2008 PLP (C (PLC(CS))

RASHID ALI MIRZA (MEMBER).

Appellant had been serving as Lower Division Clerk when show-cause notice was issued to him which reads as under: Government of Pakistan Statistics Division Federal Bureau Of Statistics 1-B S.M.C.H. Society, Karachi-3 No.FBS.Ap.P-3(164)/94 Karachi, the 13th March, 2001 Whereas Mr. Touseef Ahmad Malik, Lower Division Clerk in this Bureau usually has been absenting from his duties without any information/intimation. He is in the habit of availing frequent leave. He has already availed 254 days E.O.L (without pay), 212 days un-authorized leave has also availed by him between the period from 30-4-1997 to 9-8-2000. He was warned in writing to desist from such practice but all in vain. (2) He is now again absent from his duties since 2-9-2000. He was directed to resume his duty by telegrams dated 6-9-2000, 20-9-2000 and 4-10-2000 at his home address but no response has been received from him. He has been served final memorandum dated 27-11-2000 but he neither responded in writing nor he joined his duty so far. He is wilfully absent. (3) He is absent from his duties since 2-9-2000 and prima facie, it is alleged that he is not interested to continue his service. (4) Now, he is called upon to show cause within 14 days from the date of issuance of his show-cause notice as to why a major penalty of dismissal/debar from government service under Government Servants (Efficiency & Discipline) Rules, 1973 should not be imposed upon him. On expiry of the stipulated period for defence, the case will be decided in ex parte. This is final and reasonable opportunity for his defence. (5) He is authorized to collect the material/documents from the office for his personal defence etc. He can offer his defence in writing as well as by personal appearance before the undersigned. He is also required to intimate as to whether he wants to be heard in person. (Sd.) (Syed Zawar Haider Zaidi) Director Incharge

2. In response to the show-cause notice, the appellant replied the said show-cause notice dated 24-3-2001 but the respondents passed the impugned Order No.267/2001 dated 21-7-2001, whereby the appellant had been dismissed from service. The appellant preferred departmental appeal to the respondent No.2 on 16-11-2001 but the respondents vide letter dated 16-9-2003 rejected the same, hence the appellant filed the appeal under section 4 of the Service Tribunals Act, 1973 for setting aside the impugned order dated 21-7-2001 passed by the respondents Nos.2 and 3 whereby the services of the appellant had been dismissed.

3. The respondents filed the written comments.

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

5. A perusal of the record shows that the disciplinary proceedings against the appellant had been initiated on 13th March 2001 but issuing him show-cause notice, personal hearing for imposing major penalty of dismissal from Government service under Government Servants (E&D) Rules, 1973.

6. The learned' counsel for the appellant contended that disciplinary proceedings against the appellant under Government Servants (E&D) Rules, 1973 were illegal ab initio, null and void, as in view of the promulgation of the Removal from Service (Special Powers) Ordinance, 2000 disciplinary proceedings had to be taken under the said Ordinance and not under Government Servants (E&D) Rules, 1973. He contended that the proceedings under the Government Servants (E&D) Rules, 1973 violated the provisions of sections 3 and 5 of the said Ordinance and section 24 A of the General Clauses Act.

7. The relevant provisions of Removal from Service (Special Powers) Ordinance 2000 are reproduced hereunder:- "

11. Ordinance to override other laws.

The provisions of this Ordinance shall have effects 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." "

12. Proceedings under this Ordinance.

All proceedings initiated on the commencement of this Ordinance shall be governed by the provisions of this Ordinance and rules made thereunder: Provided that the Federal Government may, by notification in the official Gazette, exempt any class or classes of employees of a corporation, a corporate body, authority, statutory body, or other organization or institution set up, established, owned, managed or controlled by it or a body or organization in which it has a controlling share or interest from the provisions of this Ordinance and such class or classes of employees shall, notwithstanding anything contained in this Ordinance, be proceeded against and dealt with under the laws and rules applicable to such employees before the commencement of this Ordinance."

8. Since the provisions of sections 11 and 12, reproduced above, have overriding effect on the Civil Servants Act of 1973 and any other law for the time being in force, we agree with the learned counsel for the appellant that the proceedings against the appellant under the Government Servants (E&D) Rules, 1973 were illegal ab initio, null and void. It is a case of misapplication of law. Reliance is placed on 2003 SCMR 1718=2003 PLC(C.S.) 1304, 2003 PLC (C.S.) 600, 2004 SBLR C 199 and unreported judgment of this Tribunal in M. Saleem v. WAPDA Appeal No.187(K)/(C.S.) of 2002. We therefore, without adverting to the merits of the case, remand it to the respondents for de novo proceedings against the appellant strictly in accordance with the relevant law on the basis of the same allegations, as contained in the show-cause notice dated 13th March 2001. Such proceedings be initiated and completed within a period of four months. Consequently, the appeal is allowed and the impugned orders are set aside. In the meantime, the appellant shall be reinstated in service, but the question of payment of back benefits (for the period he was not 'gainfully employed elsewhere) shall depend upon the result of de novo proceedings. No order as to costs.

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