Introduction:
As a general rule, it is incumbent
upon every administrative or executive body to observe the golden principle of
natural justice AUDI ALETERM PARTEM which means listen to the other side. The
principle requires that the person must be informed about such proceedings and
the charges or grounds on which such proceeding is based.
Similarly, in the Law of Civil
Services, the Government authorities is required to give notice to Civil
Servant before terminating him from his Service. However, there are certain
situations in which the Law grants power to Government to terminate a Civil
Servant without notice.
Relevant Provisions / Laws:
Sections 11, 11A, 11B, 12, 12A of the Civil Servants Act
1973.
Cross Reference:
Sections 11, 11A, 11B, 12, 12A of the Khyber Pakhtunkhwa
Civil Servants Act 1973.
Meaning of Termination of Service:
It
means the end of the relationship between employer and employee regarding
Service or come to an end.
Under Civil Services Laws the term
termination of Service means, the removal of a Civil Servant from his Service.
Civil Servant:
According to section 2 (d) of the Civil
Servants Act 1973, a Civil Servant means a person who is a member of
·
An all-Pakistan Service, or
·
Who holds a Civil post in connection with the
affairs of the federation including any such post connected with defense.
v But does not include
·
A person who is on deputation to the federation
from any Province or other authority.
·
A person who is employed on a contract or
work charge basis, or who is paid from contingencies or
·
A person who is a worker or workman as
defined in the Factories Act 1934 or the Workman’s Compensation Act 1923.
Termination of Civil Servant:
The termination of a Civil Servant
may either be termination with notice or termination without notice.
·
Termination with Notice:
Generally, A Civil Servant may be
terminated / removed from his Service, If he is guilty of misconduct,
inefficiency, corruption, etc. However, for this purpose, an inquiry by the
authorized officer has to be taken and a notice to this effect has to be given.
Moreover, the Civil Servant must
be given an opportunity of being heard by authority and the decision of removal
shall be taken in accordance with universally accepted judicial principles
including the principles of natural justice.
·
Termination Without Notice:
The Services of Civil Servants may
be terminated without notice in the following cases.
1)
Termination of Civil Servant
During the Period Of Probation:
The Services of a Civil Servant may
be terminated without any notice, during the initial or extended period of
Probation.
2)
Initial Period of Probation:
In the case of initial
recruitment, a Civil Servant has to go through a specified period of testing,
and upon the successful completion of such testing period, he is confirmed in his
Service, such period is called Probation.
A Civil Servant may be terminated
from Service without any notice given to him during the initial period of
Probation.
3)
Extended period of Probation:
The appointing authority the extends
the period of Probation not exceeding one (1) year on the completion if initial
period of Probation. The appointing authority may terminate the Services of a
Civil Servant during the extended period of Probation without any notice.
·
Termination of Civil Servant on Expiry of
Initial or Extended Period of Probation:
A Civil Servant may be terminated
from Service on the expiry of initial or extended period of Probation without
notice.
Limitations on Termination of Probationer:
Where an appointment of a Civil
Servant was made through transfer or Promotion against an existing post and it
has a requirement of a probationary period. In such a case a Civil Servant
shall not be terminated so long as he holds a lien against his former post and
he shall be reverted / sent back to his former post.
Termination of Ad-Hoc Appointment Liable to Terminate In
New Appointment:
When the appointment of a Civil
Servant is made on Ad-Hoc terminable on the appointment of a person, on the
recommendation of the selection authority, and that appointment is made then
the Services of such a Civil Servant may be determined without notice.
Where no such appointment is made
Ad-Hoc appointee has a right to continue and he cannot be terminated without
notice [1991 SCMR 3230].
Termination of The Abolition of a Post or Reduction in
Number of Posts:
If a certain post is being abolished or the number of
posts in a Cadre or Service are being reduced, the Services of the most junior
officer in such Cadre shall be terminated without notice
[1996 PLC (CS) 1029].
Termination of employees under section 11 of the Civil
Servants Act 1973 has established the principle of “Last in First go” [NLR 2003
TD (CS) 223].
Limitations on The Abolition of Posts Etc.:
A Civil Servant who is rendered
surplus as a result of re-organization or abolition of a division, department, office,
or abolition of posts in pursuance of government decision may be appointed to a
post currying basic pay scale (BPS) to the post held by him before such
appointment if possess the qualifications and fulfill other conditions
applicable to that post.
Where no equivalent post is
available, he may be offered a lower post and when he is appointed to the lower
post, the pay being drawn by him in the higher post before the termination
shall be protected.
Termination of Contract Basis Appointment:
A Civil Servant may be terminated
from his Service without any notice on the completion of project for which he
was employed.
Termination of Service Or Civil Servant In Temporary
Employment Or Ad-Hoc Appointment:
The Service of a Civil Servant in
temporary employment or an ad-hoc appointment shall be liable to termination on
fourteen (14) days’ notice or pay in lieu thereof.
Termination of Civil Servant on The Ground of Misconduct:
Termination of temporary employee,
ad-hoc appointee, Probationer on ground of misconduct by invoking section 11
(3) of the Civil Servants Act 1973 cannot be made without recourse to procedure
prescribed of the Government Servants (E & D) rules 1973.
[1987 PLC (CS) 756 FST].
Termination of Civil Servant on The Advice Of FPSC:
Where the appointing authority is
of the opinion that the appointment of a person to a Civil post was made without
observing the codal formalities and qualifications etc. The authority may send
a reference to FPSC for determination whether the appointee is fit to hold the
post or not, or fit to hold any other post compatible with his qualifications
and experience. The appointing authority may terminate the appointee on the
advice of FPSC after the opportunity of show cause.
Where the appointing authority, on
the advice of FPSC, appoints the person under consideration to a post
compatible with his qualification, etc. his appointment shall be treated as a fresh
appointment for all purposes i.e. Seniority, etc.
Reversions to A Lower Grade or Service:
Reversions to a lower grade or
Service means sent back to lower position.
Any Civil Servant who is appointed
to a higher post or grade.
On an ad-hoc basis or Temporary or
Officiating basis shall be liable to Reversion to his lower post or grade
without notice.
Conclusion:
By the above discussion, it can be
included that a Civil Servant may be terminated without notice from Service
during or on expiry of the initial or extended period of Probation, whether his
appointment is made by initial recruitment, Promotion, or transfer to post
Service or Cadre, if he failed to prove himself fit for the post he may also be
terminated without notice if his appointment is an ad-hoc basis, temporary and
contract basis.
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