' This revision petition is directed against the judgment and decree, dated 19-7-1979 of the Additional District Judge, Sargodha, in a declaratory suit.
2. The facts relevant for the disposal of this petition may be briefly stated. One Rafiq lodged a complaint, dated 13-3-1971 (Exh.D/1) with the Secretary, Board of Intermediate & Secondary Education, Sargodha, alleging that the petitioner got Rs,450 as illegal gratification from him on the assurance that he would get his friend J. Sarfaraz, passed through the Secondary School Certificate Examination, 1970, with high division notwithstanding the fact that he failed in all the subjects. Consequently, the Secretary directed the Deputy Secretary (I) for immediate investigation and report. This was followed by two applications, dated 13-3-1971, one submitted by Dr. Ali Ahmed accompanied by his statement (Exh.D/2) and the other by Z.A. Jaffri accompanied by his statement (Exh.D/3). The Deputy Secretary (I) also summoned the petitioner to explain his position during the preliminary enquiry. The petitioner specifically denied the allegation.
3. The Deputy Secretary, in his preliminary enquiry report (Exh.D/9), recorded a finding that the petitioner certainly accepted illegal gratification of Rs,450 from said Rafiq. The Deputy Secretary also suo motu opined as follows:-- "Apart from the above it may be stated here that his service carrier in this office is most rubbish.
' He has less than two years' service and is an unconfirmed employee as yet. Soon after his employment in the office he started applying for leave. On eleven different occasions he was granted leave without pay by the Chairman as a punishment. He was administered a severe warning on 15-10-1969 for giving wrong statement in his declaration form. On 1-8-1970 he was administered another severe warning for applying for leave frequently and for showing gross negligence in the performance of his duties. He was administered yet another warning on 4-11-1970 for misbehaving with his officer."
' It was recommended that the services of the petitioner be terminated.
4. The recommendations of the Deputy Secretary were endorsed by the Secretary vide manuscript note, dated 2-4-1971 (Exh.D/10) with the following remarks:-- "As recommended by the D.S.I. above, the services of Mr. Abdur Rehman Bajwa, temporary senior clerk may be terminated after issuing him a show-cause notice for the same."
5. The Chairman agreed with the proposal of the Secretary, vide Exh. D/11 which reads thus:-- "Yes the proposal of the Secretary is hereby accepted."
6. Thereafter, the petitioner was served with a show-cause notice (Exh.D/6). The petitioner denied the allegations in his reply (Exh.D/7) and prayed that he may be allowed to produce defence to prove that the charge of bribe was false and the warnings administered to him were uncalled for and were liable to be withdrawn for which the petitioner's representation was pending with the Board.
7. The Chairman of the Board without providing an opportunity of being heard to the petitioner and holding a regular enquiry into the charges leveled, terminated his services w.e.f, 24-7-1971 on account of "unsatisfactory work and conduct".
8. The petitioner challenged his termination by means of a declaratory suit. The suit was dismissed on the ground that notwith standing the fact that the order of termination was without lawful authority, the civil Court lacked jurisdiction as the same was not passed mala fide and also because the petitioner had no locus standi to file a suit. On appeal, the learned District Judge after re-appraisal of evidence on record, recorded a finding of fact that the order of termination was passed after holding a regular enquiry into the allegations leveled against the petitioner in which he participated and that the civil Court can interfere only where mala fide is found. In view of these findings, the appeal was dismissed.
9. Learned counsel for the petitioner contends that the impugned judgment of the learned District Judge is based on misreading of evidence, inasmuch as, a bare perusal of the record would show that no departmental enquiry was held subsequent to the show-cause notice issued to the petitioner.
10. Learned counsel for the contesting respondents submitted that the petitioner was a probationer, therefore, his services were liable to be terminated at any time if his work or conduct was not satisfactory as contemplated by paragraph 12(2) of the Regulations of the Board which provides that on or before the conclusion of the period of probation of any employee, the Appointing Authority may either confirm such employee with effect from the date of appointment or if his work or conduct has, in its opinion, not been satisfactory, it may dispense with his service, if he has been recruited by direct appointment or may revert him to his former post, if he has been recruited otherwise; or, it may extend the period of probation. It was submitted that the relationship between the petitioner and the respondent Board was that of a master and servant, the petitioner, therefore, had no locus standi to file a suit for restoration of his service and the only remedy available to him was that of filing a suit for damages.
11. I have heard the learned counsel for the parties and perused record with their assistance.
12. Learned counsel for the respondent has frankly conceded that apart from the preliminary enquiry, no enquiry at all was conducted, into the allegations leveled against the petitioner after the issuance of show-cause notice. The record also shows that no enquiry was conducted before passing the order of termination. It appears that the learned District Judge treated the preliminary enquiry before issuance of the show-cause notice as the regular enquiry. The finding on issue No, 4 was, therefore, clearly based on misreading of evidence and is liable to be quashed.
13. The power to dispense with the service of a probationer under paragraph 12(2) of the Regulations of the Board cannot be exercised in violation of the principle of natural justice if the order of termination is passed by way of penalty or a stigma is attached. Refer Muhammad Ibrahim v. Government of Pakistan PLD 1972 SC 332 wherein it was held that Government has the legal authority to terminate an officiating appointment at any time and it may do so for any reason relatable to exigencies of service. No show-cause notice is necessary in such a case. But if it is intended to revert an officer to an inferior post by way of penalty, a show-cause notice is necessary notwithstanding that the appointment to the superior post was in an officiating capacity.
Also see Muhammad Siddiq Javid Chaudhry v. Government of West Pakistan PLD 1974 SC 393 wherein it was held that if the service of a probationer is terminated on the ground of unsatisfactory work, that will not amount to dismissal or removal from service but if the service of a probationer is terminated on the ground of misconduct that will amount to removal or dismissal. In the instant case, the service of the petitioner was terminated on the ground of unsatisfactory work and conduct. The record shows that there were allegations of accepting illegal gratification against the petitioner. In these circumstances, the order terminating his service amounts to dismissal and he was entitled to claim protection of sub-para. 2 of paragraph 11 of the Regulations of the Board which provides that no person shall be dismissed from service until he has been given a reasonable opportunity to defend himself, which the petitioner was clearly denied. The case of the petitioner is not hit by the doctrine of relationship of master and servant in view of the violation of the protection available to him under the above-quoted provisions of the Regulations of the Board. The grievance of the petitioner against his dismissal in the garb of termination is, therefore, justiciable in the civil Court.
' In view of the above, I accept the revision petition and set aside the judgment and decree of the first appellate Court, as well as, that of the trial Court and hold that the service of the petitioner was terminated in violation of paragraph 11 of the Regulations of the respondent Board. It is, however, open to the respondent to take action afresh against the petitioner, in accordance with law. The suit of the petitioner/plaintiff is decreed with no order as to costs.