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Appeal No. 128 of 1980, decided or. 23rd September, 1985.

(a) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977‑‑

‑‑Rr. 5 to 12‑‑Azad Government of the State of Jammu and Kashmir Rules of Business, 1975, Part III, Sched. V‑‑Azad Jammu and Kashmir Interim Constitution Act; (VIII of 1974), S. 53 (A)‑‑Disciplinary action‑ Powers and functions of Authorised Officer not to be exercised by Authority‑‑Proceedings against Officer of status of Junior Class I (B.P.S.‑17)‑‑Powers of Authorised Officers vesting in Minister Incharge of Department‑‑‑ Mere fact that Cabinet had been dissolved and Office of Minister was vacant by itself in no way conferred powers of Authorised Officer on any other authority including Government‑‑Government not helpless to meet such on exigency arising out of non‑existence of Minister and could designate any Officer as Authorised Officer‑‑Order passed by Chief Executive by exercising all powers of Authorised Officer as well i.e. issuance of charge‑sheet, appointment of Enquiry Officer and assessment /appraisal of enquiry report, held, violative of rules and not maintainable.

Muhammad Bashir Jaffari v. Azad Government 1984 P L C (C.S.) 1489 rel.

(b) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977‑‑

‑‑‑R. 7(3)‑‑Enquiry‑‑Recording of evidence in absence of accused and no opportunity to accused to cross‑examine witnesses‑‑Vitiates enquiry report and resultant order based upon such report.

Kh. Muhammad Saeed for Appellant.

Mirza Nisar Ahmed, Addl. A.‑G. for Respondent.

‑‑The appellant has challenged the Government Order No. 4593‑4600/79, dated 23‑8‑1979, under section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975, whereby the appellant was compulsorily retired from the service by the respondent.

By virtue of this appeal the appellant prays for setting aside the impugned order and restoration to his original post with all back benefits.

Briefly the facts leading to this appeal are that appellant was posted as District Agriculture Officer Kotli, when the respondent appointed Dr. Muhammad Karim, Principal, Agriculture Institute Garhi Dupatta, as Enquiry Officer vide Order No.9569‑70/78, dated 14‑12‑1978 to look into the charges levelled against the appellant. One Mr. Muhammad Aslam, Field Assistant, Tehsil Sensa, District Kotli had moved an application against the appellant. The Enquiry Officer accompanied by Mr. Muhammad Asghar, Accountant, reached Kotli on 17‑12‑1978, and demanded some record verbally and the same was handed over to him. He took the record and went to Sensa to contact the complainant. The Enquiry Officer did not show the application nor the charges to the appellant, and conducted enquiry secretly and recorded the statement of witnesses in the absence of the appellant, and in the presence of the complainant. The appellant challenged the propriety of the, mode and method of inquiry which was being conducted against all the settled principles of law and justice. The appellant conveyed his non‑confidence in writing vide Annexure 2 and Letter No. 902‑3/78, dated 20‑12‑1978, and the matter was also brought to the notice of the Director Agriculture. The Enquiry Officer on the one hand gave the appellant in writing A‑3, that he would not conduct inquiry but on the other hand he submitted a biased, unilateral and secret report to the respondent without affording the appellant any opportunity of being heard. On the basis of this one‑sided report of the Enquiry Officer the appellant was placed under suspension which continued till 23‑8‑1979. During this period of suspension the respondent was pleased to appoint Sardar Hamidullah Khan O.S.D. as another Enquiry Officer in this case and that was followed by a charge‑sheet served on the appellant vide No. 93(D AO/79, dated 13‑3‑1979 (Annexure 6) and is reproduced below:

The Enquiry Officer conducted enquiry and submitted his report to the Chief Executive through the Services and General Administration Department. The Chief Executive summoned the appellant for personal hearing on 19‑8‑1977. The appellant was compulsorily retired from service, who preferred Review Petition to the Respondent‑Government, but the same was also rejected. Hence this appeal.

The grounds of appeal as enumerated by the appellant, show that the action has been taken under the E and D Rules of 1977 and that these rules have been violated by the respondent and so resulted in great injustice to the appellant. Many legal objections regarding the enquiry have been taken up by the appellant in the memorandum of appeal and the Review Petition.

The respondent's counsel in his written objections has supported the action taken against the appellant, saying that the appeal is time‑barred and the Enquiry Officer conducted the enquiry in accordance with law. The appellant has not been prejudiced, and he has been granted pension and other consequential benefits by the Government. Finally, he prays for dismissal of the appeal.

I have heard the parties counsel, and gone through the record of this case with their assistance. The parties counsel agree that the appeal is within time. The learned counsel for the appellant has referred to many, authorities of superior Courts of Pakistan and Azad Kashmir and thereby contending that the enquiry is against the provisions of the E and D Rules of 1977. The action taken against the appellant started under E and D Rules and so compliance of these Rules is binding on the parties. The violation of these rules will make the enquiry a futile exercise and so cannot be used against the appellant. In this connection he has strongly attacked the mode of Enquiry by Dr. Karim and Sardar Hamidullah Khan. The Authorised Officer in the case of appellant has not been allowed to perform his functions and so many legal remedies available to the appellant have been denied by the authorities dealing with this case. In the present matter, the Government was Authority and Secretary of the Agriculture Department was the Authorised officer, and in order to fulfil the requirements of section 5, 6, 7 and 8 of the E & D Rules of 1977, the action taken by the Authority on the basis of the report of the Enquiry Officer cannot be sustained because the role and functions of the Secretary Agriculture Department as Authorised Officer have been ignored and eliminated. The compliance of these Rules needs no other method except the one provided by these Rules. The appellant's counsel has laid great reliance on the latest reported judgment of this Tribunal in the ease of late Mr. Bashir Jaffari wherein all the proceedings against the appellant were set-aside as being violative of the Rules. The reported judgment i.e. Muhammad Bashir Jaffari v. Azad Government of the State of Jammu and Kashmir 1984 P L C (C.S,I 1489 (Service Tribunal Azad J & K) is directly applic8ble to the present appeal. In that case late Mr. Jaffri was pouted as Executive Engineer R. Kote District Poonch and was transferred to the Department of Design Muzaffarabad and was served with at charge‑sheet on 10‑4‑1980. O.S.F. was appointed as Enquiry Officer by the Government and the Authorised Officer i.e. Chief Engineer' remained out of scene and the matter started and ended with the Enquiry Officer and the Authority. Late Mr. Bashir Jaffri was reduced in rank and was also awarded the punishment of heavy fine. I, as Member, accepting his appeal proposed alteration in the punishment by way of censure only. The learned Chairman of this Tribunal whose judgment was delivered in the terms of section 6 of the Azad Jammu and Kashmir Service Tribunal Act of 1975 accepted the appeal and set-aside the impugned order held that the proceedings taken against Mr. Jaffri were nullity in the eye of law for the reasons given below; Muhammad Bashir Jaffari v. Azad Government of the State of Jammu and Kashmir (Justice Sardar Mohammad Ashraf Khan, Chairman).

I have read the judgment written by the learned Member of the Tribunal, in which he has proposed the alteration of the penalty of reduction in rank imposed on the appellant by the Government- Respondent, go that of censure only but to me the question of any such alterations does not arise because, in my view, the whole disciplinary proceedings on the basis of which the order impugned in this appeal has proceeded were vitiated on account of having been taken in violation of the provisions of Azad Jammu and Kashmir Efficiency and Disciplinary Rules, 1977 (hereinafter referred to as E & D Rules) which govern the disciplinary auction against a civil servant. For the sake of reference it appears necessary to reproduce the relevant portions of sections 5, 6, 7 and 8 of they above rules which read as follow:

Section 5 (1) if, on the basis of its own knowledge or information placed before it, the authority is of the opinion that there are sufficient grounds for proceedings against a civil servant, or where in a case in which Anti‑Corruption Committee/ Committees set up by the Government; from time to time has decided to take departmental action it shall direct the Authorised Officer to proceed against such civil servant.

Section 6 (2).‑‑within three days of the receipt of the direction from the authority under rule 5, or within such further period as may be allowed by the authority at the written request of the Authorised Officer, the Authorised Officer shall decide whether in the light of the facts of the case or in the interest of justice, an inquiry is necessary.

Section 6 (5).‑‑If under sub‑rule (2) the Authorised Officer considers that an inquiry is necessary, he shall appoint an Inquiry Officer or an Inquiry Committee consisting of two or more persons who or one of whom shall be of a rank senior to that of the accused or if there are more than one accused senior to all the accused.

Section 6 (6).‑‑where an Inquiry Officer or an Inquiry Committee is appointed under sub‑rule (5) the Authorised Officer shall simultaneously frame a charge and communicate it to the accused together with a statement of allegations explaining the charge and other relevant circumstances which are proposed to be taken into consideration and require the accused. Within a reasonable time which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him, to put in a written defence directly before the Inquiry Officer or the Inquiry Committee, as the case may be.

Section 7 (6).‑‑The Inquiry Officer or the Inquiry Committee, as the case may be shall complete the inquiry proceedings within a period of sixty days commencing from the last date of submission of the written defence by the accused and shall within ten days of the expiry of the said period of sixty days or within such further period as may be allowed by the Authorised Officer, submit his or its findings and the grounds thereof to the Authorised Officer.

Section 7 (A).‑‑The Authorised Officer, on receipt of the report of the Inquiry Officer or Inquiry Committee, shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall after affording the accused an opportunity of showing cause against the major penalty, he shall forward the case to the authority alongwith the charge‑sheet, a statement of allegations served on the accused, explanation of the accused, the finding of the Inquiry Officer or the Inquiry Committee, as the case may be and his own recommendations regarding the penalty to be imposed. In case it is proposed to drop the proceedings, the Authorised Officer shall submit the case with all relevant material documents to the authority for appropriate orders.

Section 8.‑‑Action by the Authority In the case of any proceedings the record of which has been reported for orders under sub‑rule (4) of rule 6 of rule‑A the authority may pass such orders as it deems fit but before imposing a major penalty, the authority shall afford the accused an opportunity of being heard in person; either before himself or before an officer senior in rank to the accused designated for the purpose after taking into consideration the record of such personal hearing prepared by the Officer so designated.

From the perusal of provisions of the rules reproduced above, it becomes quite clear that authority after giving direction to the Authorised Officer under rule 5 (i) of the Efficiency and Discipline Rules to initiate departmental action against the accused civil servant goes into the background and does not come into picture at all during the conduct of the whole of the disciplinary proceedings against such a civil servant and only re‑appears on scene proceeded against departmentally after having found him guilty of charge levelled against him.

It is only when the record of the case of accused civil servant is submitted by the Authorised Officer to it that the authority is empowered to make any order as it may deem fit including the one of imposition of major penalty. As would appear from rule 6 (ii) of the Efficiency and Disciplinary rule it is only the "Authorised Officer" who has the power to decide as to whether in the light of the facts of the case or in the interest of justice, it is necessary to hold regular inquiry into the charges against the accused civil servant and under sub‑rule (5) of the above rule it is again the "Authorised Officer" who is empowered to appoint an Enquiry Officer or Inquiry Committee, as the case may be for holding inquiry into the charges against civil servant, in case he decides that such inquiry is necessary. Similarly the duty of framing charge and communicating it to the accused civil servant alongwith the statement of allegation explaining the same is also caste upon him.

The Inquiry Officer is also required to submit his findings on the charges to the Authorised Officer under rule 6 (6) of the said rule, similarly, in view of the provisions of rule 7 (a) of the aforesaid rule, only the Authorised Officer has been given the powers to determine as to whether the charge levelled against the accused civil servant has been proved and to impose minor penalty on him and he is required to submit the record of the case alongwith his recommendations regarding the penalty to be imposed on the accused civil servant, to the authority only when he proposes to impose major penalty. It is only then, that the authority enjoys the powers to make any order as it may deem fit in the case of the accused civil servant after giving him an opportunity of being heard.

When the disciplinary proceedings taken in this case are examined in the light of the legal position stated above, the inescapable conclusion to which one comes is that the same have been taken in flagrant disregard of the relevant service rules as a result of which the same stand vitiated. In the case in hand, the Inquiry Officer for holding inquiry into the charges against the appellant was appointed not by Authorised Officer but by the authority to whom the Inquiry Officer had also submitted his findings on the charges against the appellant. It was again the authority and not the Authorised Officer which came to the conclusion that the charges against the appellant had been proved and it was also the authority which had taken the decision of imposing major penalty on the appellant. Under the law, as seen earlier, all the above functions and powers were to be performed and exercised by the Authorised Officer who in this case was the Chief Engineer according to the Notification No. S&GAD/R‑80/SO‑1/21864‑924/79, dated 17th October, 1979 and the authority by assuming the functions and exercising the powers of the Authorised Officer has acted unlawfully by travelling beyond the province of his authority and jurisdiction.

A clear cut demarcation of the respective powers of the Authority and the Authorised Officer has been made in the Efficiency and Disciplinary Rules and, therefore, usurpation of any power enjoyed by one by the other renders the whole disciplinary proceedings nullify in the eye of law, in this view of the matter, the disciplinary proceedings taken against the appellant were unlawful on the basis of which the impugned order could not be passed.

Moreover, the impugned order is founded on the report of the Inquiry Officer which could not be legally used for holding the appellant guilty of the charges made against him and for imposing and penalty on him as the Enquiry Officer was incompetently appointed by the authority which had no power to do so under the E & D Rules according to which the Authorised Officer was only competent to appoint him.

The sum total of the above discussion is that most of the proceedings in this case were taken by the incompetent authority thereby rendering them unlawful with the result that impugned order is bad in law having proceeded on the basis of the disciplinary proceedings taken in contravention of the E & D Rules.

For the reasons stated above, the impugned order reverting the appellant to the post of Assistant Engineer and imposing the penalty of recovery of certain amount of loss caused to the Government by him, is set-aside.

In order to analyes the facts and circumstances of the appeal in hand, Two Enquiry Officers were appointed by the Government and the mandatory provisions of the Efficiency and Discipline Rules provided compliance with the Rules 5, 6, 7 and 8, so that the appellant could avail of the remedies available to him under the said rules. To initiate the proceedings against the appellant, Authority was bound to appoint Authorised Officer i.e. Secretary Agriculture Department and then to allow the said Officer to perform his duties and I am of the opinion that the facts and circumstances of the above‑reported judgment are equally very relevant to the present case. The reported judgment in the case of late, Mr. Bashir Jaffari has attained finality as no appeal was lodged against that order by the Government in the Supreme Court. I have no alternative but to apply and follow the principle of law laid down in that appeal. Following the judgment, I proceed to accept the appeal and set-aside the impugned Order No. 4593‑4600/79 dated 23‑8‑1979, and order the respondent to reinstate the appellant into service and conduct fresh enquiry according to law and law only. The fate of period for which the appellant remained out of service will also be decided by the competent authority after conducting the proceedings in accordance with law. No order as to costs.

(Kh. Abdus Samad)

Member Service

Tribunal.

Justice Sardar Muhammad Ashraf Khan, (Chairman).‑‑I agree with the conclusion drawn by the learned Member of the Service Tribunal that the disciplinary proceedings resulting in the passing of the impugned order of the compulsory retirement of the appellant have not been taken in accordance with the Azad Jammu and Kashmir Efficiency and Discipline Rules 1977 (hereinafter called as Efficiency and Discipline Rules) by reasons of which the impugned order stands vitiated and needs setting aside.

My reasons for the above agreement with the judgment of the learned Member of the Service Tribunal are as follows:

(1) The disciplinary action against a civil servant for his misconduct and corruption can only be taken under the Efficiency and Discipline Rules whose Chapter III comprising rules 5 to 12 deals with the inquiry against a civil servant and imposition of penalties upon him. The rule 5 of the said Rules empowers the authority to direct the authorised officer to proceed against a civil servant against whom, in its opinion, there are sufficient grounds for proceeding and on receiving the above direction, the Authorised Officer under sub‑rule (2) of rule 6 of the Efficiency and Discipline Rules shall appoint an Inquiry Officer or Inquiry Committee to conduct inquiry into the charge against a civil servant if he decides that the facts of the case or the interest of justice make such a demand and after doing that he shall frame the charge against the accused civil servant and communicate the same to him together with the statement of the allegations explaining the charge and any other relevant circumstances which are proposed to be taken into consideration and shall also require him to put in his written defence and to state as to whether he desires to be heard in person under sub‑rules (1) and (2) of rule 7 of the said Rules.

Again under rule 7 (7) of the Efficiency and Discipline Rules, it is the Authorised Officer to whom the Inquiry Officer or the Inquiry Committee is required to submit his or its findings and the grounds thereof who alone then under rule 7 (8) of the said Rules on the receipt of the report of the Inquiry Officer or Inquiry Committee shall determine as to whether or not the charge against the accused civil servant has been proved and shall himself impose the minor penalty upon him. It is only when he proposes to impose a major penalty on the accused civil servant that he is required to submit the case to the authority alongwith its entire record and his own recommendation regarding the penalty to be imposed upon him for its order who shall then pass such order on it as it may deem fit under rule 8.

The above provisions of Efficiency and Discipline Rules would show that in a disciplinary proceedings against a civil servant, certain functions are to be performed by the Authorised Officer to the exclusion of the authority. When the case of the appellant is examined in the light of the above provisions of the Efficiency and Discipline Rules with a view to finding out as to whether or not the disciplinary proceedings against him were taken in accordance with the said Rules, the inescapable conclusion to which one comes is that the same were altogether ignored and disregarded inasmuch as the powers and functions of the Authorised Officer were exercised and performed by the authority and the Authorized Officer did not come in picture at all during the course of the whole of the said proceedings.

According to clause‑(b) of sub‑rule (1) of the Definition rule 2 of the Efficiency and Discipline Rules the "authority" means the Government or an Officer or Authority designated by it to exercise the powers of the authority under the said Rules while under clause‑(c) of the said sub‑rule, the "Authorized Officer" means an officer authorized to perform functions of an authorized officer under the said Rules provided that in relation to certain civil servants the "Authority" may be authorized to act as an "Authorized Officer". At the time of commencement of the disciplinary action against the appellant, the Government had neither designated any officer or authority to exercise the powers of "Authority" nor had authorized any officer to perform the functions of the Authorized Officer in respect of the appellant end thus in the absence of any such specific appointment of "Authority" and "Authorized Officer" the sub‑rule (4) of rule 2 of the Efficiency and Discipline Rules was attracted by virtue of which an authority empowered to award major punishments under the verious delegation of the powers Rules was the "Authority" and an authority empowered to award minor punishments under the said delegation of powers Rules was an "Authorized Officer" in respect of the appellant. The answer to the question as to who was the "Authority" and "Authorized Officer" of the appellant under the above provisions of the Efficiency and Discipline Rules is found in the provisions of the Administrative powers Schedule‑V Part III of the Azad Government of the State of Jammu and Kashmir Rules of Business, 1975 framed under section 58 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 for the conduct of the business of the Azad Kashmir Government according to which the Government has been empowered to award major punishments while the Minister Incharge of the Department is authorized to award minor punishments to the Junior Class‑1 Officer. The appellant was a junior Class‑1 Officer being in Grade‑17 of the National Pay Scale and as such the Government and the Minister Incharge of the Agriculture Department enjoyed the powers of the "Authority" and the Authorized Officer" of the appellant under the Efficiency and Discipline Rules respectively at the time of the initiation of the disciplinary proceedings and the passing of the impugned order against him. So, the powers of the Authorized Officer under ‑the Efficiency and Discipline Rules in respect of the appellant were to be exercised by the Minister Incharge of his Department but as would appear from the examination of the record of the case including the contents of the File No. Agri: Misc: /6 of the Services and General Administration Department, all the functions falling within the ambit of the authority of the Authorized Officer were performed by the Government which was only the "Authority" in the case of the appellant. It was the "authority" who had appointed the Enquiry Officer to conduct Inquiry into the charges against the appellant, framed the charges found the charges to having been proved against him and determined the nature of the penalty to be imposed upon him.

All the above functions were to be performed by the Authorized Officer under the provisions of rules 6 and 7 of the Efficiency and Discipline Rules. The authority had thus by usurping the powers which were vested in law in the Authorized Officer has violated the aforesaid mandatory provisions of the Efficiency and Discipline Rules which illegality has vitiated the entire disciplinary proceeding against the appellant and consequently the impugned order of his compulsory retirement having been passed on such unlawful proceeding has also become unlawful and unmaintainable. The decision of this Tribunal in a case entitled "Bashir Ahmad Jhaferi v. Azad Government" 1984 P L CI (C) 478 is fully applicable to the present case.

It is, of course, true that Azad Jammu and Kashmir Legislative Assembly having been dissolved under the provisions of section 53 (A) of the Constitution there was no Cabinet of the Azad Kashmir in existence at the time of the initiation of disciplinary action against the appellant and the Chief Executive of the Azad Jammu and Kashmir Government performed the functions and exercised the powers vested in the Government under the Constitution but this fact, by itself, legally speaking, did not dispense with the requirements or rules 6 and 7 of the Efficiency and Discipline Rules under which only the Authorized Officer has been empowered to perform certain functions in a disciplinary proceedings such as the appointment of Inquiry Officer to conduct inquiry into the charges against the accused civil servant, the framing of charge against him, determination as to whether o, not the same has been proved against him and the determination of the nature of penalty L to be imposed. The mere fact of the Office of the Minister concerned being vacant in no way conferred powers on any other authority including the Government to perform the functions of the Authorized Officer. The Government was not helpless to meet such an exigency arising out of the non‑existence of the Minister Incharge of the Agriculture Department at the relevant time and was fully empowered to designate any Officer to perform functions of the Authorized Officer in respect of the appellant under the Efficiency and Discipline Rules. As a matter of fact, the Government had designated the "authorities" and Authorized Officer in respect of Civil Servants of most of the departments of the Government but somehow omitted to designate authorities and "authorized officers" with regard to the Officers of the Agriculture Department in respect of whom the authorities and the authorized officers were designated later on after the passing of the order impugned in this appeal.

2. From the perusal of the relevant file of the Service and General Administration Department in which the impugned order was passed by the Chief Executive, it appears that the said order was passed taking into consideration the cumulative effect of all the charges except 5, 6 and 8 having been proved against the appellant. Bit it appears from the perusal of the Inquiry report in the said file that the inquiry Officer had failed to observe some mandatory provisions of the Efficiency and Discipline Rules while conducting the inquiry against the appellant in respect of at least one charge namely Charge No. 7. Under the principle of natural justice as well as sub‑rule (3) of rule 7 of the Efficiency and Discipline Rules, the Inquiry Officer is required to conduct inquiry in presence of the accused civil servant who is entitled to cross‑examine the witnesses examined against him under the aforesaid Rules. But in the present case, during the course 5f inquiry against the appellant, the inquiry Officer had recorded the statements of the certain witnesses namely; Muhammad Yaqub, Syed Sardar Hussain Shah, Mistri Mehboob, Malik Allah Ditta and Nasir‑ud‑Din Mehmood in his absence on 5‑5‑1979 at Rawalpindi as would appear from the minutes of the inquiry proceedings of the said date recorded by the Inquiry Officer placed at page 15 of the aforesaid file of the Services and General Administration Department. The recording of the evidence of the witnesses against the appellant at his back in respect of the aforesaid charge against him is a clear contravention of the rule 7 (3) of the Efficiency and Discipline Rules under which the Appellant had statutory right to cross‑examine the witnesses appearing against him. The failure of the Inquiry Officer to record evidence of all witnesses against the appellant in his presence and to provide him with an opportunity to cross‑examine them has vitiated his report and thus the impugned order based on such report also stands vitiated because, as said earlier it has been passed taking into consideration also the fact that the charge in respect of whose enquiry the above illegality was committed by the Enquiry Officer also stood proved.

For the reasons stated above, the impugned order of the compulsory retirement of the appellant is set aside on account of its having been passed on the basis of the disciplinary proceeding conducted in clear violation and disregard of the Efficiency and Discipline Rules. The appellant shall stand restored to his post with effect from the date of the passing of the impugned order and be deemed to be still in Government Service. This order, however, shall not stand in the way of the Government respondent to hold fresh disciplinary proceedings against the appellant in the light of the above observations, if it chooses to do so.

A.E.

Appeal accepted.

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