2018 PLP (C (PLC(CS)N)

MUHAMMAD SHERAZ KAYANI, J.

Through the above captioned writ petition, filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, following relief has been claimed:- "It is therefore, requested that by accepting the writ petition, the inquiry report up to the holding the petitioner guilty of charge No.1 and recommendation of dismissal from service and recovery of the additional pay in BPS-20 and show-cause notice leveled against the petitioner in the light of the above stated inquiry report dated 07.01.2017 and the decision and Notification of the Azad Jammu and Kashmir Bar Council Executive Committee dated 17.08.2017 through which the petitioner has been ordered to be dismissed from service along with the recovery of additional pay in BPS-20, the decision of the Bar Council dated 09.09.2017, the decision of the Vice Chairman Bar Council dated 25.09.2017 through which the appeal of the petitioner was dismissed may be rescinded/set aside. Any other relief, to which the petitioner is entitled in the eye of law may also be granted in favour of the petitioner."

2. Shortly stated facts, leading to the filing of the instant petition are that the petitioner had been serving as Secretary Bar Council in B-18 since 1997. It has been stated that the Azad Jammu and Kashmir Bar Council, up-graded the post of Secretary from B-18 to B-20, on 20.08.2009 and the petitioner remained serving and receiving the perks and privileges of B-20 up to the year, 2013. It has been alleged that in 2014, the Bar Council introduced a new basic pay structure and the existing grades were converted into grades, I, II, III and IV and the said amendment was notified on 29.01.2014, whereupon, the petitioner along with others, filed a writ petition before this Court, which was dismissed vide judgment dated 11.06.2014. Against the said judgment, the petitioner went in appeal before the apex Court, whereby, the petition was accepted, partly, to the extent that the petitioner shall continue his service in B-18, however, the respondents, vide order dated 17.08.2017 ordered the dismissal of the petitioner, hence, the above writ petition.

3. The respondents were summoned for filing written statement, and the needful has been done, accordingly. In the written statement, the stance of the petitioner has been refuted in toto and it has been stated that in compliance of the judgment of the apex Court, an inquiry has been conducted and the petitioner is found guilty of misconduct, and his dismissal order has been issued in light of the report of the inquiry officer. The other claims of the petitioner have also been negated by the respondents and a request of dismissal of the petition has been made.

4. Raja Abrar Hussain, Advocate, the learned counsel for the petitioner, while repeating the facts of the petition, contended that the apex Court had ordered to hold an inquiry in the matter to probe; whether the petitioner is guilty of the alleged tampering in the rules, and if so, whether, he has done so, intentionally. The learned counsel maintained that the factum of an intentional attempt of tampering has not been proved in the inquiry, however, the respondents have passed the order of the removal from service, in violation of the relevant rules and the dictum of the apex Court, as well. He added that the apex Court has protected the service of the petitioner to the extent of B-18 and the up-gradation to BPS-20 has been reversed and the order of the Supreme Court regarding recovery of the perks privileges, is not meant for the petitioner rather it includes the respondents, who have been paying the salary to the petitioner. In this regard, the learned counsel also contended that when, the respondents have been paying the salary of BPS-20, they have given the implied approval of the up-gradation, in case, if the approval granted in the meeting of the Bar Council dated 20.08.2009 is not taken into consideration. The learned counsel extended his arguments to the proceedings taken and allegations levelled against the petitioner and addressed the Court at length, however, in view of the reason, to be recorded, in the next paras, I am not inclined to reiterate those arguments. The learned counsel; finally submitted that in the Notification dated 17.08.2017, no reason has been incorporated, whereupon, a major penalty has been awarded to the petitioner, therefore, the Notification under challenge is against the law, rules and the principles of natural justice and for declaration as such and referred the following case law, in support of his submissions:- 1. 2003 SCR 466 and 2. 2002 CLC 1186.

5. On the other hand, Mir Sharafat Hussain, Advocate, the learned counsel for the respondents, at the very beginning of his arguments, contended that the points raised by the learned counsel for the petitioner, in the instant case have already been resolved by the Hon'ble apex Court, which cannot be agitated now. He submitted that in compliance of the judgment of the apex Court, an inquiry was held in the matter and in light of the report of inquiry officer, the petitioner was found guilty of tampering in the relevant rules and in light of the recommendation of the inquiry officer, the service of the petitioner has been terminated. No illegality or irregularity, has been pointed out by the petitioner, therefore, no indulgence of this Court is warranted in this case. It has also been argued by him that the petitioner, being a beneficiary of the amendment, made in the rules, cannot claim his innocence and it cannot be said that he has not done so, intentionally and the inquiry officer has submitted his detailed recommendations in this regard.

6. I have heard the learned counsel for the parties, perused the record and given my anxious thought to the controversy, involved therein.

7. As stated above, that the points agitated by the petitioner have been resolved by the apex Court and arguments to that extent have not been incorporated in the instant judgment for the sake of brevity and comprehensiveness, however, it deems proper to reproduce the findings of the Hon'ble apex Court on different issues.

8. With regard to the claim of the petitioner that his up-gradation was accorded by the Bar Council, unanimously, the apex Court, at the end of par # 10 of the judgment dated 07.01.2015 has observed as under: "10 . A perusal of the minutes of meeting clearly reveals that the matter has been considered in the meeting but no unanimous resolution has been passed. There is divergence of opinion among the members as some of them have suggested that the matter should be properly processed through the Executive Committee. Thus, the contention of appellant that the Bar Council has unanimously granted grade B-20 in his favour is not supported from record."

9. In the very next para, the Hon'ble apex Court has made following observations:- "The Bar Council is a statutory body and for performance of its functions under law, manner has been prescribed. Under the provision of clause (h) of Section 53 of the Bar Council Act, the Bar Council is vested with the powers to make rules by Notification in the official Gazette regarding qualification, terms and conditions of service of staff to be employed by the Bar Council. According to the statutory provisions, there are two conditions; first is making rules and the second is publication of same in the official gazette, whereas, according to the provisions of rule 73 of the Azad Jammu and Kashmir Legal Practitioners Bar Council Rules, the Executive Committee of Bar Council is vested with the powers to recommend the Bar Council the qualifications and terms and conditions of the staff of Bar Council. Thus, from cumulative examination of the statutory provisions dealing with the subject in the case in hand, it is clear that according to law, the matter of qualification and terms and conditions of the staff to be employed in the Bar Council has firstly to be considered by the Executive Committee who will have to recommend the same to the Bar Council; and thereafter the Bar Council either has to acceded the recommendations of the Executive Committee or decide otherwise; and if the Bar Council affirms the recommendations of the Executive Committee, same may have to be effected through amendment in the rules. After incorporation of amendment in the rules, the same has to be notified in the official gazette."

10. In the end of para 13 of the judgment of the apex Court, it has been observed as under:- "Thus, while applying the enunciated principle of law in our opinion the matter of up-gradation of the post of Secretary Bar Council from grade B-18 to B-20 has not been dealt with in a prescribed manner. Therefore, claim of the appellant regarding sanction of grade B-20 in his favour is not valid, according to law."

11. However, the point to be resolved by this Court, agitated through the instant petition is that the apex Court in para 14 of the judgment has observed that if the substitution of grade B-20 instead of grade B-18, made by the petitioner is an intentional attempt, the same is serious misconduct. The apex Court has made following observations on the point: "

14. It has also been pointed out on behalf of the respondents that the appellant has unauthorizedly issued the order in his own favour under his own signatures. Same like while publishing the Azad Jammu and Kashmir Legal Practitioners and Bar Council Act, 1995 and the rules, under the authority of Bar Council he has tampered with the official record and without any proper amendment made in the rules by the Bar Council or competent authority, has substituted the BPS-18 for BPS-20 in the Azad Jammu and Kashmir Bar Council Employees Rules. As it is hereinabove discussed that neither the employees rules have been amended by the Bar Council nor grade B-20 has been validly granted to the appellant, thus, substitution of the words "BPS-18" for 'BPS-20, in the appendex of the Bar Council Employees Rules, is incorrect and invalid. If such act is intentional, it is a serious misconduct on the part of the public office holder. However, the matter falls within the domain of the concerned Executive Authority, if so felt advised, to take necessary action according to law and if the act of misconduct stands proved against any of the officials, he may be penalized according to law."

12. After above observation of the Hon'ble apex Court, the Executive Committee of the Azad Jammu and Kashmir Bar Council decided to proceed against the petitioner on the basis of the allegation of misconduct. In statement of allegations, the allegation No.1 was formulated in the following words:

13. In reply of the said allegation, the petitioner replied that neither the petitioner has committed any tampering or forgery nor any such thing is present in the judgment of the apex Court rather the judgment contains the words, 'that if such act is intentional and that if the misconduct stands proved against any of the official'. The order issued by him was not forged and fabricated and the was issued in light of the order passed by the (then) Vice-Chairman and in this regard, reply of the letter dated 22.12.2015 written by the former Chairman Executive Committee, Mr. Shahid Bahar by Sardar Muhammad Habib Khan, the (the) Vice Chairman dated 28.12.2015 is comprehensive and explanatory on the point and in light of this letter, the allegation of tampering and forgery stands eliminated, itself.

14. As according to the judgment of the Hon'ble apex Court, the up-gradation of the petitioner in BPS-20 was illegal and in this regard, the relevant portion of the judgment is reproduced, below: "

22. As it has been hereinabove observed that grant of grade B-20 to the Appellant is illegal thus, he was legally at the time of change in the Azad Jammu and Kashmir Bar Council Rules, treated in grade B-18."

15. In allegation No.1, it was alleged that it was the petitioner who made forgery and tampering of the record, so, the question was to be determined by the inquiry officer and Executive Committee was; whether, the accused-petitioner herein, made forgery and tampering of the relevant rules/record to benefit himself?

16. The inquiry officer, in his report, stated that the petitioner was not entitled to receive the benefits and pay of BPS-20 and all the amount, he received in excess of the pay of grade B-18, which is recoverable from him and he was rightly ordered by the respondents to return the same to the Bar Council in the light of the supra judgment of the apex Court.

17. As far the dismissal of the petitioner from his service is concerned, the apex Court observed that if it is proved that tampering in the rules was intentional, by any public office holder, only then, that can be declared as misconduct. The report, upon the basis of which, the petitioner has been dismissed form service, clearly postulates as under:-

18. Even in the concluding para, the inquiry officer did not mention anything about alleged forgery or tampering of the rules and record. Only he wrote that the petitioner did not perform his duties properly, which duty he did not perform? No specification has been given. In the said report, on the allegation of inefficiency, he has declared the petitioner as efficient in allegations Nos.2 and 3, which were not proved against the petitioner. He recorded the statement of only 'Sardar Habib Khan', the then Vice-Chairman of Bar Council and that of the petitioner. Even no question regarding tampering of the rules was put to any of them by the inquiry officer rather the (then) Vice Chairman owned the Notification dated 22.08.2009 of the up-gradation in B-20 with his approval and signature. So, when, the illegal order dated 22.09.2008 was issued with the approval of the Vice-Chairman then, signature of the petitioner did not make the same as a tampered or forged. Obviously, the orders are issued with the approval of the Bar Council or Vice-Chairman, by the Secretary Bar Council and admittedly, the petitioner was Secretary of the Bar Council at that time. There is no other evidence on record, which may suggest that the petitioner, by tampering substituted the words 'BPS-20 instead of BPS-18' in the relevant column of the rules, which are in printed book form. The above initial para of the report relates to proceedings of the Bar Council. It was a ground of illegal proceedings but not of the misconduct of the petitioner. Needless to say that the proceedings were conducted by the members and Chairman of the Bar Council and it was their business to comply the rules and prescribed procedure.

19. Moreover, an affidavit has been filed Mr. Sher Zaman Awan, the (then) Chairman Publication Committee, wherein it has been stated on oath as under:

20. The term, 'misconduct' has been defined in the 'Removal from Service (Special Powers) Act, 2001, which is usefully reproduced, hereunder: "(c) 'Misconduct' includes conduct prejudicial to good order or service discipline or conduct unbecoming of an officer and a gentleman or involvement or participation for gain either directly or indirectly in industry, trade or speculative transactions or abuse or misuse of the official position to gain undue advantage or assumption of financial or other obligations to private institutions or persons such as may cause embarrassment in the performance of official duties or functions:"

21. The instant case, when adjudged in light of the above definition, issuance of Notification, with the approval of the competent authority, that too, in the circumstances, when, the then Vice-Chairman has owned his approval and also the other allegation of effecting amendment in the rules cannot be termed as 'Misconduct' and in my view, major penalty of removal cannot be imposed upon such an unproved allegation as it cannot be said misuse of position in absence of any evidence.

22. If there was any specific findings of the inquiry officer against the petitioner on the basis of any evidence; that it was the petitioner, who incorporated the printed and published words in the rules (BPS-20) or he issued the order dated 22.09.2009 without the approval of Bar Council or Vice-Chairman, only then, he could have been declared guilty of misconduct on the basis of such forgery and tampering but neither there is any such evidence nor any specific findings of the inquiry officer and a general observation without any proof is not sufficient to dismiss an officer from service, which is a constitutionally guaranteed right and cannot be taken away on the whims and wishes of an authority.

23. In light of the observations made in the preceding paras, this Court is of the view that the service of the petitioner could not be terminated on the unproved allegations, however, the other findings of the Committee regarding recovery of the received perks and privileges of BPS-20 are just and proper.

24. The net consequence of the above discussion is that the instant writ petition is hereby accepted, partly, and the impugned order dated 17.08.2017, to the extent of dismissal of the petitioner from service in BPS-18 is hereby declared as null and void, hence, non-existent from the date of issuance and the petitioner is re-instated in equivalent grade of BPS-18 as Secretary Bar Council with all back benefits, determined by the Bar Council, of the said grade or equivalent new grade, under the new formulated rules. ZC/13/HC(AJ&K) Petition allowed.