Saturday, 21 September 2013

Case of a Civil Servant

PLJ 2007 Lahore 333
[Multan Bench Multan]
Present: Maulvi Anwarul Haq, J.
MUHAMMAD UMAR LODHI, DEPUTY MANAGER OPERATION, CANTT. DIVISION, MULTAN--Petitioner
versus
MANAGING DIRECTOR WAPDA (POWER), LAHORE
and another--Respondents
W.P. No. 4490 of 2006, decided on 11.9.2006.
Service Tribunals Act, 1973 (LXX of 1973)--
----S. 9--Constitution of Pakistan, 1973--Art. 199--Right of appeal--Stoppage of annual increment for a period of one year without cumulative effect--Constitutional petition--Penalty of censure was imposed--Right of appeal to Federal Service Tribunal--Validity--Information has been given to civil servant by the office of Tribunal and upon reading of notice of the case was not before the office tribunal--Matter needs to be considered by tribunal with reference to provisions of Removal from Service (Special Powers) Ordinance, (XVII of 2000) and right of appeal to Federal Service Tribunal--Petitions were disposed of with direction to petitioner to immediately approach Federal Service Tribunal with an appropriate application bringing relevant facts to the notice of Tribunal and shall be determined by Tribunal. [P. 335] A
Sardar Muhammad Sarfraz Dogar, Advocate for Petitioner.
Date of hearing: 11.9.2006.
Order
This order will dispose of Writ Petitions Nos. 4490 & 4492 of 2006 as common question is involved.
2.  In both these cases the petitioner was proceeded against under the provisions of Removal from Service (Special Powers) Ordinance, (No. XVII of 2000). In the matter of Writ Petition No. 4490 of 2006 a penalty of "Stoppage of one annual increment for a period of one year without cumulative effect" was imposed on 21.3.2006. An appeal filed against the said order was partly allowed on 15.6.2006 and the penalty was converted into "Censure". In Writ Petition No. 4492 of 2006 penalty of "Censure" was imposed vide order dated 20.12.2005. The appeal was rejected on 22.6.2006. Service Appeal No. 623(R)/CE/06 was filed. According to the learned counsel the office of the learned Federal Service Tribunal has informed that in view of the judgment dated 27.6.2006 of the Honourable Supreme Court of Pakistan in Civil Appeals Nos. 792 to 816 of 2005 etc. the appeal has abated and he should go to competent forum for redressal.
3.  Learned counsel has taken me through the said judgment of the honourable Supreme Court of Pakistan. I deem it appropriate to reproduce Para No. 108 of the said judgment here:
"108.  The threadbare discussion on the subject persuades us to hold:--
1.    Section 2-A of the STA, 1973 is, partially, ultra vires of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under Section 2(1)(b) of the CSA, 1973 and they are not engaged in the affairs of the Federation.
2.    Section 2-A of the STA, 1973 cannot be enforced in the absence of amendment in the definition of the civil servant under Section 2(1)(b) of the CSA, 1973.
3.    The cases of the employees under Section 2-A, STA, 1973, who do not fall within the definition of civil servant as defined in Section 2(1)(b) of the CSA, shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy".
4.  Now in my humble opinion the said dictum is not attracted to the case of the petitioner before me. As noted by me above he was proceeded against in both these cases under the provisions of said Ordinance, 2000. Now Section 10 of the said Ordinance read as follows:
"10. Appeal.--Notwithstanding anything contained in any other law for the time being in force, any person aggrieved by any final order under Section 9 may, within thirty days of the order, prefer an appeal to the Federal Service Tribunal established under the Service Tribunals Act, 1973 (LXX of 1973)".
It will thus be seen that any person who has been proceeded against under the provisions of the said ordinance and he feels aggrieved of any final order passed under Section 9 as is the position in the case in hand, he has been conferred a right of appeal to the Federal Service Tribunal established under the Service Tribunals Act, 1973. It is but apparent that the said information has been given to the petitioner by the office of the learned Tribunal and upon reading of the said notice the said aspect of the case was not before the office of the learned Tribunal. The matter needs to be considered by the learned Tribunal with reference to the provisions of the said Ordinance XVII, 2000 and the right of appeal conferred there under. Both the writ petitions are accordingly disposed of with a direction to the petitioner to immediately approach the learned Federal Service Tribunal with an appropriate application bringing the said relevant facts to the notice of the learned Tribunal and the matter shall be determined by the learned Tribunal. The Office to remit a copy of this order to the Registrar of the learned Federal Service Tribunal at Islamabad.
 (Rafaqat Ali Sohal)    Order accordingly

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