' MOAZZAM HAYAT (MEMBER).---Appellant Ch. Muhammad Aslam was a Chief Engineer in the service of the respondents. He has been directed to pay an amount of Rs,68100 vide order dated 27-9-2003 passed under the provisions of Removal from Service (Special Powers) Ordinance, 2000.
The legality and validity of this order has been challenged by him in his present appeal filed under section 4 of the Service Tribunals Act, 1973. Before filing the present appeal he had filed a departmental appeal on 10-10-2003 but is was not responded by the respondents.
2. Along with the main appeal the appellant has filed an application for grant of temporary injunction restraining the respondents from recovering the amount in question.
3. The respondents have resisted the appeal as well as the application for grant of temporary injunction. It is stated that a Committee had been constituted to investigate into the irregularities pointed out in the Special Audit Report pertaining to Lower Indus Right Bank Project, Stage-I for the years 1997-98 and liability of the appellant to pay the amount in question had been determined by the said Committee. According to the respondents the penalty has been imposed in accordance with the WAPDA Pension Rules.
4. The impugned order dated 27-9-2003 has been passed under the Removal from Service (Special Powers) Ordinance, 2000. Since the appellant had retired in the year 1996, therefore, an order was passed by us on 2-7-2004 directing the learned counsel for the respective parties to address arguments on scope and applicability of the said Ordinance on an employee, retired before its enforcement.
5. Today we have heard the learned counsel for the parties and have also perused the record.
6. Section 1(4) of the Ordinance says that it shall apply to persons in Government service and Corporation service. From a plain reading of this provision of law it is clear that it shall not be applicable to persons no longer in Government service or in Corporation service. The appellant had retired in the year 1996. He was thus no longer in service of the respondents when the action was taken against him resulting into the impugned order. Section 2-C relates to "person in Corporation service. According to this section person in Corporation service means every person in the employment of a Corporation, Corporate Body, Authority or Organizations/Institutions set up, Establishment owned, managed or controlled by the Federal Government. The definition of person in Corporation service does not include a person who had in the past remained in the employment of the government controlled Corporations/Organizations. In the circumstances we are constrained to hold that Removal from Service (Special Powers) Ordinance, 2000 was not applicable to the appellant as he had retired from service in the year 1996.
7. We also agree with the arguments of the learned counsel for the appellant that Removal from Service (Special Powers) Ordinance, 2000 did not have any retrospective effect. This Ordinance had come into force in May, 2000. Under Section 1(3) it had come into force at once. Thus it was not made applicable with retrospective effect. Proceedings under this law could not be taken against the employee retired much earlier than its enforcement under different service laws/rules.
8. The learned counsel for the respondents has vehemently argued that since the action was taken against the appellant after the enforcement of the aforesaid Ordinance, therefore, the impugned order was perfectly legal and valid. According to the learned counsel the cause of action had accrued for disciplinary proceedings against the appellant when his misconduct had come to the notice of the respondents and for such a misconduct proceedings could be taken under the said Ordinance also, Section 11 of this Ordinance having overridden all other laws. The argument of the learned counsel cannot be sustained. For a cause of action accrued on a particular date the proceedings have to be taken under the law in force at that time. The knowledge as to the cause of action is relevant only for the purposes of reckoning limitation. If the respondents had come to know about the alleged misconduct of the appellant such knowledge could be relevant for purpose of fixing period of limitation for starting legal proceedings. The date of knowledge is not relevant for the applicability of law under which the proceedings are to be taken. The proceedings have to be taken under the law which was applicable on the date on which the cause of action had actually arisen. A certain act of a Civil Servant may not amount to misconduct on the date the said act was allegedly committed. That act may be treated as misconduct under a law subsequently enforced. Under that subsequent law an act already committed, which was not a misconduct at that time, cannot be allowed to be declared as misconduct under law enforced in future. If the appellant had committed any mischief amounting to misconduct then he had committed it while he was in service. For that misconduct he should have been proceeded against under law in force at that time.
9. Section 12 of the Ordinance makes it further clear that this Ordinance is applicable only to the in service employees. According to this section all proceedings initiated on the commencement of this Ordinance in respect of matters and persons in service provided for this Ordinance shall be governed by the provisions of this Ordinance and rules made thereunder. The emphasis is on the words 'in service'. These words clearly mean that is not applicable to the persons not in service. The cumulative effect of sections 1(4), 2-C of 12 of the Ordinance is that it is applicable to in service employees and not to the persons who have ceased to be employees, having been retired/ dismissed/removed.
10. The learned counsel for the respondents has placed reliance on 2003 PLC (C.S.) 645 in support of his this argument that the action could be taken against the appellant under the provisions of Removal from Service (Special Powers) Ordinance, 2000 and not under any other law. According to this ruling of the High Court Civil Servant was liable to be dealt with under the Ordinance as the charge sheet had been issued to him after its commencement. This ruling is not applicable to the present case. In the case before the High Court the appellant was still in service of the Government when action was taken against him. He had been sent on forced leave but he had not ceased to be in service of the Government. In the present case the appellant had ceased to be in the service of the respondents. As such the rulings cited by the learned counsel for the respondents is not relevant.
11. For the above reasons we hold that impugned order was not passed under correct law. As such this order cannot be sustained. The result is that not only the application for grant of temporary injunction is decided but the main appeal is also decided. The impugned order is set aside. The respondents shall, however, be at liberty to initiate proceedings against the appellant under the relevant law/rules.
12. There shall be no order as to costs. Parties be informed.