2007 PLP (C (PLC(CS))

MUHAMMAD NAWAZ ABBASI, J.

These appeals by leave of the Court have been directed against the judgment dated 3-10-2002 passed by the Federal Service Tribunal, Islamabad, whereby the appeals of the appellants before the Tribunal against the departmental punishment of two steps reduction in time scale for a period of two years with recovery of Rs.78,165 and Rs.1,71,127 respectively awarded to them, were dismissed. Leave to appeals was granted by this Court vide order, dated 27-9-2004 as under: "The petitioner seeks leave to appeal from the common judgment dated 3-12-2002 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeals Nos.51(P)/CS of 2001 and 52(P)/CS of 2001. (2) The petitioners are officers of WAPDA. They were proceeded against on certain charges under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 (hereinafter referred to as the Efficiency and Discipline Rules). They were issued show-cause notices dated 25-9-2000 and 11-9-2000 respectively. They submitted their replies thereto. By separate orders dated 4-12- 2000, passed by the Member, Finance, WAPDA they were awarded major penalty of two steps down in their time scale for a period of two years without accumulative effect coupled with a recovery of Rs. 78,165 and Rs.1,71,127 in lump sum respectively. The petitioners preferred Appeals Nos.51(P)/CS of 2001 and 52(P)/CS of 2001 thereagainst which were dismissed by the Tribunal by the impugned judgment, dated 3-10-2002. Hence these petitions for leave to appeal. (3) The learned counsel for the petitioners contended, inter alia, that in view of section 11 of Removal from Service (Special Powers) Ordinance, 2000, promulgated w.e.f. 27-5-2000, the respondents were devoid of any power to take disciplinary proceedings against the petitioners under the Efficiency and Discipline Rules. It was further submitted that the facts and circumstances of the case called for holding of regular inquiry into the charges against the petitioners. Therefore, the recourse to the procedure of Efficiency and Discipline Rules, adopted by the respondents was wholly unwarranted. Reference was made to the judgment of this Court in the case of Pakistan International Airlines Corporation through Managing Director PIAC, Head Office, Karachi Airport, Karachi v. Ms. Shaista Naheed 2004 PLC (C.S.)

344. The learned counsel also brought to our notice that leave to appeal had already been granted in a similar case of WAPDA v. Muhammad Sharif (C.P. No.1991 of 2002). (4) On the other hand the learned counsel for the respondents controverted the position taken by the petitioners. (5) After hearing the learned counsel for the parties at some length, leave to appeal is granted to consider the above contentions of the learned counsel for the petitioners."

2. Learned counsel for the appellants contended that in view of the provision of section 11 of Removal from Service (Special Powers) Ordinance, 2000 (hereinafter called "the Ordinance") promulgated on 27-5-2000, the proceedings under the WAPDA Employees (Efficiency and Discipline) Rules, 1978 were not legal and that this Court in a similar case Azizullah Memon v. Province of Sindh and another C.P. No.220-K of 2005 held as under:-- "In the presence of express and specific language employed in the Ordinance neither the departmental authorities nor the Tribunal bothered to notice that after the date of promulgation of the Ordinance all disciplinary proceedings should have been initiated under the Ordinance rather than the old Rules enforced in 1973. This Court has already ruled in a number of judgments that this Ordinance has the overriding effect over all other laws on the subject except in case of proceedings, which were already pending before promulgation of the Ordinance. Since the impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it has vitiated the entire proceeding including the final order, which cannot be sustained under the law. The proceedings as well as final order is, therefore, liable to be set aside."

3. Learned counsel for the respondents on the other hand has contended that there was no material difference in parallel provisions in the Ordinance, and the rules, therefore, no prejudice was caused to the appellants and the defect in the departmental proceedings pointed out, being of technical nature, would have of no consequence to declare the order illegal or coram non judice. The legal position regarding the validity of the proceedings under any other law after the enforcement of the (ibid) Ordinance has been settled by this Court in the judgment referred above I.G. HQ Frontier Corps v. Ghulam Hussain 2004 SCMR 1397. Be that as it may, the learned counsel for the parties in the present case have jointly requested for decision of these petitions on merits.

4. We having heard the learned counsel, have found that nothing was brought on record to show that who was 'legally responsible to maintain the record of Labour working at the site for payment of their wages or, what was the method of employment of the labour at the site and preparation of vouchers for payments to ascertain the correct factual position and fix the responsibility of the appellants in performance of their duty. The learned counsel for the appellants has not been able to show us that either the amount in respect of wages of labour was sanctioned beyond the sanctioned strength or the appellants were required to pass the bills for payment after physical verification of the labour, at the site or that due to their negligence, loss was caused to the Organisation. Certainly, there is no evidence on record to suggest that appellants were directly responsible for causing loss to the exchequer but since they were found careless in the matter of payment of wages, therefore, we could not take any exception to the finding of the Tribunal to the finding to the extent of charge of negligence against them and consequently, are of the view that order relating to the penalty of reduction to two steps in the time scale for, a period of two years, was justified but to burden them with the recovery of toss, was not proper. Consequently, we while setting aside the order of departmental authority regarding the recovery of loss of the Government from the appellants maintain the judgment of the Tribunal to the extent of penalty of reduction of two steps in the time scale for a period of two years and modify the judgment accordingly. These appeals, in the above terms, are partly allowed with no order as to costs. M.H./D-6/SC Order accordingly.