ABDUL HAMID KHAN (MEMBER): --The appellant, Abbas Ali Mansab, was appointed as Assistant on temporary basis vide order dated 4-2-1989 of the Deputy Director Food, Lahore Region/respondent No. 2. His services were terminated by respondent No. 2 vide order dated 2-5-1990 "due to his unsatisfactory performance during probation period as per conditions laid down in his appointment letter". The departmental representation filed by him was dismissed by the Director Food/respondent No. 1 vide his order dated 12-3-1991 and hence the present appeal.
2. The terms and conditions of appointment contained in the aforesaid order dated 4-2-1989 stipulated, among others, that the services of the appellant could be terminated one month's notice without assigning any reason at any time or on payment of one month's salary in lieu of the notice. He was to remain on probation for a period of two years. The appellant has contended that he was neither served with a month's notice nor was paid a month's salary in lieu thereof which clearly constituted an infringement of the relevant terms and conditions of his appointment. He has also denied that his performance during the period of probation was unsatisfactory. During his brief spell of 14 months' service he had earned only one confidential report wherein his performance had been rated average. The reporting officer had, however, observed that he was a new entrant and was trying "to know office routine/duties earnestly". He has found him honest and also recommended him fit for promotion on turn. The countersigning officer had agreed with the above assessm ent. How in the face of this record respondent No. 1 could say in his appellate order dated 12-3-1991 that during the appellant's posting "the work and the performance of this official was not reportedly satisfactory and during his service of 14 months he could not improve his performance". No other evidence or record could be produced by the respondents in support of their allegation that the appellant's performance during this period was unsatisfactory and that he was an unwilling worker.
3. We have consulted the relevant record. The fact is that at one stage the Superintendent Incharge of Accounts Branch in the Deputy Director Food Lahore's office had especially requisitioned the services of the appellant for posting in that Branch as the then incumbent of the post was not pulling his weight. Only a good and willing worker is sought after. The respondent's action is clearly mala fide and is in the nature of an arbitrary and unjustifiable exercise of the discretionary powers of the authority. In order to justify respondent's orders the learned District Attorney tried in vain to take shelter behind the lone average report of the appellant. The argument, however, could not convince us as in the case reported as PLD 1991 SC 144 the Supreme' Court has held that an average report not being an adverse report is to be treated as a satisfactory report. An average report clearly signifies that there was room for improvement. The appellant should therefore have been counselled, encouraged and provided the necessary guidance to improve his performance.
4. Resultantly, the appeal is accepted, the impugned orders are set aside and the appellant reinstated in service with all back benefits with effect from the date his services were terminated.
There are no orders as to costs.