Misuse Of Removal From Service (Special,Powers) Ordinance, 2000

MISUSE OF REMOVAL FROM SERVICE (SPECIAL, MISUSE OF REMOVAL FROM SERVICE (SPECIAL, POWERS) ORDINANCE, 2000 By Ch. Bashir Ahmad, Advocate, High Court, Lahore The Removal from Service (Special Powers) Ordinance, 2000, as amended from time to time (hereinafter referred to as the Ordinance), was promulgated with the main object of good governance and for speedy disposal of disciplinary matters. The Ordinance provides in section 3 that where, in the opinion of the competent authority, a person in Government or Corporation service is‑‑ (a) inefficient, or has ceased to be efficient for any reason; (b) guilty of misconduct; or (c) corrupt, or may reasonably be considered as corrupt, the competent authority, after inquiry by the Inquiry Officer/Inquiry Committee appointed under section 5, may by order in the official Gazette dismiss or remove such person from service, compulsorily retire from service or reduce him to lower post or pay scale, or impose one or more minor penalties as prescribed in the Government Servants (Efficiency and Discipline) Rules, 1973, provided that no such action shall be taken except after informing him of the reasons thereof and giving him an opportunity to show cause within 15 days as to why such action should not be taken against him. Under section 15 of the Ordinance, the Federal Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance. The said rules have, not yet been made by the Federal Government. As the rules envisaged under section 15 of the Ordinance have not been made by , the Federal Government, different Government departments/corporations are applying the provisions of the Ordinance in different manner according to their own sweet will. There are reports that in some offices the Ordinance is being used to victimize the officials/officers who are somehow not in good books of the officers who are at the helm of affairs. By introducing amendment in the Civil Servants Act, 1973 and the Ordinance of 2000, it has been provided that no suit, prosecution or other legal proceedings shall be taken against the competent authority or an officer or authority authorised by it for anything which is in good faith done or intended to be done under the Act, the Ordinance or the rules, instructions or order made or proceedings taken shall be called in question in any Court and no injunction shall be granted by any Court in respect of any decision made, or proceedings taken in pursuance of any power conferred by or under the Civil Servants Act, 1973 or the rules made thereunder. In this way absolute and unbridled powers have been given to the "competent authority" to proceed against the persons in Government or Corporation service and the only remedy available to them is a representation/review under section 9 of the Ordinance and ultimately an appeal to the Federal Service Tribunal against the final order. The representation or review under section 9 is available against orders passed by competent authority under section 3 of the Ordinance and no remedy is available against order of suspension under section 4 of the Ordinance, It is pertinent to point out that jurisdiction of the High Court under Article 199 of the Constitution would be available to suspend or set aside order which is unfair, unjust as we'll as contrary to the principles of natural justice. In a similar case of suspension under section 4 of the Ordinance, the Supreme Court has granted leave to appeal to examine the question and the order is reported as 2001 `SCMR 1945. While giving such absolute powers to the competent authority, no corresponding checks against the illegal exercise of powers by such authority or safeguards to the accused persons have been provided against mala fide actions. In cases where an accused feels that the action taken against him is based on mala fide, he cannot be satisfied with the departmental representation/review as no immediate relief in the form of suspension of impugned orders is made available to them and final decision against which an appeal is provided before the Federal Service Tribunal, takes years to culminate. The employees do not have full faith in the working of Service Tribunals as usually the Benches are not complete and the decisions in appeals get delayed for many years. It has been reported in the press that the Federal Service Tribunal is without a Chairman for the last about one month and some Benches are also not complete and virtually no relief is available to affected employees. In some cases the show‑cause notices are issued by the competent authority and orders are passed on the basis of replies submitted by the accused to such show‑cause notices, without issuing any charge‑sheet accompanied by statement of allegations, appointment of Inquiry Officer/Inquiry Committee and without providing reasonable opportunity of hearing to such person as envisaged in section 5 of the Ordinance. When the competent authority passes any order without observing the procedure laid down by the Ordinance, the order passed by such Authority cannot withstand judicial scrutiny. The Superior Courts of Pakistan have already set aside the punishment imposed by competent authority where the proceedings were conducted in violation of the principles and procedure laid down to regulate the inquiry proceedings. Under section 9 of the, Ordinance, a representation/review against the orders passed by the competent authority under section 3 is available within 15 days. The Establishment Division taking notice of non‑observance of the prescribed procedure issued Office Memorandum No.5/4/94/Rev/D‑3, dated 19‑9‑2001 directing that certain essential documents must be sent with the summary of appeal /representations submitted under section 9 against the orders passed under section 3 of the Ordinance. Such essential documents include, (i) charge‑sheet, (ii) reply of the accused to the charge‑sheet, (iii) inquiry report, (iv) show‑cause notice and (v) reply of the accused to the show‑cause notice. In such cases, as stated above, where the proceedings are initiated with the issuance of a show‑cause notice and order is passed by the competent authority on the basis of reply of the accused to the show‑cause notice, there will be no charge‑sheet, no reply of the accused to the charge- sheet and no inquiry report. It is to be noted that the issuance of show‑cause notice comes at the fourth stage after charge‑sheet, reply to charge‑sheet and inquiry report which steps are to be taken prior to the issuance of show‑cause notice but, as stated above, the proceedings under the Ordinance are started in some departments/corporations, with the issuance of show‑cause notice which is not lawful. Being dissatisfied with the procedure followed while initiating proceedings under the Ordinance and taking notice of the judicial scrutiny of such matters where proceedings were conducted in violation of the principles and procedure laid down to regulate the inquiry proceedings and consequential reversal of orders passed by the competent authority on the basis of such proceedings, the Establishment Division issued another Office Memorandum No.13‑2‑/2000‑D‑2, dated 21‑9‑2001 explaining the procedure to be followed while taking action under the Ordinance. Broadly speaking, the procedure as laid down in the Office Memorandum is:‑‑ (1) When it has come to the notice of competent authority that a person has ceased to be efficient or is involved in misconduct or corruption etc., warranting action under section 3(1) of the Ordinance, the competent authority shall take a decision and accord its approval to the initiation of proceedings if in its opinion a case is made out against the accused. (2) Where the competent authority decides to hold an inquiry, formal order of appointment of Inquiry Officer/Inquiry Committee shall be issued. In that case, the prescribed procedure of inquiry as laid down in subsections (1), (2) and (3) of section 5 shall be followed. (3) Formal order of inquiry containing charges/statement of allegations shall be framed by the competent authority and communicated to the accused by the Inquiry Officer/Inquiry Committee. The Inquiry Officer/Inquiry Committee shall require the accused to put in written defense within the prescribed period.