1. ' JUSTICE MIAN SHAKIRULLAH JAN (CHAIRMAN).---S. Asghar Ali Shah, appellant herein, has filed the instant appeal questioning the termination of his services as Civil Judge through Notification No, SOS-II (S&GAD) 4/(70)94, dated 17-10-1994 and the alleged entries recorded in his A.C.R. For the year 1993.
2. ' Brief facts of the case are that appellant was inducted in the N.-W.F.P. Judiciary on the recommendations of the N.-W.F.P. Public Service Commission in the year 1992 on the terms and conditions of service mentioned in Government of N.-W.F.P. Notification No,SOS-II (S&GAD) S.2(11)/71, dated 29-11-1992. After his appointment, the appellant was posted as Civil Judge-II at Mansehra.
3. On 21-10-1993, the District and Sessions Judge, Mansehra issued a counseling letter to the appellant thereby requiring advising him to send the official correspondence through proper channel, to behave like a good judicial officer and take guidance from the senior judicial officers, to maintain cordial relations with his colleagues particularly the Senior Civil Judge, to observe official etiquettes and discipline and to avoid in-subordination. The appellant was then posted at Peshawar as Civil Judge and during his posting at Peshawar he received two appreciation letters from the Registrar of Peshawar High Court having communication of the appreciation of the then Humble Chief Justice with regard to his good disposal of cases. The Government of N.-W.F.P., however, vide Notification No, SOS-II (S&GAD) 4/70/94, dated 17-10-1994 terminated the services of the appellant on the ground of his unsatisfactory performance where against the appellant preferred a Review Petition before the Governor, N.-W.F.P. But nothing was communicated to him. The appellant has now filed the instant appeal in this Tribunal which was admitted to full hearing on 7-5-1995. The respondents contested the appeal by filing their written statements.
4. ' We have heard the learned counsel for the parties and have also perused the record of the case.
5. ' The point in controversy between the parties is that of necessity of the issuance of non-issuance of the notice, apart form, the merits of the case, before passing of the impugned order of termination of the appellant. The appellant is contending that as no show-cause notice has been issued, hence the order is illegal and void ab initio while the case of the respondents is that as per terms of appointment of the appellant, during the probation period, he was not entitled to any show-cause notice before passing of the impugned termination order. In this respect the Supreme Court of Pakistan has laid down the principles in Muhammad Riaz Khattak v. Government of N.- W.F.P. Through the Chief Secretary and another (Civil Appeal No,66 of 1987) (unreported), Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393) and The Secretary, Government of the Punjab through Secretary Health Department, Lahore and others v. Riaz-ulHaq (1997 SCM R 1552) regarding cases in which show-cause notice need not be issued when services are terminated for unsatisfactory work during period of probation. However, if the reason of termination of the service is unsatisfactory conduct then the requirement of giving show- cause notice to the employee should be fulfilled. In the instant case a term "unsatisfactory performance" has been mentioned in the impugned termination order, which words are alien to the terms of appointment of the appellant and the same term also. Do not find its mention anywhere in the relevant provisions of service laws. The relevant portion of the impugned termination letter is reproduced as under:-- "Whereas the performance of Mr. Asghar Ali Shah; Civil Judge, Peshawar as probationer has been found unsatisfactory."
6. ' Thus, in view of the judgments of the superior Courts, in one case (i,e, termination on the basis of unsatisfactory work) an incumbent has not been held entitled to the issuance of the show-cause notice during the period of probation, whereas in the other case he has been held entitled to the same if the reason of his termination was unsatisfactory conduct. The word herein has been used "unsatisfactory performance" which requires interpretation and elaboration in order to find out that in which category the appellant's, case falls. As mentioned above, there is no mention of the word "performance" in the N.-W.F.P. Civil Servants Act, 1973 or the West Pakistan Civil Service (Judicial Branch) Rules, 1962. However, this word has been used in the Instructions about Confidential Reports, as in para. 2, which relates to the time of writing of report, the word "performance" has been used as under:-- "Time schedule has been laid down so that the remarks are based on the performance of Government Servants during the calender year to which they relate."
7. ' In para. 4, which relates to the minimum period for writing of reports the words "work and conduct" have been mentioned and the relevant portion of which reads as under:-- "The minimum period for the purpose of writing a report on his work and conduct has been prescribed as three months."
8. This indicates that the word "performance" includes both "work and conduct" and which denote that they are interchangeable for each other, i,e, the words "performance" can be used for the words "work and conduct'. In the case of The Secretary. Government of the Punjab through Secretary Health Department, Lahore and others v. Riaz-ul-Haq, (1997 SCM R 1552) though the point was not directly in issue before the august Supreme Court, however, it seems that the words "work and conduct" both have been taken collectively for the word "performance", wherein para. 4 of the judgment at page 1555 the words "work and conduct" used in the termination order of the appellant (reproduced in the judgment) were denoted with the word "performance" and in the concluding part of the said para. It has been observed that:-- "A perusal of the above order indicates that the respondent's services were terminated on the ground that his performance was not found satisfactory and that he failed to prove his innocence... ...
9. 11 Thus, it can safely be held that the word "performance not only denotes the work but it also includes the conduct. In service matters the word "performance" can be termed as wider in sense than the work of a civil servant, as performance can be the doing of something over and above an official work and which may include the conduct. There is no specific allegations in the impugned termination order as to what was required in the performance from the appellant or in other words what was the shortcomings of his performance. Except the observation that performance of the appellant was not satisfactory, there is no specific allegation in this regard. Though the words "unsatisfactory work or conduct" may not be required its detail elaboration in a termination order, but here in this case instead of employing such defined words the term 'performance" has been used which required to be detailed/elaborated to some extent in the impugned termination order.
10. Anyhow, the ambiguity which was left in the impugned termination order has been settled by the comments filed by the respondents. In the comments of respondent No,2 in para. 2 it has been stated that:-- "His work and conduct at Mansehra was not up to the mark. Despite counsellings, warnings and advices no signs of improvements were seen in his work and conduct."
11. ' Similarly, in para. 6 it has been stated that:-- "....The following remarks in the A.C.R. Of the appellant for the year 1993:-- ' He prematurely understands that he knows everything, but sometimes he crosses limits because he does not try to understand his limits. His future posting as Section Officer will be most suitable.
12. He was counselled time and again. Copies of four letters addressed to him are enclosed. He is yet to improve. Duty mentioned in para. 9 in Part I was performed showing of lack of maturity."
13. ' En para. 7 of the comments it has been mentioned that:-- "that the work and conduct of the appellant was found not satisfactory."
14. ' Similarly in Pan II in reply to the grounds of the appeal, in para. 3 of the comments it has been alleged that:--- "The services of the appellant were terminated during probation period for the obvious reasons that work and conduct of the appellant was found unsatisfactory because the appellant had drawn an amount of Rs,60 being expenses of a witness and had spent the same for purchase of towel for his office. The District and Sessions Judge, Mansehra passed an office order dated 44- 1993 directing the appellant that the above withdrawal lack in fact amounted to embezzlement and he was to deposit the same amount for payment to the witness."
15. ' In para. 7 of the comments the following reply has been given:--- "There were number of complaints against the officer while posted at Peshawar. Therefore, the service of the appellant was terminated on 17-10-1994."
16. ' Similarly, the following words have been used in para. 8 of the comments:---"because of unsatisfactory service record...."
17. ' The relevant portion of para. 9 of the comments reads as under:--- "the appellant is immature, lacking legal and Islamic knowledge and is emotional of his own ideology."
18. ' Similar is the comments of respondent No, 1, who in para. 7 of the comments has stated as under:- -- "As reported by the Peshawar High Court, the work and conduct of the appellant during his appointment as Judicial Officer was found unsatisfactory."
19. Thus, it can be said with certainty that the services of the appellant were terminated not only on the basis of his unsatisfactory work but also because of his unsatisfactory conduct and it was incumbent upon the respondents that before inflicting the major penalty of termination from service, they should have afforded an opportunity of defense to the appellant keep rig in view the involvement of factual controversy in the case irrespective of the fact whether or not the services of the appellant were on probation, when it was also a condition in his appointment order that he will be governed by the N.-W.F.P. Government Servant (Efficiency and Discipline) Rules, 1973. When he was liable to be dealt with under the N.-W.F.P. Government Servant (Efficiency and Discipline) Rules, 1973, though a condition in his appointment order for his termination at any time without assigning any reason was there, then he was also liable to be dealt with under the law in prevalence of the abovementioned contrary condition and also keeping in view the factual controversial aspect of the case. In the case of The Secretary, Government of the Punjab through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq (1997 SCM R 1552) their Lordships of the Supreme Court have observed as under:- "Termination of service.---Misconduct--Civil servant's services were on temporary basis liable to be terminated on 30 days' notice or pay in lieu thereof on either side - Services of civil servant were to be governed by statute and Rules/Instructions/Regulations framed thereunder - If a person is employed on contract basis and terms of employment provide the mapper of termination of his services, the same can be terminated in terms thereof - Where, however, a person is to be condemned for misconduct, in that event, even if he is a temporary employee or a person employed on contract basis or probationer, he is entitled to a fair opportunity to clear his position which means that there should be a regular enquiry in terms of Efficiency and Discipline Rules before condemning him for the alleged misconduct."
20. ' Reliance can also be placed on a judgment Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393) wherein it has been held that:-- "Art. 177 - Termination of services - Show-cause notice Probationer's service terminated on ground of unsatisfactory work Such termination not dismissal or removal from service but within domain of contract or Rules made by Government - Services of probationer terminated on ground of misconduct - Such course amount to removal or dismissal and probationer, being stigmatised, protected by Art. 177 - Show-cause notice and proper inquiry against probationer - Necessary in such case."
21. ' In the unreported judgment in the case of Muhammad Riaz Khattak v. Government of N.-W.F.P.
22. Through the Chief Secretary and another (Civil Appeal No, 66 of 1987) the august Supreme Court has held as under:-- "It is clear to us, however, that the order of termination is, inter alia, based on the ground that the conduct of the appellant was unsatisfactory and that the order passed is not a termination of service simplicitor but an order dispensing with his service with a stigma. Hence the appellant was entitled to show cause against the allegations of unsatisfactory work and his misconduct."
23. Therefore, we are of the view, that in the interest of justice the appellant should have been issued a show-cause notice and allowed an opportunity of proper defense even if he was on probation. The impugned notification, is, therefore, not in accordance with law and is liable to be set aside and we order accordingly.
24. ' From perusal of the record it is evident that the appellant was given only one counseling by the District and Sessions Judge, Mansehra vide his letter dated '21-10-1993 while he was serving as Civil Judge-II, at Mansehra and in reply the appellant undertook to seek guidance from his superiors and to be careful in future. Later on, the same officer recorded adverse remarks in the A.C.R. Of the appellant for the year 1993 which were never communicated to the appellant, but on 17-11-1994 his services were terminated. The District and Sessions Judge, Mansehra in his remarks gave reference to the letters issued to the appellant for his counseling and suggested his future posting as Section Officer because he has yet to improve. By now it is well-established that non-communication of adverse entries to an employee resulting into his deprivation of representing against, such adverse remarks in the character roll could not be utilized to his prejudice and also could not be pressed into service for terminating the services of an employee. In this case, the adverse remarks were not communicated to the appellant, and therefore, it was not only unusual, but unfair and also in gross-violation of the relevant instructions regulating initiation, countersigning and communication of adverse remarks to the incumbent (appellant). The adverse remarks recorded in the A.C.R. Of the appellant for the year 1993 are also liable to be ignored for the reasons mentioned above.
25. ' The net result of the above discussion is that the appeal of the appellant is accepted, the impugned Notification dated 17-10-1994 with regard to termination of services of the appellant is set aside, he is re-instated in service and the adverse remarks recorded in the A.C.R. Of the appellant for the year 1993 could not be taken into consideration for determining his performance so long as these remain uncommunicated to the appellant. This, however, will not preclude the appointing authority from taking action against the appellant afresh, if so advised, in accordance with law.