JUSTICE REID GHULAM NABI SOOMRO, CHAIRMAIN - The appellant is a primary school' teacher.. His earlier appeal (No. 195/02) before this Tribunal against his removal from service order was decided by this Tribunal on 22.12.2004 whereby the Respondent No. 3, Executive ' District Officer (Education) was directed to hold fresh enquiry into the matter of the appellant within a period of 90 days. Said enquiry having not been completed within the time allowed by the Tribunal, the appellant filed Constitution Petition in the High Court of Sindh at Karachi being Constitution Petition No. 333/05 for the implementation of the above-said judgment of this Tribunal in 5.5.2005. During the hearing of the Constitution Petition in the Hon'ble High Court on 14.9.2005, the Additional Advocate-General, Sindh produced a copy of order dated 12.9.2005 showing that the judgment of the Tribunal was implemented. Accordingly the Hon'ble High Court of Sindh disposed of the Constitution Petition same day.
2. The case of the appellant as set up in the present appeal is that the appellant was again on 27.9.2005 placed under, suspension mala fidley w.e.f. 12.9.2005 vide Annexure A/8 (page 4 of the file). That the appellant again moved the Hon'ble High Court for recalling the order (Annexure A/8).
The matter came to be fixed before the High Court on 22.1.2007 when a photocopy of the letter dated 21.12.2006 from the Secretary, Department of Education to the Executive District Officer, Primary Education, Nawabshah was delivered to the appellant's counsel in Court, showing that the appellant was awarded major penalty of reduction to lower scale. Consequently the appellant preferred departmental appeal to the respondent No. 1, Chief Secretary, Government of Sindh through his counsel on 24.1.2007 against the aforesaid major penalty order which remained without, any response, hence this appeal.
3. The respondents Chief Secretary, Government of Sindh and the. Secretary, Department of Education failed to file their written statements although sufficient time was given for such purpose.
Out of the three respondents only respondent No. 3 E.D.O., Primary Education,"Nawabshah filed the written statement, wherein it was stated that the appellant was not the appointing authority in appointment cases. The appointments were not made above the sanctioned strength. Further, Primary Teacher is not appointing the authority, hence the allegations contain no weight, It has also been admitted that Primary School Teacher being not a Drawing and Disbursing Officer of Employees, the question of drawing of G.P.' fund advances by the appellant does not arise, It is added that the appellant was suspended only for the sak6 of enquiry^ process and later on he was punished under Removal from Service (Special Powers) Ordinance, 2000 hereinafter to be referred to as the Ordinance, 2000 as proposed by the Enquiry Officer and the directives received from the Education Department.
4. We have heard the appellant in person and Mr. S. Kamil Shah,. A.A.G., for the respondents and have peruse the record.
5. It was contended by the appellant that the appellant being a primary teacher had no power to make appointments nor he could have singly or jointly (as alleged) drawn G.P. Fund advance from the accounts of teachers. That there was no evidence that the appellant had, participated in the alleged incident contained in the charge- sheet (Annexure A/2), It was added that no enquiry as directed in the Tribunal's judgment was conducted nor any final show-cause notice was issued to the appellant prior to awarding of said major penalty by the Secretary, Department of Education (Respondent No. 1). It was alternatively urged that a copy of enquiry report if any,-was not provided to the appellant at any time, It was vehemently agitated that delivery of enquiry report to the appellant being mandatory, failure to supply the same would be sufficient circumstance to say that either no enquiry was held at all or if any enquiry was held then keeping the enquiry report as a secret document from appellant's approach was also violative of the laws and rules.
6. It was lastly submitted that the co-accused officer Ghulam Nabi Kerio (shown at S. No. 3 of the charge- sheet (Annexure-A/2) Similarly charged was reinstated in service by the Government.
7. On the other hand learned A.A.G, referred to the written- statement filed by respondent-No. 3 (EDO, Primary Education). Nawabshah, and repeated version of the Respondent as contained in his written statement, It is however denied that proper enquiry was not conducted.
8. From the bare perusal of the written statement it appears that the allegations levelled against the appellant in the charge-sheet are not supported by the answering Respondent No. 3. One of the co-accused officer namely Ghulam Nabi Kerio is stated to have been reinstated in service under orders of the Government, which is not denied by the A.A.G. What is stressed in the written statement is that proper enquiry was held under The Ordinance, 2000. The question which arises here is whether enquiry against him was to be conducted/continued under the Provisions of the Ordinance, 2000 or under the Provisions of Sindh Civil Servant (E&D) Rules, 1973 hereinafter to be referred to as Rules, 1973.
9.Section 13 of the Ordinance, 2000 postulates that all proceedings pending immediately before the commencement of the Ordinance against any person whether in Government service or corporation service under the Sindh Civil Servants Act, 1973 and Rules made thereunder, or any other law or Rules, shall continue under the said laws and Rules, and as provided thereunder.
10. Admittedly the appellant was proceeded against under the Provisions pf the Rules, 1973, the proceedings having been found defective, the Tribunal directed for conducting said enquiry proceedings afresh. According to the above-quoted Section' 13, the enquiry against the appellant had to be continued under the Provision of the Rules, 1973 and not under the Provisions of the Ordinance, 2000. Switching over to the Provisions of the Ordinance, 2000 was not permissible under the law.
11. Although it is mentioned in the written statement that an enquiry was conducted under the Ordinance, 2000 but the respondents have produced no document to show that an enquiry in pursuance to the judgment dated 22.12.2004 was held. Nevertheless, the appellant was entitled to have a copy of such enquiry report. In the circumstances we have no doubt to hold that no enquiry was. Held. The appellant seems to have been demoted, perhaps on the basis of material which formed part of the previous Appeal No. 195/2002 filed by the appellant and disposed of by the judgment as afore-said.
12. Accordingly, the punishment passed against the appellant cannot maintained. The appeal is allowed. The appellant's reduction to lower pay scale from BPS-10 to BPS-9 vide order dated 21.12.2006 passed by the Respondent No. 3 is hereby set aside. The appellant shall remain in same position in which he was prior to the passing of afore-said penalty. He shall be entitled to all back benefits consequent upon grant of this appeal. There shall however, be no order as to costs.
13. This appeal was allowed at camp Nawabshah on 18.9.2008 by a short order. Above are the reasons for the same.