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Writ Petition No. 4 of 1981, decided on 29th February, 1984.

‑‑‑S. 49‑‑Azad Jammu and Kashmir Civil Servants Act, 1976, S.23‑‑Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules. 1977, Rr. 5, E 7 & 8‑‑Departmental proceedings against civil servant‑ Requirement‑‑Civil servant could be proceeded against departmentally and awarded punishment only under Efficiency and Discipline Rules‑‑‑‑Where orders have been made by Government without any recourse to 1977 Rules, such orders, held, would stand vitiated.

‑‑S. 49‑‑Azad Jammu and Kashmir Civil Servants Efficiency and Discipline) Rules, 1977, Rr. 5, 6, 7 & 8‑‑Disciplinary proceedings against civil servant‑‑Procedure‑‑Authority could direct Authorised Officer to proceed against civil servant if in its opinion Sufficient ground existed for initiating disciplinary proceedings‑‑Authorised officer after direction from Authority, held, would first decide as to whether or not in the light of facts of case, enquiry could be got conducted into charges against civil servant through Inquiry Officer or Inquiry Committee‑‑In case Authorised Officer decides to hold inquiry then he would appoint Inquiry Officer or Inquiry Committee‑‑Where such inquiry was not deemed necessary by such officer he would issue show‑‑cause notice to civil servant wherein such civil servant would be informed of the action proposed to be taken against him and grounds of such action and would also provide him with a reasonable opportunity of showing cause against proposed action‑‑Where civil servant was awarded punishment of censure and recovery of certain percentage of over payment made to contractor by such civil servant without recourse to Rules, awarding of such punishment would not be justified and could be set aside by High Court in its constitutional jurisdiction

‑‑‑S. 15‑‑Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, Rr. 5, 6, 7 & 8‑‑Word 'prescribed', connotation of‑ Word 'prescribed' means prescribed by Rules, viz. Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977‑‑Any disciplinary action taken against a civil servant in disregard to those rules, held, would not be sustainable.

B.A. Sheikh for Petitioner.

Refique Mehmood Khan, Asstt. A.‑G. for Respondents.

‑Through this writ petition, filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the orders of the Government‑respondent passed on 18‑3‑1980 and 2nd of June, 1980, have been called in question by the petitioner.

2. The brief facts, as alleged by the petitioner, leading to the filing of the present writ petition are that the competent authority served a show‑cause notice issued under the signature of the Deputy Secretary S&GAD on 17th of March, 1979 to the petitioner which contained certain charges of serious irregularities alleged to have been committed by the petitioner out of which charge No. 3/1 related to the over payment allowed to the Contractor by him for the removal of Mulba between the road from Domel Bridge to Chatter and the petitioner was asked to show cause as to why the disciplinary action should not be taken against him for the serious irregularities committed by him The petitioner submitted his explanation to the aforesaid show‑cause notice and the Government after considering his reply thereto exonerated him from all the charges levelled against him vide its order, dated 22nd of July, 1979. The petitioner again received a confidential letter, dated 30th of September, 1979 from the Chief Engineer P.W.D. wherein it was stated that while working as Executive Engineer P.W.D. Maintenance Division Muzaffarabad, he made an irregular payment for the disposal of Mulba beyond 50 feet lead in case of road from Domel Bridge to Chatter‑Domel to the Contractor at the blanket rate of Rs.30 per hundred cft. whereas the same was payable @ Rs.10 per hundred cft. as per Schedule Rates of 1967 at which the contract for the work was granted to the Contractor and the petitioner was asked to submit his explanation in this regard for submission to the Chief Executive of Azad Jammu and Kashmir Government. In response to the above letter. the petitioner submitted his explanation to the Chief Engineer P.W.D. and he was also later on given a personal hearing by the President of the Azad Kashmir Government after which the penalty of censure was imposed on the petitioner and he was also required to pay 30% of the total over payment made to the Contractor as a result of his wrong recommendation to be worked out by the Chief Engineer and payable in monthly instalments to be suggested by him, vide Government‑respondent's order passed on the 18th of March, 1980. As a sequence to the above order. another order was passed by the Government‑respondent on the 2nd of June, 1980 whereby the amount recoverable from the petitioner was determined to be Rs.49,083.76 and the same was made payable by the petitioner within the period of ten years in equal monthly instalments.

3. Feeling aggrieved by the aforesaid orders of the Government- respondent, the petitioner has filed the present writ petition where their validity has been called in question and the prayer has been made for declaring them to be unlawful and of no legal effect.

4. We have heard the learned counsel for the parties. The learned counsel for the petitioner has contended that the impugned orders are unlawful as the same have been passed in a disciplinary proceedings taken against Ch. Muhammad Yaqoob, Superintending Engineer, P.W.D. and not in any independent disciplinary proceeding against the petitioner. It is thus argued that such a course of action is not warranted by the Efficiency and Disciplinary Rules which govern the disciplinary action against the civil servant. It is further argued that the charge for which the petitioner has been punished by the respondent No.1 was also included in the charges for which the disciplinary proceedings were initiated against him but was exonerted of them by the Government‑respondent vide its order, dated the 22nd of July, 1979, a copy of which is Annexure 'C' with the writ petition and as such he could not be awarded any punishment for the same charge of which he was exonerated earlier by the competent authority.

5. After giving our due consideration to the above contentions of the learned counsel for the petitioner, we are of the opinion that the orders impugned in the writ petition lack legal sanction behind them and as such are unlawful. Section 49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 provides that the terms and conditions of the civil servants shall be regulated by law. The Legislature has enacted law in pursuance of the aforesaid provisions of the Constitution which is called Azad Jammu and Kashmir Civil Servants Act, 1976 and in exercise of the powers vested in it under section 23 of the said Act, the Government has framed Rules called Azad Jammu and Kashmir Civil Servants (Efficiency and Disciplinary) Rules, 1977 which lay down the procedure to be observed in a disciplinary action against the civil' servant and also prescribe the various punishments that can be awarded in a departmental proceedings against him. Thus, the civil servant can be proceeded against departmentally and awarded punishment only under the said Rules but in this case, the impugned orders have been made by the Government‑respondent without any recourse to the said Rules with the result that they stand vitiated having been passed in disregard of them. The Chapter‑III of the said Rules relates to the inquiry and imposition of the penalties against the civil servants and its sections 5 and 6 prescribe procedure for initiation of disciplinary proceedings and inquiry against the civil servants. Section 5 and the relevant extract of section 6 are reproduced here for the sake of reference:

"Section 5.

Initiation of proceedings.‑‑If, in the opinion of the authority there are sufficient grounds for proceeding against a civil servant, it shall direct the authorised officer to proceed against the said civil servant.

Section 6.

Inquiry procedure to be observed by the authorised officer ‑‑The following procedure shall be observed by the authorised officer when a civil servant is proceeded against under these Rules

(1) ...............................................................

(2) The authorised officer shall decide whether in the light of facts of the case or the interest of justice an inquiry should be conducted through an inquiry Officer or Inquiry Committee. If he so decides, he shall appoint an Inquiry Officer or Inquiry Committee consisting of two or more persons who or one of whom shall be of the rank senior to the accused or all of the co‑accused and the procedure indicated in Rules 7 and 8 shall apply.

(3) If the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall.‑‑

(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and

(b) give him a reasonable opportunity of showing cause against that action. "

6. The bare reading of the provisions of Efficiency and Disciplinary Rules reproduced above would show that the 'authority of a civil servant is required to direct the authorised officer to proceed against him if in its opinion sufficient ground exists for initiating disciplinary proceeding against him and the authorised officer after receiving the above direction shall first decide as to whether or not, in the light of the facts of the case, enquiry should be got conducted into the charges against the civil servant through Inquiry Officer or Inquiry Committee. If he decides to hold inquiry then he is required to appoint Inquiry officer or, Inquiry Committee for the purpose but if he takes decision that such an inquiry is not necessary he would then issue a show‑cause notice to the accused civil servant wherein he would be informed of the action proposed to be taken in regard to him and the grounds of such action and shall also provide him with a reasonable opportunity of showing cause against that action. It is only after adopting either of the aforesaid procedure that the authorised officer or the authority can award any of the authorised punishment under Rule 7(8) or 8 of the said Rules respectively. But in the instant case, none of the aforementioned rule of the Efficiency and Disciplinary Rules was followed and what was done, was that the Chief Engineer P.W.D. had written a confidential letter to the petitioner asking him to explain his position with regard to the irregularity of making unauthorised payment to the Contractor for disposal of Mulba from road between Domel Bridge to Chatter‑Domel and after considering the explanation of the petitioner, and giving him personal hearing, the Government‑respondent passed the impugned orders imposing penalty of censure and recovery of loss caused to the Government by the alleged action of the petitioner in making over payment to the Contractor for the aforesaid work. It appears appropriate here to reproduce the relevant extract: from the aforesaid orders of the Government‑respondent, dated 18^th of March, 1980 which reads as under:‑

The President Azad Jammu and Kashmir considering the report of Commission of Inquiry No. 1, relating to the affairs of P.W.D. show‑cause notice given to reply to it submitted by Ch. Muhammad Yaqub Superintending Engineer P.W.D. and giving him personal hearing as well as to the under‑mentioned officers/officials involved in the case, is pleased to order as under:‑

(2) Ch. Sadaqat Ali XEN. P.W.D.

Ch. Sadaqat Ali is responsible for recommending the non‑scheduled rate in the presence of the scheduled rates and this has been proved beyond all reasonable doubts. He is, therefore, punished with 'censure' and also ordered to pay 30 of the total over payment made to the Contractor because of his action in making such a wrong recommendation. The exact amount corresponding to this percentage should be worked out by the Chief Engineer and recovered from the officer in monthly instalments to be suggested by him (Chief Engineer)

7. The perusal of the above extracts leaves no room for doubt that the petitioner was awarded the punishment of censure and recovery of certain percentage of over payment made to the Contractor from him in a disciplinary proceeding taken against Muhammad Yaqub, Executive Engineer P.W.D. and that no independent disciplinary action was initiated under the relevant rules before passing the said impugned orders. The law which held the field in the form of Efficiency and Disciplinary Rules, did not allow the adoptation of such a course under which, as said earlier, the petitioner ought to have been proceeded against departmentally for the charge for which he has been punished under the impugned orders. The said rules required that either the Inquiry Officer or Inquiry Committee should have been appointed to inquire into the charge of allowing and making unauthorized payment to the Contractor or a show‑cause notice should have been served upon him but none of the above procedure was observed in the case of the petitioner who was only called upon by the Chief Engineer P.W.D. to submit explanation in respect of the aforesaid charge for the perusal of the Chief Executive of the Government. The calling of such an explanation in a confidential letter by the Chief Engineer from the petitioner does not, by any stretch of imagination tantamount to serving show‑cause notice in terms of Rule 6(3) of the Efficiency and Disciplinary Rules by the Authorized Officer as the same did not fuifil all the necessary conditions required to be contained in such show‑cause notice nor it was given by the authorised officer of the petitioner which was the Government and not the Chief Engineer, P.W.D.

8. The sum total of the above discussion is that the impugned orders awarding punishment to the petitioner have been made in complete disregard of the Government Servants (Efficiency and Disciplinary) Rules of 1977 under which alone civil servant can be awarded any punishment by way of disciplinary action against him, in view of the provision contained in section 15 of the Civil Servant Act which provides that in the matter of Efficiency and Disciplinary, a civil servant shall be liable to a procedure as may be prescribed. The 'prescribed' means prescribed by rules which exist in the shape of Efficiency and Disciplinary Rules of 1977.

9. For the reasons stated above, the orders of the Government -respondent, dated the 18th of March, 1980 and 2nd of June, 1980 impugned in this writ petition are declared to be unlawful and without legal effect and, accordingly, are set aside. There shall be no order as to costs.

A.A./257/A.H.

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