RANA RIFAT SAEED (MEMBER): --The learned counsel had stated that the appellant Major (Retd.)
Muhammad Azam, after retirement from Pak Army, had been selected as System Analyst (B-18) by the FPSC and appointed as such in the MES, Ministry of Defence with effect from 21-7-1991. While serving the respondent-Department, the appellant had passed departmental test for retention in service and he had also received a letter of commendations dated 1-8-1992 in appreciation of his service. He had also completed the probation period of 2 years on 20-7-1993 (A.N.) as per clause 21(4)(2) of APT Rules, 1973 which reads as under: "Provided that, subject to the provisions of proviso to subsection (2) of section 6 of the Civil Servants Act, 1973 in the absence of an order under sub-rule (3), the period of probation shall, on the expiry of the extended period under sub-rule (2), be deemed to have successfully been completed."
2. The learned counsel had mentioned that during the period of appellant's two years' service he had not been conveyed any adverse remarks and it showed that his ACRs were all satisfactory. The mishap of his termination of service vide letter dated 20-7-1993 had only occurred due to the efforts made by her separated wife for which the respondent-Department had gone out of the way and terminated the services of the appellant under section 11(1) (1) of the Civil Servants Ad, 1973 treating perhaps the probation period of 2 years had not been completed by the appellant. He had added that the appellant had joined the service on 21-7-1991 (FN) and up to 20-7-1993 (A.N.) he had cleared the probationary period under section 21(4)(2) of APT Rules, 1973 for which no separate order was required. The learned counsel had clarified that after the closing hours the appellant had been detained in the office for some urgent work. But to his utter surprise he had been delivered the ill-fated termination letter dated 20-7-1993 after the closing hours. Evidently the period of probation of 2 years was over on 20-7-1993 (A.N.) at the closing of the office and by no means it could be further extended beyond closing office hours.
3. The learned counsel had also drawn the attention of the Tribunal to the ACRs for the period 21-7- 1991 to 20-7-1993 initiated by the Reporting Officer on 6-7-1993, whereas it was required to be initiated after 20-7-1993. The ACRs were also countersigned by the next higher officer on 7-7-1993.
He had clarified that how the respondent Department and Reporting Officer could initiate the ACR on 6-7-1993 before the expiry of the ACR period i.e. Before 20-7-1993. The ACR was adverse, but it had never been communicated to the officer during his service period. This showed victimisation and mala fide of the respondent-Department, as they intended to terminate the services of the appellant by every hook or crook, otherwise the performance of the officer was satisfactory, as he had not received any adverse ACR during his service period. He had also referred to the following reported judgments in support of his contention:
(i) 1983 PLC (C.S.) 384.
(ii) 1994 PLC (C.S.) 84.
(iii) PLD 1981 SC 531.
(iv) PLD 1987 SC 304-310.
(v) 1992 PLC (C.S.) 726.
(vi) 1989 SCMR 1443.
He had, therefore, prayed that appeal be accepted and letter of termination which was mala fide be set aside and the appellant be reinstated in service with all back benefits.
4. The learned counsel for the respondent-Department and the departmental representative had stated that the letter of termination was delivered to the appellant on 20-7-1993 during the office hours and there was no evidence that he had been detained and the said letter delivered to him after the closing hours. But the contention of the learned counsel for the appellant was that it was not possible that respondent-Department/Ministry had obtained the approval of the competent authority on the same date and delivered the termination letter to the appellant on the same date.
This was hard to believe and fact was that the appellant had been detained after office hours for delivery of the impugned termination order. They had further mentioned that the ACR was written by the Initiating Officer before the expiry of the period, because he was to proceed abroad, otherwise this could delay the matter, as in any case the formalities for termination of the appellant's service and ACRs were to be completed on or before 20-7-1993, because the performance of the appellant was not up to the mark. They had pleaded that the procedure adopted by the respondent Department was correct and according to rules and services of the appellant were terminated during the office hours. Since there was no justification or merit in the appeal, it should be dismissed with costs.
5. After hearing the parties and examination of the relevant record, it is established that the impugned letter of termination dated 20-7-1993 had been delivered to the appellant after closing hour, and this virtually meant that he had completed the probation period of two years under clause 21(4)(2) of the APT Rules, 1973. The ACRs for the period from 21-7-1991 to ''0-7-1993 had been ilnitiated on 6-7-1993 by the Reporting Officer. This was also not according to rules and showed victimisation by respondent-Department. Accordingly we find that since no adverse remark had been conveyed to the appellant during this period, the termination of his services was through an act of victimisation and mala fide, as it did not have any support of rules. We therefore, accept the appeal, set aside the impugned termination letter dated 20-7-1993, reinstate the appellant into service with effect from the same date and direct the respondent-Department/Ministry to settle the period of his absence under relevant leave rules. However, the respondent-Department will be at liberty to initiate disciplinary proceedings for bad performance and misconduct against the appellant within next 4 months, if it is intended. No order as to costs.