' FAISAL ZAMAN KHAN, J. Through this petition petitioner challenge the vires of orders dated 16.12.2002 and 11.11.2003 passed against him under the Pakistan WAPDA Employees (E&D) Rules 1978 (hereinafter called the Rules).
2. Facts giving rise to the present petition are that petitioner while working as Circle Manager M&T FESCO Jhang was proceeded against under the Rules and was issued a letter of explanation on 26.03.2002. He replied to the same, where after, final show cause notice was issued, whereupon, vide order dated 16.12.2002, penalty of withholding of two annual increments for two years and recovery of Rs,257,600/-on account of loss sustained by Authority in easy instalments was imposed. Feeling aggrieved he filed a departmental appeal which also met the same fate and was dismissed vide order dated 11.11.2003. Thereafter, petitioner approached the Federal Service Tribunal but his appeal abated in view of judgment reported as PLD 2006 SC 602 [Muhammad Mubeenus- Salam and others vs Federation of Pakistan through Secretary, Ministry of Defence and others], hence this petition.
3. The sole argument raised by learned counsel for the petitioner is that with the promulgation of Removal from Service (Special Powers) Ordinance 2000 (herein after called the Ordinance), the petitioner could not have been proceeded under the Rules and the proceedings initiated against him vide letter dated 26.03.2002 were illegal and without jurisdiction. He relies on 2007 SCM R 229 [Azizullah Memon vs Province of Sindh and another]. He also relies on unreported judgments passed by Honourable Supreme Court of Pakistan in Civil Petition Nos.1680-L/2002, 2705/2004 & 2428/2004 to substantiate the above proposition.
4. Conversely, learned counsel appearing for the respondent/department contends that petitioner being an employee of FESCO, which is a Company and does not have Statutory Rules, hence in view of judgment reported as 2010 SCM R 1484 [Executive Council, Allama lqbal Open University, Islamabad and another vs Mrs Zamurat Mehmood and others], this petition is not maintainable. He further argues that appeal on the same subject matter has been filed by the petitioner which is pending before the Federal Service Tribunal, henceforth; this petition is even otherwise not maintainable.
5. We have heard learned counsel for the parties and have gone through the record.
6. It is admitted between the parties that petitioner is an employee of FESCO which is a Company owned by WAPDA. It is also admitted that petitioner was proceeded against under the Rules and that too after the promulgation of Ordinance. For better understanding the applicability and import of the Ordinance, it shall be convenient to reproduce the following Sections of the Ordinance:--- ' Section 2(c) "person in corporation service' means every person in the employment of a corporation, corporate body, authority, statutory body or other organization or institution set up, established, owned, managed or controlled by the Punjab Government, or by or under any law for the time being in force or a body or organization in which the Punjab Government has a controlling share or interest and includes the Chairman and the Managing Director, and the holder of any other office therein; and Section 11. Ordinance to override other laws.- The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in the Punjab Civil Servants Act, 1974 (VII! Of 1974) and the rules made thereunder and any other law for time being in force.
' Section 12. Proceedings under this Ordinance.-All proceedings initiated on the commencement of this Ordinance in respect of matters and persons in service provided for in this Ordinance shall be governed by the provisions of this Ordinance and rules made thereunder;--- [Provided that the Provincial Government may, by notification in the official gazette, exempt any class or classes of employees of a corporation, corporate body, authority, statutory body or other organization or institution set up, established, owned, managed or controlled by it or a body or organization in which it has a controlling share or interest from the provisions shall, notwithstanding anything contained in this Ordinance, be proceeded against and dealt with under the laws and rules applicable to such employees before the commencement of this Ordinance].
' Section 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 Punjab Civil Servants Act, 1974 (VIII of 1974) and rules made thereunder, or any other law or rules, shall continue under the said laws arid rules, and as provided thereunder.
7. The cumulative reading of the above provisions would clearly signify that a person who is an employee in a Corporation, Corporate Body, Authority, Statutory Body or other organization which are set up and owned by the Federal Government fell within the mischief of definition of "Person" and are amenable to the jurisdiction of the Ordinance. Reading further, the Ordinance has an overriding effect on all other laws notwithstanding anything contrary thereto. The only exception to the rule has been created by virtue of Section 13 ibid which postulates that proceedings pending prior to the commencement of this Ordinance shall continue under the old law.
8. It is evident that the Ordinance was promulgated on 27.05.2000, whereas; the petitioner was proceeded against under the Rules on 26.03.2002 which clearly stipulate that as the proceedings were initiated after the promulgation of the Ordinance and were thus without any sanction of law.
Learned counsel for the respondent department has not been able to show any document by virtue of which this could be ascertained that the been taken out of the ambit of the Ordinance.
9. This Court is of the view that the legal position elaborated above supported by case law clearly signifies that proceedings initiated against the petitioner were wholly without jurisdiction and the department was not entitled to proceed against him under the Rules.
10. As regard the maintainability of the petition, being the employee of FESCO which fall within the definition of "person" as enunciated by Hon'ble Supreme Court of Pakistan in judgment reported as 2013 SCM R 1707 [Pakistan Defence Officers' Housing Authority and others vs Lt. Col. Syed Jawaid Ahmed] Even otherwise in view of judgments reported as 1995 SCM R 46 [Yar Muharrmld vs Water and Power Development Authority through Chairman and 2 others] and 2010 SCM R 1495 [Chairman, State Life Insurance Corporation and others vs Hamayun Irian and others], the Rules ibid are declared to be Statutory in nature and hence a writ petition is maintainable.
11. As regard the pendency of an appeal before the Federal Service Tribunal it is clear that by virtue of incorporation of Section 2-A of the Civil Servants Act 1974, persons like petitioner were aecia red to be civil servants for a limited purpose of approaching the Service Tribunal, but the same was declared ultra vires by the Supreme Court of Pakistan in judgment reported as PLD 2006 SC 602 [Muhammad Mubeen-us-Salam and others vs Federation of Pakistan through Secretary, Ministry of Defence and others], and by virtue of that proceedings initiated before the respective Service Tribunal stood abated. In this regard a letter was also issued to the petitioner by the Registrar Federal Service Tribunal on 24.7.2006.
12. Even on merits, respondents without conducting an inquiry or at least passing an order for dispensing viith the inquiry, victimized the petitioner, which is against the mandate of law. This is settled proposition of law that Major Penalty cannot be awarded without a regular inquiry, reliance can be placed on 2012 PLC(CS) 787 [Deputy Inspector General Investigation, Lahore vs Asghar Ali], 2009 SCM R 339 [Muhammad Haleem and another vs General Manager (Operation) Pakistan Railways Headquarter, Lahore and others],PLD 2008 SC 451 [Tariq Mehmood vs District Police Officer, Toba Tek Singh and another], PLJ 2009 SC 127 [Saad Salam Ansari vs Chief Justice of Sindh High Court, Karachi through its Registrar].
13. As a sequel to the above, this writ petition is accepted and the orders dated 16.12.2002 and 11.11.2003 are declared to be without lawful authority and are set aside. This order however will not preclude the respondent/department from proceedings against the petitioner under the relevant law. Writ .