Full Judgment Text & Judicial Ruling

2008 P L C (C

2008 P L C (C.S.) 1227

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

IJAZ AHMED LARIK

Versus

CHAIRMAN, NADRA HEADQUARTERS, ISLAMABAD and others

Appeal No.295(K)(C.S.) of 2001, decided on 21st July, 2004.

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4(1)(b)(iv), 5, 6 & 7---Service Tribunals Act (LXX of 1973), S.4---Removal from, Service (Special Powers) Ordinance (XVII of 2000), Ss.3, 5, 6, 7, 10 & 11---Dismissal from service---Appeal to Service Tribunal---Penalty of dismissal from service was imposed on appellant on allegations of unauthorized absence from duty and not taking interest in official work---Appellant had raised legal objections that proceedings against him had been initiated under Government Servants (Efficiency and Discipline) Rules, 1973 at the time when Removal From Service (Special Powers) Ordinance, 2000 had already been promulgated and under S.11 of said newly-promulgated Ordinance, said Ordinance had over-riding effect on all existing laws---Proceedings against appellant, in circumstances were null and void as appellant was deprived of his right of disputing serious allegation of fact against him which could only be determined by means of regular inquiry as provided under Removal from Service (Special Powers) Ordinance, 2000---Proceedings against appellant having been vitiated by misapplication of law, appellant was reinstated in service from the date he was dismissed with direction that de novo trial be held against appellant strictly in accordance with the provisions of Removal From Service (Special Powers) Ordinance, 2000.

2003 PLC (C.S.) 600 ref:

Sanaullah Noor Ghauri for Appellant.

Asif Mangi Standing Counsel for Respondents along with D.R Sharifullah Khan, Assistant Director, NADRA.

Date of hearing: 21st July, 2004.

JUDGMENT

QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).--This is an appeal against the order of dismissal of the appellant from service passed by respondent No.2 on 25-7-2001. The appeal has been preferred under section 4 read with section 2 of the Service Tribunals Act, 1973. The appellant filed departmental appeal on 21-8-2001 to the respondent Nos.1 and 2 hereinabove but it was rejected on 31-8-2001. Hence the appellant filed this appeal on 22-10-2001 praying that the impugned order of dismissal dated 25-7-2001 be set aside and the appellant be ordered to be reinstated in the service with all back-benefits treating the period out of service as spent on duty or in the alternative the appellant may be reinstated into service by ordering the respondents to initiate departmental enquiry against the appellant as per rules.

2. The allegations against the appellant as contained in the Show-cause notice are reproduced as under:

"Government of Pakistan Ministry of Interior Directorate General of Registration Regional Directorate of National Registration

No.Regn:1/626/2000-PRO(Estt.)/126 Phase-1 Industrial Area,

Defence Society, Korangi Road, Karachi dated, 8-8-2000, Show-Cause Notice

I, Ehsanullah Randhawa, Director, Directorate General of Registration, Ministry of Interior, Regional Directorate of National Registration, Karachi having been designated as authorized officer under sub-Rules (2) and (3) of Rule 2 of Government Servants (Efficiency and Disciplinary) Rules, 1973 hereby inform you Mr. Ijaz Ahmed Larik, R.C.DRO, Dadu, that it is proposed to dismiss you from service on the following grounds:

(1) That you are unauthorisedly absent from your duties w.e.f. 11-22000 till to date.

(2) That you do not take interest in official work assigned to you by your District Registrar, in spite of the many directives given by the District Registrar to improve your performance.

(3) You only attended the office for following days in 4 months and left the office without permission of District Registrar.

February Ito 2, 7, 11 to 29, March 1 to 21, 25, 28 to 30, April 1 to 6, 8, 11 to 30, May, 1-5-20n0 to till to date.

The above mentioned act on your part tantamounts to misconduct and inefficiency.

2. You are therefore required to show cause within 14 days of the receipt/issuance of this notice as to why penalty of dismissal from service under R4(i)(b)(iv) of the Government Servants (Efficiency and discipline), Rules, 1973 should not be imposed on you and also state whether you desire to be heard in person. Take notice that if no response is received from you within stipulated period ex parte action will be taken against you.

(Sd.) (Ehsanullah Randhawa), Director Phone No.5889558"

3. The appellant filed department appeal against the said order but it was rejected on 21-8-2001. Hence this appeal.

4. The respondents filed the written comments wherein they denied averments of the appellant and maintained that holding any enquiry was not necessary in this case as the case against the Appellant was based on documentary evidence. The respondents further stated that the appellant remained absent without any information for a long time i.e. from 11-2-2000 to 11-4-2001 which constituted a glaring misconduct for which he was rightly punished under the law.

5. We have heard the learned counsel for the parties and have also perused the record.

6. At the very outset the learned counsel for the appellant raised Legal Objection that the proceedings against the appellant were initiated on 8-8-2000 under the Government Servants (Efficiency and Discipline) Rules, 1973 but before that the Removal from Service (Special Powers) Ordinance, 2000 had been promulgated on 27-5-2000 under section 11 thereof, the Ordinance had the over-riding effect on all existing laws. As such, the proceedings against the appellant were null and void as the appellant was deprived of his right of benefiting(sic) the serious allegations of fact which could only be determined by means a regular inquiry as provided under the said Ordinance of 2000. The learned counsel for the appellant stated that the appellant would be ready and willing to undergo de novo trial in view of the legal defect in the proceedings against him.

7. Learned counsel for the appellant has not been able to rebut the above objection of the Advocate for the appellant.

8. In view of what has been stated above, we are very clear in our opinion that the proceedings against the appellant have been vitiated by misapplication of law. We are supported in our view by the authority reported in 2003 PLC (C.S.) 600. We, therefore, accept the appeal and reinstate the appellant in service from the date he was dismissed, with the direction that de novo trial be held against the appellant strictly in accordance with the provisions of the Removal from Service (Special Powers) Ordinance, 2000. The question of back-benefits will depend upon the result of the enquiry.

Announced in Open Court. Copies of Judgment be sent to the parties under registered cover under Rule 21 of Service Tribunals (Procedure) Rules, 1974.

H.B.T./88/FST Appeal accepted.

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