ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P. No. D- 295 of 2007

DATE ORDER WITH SIGNATURE OF JUDGE

29.10.2009

Syed Muhammad Saulat Rizvi advocate for petitioner

Mr. Hamid Hussain advocate for respondents No.2 and 3.

Through these proceedings the petitioner has impugned the order of the Administrator Hyderabad Municipal Corporation who has awarded major penalty by dispensing with the services of the petitioner under Rule 12(2) of the West Pakistan Municipal Committees Services Rules 1969.

It has been contended by the learned counsel for the petitioner that the petitioner was appointed on probation and during his probationary period he was served with two explanations of the same charges which were replied by him, where after the petitioner’s services were dispensed with by the impugned order. He contended that while passing the impugned order no inquiry was conducted by the Authority and the order was passed awarding major penalty by dispensing with the services of the petitioner. It is further contended that the petitioner was not allowed to examine his witnesses nor had been provided the opportunity to cross examine either the complainant or any other witness of the corporation. He, therefore, contended that in view of the judgment of the Honourable Supreme Court passed in the case of Federation of Pakistan v. Noor Jamal reported in 2004 SCMR 294 (relevant page 298) and Abdul Sattar v. WAPDA reported in 2007 PLC 354 the impugned order is not sustainable in law.

As against this, learned counsel for the respondents has argued that the petitioner was a probationer and during probation the authority has the option to dispense with or terminate his services by serving one months notice. According to him two explanations were issued to the petitioner which were replied; thereafter the petitioner was afforded opportunity of hearing and the impugned order was passed within the parameters of the rules framed under West Pakistan Municipal Committees Services Rules, 1969. Learned Counsel for the respondents has relied upon the judgment passed in the case of Amir Ahmed v. Secretary Finance Division Islamabad reported in 1999 SCMR 114.

We have heard the learned counsel and have perused the record.

The learned counsel for the respondents has candidly conceded that no regular inquiry has been conducted by the competent authority before passing the impugned order. He however submitted that the Petitioner being the probationer, his service could have been terminated by the department on serving of one month’s notice. He submitted that in appropriate cases regular inquiry can be dispensed with.

We have read the impugned order with the assistance of both the learned counsel and we are clear in our mind that no regular inquiry was conducted in the case in hand. The power to terminate the services of a probationer is not in dispute but if such services are terminated with stigma then the right of an employee to contest the notice based on such termination is always available. If the services of a probationer is terminated with stigma then the authority has to justify the termination in terms of the law by conducting regular inquiry as has been held by the Honourable Supreme Court in the case of Federation of Pakistan and Abdul Sattar (supra). A regular inquiry cannot be dispensed with in a case where the major penalty is awarded. The services of the petitioner were dispensed with on the ground of stigma, which ought to be placed on the same footings as termination of the services of a regular employee and the procedure required for awarding major penalty ought to have been adopted by holding regular inquiry. The reliance placed by the learned counsel for the respondents in the case of Bashir Ahmed (supra) is distinct on facts as the employee, who was on probation did not acknowledge the letter and on account of his conduct competent authority had terminated his services with the additional ground that he was terminated on account of mental ailment. The said employee did not approach the Tribunal within time and the Tribunal dismissed his appeal as barred by time against which the employee had approached the Honourable Supreme Court and their Lordship in the aforesaid circumstances held that he has no case for reinstatement.

We, in the given circumstances, are of the view that the impugned order has been passed without holing regular inquiry which cannot be dispensed with even in a case of probationer, if the services of such probationer is dispensed with, inter alia, on the ground of any charge. The manner in which the impugned order has been passed does not prove that the charge has been proved against the petitioner. We, therefore, setaside the order impugned in these proceedings and allow this petition.

We for the aforesaid reasons allow this petition in terms of the prayers of the Petitioner. If the department intends to take action against the petitioner on the basis of the same charges on which his services were dispensed with under the impugned order, it may do so within the span of four months from the date of communication of this order.

JUDGE

Karar/-