RASHID ALI MIRZA, MEMBER.-- The Appellant had been serving the Respondent as Sub-Engineer when following show-cause notice dated 2.8.2000 was issued to him by Respondent No. 3 which reads as under:- NATIONAL TRANSMISSION AND DESPATCH COMPANY.
OFFICE OF THE CHIEF ENGINEER GSC(S) N.T.D.C. 320 WAPDA OFFICES COMPLEX WATER(S) HUSSAINABAD HYD.
NO. C/1908/CE/GSC/S/Admn/NTDC/Hyd/c-446 dated: 1-8- 2000.
Qazi Nazir-ul-Hussan, Civil Overseer, Civil(C) Divn: GSC NTDC HYDERABAD.
SUBJECT: SHOW-CAUSE NOTICE UNDER WAPDA E&D RULES, 1978.
After careful study of your defence reply date 8.6.2000 to this office explanation letter No. C/1376/CE/GSC/S/Admn/Hyd/C-446, dt: 23.5.2000 and personal hearing granted to you on 24.7.2000, your position towards allegations has been found un-satisfactory and the following charges are established against you:-
(a) Your act of handing-over the keys of your house to Mr. Muhammad Ayaz Lodhi LS-II for further handing it over to another Colony mate while proceeding to your home-town at Mirpurkhas for celebrating Eid-ul-Fiter was not a co-incidence but a pre-planted part of conspiracy for destruction of record of office of B & AUTHORIZED OFFICER, GSC NTPS Colony Hyderabad.
(b) Subsequently your house was utilized by Mr. Muhammad Ayaz Lodhi and other accused where, they managed and monitored the entire exercise of setting ablaze the office of B & AUTHORIZED OFFICER. GSC NTPS Colony Hyd. On 11.1.2000 which caused heavy damage to the Authority's record and property.
Accordingly the undersigned being the competent authority in this case has provisionally determined to impose the following Major penalty as defined under Rule (iii)(b), sub-rule-4 of Pak.
Wapda E&D Rules, 1978:- "REMOVAL FROM SERVICE"
You are therefore, called upon to show-cause in writing within 10 ddys from the receipt of this notice as to why the aforesaid penalty should not be imposed upon you. You are also allowed to be heard in person if so desired, in case, your reply is not received within the stipulated period, it shall be presumed that you have no defence to offer and ex- parte action will be taken against you accordingly under the said Rules.
Sd/- (INAYATULLAH KHAN)
CHIEF ENGINEER GSC (S)/GSO(S) N.T.D.C.
HYDERABAD
2. The Appellant submitted his reply to the Show- Cause Notice but the Respondents formed Enquiry Committee comprising of M/s. Abdul Rauf Qureshi, Project Director including Major Syed Raza Hussain, Mirza Ishaque Baig, Members who did not fix any involvement of the Appellant in the said crime. Out of nominated employees in the incident of fire, four of them were reinstated to perform their responsibilities by the Respondent either by examination and in some cases imposed the minor/major penalty and now they are working with the Respondent, in support he has produced such orders alongwith Memo, of Appeal as Annexures-G/1 to G/4. Even in the enquiry which was made in response to the F.I.R. No. 3/2000 the Appellant was not found responsible for the alleged crime and therefore, his name was not included in the Challan submitted before the Court.
He has produced such copy of challan as Annexure-H on record. On 2.10.2000 the Chief Engineer awarded major penalty of compulsory retirement from service in response to the allegations which could not be proved against him. The Appellant preferred departmental appeal on 30-10-2000 to the Respondents which was rejected. Being aggrieved with the original and appellate orders passed by the Respondents, the Appellant filed this appeal under section 4 of the Service Tribunals Act, 1973.
2. The Appellant submitted his reply to the Show- Cause Notice but the Respondents formed Enquiry Committee comprising of M/s. Abdul Rauf Qureshi, Project Director including Major Syed Raza Hussain, Mirza Ishaque Baig, Members who did not fix any involvement of the Appellant in the said crime. Out of nominated employees in the incident of fire, four of them were reinstated to perform their responsibilities by the Respondent either by examination and in some cases imposed the minor/major penalty and now they are working with the Respondent, in support he has produced such orders alongwith Memo, of Appeal as Annexures-G/1 to G/4. Even in the enquiry which was made in response to the F.I.R. No. 3/2000 the Appellant was not found responsible for the alleged crime and therefore, his name was not included in the Challan submitted before the Court.
He has produced such copy of challan as Annexure-H on record. On 2.10.2000 the Chief Engineer awarded major penalty of compulsory retirement from service in response to the allegations which could not be proved against him. The Appellant preferred departmental appeal on 30-10-2000 to the Respondents which was rejected. Being aggrieved with the original and appellate orders passed by the Respondents, the Appellant filed this appeal under section 4 of the Service Tribunals Act, 1973.
3. The Respondents filed their Written Comments.
4. We have heard the learned counsel appearing for the parties and perused the record.
5. A perusal of the record shows that the disciplinary proceedings against the Appellant had been initiated on 2.8.2000 issuing him the show-cause notice- personal hearing the compulsorily retiring him from under Rule, (iii)(b)(4) of WAPDA E&D Rules, 1978. in consequence of such show-cause notice and personal hearing, a major penalty of compulsory retirement was imposed upon the Appellant under Rule, 4 (iii)(b) of Pak: Wapda E&D Rules, 1978 vide order defied 2-10-2000.
6 The learned Counsel for the Appellant contended that the disciplinary proceedings against the Appellant under sub-rule (iii)(b) Rule-4 of Pak. Wapda E&D Rules, 1978 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 rule (iii)(b)
Rule-4 of Pak. Wapda E&D Rules, 1978 violated the provisions of the sections 3 and 5 of the said Ordinance and Section 24-A of the General Clauses Act.
7. Since the provisions of sections 11 and 12 have over-riding effect on the Civil Servants Act, 1973 and any other law for the the being in force, we agree with the learned Counsel for the Appellant that the proceedings against the Appellant under Rule, 4 (iii)(b) of Pak. Wapda E & D Rules-1978 were illegal, ab-initio, null and void, it is a case of misapplication of law. Reliance is placed on PLJ 2003 SC 511, 203 PLC(CS) 600, 2004 SBLR Tr. 199 and unreported judgment of this Tribunal in Appeal No. 187(K)(CS)/2002 (M. Saleem vs. WAPDA). 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 2.8.2003. Such proceedings be initiated the 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.
8. Copies of the judgment be sent to the parties and the relevant quarters as per Rule 21 of the Service Tribunals (Procedure) Rules, 1974.