2019 PLP (C (PLC(CS)N)

SAREDAR ABDUL HAMEED KHAN, J.

This appeal by leave of the Court has been directed against the judgment of the Service Tribunal dated 05.08.2017, whereby, Service Appeal No.236 of 2016, filed on behalf of respondent herein, has been accepted.

2. The precise facts forming the background of the captioned appeal are that respondent, herein, filed an appeal before the learned Service Tribunal, alleging, therein that he is permanent employee of the Police Department and serving as a Constable in the Reserve Police. It was stated that he was deputed on special duties in the District Rawalakot. During his service an inquiry was initiated against him due to absence from duty under the Azad Jammu and Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001. Thereafter, he was removed from service vide order book No. 443 dated 30.8.2006. He challenged the said removal order before the learned Service Tribunal through Service Appeal No. 480 of 2006, on 11.12.2006. The learned Service Tribunal after necessary proceedings, set aside his removal order dated 30.8.2006 and reinstated him in service with all back benefits vide judgment dated 11.03.2015. The department challenged the judgment of the learned Service Tribunal before this Court by filing a petition for leave to appeal. This Court while upholding the judgment of the Service Tribunal dated 11.03.2015 disposed of the petition for leave to appeal filed on behalf of the department vide judgment dated 30.6.2015. The Superintendent of Police adjusted/reinstated him in service on 27.8.2015. Thereafter, a fresh departmental inquiry was conducted against, him under the Police Efficiency and Discipline Rules, 1992 for the period of absence from 08.05.2006 to 29.08.2006 and the time spent by him during the inquiry proceeding. A penalty has been awarded to him in shape of stoppage of grade, two annual increments and the period of absence has been treated as leave, without pay vide order dated 30.12.2015. Hence he is constrained to file the appeal. The learned Service Tribunal admitted the appeal for regular hearing on 28.3.2016 and the official respondents were summoned to file objections on the appeal and on the application for interim relief, whereby, they refuted the claim of the respondent. After necessary proceedings, the learned Service Tribunal vide impugned judgment dated 05.08.2017, accepted the appeal, set aside the order dated 30.12.2015 having been issued without lawful authority. Hence, this appeal by leave of the Court.

3. Ch. Ghularn Nabi, Advocate, the learned counsel appearing for the appellants, argued that the judgment passed by the learned Service Tribunal is against law and the facts of the case, which is not sustainable in the eye of law. He submitted that the impugned order passed by the appellants on 30.12.2015 was in accordance with law and letter and spirit of the earlier judgment of the apex Court dated 30.06.2015. He argued that there are legal grounds available against the respondent, on the basis of which the department has rightly inquired and proceeded against him according to law. The learned counsel further contended that the respondent failed to give any plausible justification for absence from duty, therefore, the judgment passed by the learned Service Tribunal is contrary to law. The learned Service Tribunal while delivering the impugned judgment failed to consider the important aspect of the case. He further argued that the respondent was terminated/dismissed from service on the allegation of absence from duty, whereas, the learned Service Tribunal failed to consider the record placed before it. He contended that the respondent while filing the appeal before the learned Service Tribunal has appended the photostate copies of the documents with the memo. of appeal which is against the requirement of the Azad Jammu and Kashmir Service Tribunals Procedure Rules, 1976. The learned counsel also contended that the appeal filed by the appellants before this Court is well within time from the date of service of the impugned judgment which was served on 22.8.2017. He referred to the case reported as [2014 SC 967] and prayed for acceptance of appeal.

4. On the other hand, Mr. Maqsood Ahmed Sulehria, Advocate, the learned counsel for the respondent, vehemently argued that the judgment passed by the learned Service Tribunal is perfect and legal which needs no interference by this Court. The learned counsel has raised a preliminary objection that in the instant case the petition for leave to appeal was time-barred. He submitted that it is celebrated principle of law that delay of each and every day has to be explained. He argued that the respondent has been vexed twice, firstly he was removed from service vide order dated 30.8.2006 against which the appeal filed by the respondent before the learned Service Tribunal was accepted vide judgment dated 11.3.2015 and the same was upheld by this Court vide judgment dated 30.6.2015. He argued that after dismissal of the same, the department could not initiate any inquiry against the respondent. He argued that the department has initiated second inquiry and awarded punishment as stoppage of grade, two annual increments and the period of absence has been treated as leave without pay. He contended that according to the Police Efficiency and Discipline Rules, 1992 and other relevant laws dealing with the civil servants, a civil servant is deemed to be on duty during the period he remained under the inquiry. The learned Advocate in support of his submission placed reliance upon the cases reported as [2014 SCR 967], [2014 SCR 1120] and [2017 SCR 683] and prayed for dismissal of the appeal.

5. We have heard the arguments of the learned counsel for the parties and perused the record with utmost care. Before attending the merits of the case, we are inclined to attend the question of limitation at first.

6. We have examined the record minutely. It is admitted position that the impugned judgment of the Service Tribunal was passed on 05.08.2017, however the notice regarding announcement of the judgment was served upon the appellants on 22.08.2017. The certified copies of the same were obtained by the appellants on 03.10.2017 and 04.10.2017, whereas the petition for leave to appeal has been filed in this Court on 06.10.2017. The limitation provided under the Azad Jammu and Kashmir Supreme Court Rules, 1978; for filing PLA from the order/judgment of the Service Tribunal is 60 days, The appellants filed the petition for leave to appeal within the prescribed period of limitation, therefore, the argument of the learned counsel for the respondent that the petition for leave to appeal before this Court was time-barred has no substance, therefore, the same is hereby repelled.

7. As the merits of the case have also been discussed by the Service Tribunal, therefore, we are also intended to discuss the same. From the perusal of the record it reveals that an inquiry was initiated against the respondent due to absence from duty under the Azad Jammu and Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001 and he was removed from service vide order book No. 443 dated 30.8.2006. The record shows that the learned Service Tribunal vide its judgment dated 11.03.2015, set aside the removal order dated 30.8.2006, and reinstated the respondent in service with full benefits. The department challenged the judgment of the learned Service Tribunal before this Court which was dismissed and the judgment of the Service Tribunal was upheld by this Court vide judgment dated 30.06.2015 with the following observation:- "

5. I have considered the arguments of learned counsel for the parties and also gone through the record made available. As on the merit this case hardly requires any deliberation because the impugned departmental order has been passed under the provisions of Removal from Service (Special Powers) Act, 2001 and this Court has already held that this special law is not applicable to the police service. Thus, the impugned judgment to this extent is quite in accordance with law.

6. So far as the contention of the learned counsel for the petitioner that on the basis of impugned judgment the department cannot hold denovo inquiry, is concerned, it appears to be mere an apprehension as neither the Service Tribunal has imposed any such bar nor the- law so requires. If, there are legal grounds available against the respondent the department may according to law inquire and proceed against the respondent."

8. The Superintendent of Police, Reserve, Muzaffarabad in compliance of the order of this Court dated 30.06.2015, adjusted/reinstated the respondent on 27.08.2015 in the service. The department has conducted a fresh departmental inquiry against, the respondent under the Azad Jammu and Kashmir Police Efficiency and Discipline Rules, 1992, for the period of absence from 8.5.2006 to 29.8.2006 and the time spent by the respondent during the inquiry proceeding. A penalty has been imposed to the respondent in shape of stoppage of grade, two annual increments and the period of absence of the respondent has been treated as leave, without pay vide order dated 30.12.2015. The relevant portion of the order dated 30 17 7015 reads as under:-- urdu

9. The respondent, herein, filed an appeal before the learned Service Tribunal against the departmental order dated 30.12.2015. The learned Service Tribunal impugned judgment dated 05.08.2017, accepted the appeal, set aside the order dated 30.12.2015 having been issued without lawful authority.

10. The perusal of the impugned order of punishment reveals that the respondent was imposed by the concerned authority, the penalty of stoppage of two annual increments and stoppage of further promotion. The authority also ordered to treat the period of his removal from the service, i.e. 30.0.2006 to 25.08.2015, 8 years, 11 months and 24 days, as leave without pay. In the appeal before the Service Tribunal, the respondent has prayed to set aside impugned order of penalty and treating the period from 30.08.2006 to 25.08.2015, as on duty. It will be appropriate to reproduce the prayer clause of the memorandum of the appeal before the Service Tribunal which is as under: "Prayer: It is, therefore, most humbly prayed on behalf of the appellant that this Hon'able Tribunal may very graciously be pleased:- (i) To set aside the impugned order bearing No. 1200, dated 30.12.2015 (Annexure-A), communicated on 06.01.2016 as being contrary to Chapter-X, Rule 70 and also contrary to reported case titled, "Superintendent of Police Reserve v. Khalid Mehmood" (2014 SCR 967) and various reported cases of the Apex Court. (ii) Further, kindly be directed to respondent No. 1, period spend in inquiry proceedings commencing from 30.08.2006 to 25.08.2015 be treated as on duty. (iii) Any other relief which this Hon'able Court deems fit in the circumstances of the case may also be granted. Special cost from the respondents is solicited in the interest of justice."

11. The learned Service Tribunal has accepted the appeal of the respondent and set aside the order of punishment awarded by the departmental authority. The respondent filed direct appeal before the Service Tribunal and did not sought any remedy before the departmental authority next above the rank of authority which awarded the punishment. The learned Service Tribunal has not considered the important legal aspects of the case. It seems as that the Service Tribunal has treated the order of punishment awarded against the respondent as issued under the efficiency and discipline rules which govern the ordinary civil servants. The cardinal principle of administration of justice is that for adjudicating matters the governing laws and rules are to be applied stricto senso on the facts of each case independently without having any inference from any other law or rules, except where the vires of the law or the rules is challenged or there is some ambiguity in law and inference from other law or rules is required for meaningful interpretation and to remove existing ambiguity. It is also the prime responsibility of the Courts to adjudicate the matters according to law and justice, and this responsibility cannot be dispensed with mere observation that proper legal assistance has not been rendered by the Bar. Further, this responsibility of the Courts has generated the saying that the judges are expected to have law on the sleeves of their robes. This Court in a recent judgment titled Muhammad Azam and others v. Azad Government and others (Civil Appeal No.197 of 2017, decided on 20.12.2017, has observed as under: "8 .In our considered view that this is not a valid reason for non-reading of the evidence on record because the Judge/Court cannot be absolved of his duties in such like situation rather it will be not out of place to add that it is exclusive duty of the Judges/Court to administer/dispense justice even without the assistance of lawyers because the parties to a case are under no obligation to hire the services of lawyer, therefore, where there is some evidence on record, the Court is duty bound to appreciate/consider the evidence/record himself and after applying the correct law to decide the lis and not only to dispose off the cases. Our this view finds support from the case reported as Government of Khyber Pakhtunkhwa through Secretary Home and Tribal Affairs Department Peshawar and others v. Mehmood Khan [2017 SCMR 2044], wherein it has been held as under:-- "

6. It is the obligatory duty of the Judges to apply the correct law to a lis, and not of the litigant to point out the law applicable. Even the parties to a lis are under no obligation to hire the services of a lawyer/counsel for pleading their case because the primary duty to do the justice and to apply the correct law to the facts of a case, is the exclusive duty of the Judges. This principle has a legitimate background based on well entrenched 'MAXIM' that 'law is written on the sleeves of the Judges and they are supposed to know each and every law by heart', thus any inadvertent omission on the part of the Court/Judges shall not deprive the party entitled to any relief if the law directs in clear language to be granted."

12. There is another aspect in this regard. Though in the system of administration of justice some kind of remedy in shape of appeal, revision, and in extraordinary cases the remedy of writ petition is provided to get determined the maintainability of the judgment of the lower court and review jurisdiction is also provided to the Court to re-visit its own judgment. But existence of remedy of appeal, revision or writ petition does not absolve the lower Courts from their duty to deliver judgments after appreciating and applying the relevant law on each case in meaningful manner. There is a dilemma of practice in system of administration of, justice that existence of the remedy of approaching to the next higher Court or existence of right of review for unsatisfied party, intentionally or un-intentionally causes departure from delivering judgments in required manner. This trend propel the un-necessary litigation in appellate Courts due to un-convincing or less-convincing opinions on factual and legal aspects of a lis, which otherwise would not have been advised for approaching the appellate Court.

13. Though the police employees have also been declared as the civil servants for the purpose of section 4 of the Service Tribunals Act, 1975, which provides the aggrieved civil servants right of appeal before the Service Tribunal. However, being a disciplined force responsible to maintain law and order, separate efficiency and discipline rules namely, the Police Efficiency and Discipline Rules, 1992, under the provisions of section 7 of the Police Act, 1861, have been framed to maintain efficiency and discipline in Azad Jammu and Kashmir Police department. The police force other than maintaining law and order situation in society, not only assists all the government departments in enforcing the laws but also safeguard and protect the life and property of the citizens. The nature of the job of the members of the police force is more demanding and disciplined one, as compared to that of other civil servants. Therefore, separate efficiency and discipline rules have been framed to maintain discipline among the police personnel and to keep them efficient. The respondent has been proceeded against under the aforesaid Rules. It will be useful to reproduce the relevant provisions of the Rules which prescribe minor and the major penalties, which may be imposed on the accused police employee. The same are reproduced as under: "

4. Punishrpents:

The following are the minor and major punishments namely:-- (a)Minor Punishments:- (i) Censure; (ii) Forfeiture of approved service up to 2 years; (iii) Withholding of promotion up to one year; (iv) Stoppage of increment for a period of not exceeding 3 years with or without cumulative effect; (v) Fine to any amount not exceeding one month's pay (vi) Confinement of constables and head constables for 15 days to quarters Guards; (vii) Drill, extra guard, fatigue or other duty." (b) Major Punishments:- (i) Reduction in Rank/pay; (ii) Compulsory retirement; (iii) Removal from service; and (iv) Dismissal from service, A cursory perusal of Rule 4(a) of the aforementioned Rules reflects that there are seven kinds of minor penalties consisting of censure, forfeiture of approved service up to 2 years, withholding of promotion up to one year, stoppage of increment not exceeding 3 years, fine not exceeding one month's pay, confinement of constables and head constables for 15 days to Quarter Guards, drill, extra guard, fatigue or other duty. The impugned punishment order found place at page No.26-27 of the paper book, as Annexure PB/1, reveal that the respondent has been punished with stoppage of two annual increments. Further, the period of absence of the respondent from duty 30.08.2006 to 25.08.2015 has been treated as on leave without pay. Against this order of punishment the respondent filed the direct appeal before the Service Tribunal which has been accepted. The relevant provisions of the aforesaid Rules, 1992, i.e. rules 13 and 14, about the right of appeal are reproduced as under:- "

13. Appeal:- (a) An appeal shall lie only against the order of dismissal, removal from service, compulsory retirement, reduction in rank or time-scale, forfeiture of approved service and imposition of fine. (b) There shall be one appeal only, from the original order, and the order of the appellate authority shall be final: (c) The appeal shall lie to the officer one step higher than the one who passes the original order provided that in case of orders passed by the Inspector-General Police, only a review petition would be admissible.

14. No order passed under these rules shall be subject to review by any Court/Tribunal." A bare reading of rule 13(a) reveals that the right of appeal has been conferred only against the order of dismissal, removal from service, compulsory retirement, reduction in rank or time-scale, forfeiture of approved service and imposition of fine. All the punishments appealable as mentioned in, this sub-rule (a) fall under the major punishments, provided under section 4(b). Whereas, the punishment awarded to the respondent does not fall into the major punishments rather fall into the minor punishments. Meaning thereby that the right of appeal against the punishments falling under the minor punishments has not been given to the police employee who has been punished as such. Rules 13(b) lays down that there shall be one appeal only from the original order, and the order of the appellate authority shall be final. If read with sub-rule 13(b) against the order of award of major punishment only one appeal has been provided and that also against the original order of the authority. Sub-rule (c) of rule 13 provides that the appeal shall lie to the officer one step higher than the one who passes the original order provided that in case of orders passed by the Inspector-General Police, only a review petition would be admissible. It means that the appeal against the punishment order shall only be appealable before the departmental authority/officer one step higher than the officer who passed the original order and under sub-rule (b) of rule 13, "the order of the appellate authority shall be final". Rule 14 of the aforementioned Rules provides that no order passed under these rules shall be subject to review by any Court/Tribunal. Meaning thereby what to speak about the appeal against the order of minor punishments, even no right of appeal has been provided against the appellate order of Departmental authority/officer passed on appeal against the original order.

14. The juxtapose and detailed analysis of Rules, 4, 13 and 14, of the Police Efficiency and Discipline Rules, 1992, it becomes clear and un-ambiguous that as the respondent was awarded the, minor penalties falling under rule 4(a), of the Rules, 1992, therefore, he has no right of appeal even before the departmental appellate authority/officer, not to mention of the first appeal before the Service Tribunal. The Service Tribunal failed to consider this aspect of the case and has not appreciated the relevant provision i.e. Rules 4, 13 and 14 of the Rules, 1992. The nutshell of the above discussion concludes that the appeal of the respondent before the Service Tribunal was not competent.

14. After perusal of the rules reproduced supra, it appear that no appeal or review except appeal before the departmental authority lies in any Court or tribunal and the order passed by the authority against the major punishment is final. Whereas, under section 4(2) of the Azad Jammu and Kashmir Service Tribunals Act, 1975 framed under section 47 of the Azad Jammu and Kashmir interim Constitution Act, 1974 provides the remedy of appeal before the tribunal in the case of penalty of dismissal from service, removal from service, compulsory retirement or reduction of a earlier post or time scale or to earlier such time scale. Rules 13 and 14 of the Azad Jammu and Kashmir Efficiency and Discipline Rules, 1992 prima facie contradicts the provision of section 4 subsection (2) of the Azad Jammu and Kashmir Service Tribunals Act, 1975.

15. Another important aspect of the case is that the Police Rules, 1992 were promulgated on 10.11.1992, whereas, this Court in the case reported as Muhammad Bashir Khan and another v. Inspector General of Police and others (1993 PLC (C.S.) 986) has declared the police officers as civil servants for the purpose of appeal under section 4 before the Service Tribunal. The relevant paragraph is reproduced as under: - "

5. The legal position, as enunciated by this Court in Azad Government of the State of Jammu and Kashmir v. Muhammad Rafique [Civil Appeal No. 22 of 1992 decided on 16th November 1992], is that all police officers are 'civil servants' within the meaning of civil servants Act and this Act is applicable to them in the matters which are not covered by the Police Act. Thus section 21, reproduced above, was clearly applicable to the present situation." Although, the point of inconsistency of the provisions of the Service Tribunals Act, 1975, among the provisions of Service Tribunals Act, 1975 and the Azad Jammu and Kashmir Police Rules, 1992 is not at issue, however, we have come across this proposition, therefore, this point is left open for resolution in any other appropriate case. The result of the above discussion is that as the appeal filed by the respondent in the Service Tribunal was incompetently filed, hence the impugned judgment is not maintainable. Resultantly, this appeal is accepted and the impugned judgment of the Service Tribunal is set aside, with no order as to costs. ZC/34/SC(AJK) Appeal allowed.