ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No.D-629 of 2010

          Date                       Order with signature of Judge                           

1. For orders on Misc. No. 2479/2010.

2. For Katcha Peshi.

3. For orders on Misc. No. 2480/2010.

Before:

            Mr. Justice Gulzar Ahmed &

            Mr. Justice Shahid Anwar Bajwa.

12^th April, 2010.

          Mr. Jamil Ahmed Virk, Advocate for the petitioner.

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GULZAR AHMED, J.: The grievance of the petitioner is that he is being proceeded against under the Removal from Service (Special Powers) Sindh Ordinance, 2000 instead of Sindh Civil Servants (Efficiency & Disciplinary) Rules, 1973.  Counsel for the petitioner has argued that the petitioner being an employee of Karachi Building Control Authority, he ought to have been proceeded under Sindh Civil Servants (Efficiency & Disciplinary) Rules, 1973 and that the Removal from Service (Special Powers) Ordinance, 2000 had no application to the petitioner.

          Submissions of learned counsel for the petitioner seem to be completely devoid of force as in the case of AZIZULLAH MEMON V/S PROVINCE OF SINDH & ANOTHER (2007 SCMR 229) the Hon’ble Supreme Court has observed as follows:

“ 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 thereunder 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 proceedings as well as final order is, therefore, liable to be set aside.”

Similar rule was also followed by Hon’ble Supreme Court in the case of DAUD SHAH & ANOTHER V/S PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY & OTHERS (2006 SCMR 1000).

          In view of the above state of law the very petition appears to be devoid of any force and same is dismissed in limine. Listed applications are also disposed off.

          J U D G E

Aamir/PS                                                       J U D G E