Fazlur Rehman Khan, J.--W.P. No, 1152 and W.P. No, 1153, both of the year 2005, are proposed to be disposed of by this single judgment, as common questions of law and facts are involved therein.
2. In W.P. No, 1152/2005, the petitioner Roohul Amin was a Junior Clerk in the Establishment-section while in the W.P. No, 1153/2005, petitioner Shujaulah, was Assistant in the main Library of the University of Peshawar (Respondent No, 1 herein). By an order dated 8.8.2002, both the petitioners were not only suspended for their involvement in mal-practices of production of fake bank deposit slips of various banks of the Examination Section but the competent authority constituted an Inquiry Committee consisting of (1) Professor Dr. Fazlur Rehman Sethi, Department of Physics as Convenor and (2) Muhammad Zubair, Assistant Registrar, Academic/Legal as Member/Secretary to probe into the matter. Registrar, University of Peshawar (Respondent No, 3) as Authorized Officer framed charge against the petitioners and conveyed and same alongwith the Statement of Allegations, requiring them to submit their defence in writing and also to state as to whether they would desire to be heard in person and cross-examine the witnesses appearing against them.
Both the petitioners submitted their written replies, whereafter, inquiry was started by the Inquiry Committee. After conducting the inquiry, the Inquiry Committee submitted its report. During the inquiry, the Inquiry Committee found both the petitioners guilty of the charge against them, in pursuance of which, the Deputy Registrar (Estt-I) by Order No, 1027-Estt: dated 18.6.2003 conveyed the following to the petitioners:-- UNIVERSITY OF PESHAWAR OFFICE ORDER No, 127/Estt. Dated 18.6.2003.
Subsequent to the findings of the Inquiry Committee, constituted vide office Order No, 1041/Estt.
Dated 8.8.2002, the competent authority is pleased to approve re-instatement of Mr. Shujaat Ullah, Superintendent, Examination/Deg,ree Section and Mr. Rooh-ul-Amin, Junior Clerk (SC), Examination Section with immediate effect, with the imposition of penalties on both, under the provision of Section-6(b)(i) of the University. of Peshawar. Employees Efficiency and Discipline Statutes-1977, as per following specification:--
(i) Mr. Shujaat Ullah is reduced to the lower post of Assistant (S.C.) in BPS-15 with immediate effect against the post of Assistant in Islamia College, Peshawar vacated by Mr. Fazli Karim on his retirement.
(ii) Mr. Rooh-ul-Amin is reduced in rank as Junior Clerk in BPS-5 against his substantive post with immediate effect.
(iii) Twice the amount of the actual financial loss caused to the University exchequer shall be recovered from their salaries in eqtual amount from both.
Further, Mr. Shujaat Ullah, Assistant (SG), Examination/ Degree Section is transferred to the Establishment Section and detailed to work in the Women's Study Centre and Mr. Roohul-Amin, Junior Clerk, Examination Section is transferred to the Establishment Section alongwith post.
This is issued with the approval of the competent authority.
Deputy Registrar (Estt-I) University of Peshawar.
No, 11516-24/Estt. Of even date.
Copy to:
1. The Director, Women's Study Centre.
2. The Controller of Examinations.
3. The Treasurer.
4. The Deputy Treasurer.
5. The RAD (Audit).
6. P.S. to Registrar.
7. Mr. Shujaat Ullah, Assistant (SG)
8. Mr. Rooh-ul-Amin, Junior Clerk
9. Personal files.
10. Deputy Registrar (Estt-I) University of Peshawar."
3. Through the present petitions, the petitioners have called into question the foregoing order.
4. We have heard Mr. Ijaz Anwar, Advocate for the Petitioners and Mr. Waseemuddin Khattak, Advocate, for the respondents and have also persued the record.
5. In support of the writ-petitions, the learned counsel for the petitioners contended, that firstly; in the present case, action against the petitioners has been taken under the University of Peshawar, Employees, Efficiency and Discipline Statutes, 1977 but on coming into force of the NWFP Removal from Service (Special Powers) Ordinance, 2000 (NWFP Ordinance No, V of 2000), hereinafter called the Ordinance, the foregoing statutes stood repealed and the petitioners were to be proceeded against under the relevant provisions of the Ordinance but by not doing so, the inquiry report is without jurisdiction and lawful authority, therefore, the petitioners are entitled to exoneration from the charge, secondly; that during the inquiry proceedings, the petitioners were neither summoned nor they were allowed any opportunity to cross-examine the witnesses appearing against them, as such, they have been condemned unheard and lastly; in the case of Roohul Amin, he has been reduced in rank as Junior Clerk in BPS-5 but he was already holding this post and the reduction in rank has not been specified.
6. So far as the first argument of the learned counsel for the petitioners is concerned, the learned counsel for the petitioners pointed-out that by appearance of the pharse in S. 11 of the Ordinance, "notwithstanding anything to the contrary contained in the North-West Frontier Province Civil Servants Act, 1973 (N.-W.F.P. Act No, XVIII of 1973) and the rules made thereunder, and any other laws for the time being in force' clearly shows that the Statutes, under which, action has been taken against the petitioners, stood repealed.
7. However, the foregoing argument is without force. Any phrase or a sentence in a statute beginning with or prefixed by the word, "Notwithstanding" is called "Non-Obstante clause" and its main objects are either it may create an exception, where there is a conflict between two provisions of a statute or it may be clarificatory of the original position and introduced only by way of abundant caution. (See (1) PLD 1979 Lahore 603 + PLJ 1979 Lahore 513, and (2) NLR 1989 CLJ 139 (F.B). However, in the present case, the first object would not be applicable because there is no conflict between two provisions of the Ordinance but the second object by way of clarification or by way of abundant caution would be applicable because there is no express provision in the Ordinance, repealing either the NWFP Civil Servants Act, 1973 and the Rules made there under or any other laws, like the Statutes.
8. Preamble of the Ordinance would show that it was promulgated keeping in view the prevailing circumstances and furtherance of good governance to provide for speedy measures relating to dismissal, removal etc. of certain persons from Government service or Corporation service without repealing the laws already applicable to such persons or in other words, this Ordinance is co- existent with such other laws, meaning thereby that if the competent authority wants to proceed against a person under the Ordinance, then the provisions to the contrary contained in such other laws, are to be ignored and vice versa. This is the clarification, which has been introduced by S. 11 of the Ordinance by using the Non-Obstante clause therein. This argument is, therefore, without force and is hereby rejected.
9. As far as the second argument of the learned counsel for the petitioner is concerned, perusal of the inquiry report shows that the petitioners were not only summoned, who attend the proceedings before the Inquiry Committee but also cross-examined all the witnesses appearing against them.
The second argument of the learned counsel for the petitioners is also without force and is hereby rejected.
10.So far as the last argument of the learned counsel for the petitioners is concerned, though it is correct that there is no lower position in the junior clerk cadre, but by passing of the impugned order, Roohul Amin, petitioner, has been relegated to the lowest position in the cadre meaning thereby that all benefits earned by him. in the shape of increments etc. had been taken away from him from the date of his original appointment and by passing of the impugned order, he is to be considered as if he has been freshly appointed for the purpose of seniority and increments, etc. The last argument is, therefore, also rejected.
11. For the reasons stated above, these petitions fail and are hereby dismissed with no order as to costs.