1991 PLP (C (PLC(CS))

Raja Ibrar Hussain for Respondents. RAJA MUHAMMAD ASHRAF KHAN KAYANI (MEMBER).-- Shahdad Khan, a retired Accountant of Police Department, has called in question the order dated 23-11-1989 passed by the Deputy Inspector-General of Police with the approval of Inspector-General of Police and has prayed that the impugned order to the extent of withholding of his pension be set aside and the respondents be directed to award full pension to the appellant.

2. Brief facts giving rise to the present appeal are that the appellant was an Accountant in the. Police Department. He was placed under suspension for the alleged charge of misappropriation in accounts and was retired from service under the impugned order w.e.f. 31-12-1989 on attaining the age of his superannuation. Through the said order of retirement, it was also communicated to him that he would be entitled to the arrears of pension benefits only after he is exonerated from the alleged charges of corruption and defalcations in accounts pending at that time with the Prime Minister Inspection Team and Anti-corruption Department for decision. Feeling aggrieved by the impugned order, the appellant has brought the present appeal before this Tribunal under section 4 of Service Tribunal Act, 1975 (hereinafter referred to as the Service Tribunal Act).

3. We have heard the arguments and have also gone through the record placed before us. The appeal was admitted for regular hearing by this Tribunal on 15-1-1990, leaving aside the question of not availing of the departmental remedy before preferring the present appeal at this forum. But quite astonishingly neither my objection was raised in that behalf by the respondents in their written objections nor this point was agitated during the arguments on either side. On being confronted with this point, it was submitted by the learned counsel for the appellant that the impugned order having been passed with the approval of Inspector-General of Police was a final order and under section 4 of the Service Tribunal Act, the appellant could bring his appeal against the final order before this Tribunal. We regret we cannot override the existing provision of the statute which provides otherwise that the appeal before this Tribunal shall be available to an aggrieved civil servant only in that case if the departmental remedy available at law is duly spent up. The relevant section with the relevant proviso is reproduced below for reference purposes:- "

4. Appeal to Tribunal.-_-(1) Any Civil Servant aggrieved by any final order, whether original or appellate, made by a departmental authority, to respect of any of the terms and conditions of his service, 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 appeal to the Tribunal: Provided that- (a) Where an appeal, review or representation to a departmental authority is provided under the Azad Jammu and Kashmir Civil Servants Act, 1976 or any rules, against any such order, no appeal shall lie to Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, M, application or representation was so preferred; A plain readings of the above section and its proviso makes it abundantly clear that an appeal could not be brought before this Tribunal without exhausting the departmental remedy by way of an appeal, review or representation, as the case may be, as is provided under section 21 of Azad Jammu and Kashmir Civil Servants Act, 1976 read with rules 4 and 8 of Azad Jammu and Kashmir Civil Servant (Appeal) Rules, 1982. The appellant belongs to ministerial service and thus he is not a member of the subordinate police service that is governed by the Azad Jammu and Kashmir Police Rules up to the rank of Inspector vide Order S&GAD/R-80 1S.O.-1/80, dated 28-9-1980. This Tribunal gets jurisdiction in a service matter only after an aggrieved civil servant has obtained a final order in his case from the next higher departmental authority in accordance with the provisions provided to the foregoing proviso of section 4 of Service Tribunal Act. In the instant case the appellant feeling dissatisfied with the impugned order has straightaway filed the present appeal before this Tribunal which is held to be incompetent: In view of the above, we are left with no alternative but to accept this argument that the present appeal is not maintainable at this forum because of the fact that the appellant failed to avail of the departmental remedy before invoking the jurisdiction of this Tribunal. Hence the appeal is dismissed. No order as to costs. ' M.Y.H./119/Sr.A. Appeal dismissed.