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Petitioner: ZAHOORUDDIN SHEIKH VS Respondent: PAKISTAN ATOMIC ENERGY COMMISSION and Muhammad Iqbal Khan, Member through Chairman, Islamabad
Court Name: Federal Service Tribunal Judge(s): Amanullah Abbasi, Muhammad Iqbal Khan Title:ZAHOORUDDIN SHEIKH vs PAKISTAN ATOMIC ENERGY COMMISSION and
Muhammad Iqbal Khan, Member through Chairman, Islamabad Case No.:Miscellaneous Petitions Nos.308, 386, 404 and 572 of 2003 in Appeal No,101(K)CE of 2001 Date of Judgment:2004-01-22 Reported As: 2007 PLC (C.S.) 959 Result: Appeals allowed Judgment ORDER ' MUHAMMAD IQBAL KHAN (MEMBER).--- The appellant/petitioner Mr. Zahooruddin Sheikh, Ex-Senior Engineer, CTC, Pakistan Atomic Energy Commission vide various Miscellaneous Petitions Nos.308 of 2003, dated 26-3-2003, 386 of 2003 dated 19-4-2003, 404 of 2003 dated 25-4-2003 and 572 of 2003 dated 30-5-2003 has prayed that (i) the Tribunal judgment 16-7-2002 be implemented with consequential back-benefits, (ii) sought interim injunction by suspending the operation of the charge-sheet, dated 11-4-2003, (iii) restraining the respondents from initiating disciplinary proceedings after the expiry of the period prescribed, in the Tribunal judgment, dated 16-7-2002 and (iv) show-cause notice dated 6-5-2003 and order of 'removal from service dated 20-5-2003 be declared void, illegal and unlawful. 2. We have scrutinized all these petitions. A consolidated order is contained in the succeeding paras. 3. It would be appropriate to recapitulate the evolutionary stages in this case to understand its whole' perspective. At the outset we may refer to the Federal Service Tribunal's judgment, dated 16- 7-2002 (hereinafter referred as Tribunal judgment) whereby the impugned order, dated 4-1-2001 was set aside and the appellant was directed to be reinstated in service with the condition that the department was required to hold de novo inquiry proceedings within a period of six months from the date of. Tribunal judgment The operative part of the Tribunal judgment reads as under:-- "(7) As a result of the consent of the parties, the impugned order, dated 4-1-2001 is hereby set aside and the appellants I directed to be reinstated in service on the same position from which he was
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removed from service. The respondents are required to hold fresh inquiry within a period of six months of this judgment on the same charges after giving proper chance to the appellant, till then the respondents are required to get the civil suit as well as criminal case adjourned sine die. Question of back benefits will depend upon the result of the inquiry. In case the inquiry is not conducted and completed within six months, the appellant would be entitled to all back-benefits provided he files affidavit to the effect that he did not work for gain anywhere during the said period." 4. The respondent-Department i,e, Pakistan Atomic Energy commission sought leave to appeal against the Tribunal judgment from the Honourable Supreme Court of Pakistan. Their Civil Petition for Leave to Appeal No,1495 of 2002 was rejected by the apex Court which was pleased to order as under; vide their judgment dated 21-11-2002:- "We have considered the contentions raised by the learned counsel =for the petitioner and have gone through the entire material placed on record. We are not persuaded to interfere with the impugned remand order which has been passed with full consent of both the parties. Even otherwise, no question of law of general public importance as contemplated within the purview of Article 212(3) of the Constitution of the Islamic Republic of Pakistan is involved in the case in hand warranting interference by this Court." 5. It will be observed from the above that as soon as the Honourable Supreme Court of Pakistan declined to interfere with the impugned Tribunal judgment, the judgment became legally competent and lawful and it became obligatory for the respondent-Department to implement the directions as contained in para.7 of the Tribunal judgment as reproduced above in letter and spirit. It meant that in accordance with the directions contained in the Tribunal judgment, the respondents were required to reinitiate disciplinary proceedings against the appellant based on the same charges within a period of six months from the date of judgment. The respondents were thus, under obligation to commence and C complete fresh disciplinary proceedings against the appellant within a period of six months i,e, by 15-1-2003 positively in order to meet the directions and requirements of the judgment referred to above. The respondents did not initiate the inquiry proceedings within the time frame as stipulated in the Tribunal judgment. As the deadline for initiation and completion of the disciplinary proceedings by the respondent-Department expired, the appellant vide his Miscellaneous Petition No,308 of 2003 dated 26-3-2003 requested the Tribunal for implementation of the Tribunal judgment and payment of back-benefits. Accordingly, the respondent-Department was served notice with a copy of the miscellaneous petition for parawise comments to be supplied on 7-5-2003, vide Court order dated 26-4-2003. The appellant vide Miscellaneous Petitions Nos.386 of 2003 dated 16-4-2003 and 404 of 2003 dated 25-4-2003 challenged the competence of the department to issue him a charge-sheet dated 11-4-2003 in violation of the directions contained in the Tribunal judgment and requested for interim injunction for restraining the respondent to initiate disciplinary proceedings against him with the issuance of the charge-sheet dated 11-4-2003 till the final disposal of the miscellaneous petition for implementation of the Tribunal judgment. The miscellaneous petition dated 16-4-2003 was heard on 19-4-2003 and notice was issued to the respondent along with a copy of the miscellaneous petition for hearing on 7-5-2003. The Tribunal heard the case on 7-5-2003 and passed the following order:-- "Heard the learned counsel for the appellant and the departmental representative of the respondent-Department. The representative of the respondent-Department seeks time as their Advocate is not available today. Allowed. The question whether the respondents can now issue charge-sheet to the appellant to initiate fresh inquiry proceedings against the appellant after refusal of their leave to appeal against the Tribunal judgment, dated 16-7-2002 by the apex Court
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on 21-11-2002, will also be examined on the next date of hearing. In the meantime, the respondents are restrained from issuing any adverse orders against the appellant till the next date of hearing." 6. The respondent issued show-cause notice to the appellant on 6-5-2003 and eventually removed him from service vide order, dated 20-5-2003. The appellant again vide his Miscellaneous Petition No,572 of 2003 prayed that his order of removal from service dated 20-5-2003 may be declared illegal and unlawful and the operation of the same be suspended till the final disposal of the petition. The miscellaneous petition was accordingly heard on 30-5-2003 and the Court order dated 31-5-2003 as detailed below was issued:-- "The Tribunal vide Court order, dated 7-5-2003 had specifically refrained the respondents from issuing adverse orders against the appellant till the next date of hearing of the appeal. Despite this clear cut and unambiguous orders, the respondent-Department issued show-cause notice dated 6-5-2003 followed by Removal from Service Order, dated 20-5-2003 to the appellant. The learned counsel for the appellant declared at the bar that the Court order referred to above was served upon the respondents in time long before the date of issuance of the show-cause notice, dated 6- 5-2003 and Removal from Service Order of 20-5-2003 and also provided postal receipt dated 14- 5-2003 in support of dispatch of Court order to respondents. The departmental representative also acknowledged having received the Court order (ibid). We feel that the respondents have committed gross violation of the Tribunal's directive by issuing the show-cause notice dated 6-5- 2003 and removal order dated 20-5-2003. In case they had any reservation about the implement ability of the Court order dated 7-5-2003 they could explain their point of view at the next date of hearing. In view of the unilateral action taken by the respondents without any justification, the execution of the order of Removal No,Estt4(3005)/96 dated 20-5-2003 is stayed till next date of hearing. Notice to the concerned parties with copy of Miscellaneous Petition No,572 of 2003 to the learned counsel for the respondents for comments along with today's Court order for compliance/report by next date of hearing on 17-6-2003. In the meantime the respondents are also restrained from dispossessing the appellant from official accommodation under his occupation till the next date of hearing." 7. It will be observed from the above Court order, the execution of the removal order dated 20-5- 2003 was suspended till next date of hearing of the petition and the respondent-Department was also directed to provide comments on the Miscellaneous Petition No,572 of 2003 also, at that time. The case was heard on 7-1-2003 and both the parties argued in support of their respective positions. S. The respondent-Department have furnished their comments on Miscellaneous Petitions Nos.308, 386, 404 and 572, which are summarized as under:-- (i) The Tribunal judgment dated 16-7-2002 merged into the Supreme Court judgment dated 21-11- 2002 and as such the .Date for initiation and completion of the disciplinary proceedings became reckonable from the date of the judgment of the Supreme Court i,e, 21-11-2002 and not from the Tribunal judgment of 16-7-2002 in terms of PLD 1992 SC 549. The Tribunal judgment became subservient to the order - of the Supreme Court dated 21-11-2002. (ii) The appellant vide his Miscellaneous petition No,404.Of 2003 sought interim injunction restraining the respondent to hold de novo proceedings for suspension of the charge- sheet/statement of allegations issued to the appellant. On the date of hearing of the miscellaneous petition on 7-5-2003, the PAEC Counsel was busy before the Honourable Supreme Court of Pakistan and the departmental representative had no alternative except to refer to PLD 1992 SC 549 in the light of which the Tribunal judgment stood merged in to the Honourable Court judgment of 21-11-2002. The departmental representative also submitted a copy of the judgment of the Honourable Supreme court reported in 1999 SCMR 819=1999 PLC (C.S.) 409 and also argued that the disciplinary proceedings against the petitioner from the date of the judgment of the apex Court were fully competent.
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(iii) The Court order dated 7-5-2003 was received by the respondents on 21-5-2003- when the respondents had already issued the removal from service order of the appellant on 20-5-2003. (iv) The Tribunal without issuing any notice to the respondents heard the Miscellaneous Petition No,572 of 2003 on 30-5-2003 and arbitrarily stayed execution of the removal from service order of the appellant and also restrained the respondents from dispossessing the appellant- from his official accommodation although there was no appeal before the Tribunal. (v) The Tribunal has no powers to implement its judgment under the law and thus, the Tribunal order restraining the respondents from holding de novo enquiry is violative of the judgment of the Supreme Court which held the field in place of Tribunal's judgment. Even the entertainment of application for implementation of Tribunal judgment involves violation of judgment of the Honourable Supreme Court of Pakistan. (vi) The respondents also referred to case-law reported in PLD 1958 SC 104. 9. After having carefully perused the points raised in the above mentioned miscellaneous petitions filed by the learned counsel for the appellant and comments thereon by the respondent- Department, the crucial issue to be adjudicated by the Tribunal in the light of relevant laws is whether the Tribunal is competent to order implementation of its ,judgments. At the outset it would be relevant to examine the points raised by the respondents in their comments on the miscellaneous petitions as summarized above:---. (i)- The respondents hold the view that six months period for commencement and completion of the disciplinary proceedings against the appellant would start from the date' of judgment of the Honourable Supreme Court of Pakistan dated 21-11-2002 and that after the judgment of the apex Court the Tribunal judgment stood merged in the judgment of the Honourable Supreme Court of Pakistan as per case-law PLD 1992 SC 549. Accordingly, the counsel insisted that the six months period reckonable for initiation and completion of the inquiry proceedings would start with effect from the date of judgment of the apex Court on 21-1.1-2002 and would expire on 21-5-2003. Let us now peruse the case-law reported in PLD 1992 SC 549, which has been relied upon by the learned counsel for the respondent-Department in support of their contention. The relevant portion of the case-law quoted above is reproduced below:-- "(6) Section 66-A authorizes IAC to examine and initiate action if the order passed by the ITO is erroneous insofar as it is prejudicial to the revenue. The IAC did not have the jurisdiction or power to initiate same action in respect of the orders passed by the Appellate Authorities or the Tribunal. However, as observed above such power has now been vested in IAC from the year 1991. The controversy is whether after the appellate authority has passed the order does the order of the ITO merge in it and IAC cannot reopen it under section 66-A. In Corpus Juris Secundum, Volume 57, at page 1067 words "Merge" and "Merger" have been defined as follows:-- "The verb "to merge" has been defined as meaning to sink or disappear in something else, to be lost to view or absorbed into something else, to become absorbed or extinguished, to be combined or be swa llowed up. "Merger" is defined generally as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased, an absorption or swallowing up so as to involve a loss of identity and individuality." ' It is well-settled principle that on appeal the original order merges in the appellate order. The Commissioner of Income-tax v. Farookh Chemical Industries, 1992 SCMR 523 it was observed that the order of the ITO upon appeal merged in the order of the Income Tax Appellate Tribunal. Here the assessm ent order made by ITO was reopened under section 65 and a revised assessment was framed which has been set aside by the Tribunal. Thus, the order of the ITO has merged in the order of the Tribunal which holds the field."
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' In our view the case-law relied upon by the learned counsel for the respondent-Department strengthens and reinforces the case of the appellant. The case-law has enunciated and rightly so that when the original assessm ent order has been changed by the appellate order, the original order stood merged with the appellate order. The doctrine of merger as propounded in PLD 1992 SC 549 is not applicable in the present case as the apex Court has not changed any directions contained in the Tribunal judgment. Had the Honourable Supreme Court of Pakistan given any other directions contrary to what was directed in the Tribunal judgment and then to that extent the directions of the Honourable Supreme Court of Pakistan would have prevailed over those of the Tribunal judgment. We, therefore, strongly feel that since the Honourable Supreme Court of Pakistan did not give any directions contrary to the those contained in para.7 of the Tribunal judgment, the directions of the Tribunal were final and required implementation whole hog by the respondent-Department. Since the department initiated disciplinary proceedings against the appellant with the issuance of charge-sheet on 11-4-2003, they flouted the directions of the Tribunal to initiate and complete the proceedings within a period of six months, which expired on 15-1-2003 after the issuance of the judgment of the Tribunal on 16-7-2002. The respondents still had one month and 24 days to initiate and complete the de novo enquiry after the apex Court verdict of 21-11-2002. The apex Court decided the case well before the target date of 15-1-2002. (ii) The position at (sic) above is also not sustainable. The departmental representative, who invariably represents PAEC in all disciplinary cases before the Tribunal and who is reasonably well- informed about developments in each case, did not inform the Tribunal that show-cause notice was already issued to the appellant on 6-5-2003. The departmental representative intentionally suppressed the truth from the Tribunal. Had he informed the Tribunal the complexion of the Court order of 7-5-2003 perhaps could have been different. The case-law referred by the respondents as reported in 1999 SCMR 819=1999 PLC (C.S.) 409 is also not applicable in this case. The Tribunal judgment as upheld by the apex Court without any different directions as contained in the former and had attained finality after the expiry of six months on 15-1-2003 and hence issuance of show- cause notice to the appellant on 6-5-2003 was an order coram non judice enjoying no legal entity and thus, the removal order dated 20-5-2003 based on it had also no legal significance. The respondent's reliance on the case-law that the appeal against show-cause notice is not maintainable is not convincing as our view is that continuation of disciplinary proceedings against the appellant after the expiry date of 15-12003 was illegal and that the show-cause notice and before that the issuance of charge-sheet were measures having no force of law. (iii) The respondents have again misinterpreted the law. The Court order of 7-5-2003 was against an order which was corum non judice based on wrong perception that the Tribunal judgment had merged with the Supreme Court judgment and as such disciplinary proceedings against the appellant could commence within a period of six months from the date of order of the Supreme Court i,e, 21-11-2002. The departmental representative did not inform the Tribunal about the issuance of the show-cause notice dated 6-5-2003 on 7-5-2003 although as mentioned in (ii) above, we feel that he knew that such order had already been passed by the department. Since he did not inform the Tribunal about issuance of the show-cause notice on 6-5-2003, we find some truth in the allegations of the appellant that issuance of the , show-cause notice on 6-5-2003 was an afterthought to pre-empt the effectiveness/consequences of the Court order of 7-5-2003. Similarly, there was no justification for the issuance of the removal from service order on 20-5- 2003, especially when vide Court order of 7-5-2003; the respondents were restrained from issuing any adverse orders against the appellant against the next date of hearing. Hence again the respondents have taken shelter under the alibi of receiving the Court order of 7-5-2003 on 21-5- 2003 i,e, the day after the impugned order of removal was issued on 20-5-2003. The departmental representative must have informed the respondents about the arguments on the miscellaneous
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petition on 7-5-2003 and reaction of the Tribunal thereon. Moreover, the learned counsel for the appellant produced postal receipt dated 14-5-2003 showing dispatch of the Court order, dated 7- 5-2003 to the respondents. The departmental representative also accepted the receipt of the Court order, although he did not indicate the date of receipt of the order. We do not believe that it has taken 7 days for the Court order to reach from the post office to PAEC Office while both being located in Islamabad. The point raised (iii) above is, therefore, not convincing and lacks jurisdiction. (iv) The issue at '(sic) above is not relevant. The Tribunal was considering the question of its jurisdiction to ensure implementation of its judgments. The original appeal of the appellant No,101(K)(CE) of 2001 against his removal from service was still pending implementation as directed by Tribunal judgment dated 16-7-2002 and upheld by Honourable Supreme Court judgment dated 21-11-2002. Hence we heard the assortment of miscellaneous petitions filed by the appellant in continuation of his appeal referred to above. The appellant remained aggrieved and his terms and conditions still remained adversely affected' by non-implementation of the Tribunal judgment. (v) The case-law PLD 1958 SC 104 referred by the Department is not applicable in the present case. In fact it supports the case of the appellant. The relevant portion of the case-law is reproduced Where the legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and nonexistent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded. On this view the orders made by the Rehabilitation Board and the Central Government refusing to eject the respondents which were based on that part of the Deputy Custodian's order which was in excess of his jurisdiction were void and not final within the meaning of section 13-B of the Rehabilitation Ordinance, and it was the Rehabilitation Commissioner's order directing ejectment of the respondents that became final in law." ' The non-implementation of the Tribunal judgment within the stipulated period of six months flouted the directions as prescribed therein. Hence the charge-sheet, show-cause notice and the removal order issued after the expiry of the prescribed period of six months are void and non- existent and they have no legal value as enunciated in the case-law reproduced above. The case- law in our view does not strengthen the department's cause, it provides justification to the case of the appellant.##TSE# 10. Let us now examine section 4 of the Service Tribunals Act, 1973, stipulates as under:--- "4. Appeals to Tribunals.--- (1) Any civil servant aggrieved by any order whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal." ' The spirit underlying section 4 is that a civil servant whose terms and conditions have been adversely affected by an original or appellate order may approach the Tribunal for redressal of his grievance subject to the conditions as laid down therein. Once a judgment is issued in favour of a civil servant, his terms and conditions as infringed by an order of the authority in question stand addressed to the extent as ordained in the judgment concerned. There is, therefore, no denying the fact that if the judgment is not implemented and leave to appeal is either not filed or declined, there is no escape route for the department but to implement the judgment in letter and spirit. In the event of the department not complying with the directions contained in a particular judgment
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after having exhausted the legal remedies available, the department has no other alternative except to implement the judgment in the interest of the supremacy of the rule of law. 11. It would be appropriate to examine the key ingredient of Tribunal judgment dated 16-7-2002 and Honourable Supreme Court of Pakistan judgment, dated 21-11-2002. 12. The main components of the Tribunal's judgment, dated 16-7-2002 are contained in para.7 thereof as reproduced in para.2 of this order. The Tribunal had set aside the removal order of the appellant dated 4-1-2001 and reinstated him in service on the same position which he held before his removal. The respondents were required to initiate fresh inquiry proceedings against the appellant within a period of six months from the date of the order. The respondents were also directed to get the civil suit as well as criminal case, adjourned sine die. The appellant was to become entitled to back-benefits, if the inquiry was not conducted and completed within six months. These are the unambiguous directions contained in the Tribunal judgment. The Honourable Supreme Court upheld the Tribunal judgment in its entirety vide its judgment dated 21- 11-2002 and reproduced in para.3 above. The…
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