2010 PLP (C (PLC(CS))

SAYED ZAHID HUSSAIN, J.

This is a petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, qua the order passed by the Islamabad High Court, Islamabad, dated 25-2-2009 in Writ Petition No.798 of 2008, whereby the petition filed by the respondent under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, was accepted.

2. The case of the respondent before the High Court and before this Court is that in response to the Advertisement published in the Press on 30-10-2005 and the subsequent interview with the Selection Board comprising one of the Board of Directors (BODs) of the defendant Bank, Ex-Managing Director Standard Chartered Bank, the then Banking Ombudsman, Head HR ZTBL and President ZTBL, he was offered employment as Senior Vice President in the Department vide offer of employment letter No.PAD (RP&C)/1(162)/2006/380, dated 27-7-2006 and consequent upon his appointment as Area Specialist in the Rank of Senior Vice-President vide Notification dated 13-9-2006 and posted as Credit Risk Manager at ZTBL Head Office. On completion of probation period, he was confirmed vide office memorandum dated 1-3-2007 enunciating therein his pay, allowances, perks including vehicle at his disposal as a part of his terms and conditions.

3. Undisputedly, the respondent was a Senior Vice-President in the petitioner bank, who claims to have been performing duties diligently with full devotion and dedication when on 26-1-2008 he received a letter informing him that he had "ceased to be productive for the bank" and that the "competent authority, considering it expedient and viable, do hereby relieve you from the Bank's services in terms of clause 7(B) of SR-2005 with immediate effect." This order was assailed by the respondent by filing a review petition which remained un-responded. He eventually approached the Islamabad High Court, Islamabad by means of the writ petition referred to above, which was accepted by the learned Judge of the High Court observing inter alia "that S.3(1)(b) of the Ordinance, 2000 i.e. Removal from Service (Special Powers) Ordinance, 2000 provides that if a person in Government Service or Corporation Service is guilty of being habitually absent from duty in the opinion of the competent authority, he can be proceeded against under the provisions of the Ordinance. As has already been mentioned, the petitioner was removed from service on the ground of absence from duty without leave. The petitioner is a person in Corporation Service within the meaning of Clause (c) of section 2??..". It was thus observed that "the petitioner is a person in Corporation Service and the disciplinary proceedings in respect of person in corporation service is covered by the provisions of Removal from Service (Special Powers) Ordinance, 2000 and that he cannot be removed from service without resorting to the provisions of Removal from Service (Special Powers) Ordinance, 2000." The order was declared to be without lawful authority and he was ordered to be reinstated into service leaving it open for the petitioner before us to proceed against him under the provisions of Removal from Service (Special Powers) Ordinance, 2000.

4. Assailing the order of the High Court, it is sought to be contended by the learned counsel that the High Court has incorrectly and illegally proceeded on the premises as if the respondent was liable to be proceeded only under the provisions of Removal from Service (Special Powers) Ordinance, 2000, whereas according to him the Bank's Staff Regulation, 2005, particularly Regulation 7(B) thereof was rightly invoked for dispensing with the service of the .respondent. Further contends that the provisions of the Ordinance could only be applicable if the said respondent was to be dismissed, removed or compulsorily retired from service or was to be reduced to lower post or pay scale and not in a case like this.

5. We have considered the contentions of the learned counsel for the petitioner in the light of the material placed before us and would like to observe that the Office Memorandum dated 26-1-2008 indeed narrated incidents and events reflecting upon the inefficiency of the respondent including his absence from duty which was made basis by the competent authority to "relieve" him from Bank's service. Before us the applicability and significance of Staff Service Regulation, 2005, is sought to be highlighted empowering the competent authority to relieve any employee from the service. But the same have neither been placed on record nor produced before us. The mere use of the word "relieved" from service, would not make any difference inasmuch as this was the mode adopted by the petitioner for sending home the said respondent. In reality and pragmatically the respondent lost his job/employment. The practical effect is one and the same i.e. deprivation of source of livelihood.

6. Adverting now to the crucial issue as to whether provisions of Removal from Service (Special Powers) Ordinance, 2000, were applicable or not. It may be observed that as per S.1(4) of the Removal from Service (Special Powers) Ordinance, 2000, it applies to "persons in government service and corporation service." A "person in Corporation Service" is defined as per clause (c) of S.2 as follows: "(c) "Person in corporation service" means every person in the employment of a Corporation, corporate body, authority statutory body or other organizations or institutions set up, established, owned, managed or controlled by the Federal Government, or by or under any law for the time being in force or a body or organization in which the Federal Government has controlling share or interest and includes the Chairman and the Managing Director, and the holder of any other office therein." The petitioner admittedly is a body corporate owned, managed and controlled by the Federal Government, for the purpose of Ordinance even after the enforcement of Agricultural Development Bank of Pakistan (Re-Organization and Conversion) Ordinance, 2002. It also stands substantiated by Circular No.DPD/02/2008 dated 31-1-2008, whereby the delegation of powers to various officers under Removal from Service (Special Powers) Ordinance, 2000.was revised. There can thus be no cavil that the provisions of Removal from Service (Special Powers) Ordinance, 2000 are applicable as per the petitioner's own circular and stance.

7. Having observed that the provisions of the Removal from Service (Special Powers) Ordinance, 2000, were applicable, the further question that arises is whether the respondent was liable to be proceeded against under the relevant provisions of the said Ordinance. It may be observed that whereas special powers were given to the competent authority as per the said Ordinance for disciplinary proceedings against the persons in Government Service or Corporation Service; it contained certain safeguards to such persons as envisaged by sections 3 and 5 of the Ordinance. Firstly, he was entitled to defend himself and explain his position in the inquiry, when instituted against him, unless dispensed with on due application of mind. Secondly, upon any action taken under the said Ordinance, the person concerned had the right to avail the remedy of representation as per section 9 and file appeal under section 10 before the Federal Service Tribunal. By not adhering to the provisions of the Ordinance, the respondent stood denuded of the safeguards and remedies, available to him under the law. The adoption of course of passing a relieving order appear to be a ruse to circumvent the inquiry procedure provided for by the Ordinance. Such a colourable exercise of power cannot be countenanced by Court.

8. In the case of Azizullah Memon v. Province of Sindh (2007 SCMR 229), the import and effect of the provisions of the Ordinance was reiterated by observing:- "

3. 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 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 proceedings, 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." The petition in that case was converted into appeal, reinstating the petitioner into service leaving it open for the department to initiate fresh proceedings against him.. Similar course has been adopted by the High Court in the present case which is consistent with the legal position obtaining in the matter. 8-A. No case for interference by this Court has been made out. Leave to appeal is declined accordingly. S.A.K./Z-6/SC??????????????????????????????????????????????????????????????????????????????????? Appeal declined.