2005 PLP (C (PLC(CS))

SYED MANZOOR HUSSAIN GILANI, J.

This appeal, with leave of the Court, is filed against an order passed by a learned Single Judge of the High Court on 29-7-2002, in Writ Petition No.558 of 2000 at Muzaffarabd, whereby the dismissal of respondent from the post of Superintending Engineer of Azad Jammu and Kashmir University vide order dated 13-1-1999 passed by the Vice-Chancellor and the order dated 26-1-2000 passed in the review petition filed by the respondent against the dismissal order along with the order dated 1-8-2000 passed in second review petition, are set aside and the respondent is restored to his original position.

2. The facts giving rise to the filing of pr sent appeal are that the respondent was serving as Superintending Engineer in the University of Azad Jammu and Kashmir when he was suspended from service by the Vice-Chancellor and an authorized officer was appointed for the disciplinary proceedings against the respondent on 21-11-1998 under the University of Azad Jaminu and Kashmir Employees (Efficiency and Discipline) Statutes, 1988, (hereinafter to be referred as the University Statutes). After the completion of disciplinary proceedings in accordance with the University Statutes, the respondent was dismissed from service on 13-1-1999. The Syndicate of the University accorded approval' to all the steps taken by the Vice-Chancellor in this regard in its 18th meeting held on 29-5-1999 and 15-6-1999. The respondent submitted a review petition before the Chancellor of the University who after hearing him forwarded the petition to the Syndicate. The Syndicate in its meeting held on 29-5-1999, forwarded the same to the Appeal Committee of the Syndicate and on its recommendations the review petition was dismissed on 26-1-2000. He filed second review, petition against the order dated 26-1-2000 before the Chancellor which was again forwarded to the Syndicate and Syndicate again rejected the review petition and confirmed the earlier order. The respondent thereafter, filed a writ petition in the High Court against these orders on 28-10-2000, which was accepted by a learned Judge of the High Court holding the orders passed against the respondent as without lawful authority and without jurisdictional competence. Hence this appeal with leave of the Court.

3. Mr. Farooq Hussain Kashmiri, the learned Advocate appearing on behalf of the appellants contended that the edifice of the impugned judgment is based on the ground that the Vice-Chancellor is not vested with the powers under section 11(3) of the University of Azad Jammu and Kashmir Act, 1985 (hereinafter to be referred as the Act), to dismiss an employee of the University, as the competent authority in the case of respondent was the Syndicate alone. He referred notification of the Syndicate dated 31-10-1996, contending that the Syndicate has delegated all its powers to the Vice-Chancellor for taking appropriate action in such-like cases. According to him the action was taken by the Vice-Chancellor in exercise of his authority delegated to him by the Syndicate, hence the orders impugned before the High Court were set aside without adopting due course of law.

4. On the other hand, Mr. Imdad Ali Malik, the learned Advocate appearing on behalf of the respondent defendant the order passed by the High Court contending that the High Court has given sound and cogent reasons supported by the authorities of the superior Courts that the Vice Chancellor is not vested with the powers to dismiss an employee of the University in exercise of powers under section 11(3) of the Act. According to him the authority competent to appoint the respondent was the Syndicate of the University not the Vice-Chancellor, hence the Syndicate alone could order the disciplinary proceedings against the respondent not the Vice-Chancellor. The learned counsel referred clause (c) of rule 2 of the University Statutes wherein the competent authority means "an officer or authority competent to appoint the accused." According to him the perusal of the above statutes makes it abundantly clear that only the competent authority could take the action not the Vice-Chancellor.

5. On the question of the Court as to why the order dated 26-1-2000, which was passed by the Syndicate on review petition/appeal filed before the Chancellor, which was made over to the Syndicate, was not challenged before the High Court well in time, he contended the he filed a review petition before the competent authority in view of rule 16 of the University Statutes, hence soon after the decision of the authority on this revision petition, the order was assailed before the High Court.

6. After hearing the learned Advocates for the parties we have gone through the order passed by the learned Judge of the High Court, the order appointing authorized officer for holding disciplinary proceedings against the respondent and the orders passed in pursuance therefore and the University Statutes.

7. We may at the very outset place on record that the points canvassed before this Court in elaboration of his arguments by the learned Advocate for the appellants, do not appear to have been canvassed before the High Court which resulted into the impugned judgment. According to our estimation had the University Statutes referred before this Court been placed before the High Court, the conclusion would have been as we are going to draw. There can be no quarrel with the proposition of law propounded by the learned Judge of' the High Court based on the authorities that section 11(3) of the Act alone does not authorize the Vice-Chancellor to take an action specially, an action of dismissal from service. The case in hand was, however, of different nature in view of the notification dated 31-10-1996, placed before this Court by the learned Advocate for the appellants which rinds place at page 798 of the Calendar of the University of Azad Jammu and Kashmir 1980-2001, which is reproduced as follows:-‑ "No.F.1-Syndicate/96/S/13/473-78. The Syndicate in its meeting held on 28th October, 1996 while approving the appointment of authorized officer in a case of inquiry against Mr. Mahboob Akhtar Planning Officer/Assistant Controller Examination, has decided that for future such powers stand delegated to the Vice-Chancellor to avoid any un-necessary delays. The Vice-Chancellor had already such powers with regard to employees from BPS-1 to BPS-16."

8. The Syndicate has the authority to delegate any of its powers to an authority or officer or sub-committee under clause (x) of section 19 of the-Act, which is as under:-‑ "19(x). to delegate any of its powers to an Authority or officers or sub-committees; and"

9. Reading together the above clause and the notification makes it abundantly clear that the powers vested in the Syndicate stood delegated to the Vice-Chancellor who has rightly exercised the powers by following the due process of law visualized by the University Statutes. As far the question as to whether the Vice-Chancellor could exercise these powers as a delegatee under the pretext as argued by the learned Advocate for the respondent in emergency, looses its significances in view of the above legal position. Be that as it may, the question of emergency is an objective decision to be taken by the authority vested with such powers. It is the relevant authority, which keeping in view the circumstances or eventualities can decide as to whether there is any emergency in passing an order which has the effect of restoring the normalcy as against the emergency. The Courts cannot substitute their view as to whether a particular eventuality authorized the relevant authority to resort to the emergency powers or not, unless the extraordinary circumstances are shown that the authority has acted with malice or the order is otherwise without lawful authority or a wrong conclusion is drawn from the circumstances not be justified on any cannon of justice and fair play. No such instance is pointed out before us to hold that the powers could not be exercised, when going gets tough, tough gets going, and that is emergency.

10. Irrespective of the above, the petition before the High Court merited dismissal on the ground of laches. The order of dismissal against the respondent became final on 26-1-2000, when it was passed by Syndicate on a review petition filed by respondent before the Chancellor which was sent to the Syndicate for disposal and it dismissed as stated above. He again preferred a review petition before the Chancellor. The Chancellor had become officious functus after having sent first review to the Syndicate. The decision of the Syndicate dated 26-1-2000 was in exercise of the delegated authority of the Chancellor, hence it was final in the case, as far as the review/appeal, as the case may be, in the matter was concerned. That order could be assailed before the High Court on any available ground. The respondent instead of adopting the proper course resorted to the irregular exercise of seeking the redress. Rule 19 of the University Statutes bars second petition for review except where the Syndicate has enhanced the penalty. Thus the order passed on 26-1-2000 in any case was final which was assailed_ in the High Court on 28th of October 2000. In the case reported as Muhammad Latif v. Assistant Chief of Air Staff (Personnel) and others (2005 SCMR 335), where a civil servant was compulsorily retired from service and he being aggrieved of the penalty filed departmental appeal which was rejected and instead of filing the appeal before the Service Tribunal preferred second departmental appeal, the Tribunal dismissed the appeal as being barred by limitation holding that filing of second appeal before the departmental authority cannot extend the period prescribed for filing of appeal before the Service Tribunal when no second. departmental appeal was provided under law.

11. In this case, as stated above, only one remedy of review was allowed by the University Statutes which was availed by the respondent and second review was barred, hence the orders passed in first review was final which could be assailed before the High Court well in time.

12. This Court has held in many cases that the delay of even three or four months is sufficient to disentitle an aggrieved person from invoking the jurisdiction of the High Court in exercise of its powers under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. We may refer the following cases .in support thereof.

1. Saleem Akhtar v. Judge Family Court and 2 others (1999 MLD 1679);

2. Mehboob. Khan and others v. Fazal Ellahi and others (Civil Appeal No. 11 of 1995 decided on 9-4-1995);

3. Azad Govt, of the State of J&K and others v. Haji Summandar Khan and others (1999 SCR 259); In view of above, accepting this appeal, the order passed by the High Court on 29-7-2002 is set aside, however, without any order as to (costs, in view of the circumstances of the case. H.B.T./169/SC (AJ&K) Appeal accepted. ***