Syed AFTAB AHMED JAFRI vs PAKISTAN through Secretary, Ministry of Health

ORDER

' SABIHUDDIN AHMAD, ACJ.---The petitioner was charged sheeted under the Government Servants (Efficiency and D, Rules, 1973, and on the basis of findings of the Enquiry Officer he was removed from service by order dated 18-11-2000 He preferred a departmental appeal against the aforesaid order and upon failing to receive response within the stipulated time approached the Federal Service Tribunal for redress by way of Appeal No, 79(K)(CS)/2001 which was admitted and notices were served on the respondents.

2. During the pendency of the appeal, however, the petitioner, was directed to be reinstated vide order dated 31st October, 2001. Nevertheless, the very same day another order was passed purpoting to suspend him in exercise of powers conferred under section 4 of the Removal from Service (Special Powers) Ordinance, 2000 On 8-11-2001 a charge-sheet identical to the one forming the basis of earlier action against the petitioner was issued.

3. It appears that as a consequence of order of reinstatement the Hon'ble Service Tribunal, declared the petitioner's appeal to have become infructuous. Nevertheless, when the attention of the learned Tribunal was drawn to subsequent proceedings initiated under the Ordinance of 2000 they declined to interfer (and rightly so, if may say with respects) on the ground that only a final order under section 9 of the Ordinance was appealable before the Hon'ble Tribunal.

4. Dr Muhammad Farogh Naseem, learned counsel for the petitioner, has argued that the removal of petitioner under the Removal from Service (Special Powers) Ordinance, 2000, is mala fide. He contended that the order of reinstatement was issued only to render the petitioner's appeal before the learned Federal Service Tribunal infructuous and thereafter, fresh proceedings were initiated only to keep him out of service. Mi. Amir Hani Muslim, learned Deputy-Attorney General, on the other hand argued that the decision was taken on the basis of office memorandum dated 31-3- 2001, relevant excerpts wherefrom may be reproduced as under:-- "Since the disciplinary action against Syed Aftab Ahmed Jaffari, former Assistant Chemist, Central Drugs Laboratory, Karachi, was initiated on 30-5-2000, after the promulgation of the said Ordinance, the proceedings conducted under the Government Servants (E&D) Rules, 1973 are not sustainable."

5. We requested learned Deputy-Attorney General to explain how the proceedings under the E&D Rules had become "not sustainable" and learned counsel was unable to do so. Indeed, it may be true' that after the promulgation of the Removal from Service(Special Powers) Ordinance the Federal Government had option either to proceed against a civil servant under the Ordinance or under E&D Rules, the fact remains that the Rules have not been repealed so far and on no principle of construction an action taken thereunder be treated as a valid.

6. In the circumstances we are constrained to hold that once action had been taken against civil servant according to law and the final order was pending adjudication before the competent Service Tribunal the decision to nullify the same and start proceedings de novo could not be assumed to have 'been taken under the bona fide exercise of public power. In the circumstances the order of reinstatement followed by fresh proceedings under the Ordinance cannot be sustained and are liable to be set aside.

7. As to the question of jurisdiction of this Court learned counsel relied upon a Division Bench judgment of this Court in Mushtaq Ahmed Setho and others v. Federation of Pakistan and others (2001 PLC (C:S.) 623) to which one of us Sabihuddin Ahmed, J. Was a party. We had noticed that under section 9 of the Removal from Service (Spejial, Powers) Ordinance, 2000 only a final order taking disciplinary action against the civil servant was appealable before the Service Tribunal.

' Since admittedly no final order appears to have been passed so far under the aforesaid Ordinance, we are, therefore, of the view that our jurisdiction is not barred under Article 212 of the Constitution.

8. As a consequence it would appear that the petitioner's appeal before the Hon'ble Service Tribunal would stand revived as the order declaring it to have become in fructuous was passed on the basis of an order of reinstatement which is no longer operating. The petitioner may approach the learned Federal Service Tribunal for early hearing of the appeal which should be decided on merits within three months, if possible.

' The petition stands disposed of in the above terms along with the listed application.