' Ahmad Khan, Ex-Warder, District Jail, Lahore has made this appeal, under section 4 of the Punjab Service Tribunal's Act 1974, wherein he has impleaded the Superintendent District Jail, Lahore and the Inspector-General (Prisons) Punjab Lahore as respondents.
2. By virtue of this appeal the appellant has prayed that the impugned order, dated Nil (Annexure `B') be set aside. It has further been prayed that the order of respondent No, 2 by which the aforesaid Departmental appeal has been rejected and filed be set aside and the appellant be reinstated in service w. e. f. 17th May, 1984 with full back benefits of pay and allowances.
3. Brief facts of the case are that the appellant was recruited as temporary warder, as stop-gap arrangement and he was placed on the role of the District Jail, Lahore as temporary warder vis-a- vis 10th October, 1980. He continued as such but he was discharged from service w.e.f. 17th May, 1984 vide order of Superintendent, District Jail, Lahore (Annexure "B") as detailed below "Ahmad Khan is on the roll of this Jail as temporary warder since 10th October, 1980. He is an undesirable element and is not regular in performance of his duties as well. He is, therefore, discharged from service with immediate effect, his services being no longer required in the best interest of Jail administration."
' The appellant made an appeal to the Inspector-General (Prisons), Punjab, Lahore which according to the appellant has been filed, consigned to record and the appellant was informed verbally. Hence this appeal.
4. I have heard the parties i. e., Mr. M. A. Riaz, Advocate for the appellant and Mr. Masood Ahmad Ghuman, Deputy District Attorney for the respondents.
5. It has been argued by the learned counsel for the appellant that the appellant was appointed as a temporary warder since 10th October, 1980 and continued working as such till 17th May, 1984, when the appellant was discharged on the ground that he was an undesirable element and not regular in performance of his duties as well. This was not a discharge simplicitor and since definite ground of misconduct was assigned in the impugned order itself, it amounted to removal or dismissal of service which carried a stigma and as such it was necessary for the Departmental Authorities concerned to give the appellant full opportunity of defence against such charges as provided in the Punjab Prisons Subordinate Executive Staff (Efficiency and Discipline) Rules, 1982.
The learned counsel for the appellant has further relied on the judgment of Supreme Court of Pakistan reported as PLD 1974 SC 393 where the law has already been settled that if the service of a civil servant is terminated on account of unsatisfactory work then such termination does not amount to removal or dismissal but if the civil servant was discharged/terminated due to ground of misconduct then such termination amounts to removal or dismissed from service. He has also relied upon the judgment of this Tribunal in the case of Muhammad Zafarullah v. Deputy Inspector General of Police, Multan and has submitted that the case of the appellant is at par with the said reported case and in view of that decision the impugned orders are liable to be set aside.
6. On the other hand the learned Deputy District Attorney has submitted that the appellant was appointed as a temporary warder as a stopgap arrangement as such he could be discharged from service at any time without any show-cause notice and formalities etc. He has pointed out that the discharge of the appellant is a simplicitor discharge and does not amount to removal or dismissal from service, as such it was not necessary for the Department to observe the provisions of Punjab Prisons Subordinate Executive Staff (Efficiency and Discipline) Rules, 1982. The order of discharge of the appellant is a valid and lawful order and no exception can be taken against the same.
7. I have given my anxious thought to the arguments of the parties and have also perused the record of this case carefully. The record of the case shows that an order was passed on 23rd August, 1980 on the application of the appellant, dated 7th August, 1980 that he was recruited as temporary warder as stop-gap arrangement but no definite terms of his appointment were fixed. I have perused the service book of the appellant which shows that the appellant was appointed as temporary warder locally against the existing vacancy w.e.f. 10th October, 1980. He continued as such against this vacancy and earned annual increments every year till he was discharged from the service through the impugned order' in May, 1984. This confirms the status of the appellant as a temporary employee who continued working as such against the existing vacany for about 3 years and 7 months. The impugned order of Superintendent, District Jail, Lahore (Annexure "B") makes it clear that the appellant was discharged from service as he was an undesirable element and not regular in performance of his duties as well. The real issue to be adjudicated is whether this was discharge simplicitor or removal/dismissal on account of misconduct, I am of the confirmed view that the order amounts to the appellant's removal/dismissal from service because the impugned order was passed on the basis of definite charge of misconduct and work. I get support for my this view from the earlier judgment of this Tribunal in the above quoted case of Muhammad Zafarullah v. D. I.-G. Of Police, Multan Briefly the facts of the case were that he was appointed a temporary P.S.I. As like that the appellant, Muhammad Zafarullah was discharged from service on the ground that he earned adverse report for his work and conduct during the year 1972-73 and that his service record and present reputation were clear indications of his unsuitability for retention in service. Similarly the appellant has also been discharged on account of being undesirable element and not regular in performance of his duties. In that case also the order of the respondent was sought to be supported on the ground that the order of his discharge was not tantamount to his removal. On the other hand it was contended in that case that order of the termination was1 2 tantamount to his removal for which the requirements of law as to charge-sheet, departmental enquiry and show-cause notice and also the personal hearing had not been observed. In this case the Punjab Service Tribunal held as follows ' This is an appeal under section 4 of the Punjab Service Tribunal Act, 1974 by the appellant a temporary P. S. I. Since removed from service by the order of D. I.-G. Of Police, Multan Range, dated 8th February, 1975 on the ground that he earned an adverse report for his work and conduct during the year 1972-73 and that his service record and present reputation were clear indications of his unsuitability for retention in service: The appellant also approached the Inspector-General of Police on, 12th March, 1975 against his discharge from service but his representation was rejected on 21st March, 1975 with the observation that there was no technical or legal flaw in the order of discharge in the absence of which the general merits of the order of discharge issued by the competent authority could not be discussed and the representation was accordingly rejected.
' The present appeal as filed before us on 14th March, 1975 seeks to challenge the aforesaid action of the respondent on the ground that the order by him though described as termination was tantamount to removal for which the requirements of law as to charge-sheet, Departmental Inquiry and show-cause notice and also that of personal hearing have not been observed.
Reliance was placed on the following observation of the Supreme Court of Pakistan, reported as PLD 1974 SC 393.
"In my opinion, if the service of a probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in' terms of the contract or the rules made by the Government but if the service of a probationer is terminated on the ground of misconduct that will amount to removal or dismissal. It will be a stigma in his favour, ' In our opinion the ratio of the above decision clearly supports the contention of the appellant inasmuch as the impugned order has been passed on the basis of the objectionable conduct and the bad reputation of the appellant. We accordingly set aside the order and direct the Department to proceed in accordance with law. There will be no order as to costs. Let the parties be informed of this order."
8. As the facts and issue involved in the precedent case are identical with the present case of the appellant, the judgment, dated 15th March, 1977, reported as 1984 PLC (C. S.) 1370; in the precedent case is fully applicable to the present case as well.
9. The result of the above analysis of the case is that the appeal is accepted. The impugned orders are set aside and the case is remanded to the competent authority for proceeding afresh in accordance with the law as indicated above. The appellant is directed to be reinstated in service to bestow upon him the status of a civil servant to enable the authority to proceed against him. The fate of the period for which the appellant remained out of service will also be decided by the competent authority after conducting the proceeding as mentioned above.
' There will be no order as to costs. 1984 PLC (C. S.) 1370 1984 PLC (C. S.) 1370