ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following circumstances.
1. The appellant after obtaining his M.Sc. Degree was appointed as an Agricultural Assistant in the Department of Agriculture, Government of Punjab on 15-1-1958. In course of time he was promoted and was working as an Agricultural Economist, Directorate of Farm Water Management Development Project, Lahore. The respondent No. 2 a firm represented to the Government of the Punjab, respondent No. 1 on 26-7-1977 that they were one of the Pesticides Distributors in the private sector appointed- by the Government of the Punjab for sale of Pesticides and Sprayer etc. And to provide training and other services to farmers, the services of the appellant may be loaned to them. The Government of the Punjab placed the services of the appellant "at the disposal" of the respondent No. 2 "on deputation for two years with effect from 4-8-1977 on the usual term and conditions circulated by the 'Government of the Punjab, Finance Department letter No. FD-SR- II6(57)/73-2785, dated 9-2-1974". This is vide order dated 3-8-1977. The appellant joined the respondent No. 2 and was working with it when on 3-10-1978 the respondent No. 1 recalled the appellant for duty in the Agriculture Department. On 23-11-1978 a letter was issued to the appellant by the respondent to the following effect: "It is observed with regard that you have not cared to report for duty in this department so far, you are, therefore, requested once again called upon to comply with the Government order directing you to rejoin your department by 10-12-1978 without fail.
It is hereby made clear to you that your failure to comply with the Government orders amounting to mis-conduct which may attract disciplinary action against you under E & D Rules."
The appellant requested the respondent No. 1 to direct the respondent No. 2 to relieve the appellant as he could not just leave duties with respondent No. 2 as he might be liable under Rule 10 of the Punjab Civil Servants (E&D) Rules, 1975. The respondent No. 2 on its part vide memorandum dated 9-12-1978 represented to the respondent No. 1 that the services of the appellant were lent for two years. They entrusted their pesticides worth lakhs of rupees which were sold to dealers and the farmers on cash and credit basis throughout the Punjab province and have yet to collect the sale price. It was stated that "we are surprised to learn that the agriculture department all of a sudden ordered the said officers to rejoin the department by 10-12-1978 without fail. This act of the department is unilateral and arbitrary as it ignores our financial involvement through them. In case they are called back we will be left high and dry and without proper arrangement to collect our dues from the dealers and farmers. This will cause us irreparable loss, as such we are not in a position to relieve them at this stage. We, therefore, request you to please reconsider the position and rescind your decision and save us from the financial loss". However on 13-12-1978 respondent No. 1 issued a memorandum to the respondent No. 2 that "it has been desired by Government that the officers of this department serving with you on deputation must report back for duty in this department. They have already been repeatedly served with notices issued in this behalf, but they have failed to comply. You are now advised in your own interest as well as the interest of the employees concerned to relieve them immediately with the direction to report to this department for duty immediately". On 20-5-1979 the appellant was issued a show-cause notice by an enquiry officer appointed by respondent No. 1 to explain "in black and white within seven days of the issue of this letter as to why severe disciplinary action should not be taken against you on account of gross negligence/misconduct under E&D Rules, 1975." It was added that if the appellant desired "to be heard in person you are allowed to appear before the undersigned within this period". The appellant submitted the reply pointing out that he had joined the respondent's firm on deputation under legal orders of the Government. He did not join the firm on his own request but was sent to the firm by the Government. He was not in a position to report back to the department unless he was relieved by the firm. It was requested that "the firm may kindly be directed to relieve him so as to enable him to join back the department". It was requested that the Enquiry Officer may approach the Government for directing the respondent No. 2 to relieve him as early as possible as he was not in a position to join back at his own accord because pesticides etc. Worth Rs.5,00,000 of the respondent No. 2 had been given on credit to the dealers and growers and the amount was still recoverable. If he left the amount un-recovered the respondent No. 2 will hold him responsible for the loss. He requested that he may be "given date and time to enable him to appear in person."
This is dated 26-5-1979 . On 10-&1979 the respondent No. 2 again requested the respondent No. 1 to extend the period of deputation expiring on 3-8-1979 for at least six months further so that the respondent No. 2 could recover their sale proceeds of pesticides. However, vide order dated 15-7- 1979 the appellant was dismissed from service by the respondent No. 1. The appellant filed a review petition which was rejected on 30-8-1980. He filed an appeal before the Punjab Service Tribunal. It failed on 30-5-1982. He filed civil petition for Special Leave to Appeal in this Court. It was granted on 16-8-1988 "to examine whether in dismissing the petitioner, the respondent did not act in contravention of its own undertaking, sending on deputation the petitioner for two years, unilaterally recalling him from such deputation, failing to respond to any of the genuine causes given by the petitioner or the employer to whom he was deputed. The order recalling him from deputation is also not expressed to be in public interest so as to account for the unilateral repudiation of the terms ofdeputation."
2. Learned counsel for the appellant emphasised and elaborated the points noted in the leave granting order. He submitted that the appellant was sent on deputation-to the respondent No. 2 vide order dated 3-8-1977 for two years w.e.f. 4-8-1977 ending on 3-8-1979. Before expiry of the period of the deputation, the appellant was recalled vide order dated 3-10-1978. Not only this could not be done without any cause but the appellant could not leave the service of the respondent No. 2 to whom the services of the appellant were lent and he was sent on deputation. Unless he was to be relieved by the respondent No. 2, the appellant could not just leave the service of the respondent' No. 2. It was submitted that the Government may have a right to recall an officer sent on deputation but that has to be done when either the exigencies of the Government Department so require in public interest or the authority or the body to which the services of a Government servant have been lent and he had been sent on deputation to it, relieve him. When the deputation is for a fixed period it cannot be put to an end before the expiry of the period of the deputation. The authority or body to which an officer is sent on deputation may be landed in trouble and officer also liable. Termination of deputation before time can only be reasonably done with the consent of the two parties. Right if any of recall before time cannot be arbitrarily exercised by a Government of Laws. In any case, a deputationist cannot on his own leave the job to which he has been sent. He placed reliance on "Muhammad Shari v. Plant Protection Advisor and Director, Department of Plant Protection, Government of Pakistan" 1985 SCM R 1893 and "Moulvi Ali Gohar v. The Crown" 1969 SCM R 501.
3. Learned counsel for the respondent No. 1 has submitted that the Government changed its policy not to send its officer on deputation to private firms. But this decision admittedly was taken after the appellant had been sent on deputation.
4. We have heard the learned counsel for the parties and perused the record with their assistance.
It is quite clear that the appellant was sent on deputation by the respondent No. 1 to the respondent No. 2 vide letter of the respondent No. 1 dated 3-&1977 for two years. The arrangement involved three parties; Government, its officer and the body to which the officer was deputed. The Government may have a right to recall its officer but it has to exercise this right for reason, not on whim or change of mind and in consultation or with consent of the body to which it had sent its officer, because the body may have arranged its affairs in such a manner that a sudden recall of the officer may land it in trouble or losses as in this case the respondent No. 2 had provided pesticides to farmers on loan through the officer who was yet to recover the amounts. The respondent No. 1 gave no reason for recall of the appellant nor responded to the representation of the respondent No. 2. Governments function rationally and responsibly--not arbitrarily and swayed with the feel of power. It may have power to do something or recall its officer but if it exercises its power without consideration of loss to others unreasonably or without showing a sense of responsibility befitting a Government, it loses much of its credibility and ability to govern in accordance with law. The appellant was sent on deputation for two years. Before the expiry of the period; he was ordered to report back. He said that he was willing to do so, but asked the respondent No. 2 to whom he had been sent to serve to relieve him. The respondent No. 2 did not relieve him. It continued representing to the respondent No. 1 that the recall was uncalled for.
Nevertheless, the appellant was dismissed for not reporting back. How could he do so without being relieved by the respondent No. 2. Even a guest does not abruptly leave until he gets consent of the host. Can a Physicist deputed to work in an atomic Centre when recalled leave the Centre without permission and entrusting the job in his hand to another responsible person. If he were to do so, damage may lie enormous. Who would be responsible? The Tribunal in dismissing the appellant's appeal took into consideration that employment with private firms is lucrative. That may be so. But that does not affect the principles governing and regulating deputation. The appellant was asked whether he would like to be heard in person to explain his position. He said; yes, and asked for time and date. He was not replied. His twenty one years' service was short- shifted apparently for annoyance that he did not report back when called upon which he could not do without being relieved by the respondent No. 2 to whom he was sent to serve. Therefore, in all the circumstances of the case this appeal deserves acceptance. It is so ordered with costs through out. In view of second proviso to section 16 of the Punjab Civil Servants Act, 1974, the appellant will be entitled to salary, subject to adjustment of the remuneration received from the respondent No. 2.
RUSTAM S. SIDHWA, J.---I have read the judgment of my learned brother A.S. Salam, J. And agree with his finding that Muhammad Hafeez Javid appellant be reinstated in service. However, as regards certain observations made by my learned brother over and above the factual appraisal of the case or the law on the subject, I would add that they may be treated as personal to the author Judge.
In view of the second proviso to section 16 of the Punjab Civil Servants Act, 1974, it is necessary for this Court to determine whether the appellant should be entitled to arrears of pay and, if so , to what extent. It is unlikely that the appellant remained idle throughout the period of his dismissal.
Whilst applying the said proviso, I would suggest that the period of , his dismissal may be treated as leave without pay, after adjusting the leave due I to him.
MUHAMMAD AFZAL LONE, J,---1 agree with my brother Rustam S. Sidhwa, J.
ORDER OF THE COURT The appeal is allowed. But as regard salary during the period of dismissal by majority it is directed that the period of dismissal may be treated as leave without pay after adjusting the leave due to him.