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Appeal No. 102 of 1979, decided on 9th August 1980.

----S. 4, proviso (b)(ii)‑‑Scope‑Minor penalty‑Not appealable before Tribunal‑‑Remedy by way of civil suit‑Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, r. 4.

B. A. Farooqi for Appellant.

Assistant Advocate‑General for Respondent.

Date of institution : 19th April 1979.

‑Appellant Syed Aolad Ali Gillani Ex‑Deputy Director, Food has challenged the impugned Order No. Admn./1300‑8/79, dated 25.3‑79 (Annexure H) by which while accepting review petition of the appellant Government respondent No. 1 awarded punishment of Censure.

The brief facts which led to this appeal are that the appellant was serving as Deputy Director, Food with H. Q. at Rawalpindi when on 25.4‑78 he was suspended by the Government on the charge of misconduct and a show‑cause notice was issued to the appellant on 29‑4‑78 to which the appellant submitted a detailed reply. Ultimately the Government respon dent No. 1 held the appellant guilty of misconduct and inefficiency ‑and awarded the punishment of demotion to Grade 17 under rule 4(i)(b)(i) of Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977. The appellant submitted a review petition to the Government which was partially accepted to the extent that Grade 18 was restored to the appel lant but minor penalty of Censure was awarded. It is this minor penalty to which the appellant has taken exception by way of this appeal under section 4 of the Service Tribunals Act, 1975.

We have heard the arguments advanced by the learned counsel for the parties. We are of the firm view that the appeal in hand is not competent and tenable under law as in the light of proviso (b)(ii). to section 4 of the Service Tribunal Act no appeal lies against an order of departmental authority inflicting minor penalty only. To substantiate our this view section 4 of the Service Tribunal Act, 1975, alongwith relevant proviso (b)(ii) is reproduced below for the sake of facility and proper understanding:‑‑

Section 4. Appeals to Tribunal.‑Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal, to the Tribunal :

Provided that

(b) no appeal shall lie to a Tribunal against an order or decision of departmental authority determining‑

(i) the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post of grade ; or

(ii) the quantum of departmental punishment or penalty imposed on civil servant as a result of a departmental inquiry except where the penalty imposed dismissal, removal, reduction in rank or compulsory retire ment from service."

From the bare perusal of this section it becomes abundantly clear that an order of competent authority determining the quantum of punishment is appealable only when any of the major penalties mentioned in clause (ii) to proviso (b) is awarded to a civil servant and in no other case. In other words the law has placed bar on the right of appeal of the civil servant in case the impugned order involves a minor penalty only with the result that the right of appeal of the civil servant is taken away if be is awarded a minor penalty and in such circumstances the remedy of the civil servant lies in recourse to civil Court under ordinary law and not before Service Tribunal under section 4 of the Service Tribunals Act. We have already held this view in a number of similar cases and hold that his appeal is liable to dismissal being incompetent. We need not discuss the merits of the case on the appeal fails on this legal ground. Hence the appeal is dismissed with no order as to costs. The parties shall be informed of this order.

Appeal dismissed.

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