ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
C.P.No.D-663 of 2011
___________________________________________________________
Order with signature of Judge
26.11.2013
Mr.Aziz-ur-Rehman Akhund,
advocate for petitioner
Mr.Muhammad Arshad
Khan Tanoli, advocate for respondent No.2
………
Petitioner was charge-sheeted on 08.05.2003 under Section
3 of Removal from Service (Special Powers) Ordinance, 2000 and Statement of
Allegations was issued. Main grievance of petitioner is that though in the
impugned order dated 26.02.2011, references of show cause notice as well as
statement of allegations were given but petitioner was compulsory retired under
Rule 4(1)(b)(ii) of the Efficiency and Disciplinary
Rules, 1973. Directions were also given to petitioner to file representation to
Secretary, if any. In Para-3 of impugned order, it is mentioned that despite
lapse of considerable time and disposal of petition on 06.12.2010, petitioner
failed to show requisite cause, in writing, defending himself to be exonerated
from penalty of dismissal from service under Section 3(2) of defunct Removal
from Service (Special Powers) Ordinance, 2000, (presently under Rule 4(1)(b) of E&D Rules, 1973). Learned counsel for petitioner
further refers to Removal from Service (Special Powers) (Repeal) Act, 2010, in
which under Subsection 2, it is clearly provided that all proceedings pending
under the repealed Ordinance or the rules made thereunder
immediately before the commencement of this Act against any person whether in
government service or corporation service shall continue under the repealed
Ordinance or the rules made thereunder. Reason of
citing this repealed Ordinance is to show that despite repealing R.S.O., 2000,
subsection 2 provides that in all pending proceedings whatever the final
action, that should have been taken under the repealed Act. Learned counsel for
respondent No.2 did not oppose this legal position, however, he submits that
charges against petitioner were very serious and inquiry was conducted but it
is an admitted position that order of compulsory retirement was passed under
E&D Rules, 1973. Learned counsel for respondent No.2 further submits that
impugned order of compulsory retirement may be set aside and matter may be
remanded back to competent authority for deciding the same after providing
ample opportunity to petitioner. Learned counsel for petitioner is satisfied
however, he submits that earlier he challenged show cause notice in
C.P.No.D-1951/2007 which was disposed of by learned DB of this court on
07.12.2010 with certain directions to same respondent that may also be kept in
mind while providing right of hearing to petitioner and passing further orders.
Consequently, the petitioner is reinstated in service,
however, question of back benefits will depend on the final outcome of an order
passed by competent authority which shall decide the case of petitioner within
a period of two months.
J U D G E
J U D G E