SECRETARY KASHMIR AFFAIRS AND NORTHERNAREAS DIVISION, ISLAMABAD vs SAEED AKHTAR and another

' IJAZ-UL-HASSAN KHAN, J.---Secretary Kashmir Affairs and Northern Areas Division, Islamabad, petitioner, seeks leave to appeal against the judgment dated 2-1-2008 rendered by Federal Service Tribunal, Islamabad, setting aside order/Notification dated 24-4-2003 and restoring Saeed Akhtar, respondent, to his original position with all consequential benefits.

2. Facts necessary for disposal of instant petition are, that respondent was served with a charge sheet dated 3-7-2002 and a show-cause notice dated 1-2-2003 on the charge of misconduct on account of corrupt practices. Respondent was accused of having, while working as Deputy Administrator, Jammu and Kashmir State Property in Pakistan, demanded from Dr. Tariq Shahim Chaudhry, Chairman, Chaudhry Noor Hussain foundation, Rawalpindi, a sum of Rs,2,50,00 for facilitating allotment of a Flat in his name in Poonch House Complex, Rawalpindi. The respondent in his reply repudiated the allegations and claimed to have been falsely implicated in the case. The reply having been found unsatisfactory, the competent authority in exercise of powers under section 3(1) of the Removal from Service (Special Powers) Ordinance, 2000, imposed upon respondent penalty of reduction to a lower pay scale with effect from 16-4-2003 vide Notification dated 24-4-2003. The respondent made a representation to the Prime Minister, which remained un-responded. The respondent filed appeal before Federal Service Tribunal, Islamabad. The Tribunal vide its judgment impugned herein, accepted the appeal as stated and mentioned above.

3. Appearing on behalf of petitioner department, Ch. Muhammad ' Ashraf, Advocate, contended with vehemence that learned Tribunal has not appreciated facts of the case in its true perspective; that the impugned judgment suffers from vice of misreading and non-reading of the material on record and that the competent authority after perusal of the facts on record dispensed with the inquiry under section 5(4) of the Ordinance, 2000 and approved issuance of show-cause notice to the respondent requiring him to explain as to why the major penalty as recommended by the inquiry officer may not be imposed upon him.

4. After hearing arguments of learned counsel for the petitioner department in the light of the material on file, we find that the Tribunal has rightly observed that the proceedings carried out in this case suffer from gross legal infirmities such as violation of FR-29 whereby period for punishment was not specified and major penalty was imposed retrospectively and the Enquiry Officer certainly went beyond the scope to examine the real controversy. Undoubtedly, reduction in rank constitutes major penalty and requires full fledge inquiry. We fail to understand as to how inquiry could have been dispensed with in terms of section 5 (4) of the Ordinance 2000. In this regard we may refer to the judgment as this Court in Pakistan Telecommunication Company Limited v. Messrs Muhammad Saeed Wazir (2005 SCM R 1225) wherein it was observed:-- "We are afraid this argument would not hold the ground because the insertion of sub-clauses (c)

(iv) in subsection (1) of section 3 of the Ordinance merely makes an addition to the grounds for action from (a) to (e) and does not authorize the competent authority for pass any ' order without enquiry. The closing paragraph of section 3 subsection (1) clearly lays down that if conditions given under sub-clauses (a) to (e) are available, the competent authority, after inquiry by the Inquiry Officer or the Inquiry Committee appointed under section 5, may dismiss or remove the civil servant from service or take any other action alluded to in the aforementioned para. We are convinced that the issuance of show-cause notice and the holding of inquiry, in the given circumstances was necessary under section 3 of Removal from Service (Special Powers)

Ordinance, 2000. In the instant case, neither any show-cause notice was issued nor any inquiry was held and thus, Tribunal has rightly set aside the impugned order of dismissal. Regardless of whether the proceedings are taken under Government Servants (Efficiency & Discipline) Rules 1973 or under Removal from Service (Special Powers) Ordinance, 2000, a dismissal without notice and without inquiry could not be ordered in the circumstances of the present case."

5. In the above perspective of the matter, finding no merit in this petition we dismiss the same and refuse to grant leave.