SALIM GUL SHAIKH, MEMBER. - This appeal is directed against impugned order dated 20.6.2003 (received by the appellant on 24.6.2003) whereby he was awarded major penalty of Dismissal from Service under Government Servants (Efficiency & Discipline) Rules, 1973. The appellant filed Departmental Appeal against this order on 17/18.7.2003 under the provisions of Civil Servants (Appeal) Rules, 1977 which was rejected on the point of limitation vide appellate order dated 18.8.2003 (received by the appellant on 2.9.2003) hence this appeal under Section 4 of the Service Tribunal Act, 1973.
2. Briefly, relevant facts relating to this appeal are that the appellant, working as Principal Appraiser (BPS-17) in the Directorate of Internal Audit (Customs, Excise & Sales Tax), Lahore, was proceeded against on charges of misconduct under the Government Servants (Efficiency & Discipline) Rules, 1973. He was served with a Show-Cause Notice on 22.6.1998 on the following four charges:- "(i) That you while posted as Principal Appraiser in the office of Controller of Customs Valuation, Lahore were transferred and posted in the Directorate of Internal Audit (Customs & Excise), Lahore vide Board's Notification No. 281-ACEI/95, dated 5.10.1995 but you failed to report to the Directorate of Internal Audit (Customs & Excise), Lahore.
(ii) That you reported in the Directorate of Internal Audit (Customs & Excise), Lahore on 18.4.1996 after a lapse of about 6 months.
(iii) That after joining on 18.4.1996, you are absconding from duty without any permission/intimation.
(iv) That you were directed vide Directorate of Internal Audit (Customs & Excise), Lahore's letter No. 3(31)DIA-PF/96/266, dated 16.5.1996, 25.7.1996, 17.9.1996, 23.9.1996, 22.10.1996 and 3.11.1997 to explain the reasons for your un-authorized absence but you neither reported for duty not responded to the said letters."
2. On 29.7.1998, the respondent-department issued an Addendum whereby the following charges were added:- "(v) That you got your A.C.R's. For the years 1984 and 1986 countersigned from Mr. S.M.A. Zia, Collector of Customs Appeals (Appraisement), Karachi and Mr. Pervez Iqbal, Deputy Collector, CE & ST, Karachi respectively instead of Mr. Khalid Nasim, the then Assistant Collector of Customs Valuation, Lahore.
(vi) That you have been issuing un-authorisedly valuation advice/assessment inspire of being transferred from the valuation office, Lahore.
(viii) That you submitted a representation for your transfer on 22.5.1998 which was addressed to Chairman, C.B.R, directly by-passing the prescribed official channel."
3. The appellant vehemently denied the charges levelled against him in the Show-Cause Notice and the Addendum vide reply dated 8.10.1998. The respondent- department, having found his reply as not satisfactory, issued the order of his Dismissal from Service on 18.3.1999. The appellant preferred a Departmental Representation which was rejected by the Appellate Authority under Rule 2(a) and Rule 6 of the Civil Servants (Appeal) Rules, 1977 vide order dated 22.9.1999. Thereafter, the appellant approached this Tribunal by filing Appeal No. 1256(L)/1999, on 22.10.1999. The Tribunal through its judgment dated 27.1.2003, set aside the dismissal order and allowed the respondent- department to proceed against the appellant afresh by giving the appellant on opportunity to defend himself. The appellant was re-instated into service and fresh action was initiated against him by waiving inquiry under Rule 5(iii) of Government Servants (Efficiency & Discipline) Rules, 1973 on the same charges vide order dated 3.3.2003. The appellant submitted his defence reply to the Show- Cause Notice on 29.3.2003 and on 25.4.2003 requested for regular inquiry to be conducted in order to establish the charges levelled against him. Neither his request for inquiry nor his representation were accepted and the punishment of Dismissal from Service was imposed on him vide order dated 20.6.2003. After exhausting existing remedies, the present appeal has been filed before the Tribunal.
4. Mr. Sanaullah Noor Ghori, the learned counsel for the appellant in his arguments has pierced the impugned order on numerous counts. Thrust of his arguments has, however, been on the following legal questions:-
(a) Whether disciplinary proceedings under the Government Servants (Efficiency & Discipline)
Rules, 1973 was admissible in presence of the Removal from Service (Special Powers) Ordinance, 2000.
(b) Whether imposition of major penalty without holding regular departmental inquiry to establish the charges against the accused officer was legal.
5. While discussing the vires of law under which the disciplinary proceedings have been conducted against the appellant, the learned counsel for the appellant maintains that the Government Servants (Efficiency & Discipline) Rules, 1973 were no longer in force when the Show-Cause Notice dated 3.3.2003 was served on the appellant because the Removal from Service (Special Powers)
Ordinance, 2000 was in the field on 20.5.2000 and therefore, the order passed under Jthe Rules was nullity in the eyes of law. In this connection, he has cited the following judgments:-
(a) PLJ 2006 SC 189: Pakistan Telecommunication Company Limited through its Chairman and three others v. M/s. Muhammad Saeed Wazir, Former General Manager, (T&R) PTCL and another.
(b) 2007 PLC (CS) 281: Daud Shah & another v. Pakistan Water & Power Development Authority and another.
(c) 2007 SGMR 229: Azizullah Memon v. Province of Sindh and another.
6. The. Learned counsel for the appellant next contends that imposition of major penalty in the absence of regular inquiry particularly where facts are disputed is not legally sustainable and the seeks strength from the following judgments:-
(a) 2003 SCMR 1110: Abdul Qayyum v. D.G., Project Management Organization, JS HQ, Rawalpindi and 2 others.
(b) PLJ 1997 SC 1393: Bash a rat Ali v. Director, Excise & Taxation, Lahore and another.
(c) 200u PLC (CSV 953: Saghir-ud-Din Babar v. S.P. City Division & another.
7. The learned counsel for the appellant has also argued that the departmental inquiry was not completed by the respondent-department within the stipulated time-frame of four months given by the Federal Service Tribunal. Hence, according to him, such action was not sustainable before law and in support of his argument has cited the following judgments:- _
(a) PLJ 2004 Tr.C. (Services) 183: Zahooruddin Shaikh v. Pakistan Atomic Energy Commissioner through its Chairman, Islamabad.
(b) KLR 2005 Labour & Service Cases 410: Bhero Lai Virjani v. The Predident Pakistan Telecommunication Limited, Islamabad & 3 others.
8. Mr. S.M. Iqbal Shah, the learned counsel for the respondents, on the other hand, while controverting the arguments of the learned counsel for the appellant, states that the present appeal was in continuation of the appeal filed by the appellant before this Tribunal at Lahore on 22.10.1999 and, as such, the fresh Show-Cause Notice was in continuation of the Tribunal's judgment dated 27.1.2003. Therefore, he contends, the respondent-department was constrained to initiate action against the appellant under the Government Servants (Efficiency & Discipline) Rules, 1973 and not under the Removal from Service (Special Powers) Ordinance, 2000. The learned counsel further states that the competent authority was competent under the Rules to dispense with regular inquiry in view of the evidence available with him. He further states that the de novo inquiry proceedings were completed within the stipulated period of four months. He further states that the respondent- department had met the ends of justice by giving the appellant an opportunity of personal hearing, which the appellant did not avail. The learned counsel lastly contended that the Removal from Service (Special Powers) Ordinance, 2000 could not be applied retrospectively since the action against the appellant was initiated much before the promulgation of the ibid Ordinance.
9. We have heard the arguments from both sides and have also closely perused the material available with us on record.
10. The questions for consideration before us are:
(i) whether the decision of the competent authority to initiate, the discipline proceedings against the accused officer under the Government Servants (Efficiency & Discipline) Rules, 1973 in presence of the Removal from Service (Special Powers) Ordinance, 2000 is legally maintainable. And (ii) whether major penalty can justifiably be imposed on accused officer without having the benefit of a regular departmental inquiry in the presence of disputed facts.
11. In our opinion, the fate of this appeal lies in answer to these two fundamental questions. We, therefore., propose to proceed by discussing these questions first and thereafter discuss other discrepancies raised in this appeal.
12. The learned counsel for the appellant has vehemently argued that the respondent-department has grossly erred by initiating de novo disciplinary proceedings under the Government Servants (Efficiency & Discipline) Rules, 1973 because the Removal from> Service (Special Powers)
Ordinance, 2000 had been promulgated w.e.f.
20.5.2000 and was holding the field. We tend to agree with this contention because, in our view, there is absolutely no ground for ambiguity on the question whether Removal from Service (Special Powers) Ordinance, 2000 takes precedence over other laws in the light of judgments of the Hon'ble Supreme Court which the learned counsel for the appellant has very correctly cited.
13. Furthermore, Section 11 of the ibid Ordinance, unequivocally states:- "11. Ordinance to override other laws.- The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in the Civil Servants Act, 1973 (LXX1 of 1973), and the rules made thereunder and any other law for time being in force.
14. - We are further fortified by the law down by the Hon'ble Supreme Court in the case of Azizullah Memon v. Province of Sindh and another reported in 2007 SCMR 229 as well as the judgments of this Tribunal in case of Raees Ahmed v. P.N.C.S. (Appeal No. 99(K)CE/2003) and Mumtaz Ahmed Khan v. P.N.S.C. (Appeal No. 771(K)CE/2003) We, therefore, firmly hold the- view that the respondent- department has misapplied the law.
15. We are also not convinced by the position maintained by the learned counsel for the respondents that the competent authority could not substitute the application of law in the de novo proceedings because of the judgment of the Tribunal dated 27.1.2003 whereby the appeal was remanded the department. The next argument that the Removal from Service (Special Powers) Ordinance, 2000 could not be applied retrospectively because the appeal in hand was in continuation of action initiated in 1998 also does not convince us.
16. In order to have a clear understanding of the legal question involved, it is pertinent to see the direction contained in the judgment of this Tribunal dated 27.1.2003. The relevant portion states:- ''5. For the above reasons we find that the impugned order cannot be sustained because it is based on proceedings which were not carried out strictly in accordance with law. As a result thereof we accept this appeal and set aside the impugned order. We direct the respondents to proceed against the appellant in accordance with law. The respondents may pass an order dispensing with regard inquiry and if they do so that order shall be conveyed to the appellant. He shall be served with a final show-cause notice and shall be afforded an opportunity for personal hearing, In case the Authorized Officer finds that regular is needed then he shall pass an order accordingly, In that event inquiry shall be held strictly in accordance with prescribed rules. But whatever process is adopted by the respondents it shall be completed within a period of four months."
17. It is very clear from the above that the respondent-department was directed to "proceed against the appellant im accordance with law", It is not disputed that fresh proceedings were initiated against the accused officer vide Show-Cause Notice dated 3.3.2003. Therefore, the law available to the competent authority at that point in time was the Removal from Service (Special Powers) Ordinance, 2000 and no other.
18. Plain reading of the Removal from Service (Special Powers) Ordinance, 2000 reveals that the authors of the ibid Ordinance have tried to clear the ambiguity about the legal status of pending appeals by inserting Section 13 which reads as follows:- "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 (LXX1 of 1973) and rules made thereunder or any other law or rules, shall continue under the said Laws and rules, and as provided thereunder."
19. It must be noted that this provision relates only to pending appeals and not those which have been decided. In the case in hand, the "Final Order" was not pending before this Tribunal. Therefore, the contention of the respondent-department fails to convince us.
20. Insofar as the question about the decision to waive the requirement of conducting regular inquiry is concerned, suffice to say that it is now a settled law that in order to determine the question of guilt or innocence of an accused person, it is essential to afford the accused official a fair and reasonable opportunity to make his defence which is an inalienable right of the person.
The Hon'ble Supreme Court had laid down the law that in case where imposition of major penalty is. Involved, it is necessary to establish the facts against the official which can only be done by holding a regular inquiry under the prescribed rules. We seek strength in holding this opinion from the decisions of the Hon'ble Supreme Court in the following cases:-
(i) Naseeb Khan v. D.S. Pakistan Railways (2008 SCMR 1369).
(ii) Alamgir v. Divisional Forest Officer, Multan (1993 SCMR 603).
(iii) Nawab Khan v. Government ,of Pakistan (Ministry of Defence) (PLD 1994 SC 222).
(iv) Basharat Ali v. Director Excise &. Taxation, Lahore (1997 SCMR 1543).
21. In view of foregoing reasons, we set aside the impugned order and re-instate the appellant into service ,with back benefits as admissible under the rules subject to the condition that the appellant was not in gainful employment during the period he remained out of the government job. We also note that proceedings have been going on against the appellant for over 10 years. He and his family have suffered enough, It will neither be fair nor will it serve the interest of justice to prolong his agony further by going through the entire disciplinary process all over again. The appeal succeeds.
Parties be informed.