' RASHID ALI MIRZA (MEMBER).---The Appellant while serving as Director in PTCL Headquarters Islamabad was reverted with order of recovery of Rs,16,54,456 by Respondent No,2 on 29-1-2003 against which he filed departmental appeal to the Respondent No,1 on 28-2-2003 and reply of which is still awaited. Statutory period of 90 days expired on 28-5-2003 and within next 30 days the appellant filed service appeal.
2. The facts as narrated in the Memo. Of Appeal are that appellant joined PTCL w,e,f, 1-7-1977 as Assistant Divisional Engineer (B-17) through Public Service Commission and was promoted as Divisional Engineer (B-18) in the year 1981 and finally was promoted as Director in (B-19) in the year 1993. According to the appellant his entire service record is neat and clean and there was no punishment except the punishment which is impugned in this appeal. His ACRs were also in tact.
He was suspended with effect from 4-8-2000 on the charge of corruption and causing loss to the Government Exchequer. On 24-8-2000 he was served with Charge Sheet by Respondent No,3 along with statement of allegations wherein it was alleged that he in the capacity of DDO committed following irregularities in his accounts:-- "a. Provided 33 vouchers only against a total of 38, thus an amount of Rs,o.560(M) is unaccounted for. The amount of Rs,0.554(M) in particular by him have been charged to cash book tantamount embezzlement. b. All the ENG-27, found in five fraudulent/fake files submitted by DE Estate, I and a 32 paged file submitted by DE Estate-III, have been sanctioned by him in total disregard to the genuineness of the record produced before him. c. He being DDO is responsible for embezzlement of Rs,2.782 (M), for all missing/not available vouchers relating to purchase/supply of water and maintenance of buildings hut charged to cash book as DDO. d. Passed Rs,1.250 (M) as per cash book under head 53210 but supporting documents not available not provided by DE Estate-II. Likewise irregular expenditure of Rs,22,804 (M) under head 53220 has been charged to cash book without any documents/bills now stated to be missing. e. Paid Rs, 417852 on bills under forged signature of DEEstate-I. f. Paid Rs,1,993 (M), under but vouchers/record not embezzlement. g. Paid Rs,1,005 on Vr. No,256 signed by him as DDO. Head 53210 against Estate-III available thus tantamount dt.30 June, 99 which is not even h. Paid Rs,67,971 Rs,92,400 and Rs,170.600 which were unsanctioned/passed by the competent authority"
' The appellant submitted his reply wherein he stated that he was placed under suspension w,e,f, 4- 8-2000 and subsequently served with charge sheet on 24-8-2000. He requested the worthy Awhorized Officer and the Inquiry Committee for supply/enlisting the detail of the connected records for preparing and submitting defence reply within stipulated time but of no avail. He submitted therein that some of the original record relevant with the case was taken away (under receipt) by special audit team in May, 2000 and therefore complete record cannot be provided.
However the following records. Were provided to him by worthy authorized officer direct or through General Manager STRII:-- ' Supplied the copies of special audit report and investigation committee report on 11-9-2000 at PTCL HQ Islamabad.
' Supplied incomplete record by GMSTR II Karachi, vide his No, SP/G-260/24 dated 10-2-2001, No, GM STR II/Estate/Inquiry/ 2001 dated 4-6-2001 and No, GM STRII/Estate/Inquiry/2001 dated 18-6-2001.
' The appellant in his reply to the charge sheet submitted that all the documents required by him in order to furnish his written defence were not supplied to him despite repeated requests and lapse of ten months including the ground survey report which is the basic document in the backdrop of entire case and transfer entry letter No,W.V/1-6/1420 dated 27-7-1999 of Director PTCL accounts Lahore which is the main reference relating to allegations Nos.4 & 5 of the charge sheet. The enquiry committee was also apprised of this situation vide his letter dated 4-5-2001. The denial to provide these two documents continually makes the very existence of the these documents doubtful and the proceedings questionable. He submitted that last instalment of connected record was received to him on 19-6-2001 vide GM/STRII)/Estate/Inquiry/2000 dated 18-6-2001, while simultaneously the inquiry committee letter No, DIR (I/A)/2001 dated 15-6-2000 was also received on 19-6-2001 through special messenger without any reference to his letter dated 4-5-2001 regarding non-supply of record instructing the undersigned to appear before inquiry committee on 20-6-2001 with clear warning that if the reply not received on 20-6-2001 the inquiry report will be submitted keeping in view the charge sheet. Therefore the credibility of the inquiry committee became questionable on following grounds:-- ' That the committee deliberately delayed the delivery of letter No,DIR(I/A) inquiry/2000 dated 15-6- 2000 till 1230 hours of 19-6-2001 (sent through special messenger) instructing the undersigned to appear before the committee on 20-6-2001; which proves their predetermination and commitment, ' Pressurized the undersigned to submit the defence reply within 24 hours on the basis of incomplete records, while my request to get the complete connected record was pending with them vide my application dated 4-5-2001 received by the committee in persun on 5-5-2001 while camping at Karachi.
' Compete ignorance of rules & regulations of inquiry proceedings as laid down under E&D Rule 1973, as adopted by PTCL.
' The appellant in his reply further submitted that he was not supplied with the relevant and connected record necessary for the preparation of defence reply even after the lapse of ten months and despite several reminders to the worthy authorized officer, GM STRII as well as the inquiry committee. The inquiry committee unjustifiably deprived him from mandatory right of fourteen days time to reply from the date of complete supply of relevant and connected record, rather forced to submit the defence reply within 24 hours on the basis of incomplete records and therefore lost the credibility as inquiry committee rather technically conducted themselves more like the prosecution. This proves beyond any reasonable doubt that miscarriage of justice was done in his case. The respondents despite several requests did not supply any documentary evidence, as requested and after hearing, him personally on 18-6-2001 did not consider his explanation as satisfactory and imposed upon him major penalty of demotion vide order dated 29-1-2003. Being aggrieved by the original appellate orders passed by the respondents, the appellant filed this appeal under section 4 of the Service Tribunals Act, 1973 on 28-6-2003 for declaring the impugned orders as bad in law, void ab initio and of no legal effect. Further to set aside the impugned orders and to restore the appellant to his original position with all consequential benefits.
3. The respondents filed the written comments.
4. We have heard the learned counsel 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 21-8-2000 by issuing him the Charge Sheet. In consequence of such Charge Sheet and without personal hearing, a major penalty of demotion/recovery was imposed upon the appellant vide order dated 29-1-2003.
6. Learned Counsel for the appellant contended that the disciplinary proceedings against the appellant 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 the Government Servants (E&D) Rules, 1973. He contended that the proceedings under the Government Servants (E&D) Rules, 1973 violated the provisions of section 03 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 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 over-riding 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 199 and unreported judgment of this Tribunal in appeal No,187(K)(C.S.)/2002 (M. Saleem v. 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 Charge Sheet dated 21-8-2000. 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 restored to his original position, but the question of payment of back-benefits shall depend upon the result of de novo proceedings. No order as to costs.
9. Copies of judgment be sent to the parties (under register cover) and the relevant quarters under Rule-21 of Service Tribunals (Procedure) Rules, 1974.