1962, there was a clear violation of the constitutional guarantee contained in Article 177
(b) and we, therefore, hold that the order passed was without lawful authority.
22. It was vehemently contended by the learned Additional Advocate-General that since the petitioner has been guilty of laches in resorting to this constitutional remedy, she has forfeited claim to the relief. We have no hesitation in rejecting this plea, as we cannot find fault with the petitioner in this regard. Before approaching this Court, she made representations, time and again, in regard to the ventilation of her rights and she was informed finally through the letter dated the 7th of December 1964, that she was even not entitled to any pension or gratuity. It was then sought to be contended that in the Departmental representation she had given up her claim to the post. This also is incorrect because there is nothing before us on which we can hold that she had given up the claim completely, without any reservation.
23. For these reasons we hold that the impugned order dated the 20th of November 1962, is without lawful authority and of no legal effect, and the petitioner shall be deemed to be still in service as a senior lecturer in Persian in the Central Government College for Women in Karachi.
24. This petition thus succeeds and is accordingly allowed with costs. PLD 1962 SC 142