' HAMID ALI MIRZA, J.--- This civil petition for leave to appeal is directed against judgment, dated 10- 12-2004 passed by the Federal Service Tribunal, Lahore, in Appeal No,518(L)(CE)/2-1 whereby the said appeal filed by respondent was accepted and the impugned order therein was set aside, thereby petitioners have been directed to proceed against the respondent under the provision of Removal from Service (Special Powers) Ordinance, 2000, if so desired.
2. Brief facts of the case are that the respondent is an employee of the petitioners-Bank as Officer Grade-I, State Bank of Pakistan, Lahore. On 27-6-1993, he was served with a show-cause notice for acts of omission and commission on his part along with his companions. He was asked to submit explanation and thereafter he was issued charge-sheet. After holding enquiry, the respondent was dismissed from service on 19-8-1993. His appeal was rejected on 1-2-1995. After rejection of his appeal, the respondent sent a grievance notice on 3-5-1995 and after rejection of the same, on 17- 5-1995 he filed grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, in the Punjab Labour Court No,1, Lahore on 13-7-1995 which was returned to the respondent vide order, dated 17-7-1997 in view of insertion of section 2-A in the Service Tribunals Act, 1973. Thereafter, the respondent tiled an appeal bearing No,427-L of 1997 on 8-8-1997 before the Federal Service Tribunal and said appeal was too returned through judgment, dated 1-12-1997 by the Federal Service Tribunal on the ground that insertion of section 2-A was not retrospective. The respondent then filed C.P.L.A. No,59-L of 1998 before this Court and during the pendency of this petition filed by the respondent, this Court, in Appeal No,1513 of 1997, decided on 31-3-1998 reversed the view point of Federal Service Tribunal and held that section 2-A (ibid) has retrospective effect and is applicable to the pending proceedings in any Court before insertion of section 2-A (ibid).
Thereafter, the respondent filed afresh-Appeal No,401-L of 1998 on 22-4-1998 before the Federal Service Tribunal on the strength of aforesaid judgment of this Court which was entertained and heard and ultimately the Federal Service Tribunal vide judgment dated 1-5-2000 accepted the appeal in the following terms:-- "For the foregoing discussion and reasons, we have no hesitation in holding that impugned dismissal order, suffers from legal defect and is not sustainable in law. We accordingly set aside the same and reinstate appellant in service without arrears of salaries for the intervening period of dismissal and reinstatement. However, the respondent if so desired, may proceed against the appellant afresh by following the due process of law and pass appropriate order."
' The petitioners being dissatisfied with the judgment of Federal Service Tribunal, filed C.P.L.A.
No,1645-L of 2000 before this Court which was dismissed on 18-8-2000 and thus maintained the judgment of the Federal Service Tribunal, dated 1-5-2000.
3. After the aforesaid judgment of Federal Service Tribunal dated 1-5-2000 and judgment of this Court dated 18-8-2000 the respondent was proceeded afresh in the light of finding of Federal Service Tribunal as well as of this Court and he was issued a fresh charge-sheet dated 30-9-2000 under the provisions of SBP Staff Regulations, 1999. The respondents replied to the charge-sheet, regular enquiry against the respondent was initiated and after affording him opportunity of hearing he was dismissed from bank service vide Staff Order No,79, dated 18-5-2001. Against the said order respondent filed departmental appeal dated 1-6-2001 which was declined vide order, dated 3-10-2001 (page 133 of P.B.). Meanwhile the respondent filed Service Appeal No,518-L(CE) of 2001 on 22-9-2001 before the Federal Service Tribunal, Lahore who accepted the appeal on the sole legal ground that since the respondent was proceeded against after judgment of Federal Service Tribunal dated 1-5-2000 and the charge-sheet was issued afresh on 30-9-2000 whereas Ordinance No,XVII of 2000 i,e, Removal from Service (Special Powers) Ordinance, 2000 was promulgated and enforced w,e,f, 27-5-2000 the respondent should have been proceeded against under the new Ordinance and not under the SBP Staff Regulations, 1999. Appeal was accepted with the following observations:-- "For the above reasons we accept the appeal and set aside the impugned order. The respondents are directed to proceed against the appellant under the Removal from Service (Special Powers)
Ordinance, 2000, if so desired."
4. The present petition has been filed against the impugned judgment for leave to appeal in the ground that the impugned is contrary to law and not sustainable hence liable to be set aside.
5. We have heard learned counsel for the petitioner and respondent in person and perused the record.
6. The main contentions of learned counsel for the petitioner are (i) that learned Federal Service Tribunal has failed to take notice of section 13 of the Ordinance XVII of 2000, which provides that all proceedings pending immediately before the commencement of Ordinance against the person shall continue under the said laws and rules as provided thereunder, but the learned Tribunal without considering' section 13 came to wrong conclusion by allowing the appeal of the respondent; (ii) that the said Ordinance has not repealed the State Bank of Pakistan Staff Regulations, 1999 and the same shall continue to operate in view of Article 264-A of the Constitution of the Islamic Republic of Pakistan, 1973, (iii) that Ordinance is a general law whereas the Regulations is a special law, therefore, special Regulation of the State Bank of Pakistan shall prevail over the Ordinance XVII of 2000; (iv) that the said Ordinance will not operate retrospectively, for the acts of omissions and commissions as it would be violative of Article 12 of the Constitution;
(v) that the State Bank of Pakistan is not a Corporation or Statutory Body within the meaning of section 2(c) of the said Ordinance; and (vi) that no prejudice is caused to respondent, by application of SBP Staff Regulations, 1999 as show-cause notice, charge-sheet and regular enquiry were given and conducted. He has placed reliance upon (i) Syed Wajih-ul-Hasan Zaidi v.
Government of Punjab through D.C. Jhelum and 2 others 1996 SCM R 558 and (ii) I.-G. HQ. Frontier Corps and others v. Ghulam Hussain and others 2004 SCM R 1397 and page 1124 of the Black's Law Dictionary 6th Edition with regard to word "Pending".
7. We do not find merit and substance in the said contentions.
8. Section 13 of Ordinance XVII of 2000 reads as under:-- "13 Pending proceedings to continue.--- For the removal of doubts, it is hereby provided that all proceedings pending immediately before the commencement of this Ordinance against any person whether in Government service or corporation service under the Civil Servants Act, 1973 (LXXI of 1973) and rules made thereunder, or any other law or rules, shall continue under the said laws and rules, and as provided thereunder."
' Admittedly above reproduced provision of Ordinance was promulgated and enforced w,e,f, 27-5- 2000 while respondent was issued fresh charge-sheet on 30-9-2000 (pages 55 to 57 of the P.B.).
Respondent's Appeal No,401-L of 1998 preferred before the Federal Service Tribunal was allowed on 1-5-2000 in the following terms:-- "For the foregoing discussion and reasons, we have no hesitation in holding that impugned dismissal order suffers from legal defect and is not sustainable in law. We accordingly set aside the same and reinstate appellant in service without arrears of salaries for the intervening period of dismissal and reinstatement. However, the respondent if so desired, may proceed against the appellant afresh by following the process of law and pass appropriate order."
' The petitioners being dissatisfied against the order, dated 1-5-2000 of the Federal Service Tribunal preferred C.P.L.A. No,1645-I of 2000 before this Court which was also dismissed on 18-8-2000 (page 170 of the paper book). Para. 8 of the judgment of this Court reads:-- "The observation in para.12 of the impugned judgment with the petitioner-Bank can even now proceed against respondent No,1 ... By following the due process of law and pass an appropriate order" cannot be approved with the result that no reason whatsoever exists to tinker with the impugned order of the Tribunal dated 1-5- 2000."
9. It would be seen from the above that after the decision of the Federal Service Tribunal dated 1-5- 2000 and decision of this Court dated 18-8-2000 no proceedings within the meaning of section 13 of the said Ordinance against the respondent was pending, considering that the Ordinance XVII of 2000, was promulgated and enforced w,e,f, 27-5-2000, consequently, section 13 of the said Ordinance would not be attracted in the instant case.
10. So far the second contention, admittedly the SBP Staff Regulations, 1999 are not statutory rules hence have no statutory force where provision of section 11 of the, said Ordinance which reads as under has overriding effect over any other law:- "11. Ordinance to override other law's.-- The provisions of this Ordinance shall have effect 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."
11. The above provision clearly indicates that the provision of Ordinance No,XVII shall override the non-statutory rules of State Bank of Pakistan Staff Regulations, consequently, provision of Article 264 of the Constitution of the Islamic Republic of Pakistan, 1973 would not be attracted when the said Article leads with the effect of repeal of laws while non-statutory rules cannot take place of "Laws" considering the effect of the provision of section 11 of the said Ordinance. Accordingly the said contention has no merit and substance.
12. So far as the third contention, the same is misconceived. The said non-statutory Regulations cannot be said to be special law when the Ordinance No,XVII of 2000 itself states vide section 11 that it would override all other laws notwithstanding anything to contrary, consequently the said contention has also no merit and substance.
13. So far as the fourth contention, the same is also misconceived as the Ordinance No,XVII of 2000 has made it quite clear that only in case of proceedings immediately pending before the commencement of Ordinance, the same shall continue to be governed by the earlier laws and rules under which proceedings were initiated, whereas in the instant case on the date when fresh charge was issued to the respondent on 30-9-2000, there was no pending proceeding before the management or the. Court, as the respondent stood exonerated since the orders passed by the petitioners were set aside. In fact the respondent was ordered to be reinstated in service and in case the petitioners desired they could initiate proceedings afresh by following the due process of law and pass appropriate order, whereas Article 12 of the Constitution provides protection against retrospective punishment which in the instant case would have no application as the Ordinance No,XVII of 2000 has provided under section 11 that notwithstanding anything to the contrary in the Civil Servants Act, 1973 and the Rules made thereunder or any other law for the time being in force, the provisions of the said Ordinance shall have the effect, therefore, the said contention is without any merit and force.
14. Rest of the contentions were not raised before the High Court, therefore, the same cannot be permitted to be agitated for the first time before this Court in this petition.
15. Facts of the case-law cited by the learned' counsel for the petitioners are quite different and distinguishable from the facts of the instant case, therefore, the same are of no assistance to the petitioners case. So far the word "pending" as defined in the Black's Law Dictionary is concerned, the same has no relevancy keeping in view the date of fresh charge-sheet issued to the respondent when immediately no proceedings were pending against him, therefore, he would be governed under the provisions of Ordinance No,XVII of 2000.
16. We find that this petition has no merit in view of the reasons and the law stated above, consequently leave to appeal is declined and the petition is dismissed.
17. The instant petition on the face of record is frivolous and vexatious as the question of law was specifically and clearly decided up to the level of this Court, we earnestly feel that the same having been filed against the principle of fair play, good governance and justice, petitioners taking it to be a prestige point fully considering the legal position that it has no merit hence the petitioners are liable to pay special costs for filing of such petition being vexatious, frivolous and without any merit.
Accordingly, we direct that the petitioners shall pay special costs of Rs,20,000 within fifteen days to the respondent.