' SAIYED SAEED ASHHAD, J.---This appeal with leave of the Court assails the judgment of Federal Service Tribunal, Islamabad dated 2-5-2005 in Appeal No,79(K)(CS)/2003.
2. By the afore-said judgment the Tribunal had modified the penalty of compulsory retirement of the appellant and converted it to penalty of reduction to a lower post i.e, L.D.C. (BS-5). Feeling aggrieved and dismissed with the impugned order of the Tribunal, the petitioner assailed the same by a civil petition for leave to Appeal bearing No,459-K of 2005. Leave to appeal was granted to him on 2-9-2005 on the ground to consider whether a fresh charge could be issued to the petitioner on the same charges/allegations under the provisions of Removal from Service (Special Powers) Ordinance, 2000 after the order of imposition of penalty had been recalled/rescinded vide order dated 13-2-2002 on the ground that the departmental proceedings were inadvertently initiated under the Civil Servants (Efficiency and Discipline) Rules, 1973 which had ceased to be in force after promulgation of the Ordinance.
2A. We have heard the arguments of Mr. Shabbir Ahmed Awan, learned Advocate Supreme Court appearing for the appellant and Mr.Rizwan Ahmed Siddiqui, learned D.A.-G.
3. Initially the petitioner was charged-sheeted on 30-7-2000 under the Civil Servants (Efficiency and Discipline) Rules, 1973 and was awarded the penalty of reduction to a lower post vide order dated 15-9-2001. The order of imposition of penalty was assailed by way of appeal before the Tribunal. During the pendency of the appeal department withdrew the order of imposition of penalty vide order dated 13-2-2002 and issued a fresh charge-sheet on 4-3-2002 under the Ordinance of 2000 on the same allegations, which were contained in the previous charge-sheet.
4. It has been submitted by Mr. Shabbir Ahmed Awan that the above exercise was undertaken by the department as they had inadvertently initiated the disciplinary proceedings under the rules, which had ceased to be in force in view of the provisions of section 11 of the Ordinance of 2000 and on becoming aware of this mistake and realizing that the appeal filed by the appellant before the Service Tribunal would succeed and to come up/overcome the mistake they withdrew the order of imposition of penalty and issued a fresh charge-sheet on the same ground/allegations under the Ordinance of 2000, Mr. Shabbir Ahmed Awan vigorously attacked the action of the departmental authority in proceeding afresh against the appellant in respect of the same charges, for which he was penalized and the penalty was withdrawn, elaborating that withdrawal of the order of imposition of penalty amounted to absolving the appellant from the charges levelled in the charge-sheet and it would be deemed as if the same did not exist thus the action of initiation of fresh departmental proceedings by issuing fresh charge sheet was not available and was absolutely contrary to the provisions of the constitution as well as the law.
5. Learned D.A.-G. Mr. Rizwan Ahmad Siddiqui did not dispute the contention advanced by Mr. Shabbir Ahmed Awan and under instructions df the Assistant Director, N.I.P.A. Mr. Waheed Akhtar, who is present with him in the Court, frankly conceded that after unconditional withdrawal of the order of imposition of penalty upon the appellant lie could not be proceeded with again for the same charges allegations as he would be deemed to have been absolved/exonerated in respect of the said charge.
6. The upshot of the above discussion is that withdrawal of the order of penalty made against the appellant, which resulted in the appellant's withdrawing his appeal before the Service Tribunal amounted to exonerating/absolving the appellant of all the charges/allegations levelled in the charge sheet dated 15-9-2001 and it would be deemed that if all those charges/allegations were washed off. By withdrawal of the order of penalty certain rights and privileges had been granted or had B accrued in favour of the appellant and the same could not be taken away by initiating fresh departmental disciplinary proceedings, which were meant to overcome the earlier illegal action of the department in not proceeding against the appellant under the proper law, which was in force at the relevant time. The department if allowed to do so, would result in causing serious prejudice to the appellant as the second charge sheet would suffer from legal flaws including the question of limitation.
7. For the foregoing facts and discussion, this appeal is allowed. The impugned order dated 2-5- 2005 as well as the departmental order for imposition of penalty dated 27-11-2002 are set aside/recall and the appellant is reinstated to the post of Steno-Typist in BPS-12 with all consequential benefits. It is pointed out that Mr. Rizwan Ahmed Siddiqui, learned D.A.-G. Opposes the grant of back/consequential benefits/difference of pay to the appellant on the ground that the appellant has been let off only on technical ground or fault of the department and his case on merits has not been decided. We do not agree with him inasmuch as the mistake was a very vital and far reaching mistake in proceedings under a law/rule, which did not exist and the appellant cannot be deprived of his rights on account of illegality committed by the department.
8. .