AZIZULLAH MEMON vs PROVINCE OF SINDH and another

ORDER

RANA BHAGWANDAS, J.- This petition is directed against Sindh Service Tribunal's judgment, dated 28-12-2004 filed against final appellate order, dated 3-6-2002 passed by Chief Secretary, Government of Sindh dismissing his appeal against the penalty of censure imposed by the authorized officer after altering the order of dismissal from service.

2. On perusal of the record and after hearing learned counsel for the parties we find that despite promulgation of Removal from Service (Special Powers) Ordinance (Sindh Ordinance IX of 2000)

(hereinafter referred to as the "Ordinance") promulgated with effect from 20.8-2000 the entire proceedings commencing from issuance of charge-sheet, departmental enquiry, order of imposition of penalty, alteration of the penalty by the authorized officer and final order impugned before the Tribunal were conducted under the provisions of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973. It is pertinent to note that section 3 of the Ordinance provides the mechanism for disciplinary proceedings against civil servant on variety of grounds and prescribes punishments, which may be imposed upon a civil servant found guilty of charge. Section 11 of the Ordinance (sic) that notwithstanding anything to the contrary contained in the Sindh Civil Servants Act, 1973 and the rules made thereunder and any other law for the time being in force:--- "11. The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in the Sindh Civil Servants Act, 1973 and the rules made there under and any other law for time being in force."

3. In the presence of express and specific language employed in the Ordinance neither the departmental authorities nor the Tribunal bothered to notice that after the date of promulgation of the Ordinance all disciplinary proceedings should have been initiated under Ordinance rather than the old Rules enforced in 1973. This Court has already ruled in a number of judgments that this Ordinance has the overriding effect over all other laws on the subject except in case of proceedings, which were already pending before promulgation of the Ordinance. Since the impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it has vitiated the entire proceedings, including the final order, which cannot be sustained under the law. The proceeding as well as final order is, therefore, liable to be set aside.

4. Accordingly after converting this petition into appeal, we set aside the same as well as the impugned judgment of the Tribunal. The department would be at liberty to initiate fresh proceedings against the petitioner and finalize it within three months from today. The petitioner is reinstated into service. However, the question of award of back benefits to him would certainly depend on the outcome of fresh enquiry, if any, as above.