Briefly, the facts of the case are that the appellant was proceeded under Punjab Removal from Service (Special Powers) Ordinance, 2000 on the charges of inefficiency and mismanagement which resulted into the escape of 11 prisoners from District Jail, Mandi Bahauddin on 24.10.2001. The competent authority appointed Mr. Kokab Nadeem Warraich, Superintendent Central Jail, Mianwali as inquiry officer who after conducting regular inquiry submitted his report. The competent authority served the appellant with a show-cause notice. The appellant submitted his reply to the show-cause notice and refuted the charges. The competent authority did not find the reply of the appellant satisfactory and after affording personal hearing imposed the penalty of Reduction to the lowest stage in time scale upon the appellant, vide impugned order dated 18.06.2002. The appellant, feeling aggrieved, filed a departmental appeal before Respondent No. 2, which was rejected vide impugned order dated 18.08.2007.
2. The counsel for the appellant argued that impugned orders have been passed without application of independent and judicious mind by the concerned authority since the punishment of reduction in time scale was not even provided in the Ordinance ibid and that amendment providing the said penalty in the Ordinance was made on 28.10.2002 and this amendment can not be applied retrospectively. It is further maintained that even otherwise the penalty of reduction to the lowest point was no-where provided under E&D Rules also. It was further argued that a judicial inquiry was also got conducted in respect of the above incident through Mr. Abdul Qadir Shad, the then District and Sessions Judge, Mandi Bahauddin who exonerated the appellant and recommended disciplinary action against nine officials for their negligence. The counsel stated that entire action taken against the appellant was based on mala fide of facts and law. As the penalty awarded to the co-accused namely Malik Pervaz Iqbal, Dy. Superintendent Jail has already been set-aside by this Honourable Tribunal vide judgment dated 22.01.2003, but the appellant has been victimized for none of his fault, hence, the appellant deserved the same treatment, which is given to Malik Pervaiz Iqbal, Deputy Superintendent Jail.
3. On the other hand, the respondents opposed the contentions of the counsel for the appellant.
Learned District Attorney maintains that the appellant being incharge of the jail affairs at that time was responsible for any incident and that he had failed to take effective measures and resultantly jail administration had become loose and the prisoners escaped due to laxity on the part of administration. It is further maintained that impugned orders were not illegal because according to the provisions of Removal from Service (Special Powers) Ordinance, 2000, the penalty of reduction to pay scale was also provided which implies that the appellant could be reduced at/in any stage/pay scale. It is also maintained that appellant was given the of port unity to defend himself against the allegation through regular inquiry and he was punished after fulfillment of codal formalities.
4. Arguments advanced by the parties heard and available record gone through.
5. Record perused and heard the parties. I agree with the learned counsel for the appellant that penalty of reduction to the lowest stage in time and scale has been awarded to the appellant, which was not provided in the Punjab Removal from Service (Special Powers) Ordinance, 2000.
Therefore, as the impugned orders were not passed strictly in accordance with law in force at, that time, the said orders could not be considered legal. Moreover, till the amendment made in the Punjab Removal from Service (Special Powers) Ordinance, 2000 on 28.10.2002, the appellant could be reduced in pay scale, but could not be reduced to a stage in pay scale and that amendment dated 28.10.2002 in the said Ordinance could not be made applicable retrospectively. It is also plausible that incharge of the Jail was not the appellant but it was the Superintendent of Jail.
6. In view of the above discussions, I find that punishment awarded to the appellant was not in accordance with the provisions of Ordinance in force at that time. Resultantly, the impugned orders are declared as un-lawful and the same are, therefore, set aside. Appeal is accordingly accepted.
However, the respondents are at liberty to order fresh proceedings against the appellant in accordance with the law by appointing new officers to ensure transparency.