2007 PLP (C (PLC(CS))

RASHID ALI MIRZA (MEMBER).

Brief facts of the case are that the appellant joined Pakistan National Shipping Corporation on 1st January 1969 and subsequently was promoted as Junior Executive (Grade-IX). The appellant was elected as General Secretary of PNSC Officers Association and was nominated as Administrator of PNSC (Contributory Provident Fund) to represent the officers. He occupied the said post of Administrator from 8-5-1995 to 6-6-2000. The appellant was placed under suspension vide order dated 8-9-2000 on the ground that since he has been arrested by F.I.A. Authorities in the case of misappropriation in P.N.S.C. Employee Contributory Provident Fund. The appellant was issued charge sheet on 15th October, 2001 under the Pakistan National Shipping Corporation (Service) Regulations 1984, wherein it was alleged that the appellant on his own and/or in collusion with others embezzled a sum of Rs.15,92,000 and that fraudulently and in violation of the Pakistan National Shipping Corporation (Contributory Provident Fund) Regulation, 1979 withdrew out of his own contributions to the fund a sum Of Rs.816,410 in excess of his entitlement. The appellant submitted reply to the charge sheet and denied the charges being false and baseless. Further, the appellant requested for the supply of relevant documents. On receipt of reply to charge sheet the respondents vide letter dated 28-12-2001 kept the proceedings in abeyance till the finalization of criminal case. However, after conducting departmental enquiry the appellant was issued second Show Cause Notice dated 30-8-2002 and lastly vide impugned order dated 2-10-2002 major penalty of dismissal from service was imposed upon the w.e.f. 24-9-2002 under the Pakistan National Shipping Corporation (Service) Regulations, 1984 against which the appellant preferred departmental appeal on 23-10-2002 but the same was rejected vide letter dated 4-2-2003, hence appellant filed present appeal.

2. Learned counsel for the appellant at the very outset stated that disciplinary proceedings against the appellant were taken under the Pakistan National Shipping Corporation (Service) Regulations 1984, which has been superceded after the promulgation of the Removal from Service (Special Powers) Ordinance, 2000 as such the action against the appellant is illegal, unlawful and void ab initio. He has relied on judgments of this Tribunal reported in 2003 PLC (C.S.) 600 and 2004 PLC (C.S.) 1615. Learned Counsel further argued that the respondents had submitted copy of judgment dated 19-5-2004 passed by the Accountability Court No.1, Karachi, whereby the appellant in the same offence was sentenced to suffer R.I for seven years which judgment has been set aside by the Honourable High Court of Sindh vide Judgment dated 2-11-2005 as such the impugned order of dismissal from service is liable to be set aside.

3. Learned counsel for the respondents stated that the proceedings were lawfully taken against the appellant under the Pakistan National Shipping Corporation (Service) Regulations, 1984 as these Rules are applicable on the employee of the PNSC. He further states that the appellant has been acquitted by the Honourable Court by extending the benefit of doubt as such he is not entitled for any relief.

4. Learned counsel for appellant in rebuttal stated that every acquittal is honourable. and the impugned order is not sustainable and has placed reliance on the case reported in 1998 PLC (C.S.) 1430.

5. We have heard learned counsel for both the parties and carefully perused the record.

6. Admittedly the disciplinary proceedings against the appellant were taken under the Pakistan National Shipping Corporation (Service) Regulations, 1984 instead of the Removal from Service (Special Powers) Ordinance, 2000 which was promulgated on 27-5-2000. The disciplinary proceedings in the case commenced with the issuance of Charge Sheet to the appellant with effect from 15-10-2001 under the Pakistan National Shipping Corporation (Service) Regulations, 1984. Thus the entire proceedings under the P.N.S.C. (Service) Regulations, 1984 were rendered unlawful and void ab intio, and when the R.F.S. (Special Powers) Ordinance, 2000 was already in the field. As per section 11 of the Ordinance, it overrides all other laws for the time being in force. For the sake of convenience, section .11 of the Ordinance is reproduced hereunder:- "

11. Ordinance to override other laws.

The provisions of this Ordinance shall have effect, notwithstanding anything to the contrary contained in the Civil Servants Act, 1973 (LXXI of 1973), and the rules made thereunder and any other law for time being in force."

7. Further, the appellant was acquitted by the High Court of Sindh through judgment dated 2-11-2005, therefore the impugned Order is not sustainable.

8. In view of the judgment of Honourable Supreme Court, there is no force in the argument of learned counsel for the respondents that the appellant was acquitted from the criminal case by extending the benefit of doubt, therefore, he is not entitled for any relief.

9. In view of the above discussion, we set aside the impugned order dated 2-10-2002 of dismissal from service. As the appellant already stands retired on attaining the age of superannuation on u 6-1-2006 as such no reinstatement order is passed. However, the appellant will be treated as on duty from the date of dismissal till 6-1-2006 and accordingly he will be entitled for all the consequential back benefit. H.B.T./30/FST Order accordingly.