2008 PLC (C (PLP)

QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).

Appellant had been serving as Divisional Engineer in the P.T.C.L. when he was reverted to the post of Assistant Divisional Engineer and a recovery of Rs.2,87,312 was imposed upon him under Government Servants E&D Rules, 1973 vide order dated 14-12-2001. The appellant preferred a departmental appeal to the Chairman, P.T.C.L. which was not responded, hence, the appellant filed this appeal against the respondents under section 4 of the Service Tribunals Act, 1973 praying to set aside/quash the impugned order, dated 14-12-2001. Subsequently, his departmental appeal was partly accepted vide order, dated 18-6-2002 whereby the order of reversion of the appellant was set aside. However, the order of recovery of Rs.2,87,312 was maintained.

2. In view of the above modification of punishment of the appellant, the learned counsel for the appellant sought amendment of the memo. of appeal which was amended accordingly. Consequently now the appeal of the appellant remains against the order of recovery of penalty.

3. We have heard the learned counsel for the parties and perused the record.

4. The learned counsel for the appellant argued that on the basis of enquiry report two punishments at a time were awarded to the appellant i.e. one for reversion and second for recovery. The learned counsel argued that the major penalty of reversion has since been set aside, there remains against the appellant only a penalty of recovery of the above mentioned amount which is a consequential penalty in character. However, the learned counsel for the respondents has himself pointed out that this is a case of misapplication of law as the charge-sheet dated 18-8-2000 and the order of penalty dated 14-12-2001 both were issued under the Government Servants E&D Rules, 1973 at a time when the Removal from Service (Special Powers) Ordinance, 2000 had already been promulgated, under section 11 of which provisions of Removal from Service (Special Powers) Ordinance, 2000 overrode any other law for the time being in force dealing with the disciplinary proceedings against a civil servant. The learned counsel, therefore, urged that the appeal be remanded to the respondents for proceeding against the appellant in accordance with the provisions of Removal from Service (Special Powers) Ordinance, 2000.

5. The learned counsel for the appellant has not controverted the above mentioned legal position but he has stated that the de novo proceedings against the appellant, if any, shall only be confined to the penalty of recovery of Rs.2,87,312.

6. The disciplinary proceedings against the appellant were initiated and completed under Government Servants (Efficiency and Discipline) Rules, 1973 as against prevailing law i.e. Removal from Service (Special Powers) Ordinance, 2000, were ab initio void and nullity in the eyes of law. We, therefore, set aside the penalty of recovery of the above mentioned amount from the appellant. However, the respondents would be at liberty to hold de novo proceedings against the appellant for recovery of the said amount, but such proceedings shall be taken under the Removal from Service (Special Powers) Ordinance, 2000 and shall be initiated and completed within a period of four months from the date of receipt of a copy of this judgment. No order as to costs. Announced in open Court on this the 1st day of March, 2006.

7. Copies of the judgment be sent to the parties (under registered cover) and to the relevant quarters under Rule 21 of the Service Tribunal (Procedure) Rules, 1974. H.B.T./27/FST Order accordingly.