2019 PLP (C (PLC(CS))

RAJA SAEED AKRAM KHAN, J.

The above titled appeal by leave of the Court has been filed against the judgment of the Azad Jammu and Kashmir Council Service Tribunal (hereinafter to be referred as Service Tribunal) dated 14.6.2017, whereby the appeal filed by the appellant, herein, has been dismissed.

2. The facts necessary for disposal of this appeal are that the appellant, herein, was serving as Constable (B-1), in Central Excise and Sales Tax Department, Mirpur. On the allegation of misconduct etc., he was proceeded against under the provisions of Government Servants (Efficiency and Discipline) Rules, 1973. At the end, the competent authority removed the appellant from service through order, dated 23.4.2015. The appellant challenged the order of the authority before the Service Tribunal by filing an appeal, which has been dismissed through the impugned judgment dated 14.6.2017, hence, this appeal by leave of the Court.

3. Mr. Javed Iqbal Satti, Advocate, the learned counsel for the appellant argued that the impugned judgment is based on misinterpretation of law which is not sustainable in the eye of law. He contended that the learned Service Tribunal has not decided the case on merit rather dismissed the appeal on the sole ground that the same has been filed without availing the remedy of departmental appeal. He added that the Service Tribunal while handing down the impugned judgment failed to adhere to the relevant provisions of section 4(1) of the Azad Jammu and Kashmir Council Service Tribunals Act, 1973 (hereinafter to be referred as Council Service Tribunals Act), as under this statutory provisions an aggrieved civil servant may file appeal to the Tribunal against the original or appellate order, thus, direct appeal before the Tribunal was competent. The learned counsel maintained that the appellant has been removed from service without conducting any inquiry and without providing him an opportunity of hearing, but the Service Tribunal failed to appreciate this important aspect of the case. The learned counsel forcefully contended that the proposition involved in the matter in hand has already been resolved by this Court in the case reported as Chairman Azad Jammu and Kashmir Council and 2 others v. Muhammad Munir Raja and another [2017 SCR 1168], but the same has not considered by the Service Tribunal.

4. On the other hand, Mr. Babar Ali Khan, Advocate, the learned counsel for the respondents strongly opposed the arguments advanced by the learned counsel for the appellant. He submitted that the impugned judgment of the Service Tribunal is perfect and legal which is not open for interference by this court. He added that the statutory provision of law, i.e. section 4(1)(a) of the Council Service Tribunals Act unambiguously speaks that filing of departmental appeal is pre-requisite and without availing this remedy, direct appeal before the Service Tribunal is not competent. He added that as the appellant without complying with the mandatory requirement of law filed direct appeal before the Service Tribunal, therefore, the learned Service Tribunal rightly dismissed the same and has not committed any illegality. He prayed for dismissal of appeal.

5. We have heard the arguments and gone through the record made available along with the impugned judgment with utmost care. The perusal of the impugned judgment shows that the learned Service Tribunal dismissed the appeal of the appellant on the sole ground that the appellant has not availed the remedy of filing departmental appeal provided under section 4(1)(a) of the Council Service Tribunals Act and without complying with the mandatory condition of filing the departmental appeal, direct appeal before the Service Tribunal is not competent. As leave was also granted to examine this point, therefore, it will be advantageous to reproduce here the provision of law dealing with the matter, i.e., section 4(1)(a) of the Council Service Tribunals Act which reads as under-- "

4. Appeal to Tribunals.

(1) Any civil servant aggrieved by any order, whether original or appellate, made by a departmental authority in 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 Tribunals, whichever is later, prefer an appeal to the Tribunal. Provided that: (a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, or any rule against any such order, no appeal shall lie to a 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, application or representation was so preferred." The hereinabove quoted statutory provision clearly provides that no appeal shall lie to the 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, application or representation was so preferred. In the case in hand, admittedly, the appellant filed appeal before the Service Tribunal without availing the remedy of departmental appeal, whereas, under the provisions of section 4(1)(a) of the Council Service Tribunals Act before filing appeal in the Service Tribunal, he had to fulfill the mandatory provisions of exhausting departmental remedy. This Court in a number of pronouncements has discussed/highlighted the distinction between the provisions of Azad Jammu and Kashmir Service Tribunals Act, 1975 and Council Service Tribunals Act and held that for filing appeal before the Service Tribunal under the provisions of Azad Jammu and Kashmir Service Tribunals Act, 1975 the requirement of filing departmental appeal, review or representation is not mandatory, whereas, in the Council Service Tribunals Act, the provision of filing departmental appeal, review or representation is mandatory. In a latest judgment on the subject reported as Haqnawaz Abbasi v. Chairman Azad Jammu and Kashmir Council and another [2018 SCR 156], this Court while dealing with the proposition has observed as under:-- "It may be observed here that the distinction between the Azad Jammu and Kashmir Service Tribunals Act, 1975 and the Service Tribunals Act regarding the period of limitation for filing of appeal is that a period of 90 days from the date of original order has been provided for filing appeal before the Service Tribunal in the Azad Jammu and Kashmir Service Tribunals Act, 1975 and the provision of filing departmental appeal, review or representation is not mandatory, whereas, in the Service Tribunals Act, the limitation has been provided as 120 days from the date of original order and the provision of filing departmental appeal, review or representation is mandatory." The case of the appellant is governed under the Council Service Tribunals Act; therefore, the appellant cannot take the shelter of section 4(1) of the Azad Jammu and Kashmir Service Tribunals Act, 1975. The argument of the learned counsel for the appellant that under the provisions of section 4(1) of the Service Tribunals Act, an aggrieved civil servant, against the original or appellate order may prefer an appeal before the Tribunal, thus, direct appeal filed by the appellant before the Tribunal against the original order was competent, is based on misinterpretation of the relevant provision of law as has been discussed hereinabove. It may be observed here that although, the argument of the learned counsel is based on misconception, however, if the same is admitted even then the appeal of the appellant was not maintainable as under section 4(1) of the Service Tribunals Act, it has been provided that any civil servant aggrieved by any order whether original or appellate, made by a departmental authority, in respect of any of the terms and conditions of his service, may within thirty days of the communication of such order prefer an appeal to the Tribunal, whereas, the appellant filed appeal against the original order, dated 23.04.2015 on 31.08.2015, after a lapse of more than 4 months. The other argument of the learned counsel for the appellant that the proposition involved in the matter in hand has already been dealt with by this Court in the case reported as Chairman Azad Jammu and Kashmir Council and 2 others v. Muhammad Munir Raja and another [2017 SCR 1168], has also no substance as from the perusal of the referred pronouncement it appears that no such point has been raised/discussed in the same. As the Service Tribunal dismissed the appeal on the sole ground of competency and we have also reached the conclusion that the appeal before the Service Tribunal was incompetent and the Service Tribunal rightly dismissed the same, therefore, there is no need to discuss the merits of the case as the same will be a futile exercise. In view of the above, this appeal being devoid of any force is hereby dismissed with no order as to costs. ZC/51/SC(AJ&K) Appeal dismissed.