JUSTICE (RETD) RIAZ KAYANI, CHAIRMAN.- Through this single order, I intend to dispose of Appeal 285/2004 brought by Aftab Gulzar, former Taxation Officer, Municipal Corporation, Okara.
2. Both the appellants were served with the charge sheet accompanied by the following statement of allegations:- i. That you managed bogus/fictitious advertisement published in daily 'The Jang', Lahore, dated 29- 11-1996 for auction of Cattle Mandi of Municipal Committee, Okara for the year 1996-97. ii. As a result of such fictitious advertisement, the Municipal Committee, Okara sustained a loss of Rs. 71,70,000/- as calculated on the basis of previous auction of Rs. 2,10,00,000/- after forfeiting Rs.
10,00,000/- as earnest money. iii. The documents prepared in the name of Director General Public Relations were improper as no bill of advertising was paid by Municipal Committee, Okara. iv. The above action on your part speaks about your impartially of whole affairs and tantamount to arrangement of a plan making together forming composition and setting up promotion of your won interest as well as ill-motives behind such illegal auction.
Appellants denied the allegations. The inquiry officer vide his report dated 13-11-1998 held the charges (i) & (iii) not to be proved whereas charges (ii) & (iv) where stated to be proved. The Punjab Local Government Board vide order dated 10-09- 2003 dismissed both the appellants from service and imposed recovery of Rs. 35,85,000/- The appeals of the appellants were also dismissed on 16-12-2003 by the appellate committee comprising the Additional Chief Secretary, Government of the Punjab alongwith Secretary Regulations as Members. Both the orders have been Impugned in the instant appeal.
3. Before proceeding to deal with the arguments Submitted by the Local Councils on merits, a preliminary Objection was taken by the counsel for the respondents that the appellants not being civil servants, the jurisdiction of this tribunal stands barred under the provisions of the Punjab Service Tribunal Act, 1974, in particular Section 4 of the Act. Therefore the said objection has to be resolved in the first Instance.
4. It may be mentioned at the very outset that the proceedings against the appellants were initiated under the Punjab Local Councils Service (E&D) Rules, 1990 and penalties, referred to in the preceding paragraph, were imposed on 10-09-2003 by the authority. Learned counsel for the respondents referred to Section 44 of the Punjab Local Government Ordinance, 1979 to state that the Members of Local Councils service were given the status of civil servants for the purpose of Punjab Service Tribunal Act, 1974. However, the said Act was repealed by the Punjab Local Government Ordinance-XIII of 2001 which came into force on 14-08-2001, and in the said law, the status of civil servant given to appellants, earlier, was taken back in the absence of any similar provision, it was contended with force that the appellants, who came to the Tribunal against the impugned order by instituting appeals on 11-02-2004 and 20-07-2004 respectively, were not covered by the definition of civil servant therefore their appeals cannot be entertained and adjudicated upon. Learned counsel for the appellants on the other hand stated that the act of misfeasance/initiation of disciplinary proceedings were launched when the Punjab Local Government Ordinance, 1979 was in force, therefore the Ordinance-XII of 2001 being not retrospective in operation, Section 44 of the 1979 Act would apply which confers upon the appellants status of civil servant, as such the Punjab Service Tribunal has jurisdiction to entertain, hear' and decide the matter which undoubtedly pertains to the terms & conditions of service of the appellants.
5. I have heard the respective counsels at length and also perused the record.
6. Learned District Attorney toed the line of arguments advanced by learned counsel for the respondents I adding with vehemence that this Tribunal has no jurisdiction I to decide the appeals since the appellants are not civil I servants, it was law pleaded the employees in the service of I Local Councils service usually take their service matters 1 either to the Hon'ble Lahore High Court, Lahore or other forums, but certainly not the Service Tribunal.
7. Section 2(i) of Ordinance-XIII of 2001 defines 'Body Corporate' as a body having perpetual accession and a common seal, with power to acquire and hold movable and immovable property, and transfer any property held by it, and enter into any contract and may sue and be sued in its name. Same Section clause (vi) defines 'Council' as Local Council, Tehsil Council, Town Council, Union Council, Village Council and Neighborhood Council. Again the word 'Decentralized' has been defined in Clause (vii)) as 'Conferment by the Government under the Ordinance of the administrative and financial authority for the management of specified offices of the Provincial Government to Local Government'. Section 193 of Ordinance-XIII of 2001 defines members and servants of the councils including Nazims, Nazim Naib, functionaries of Local Government and every other person duly authorized to act on behalf of Local Government to be public servants within the meaning of Section 21 of the Pakistan Penal Code. Keeping the provision reproduced, in juxta position, it becomes evidently clear that the employees in the service of Local Councils may be public servants entrusted to discharge duties to promote the interest of the Public, in aid of City Government, yet they draw their salaries from the exchequer of their respective councils, known as Local Funds and District Provincial Accounts. The employees and members of the Local Councils service unlike the Punjab Local Government Ordinance, 1979 which conferred special status upon the members of Local Councils service to be civil servants have not been given he said status in the Ordinance-XIII of 2001. They are, for all intents and purposes, employees of Local Council and since action against them has not been taken under the provisions of the Punjab Removal from Service (Special Powers) Ordinance 2000, therefore they cannot be termed as civil servants by virtue of the definition of the word 'person'. Arguments of the Learned Counsels for the appellants that the action related to the period when Punjab Local Government Ordinance, 1979 was in force and as the Ordinance-XIII of 2001 is not retrospective in operation, therefore Section 44 of the old law is still applicable to the case of the appellants, is misplaced and without force. What we have to see in the date when the order which has aggrieved the appellants was passed. This order was passed on 10-09-2093 when Ordinance-XIII of 2001 was in field although the proceedings may have been initiated earlier. When the appeals of the appellants were instituted before the Punjab Service Tribunal, they were not civil servants and this is the litmus test to confer jurisdiction upon the Tribunal. Even otherwise. The appellants under the Punjab Local Government Ordinance, 1979 were conferred the status of civil servant for the purposes of Punjab Service Tribunal Act, 1974 for a specified object of filing appeals before the Tribunal. Now that the old law stands repealed by Ordinance-XIII of 2001, the members and employees against whom disciplinary action has been taken, can seek remedy in the appropriate forums, in other orders, forum has been changed to seeks redress, and when this happens, law is procedural in nature, which may be given retrospective effect.
8. Summing up the arguments, the Tribunal is convinced that it lacks jurisdiction to entertain, hear and adjudicate the appeals of the appellants as they are not covered by the definition of civil servants. Resultantly, their appeals fail and are accordingly dismissed.