2019 PLP (C (PLC(CS)N)

CH. MUHAMMAD IBRAHIM ZIA, C.J.

The captioned appeal by leave of the Court has arisen out of the judgment of the Service Tribunal dated 16.05.2017, whereby the appeal filed by respondent No.1, herein, has been accepted.

2. The brief facts of the case are that one Altaf Hussain, who is serving as Assistant Chief (Development) in the Planning and Development Department, got registered an FIR No.78/16 against Muhammad Ashfaq (driver posted with him) and three others including respondent No.1, Sajjad Hussain for committing physical assault upon him in his office. After investigation, the challan was presented in the competent Court of Criminal Jurisdiction wherein the matter is still sub judice. Besides this, the proceedings under the Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001 were also initiated against the aforesaid persons. An inquiry committee was constituted by the competent Authority vide order dated 29.04.2016. The same was reconstituted on 12.05.2016. On the recommendations of the inquiry committee, the authority vide order dated 07.10.2016 awarded respondent No.1 (Sajjad Hussain) penalty of censure and compulsory retirement from service. Feeling aggrieved, he filed an appeal before the Service Tribunal. The learned Service Tribunal through the impugned judgment set-aside the order dated 07.10.2017, hence this appeal by leave of the Court.

3. Mr. Muhammad Zubair Raja, Additional Advocate-General, the counsel for the appellants after narration of necessary facts submitted that the impugned judgment of the Service Tribunal is against law and the facts. He submitted that for probe in to misconduct an inquiry was initiated against the contesting respondent by the competent authority. The learned Service Tribunal has accepted the appeal on the technical grounds. He submitted that the misconception that the proceedings have not been conducted/initiated by the competent authority, has arisen due to the lack of proper appreciation of the record. He submitted that Amjad Khaqan under whose signatures the latter was issued, is just a Section Officer, who communicated the order of the authority as is mentioned in the order itself. In the order it is clearly mentioned that the Secretary Planning and Development Authority has passed the order and Amjad Khaqan being Section Officer just communicated the same. But due to this misconception the Service Tribunal has drawn a wrong conclusion. He further submitted that under the statutory provisions of law, the Secretary Planning and Development Authority is the competent authority. The impugned judgment of the Service Tribunal is against law and not maintainable, therefore, while accepting this appeal, setting aside the impugned judgment, the penalty imposing order of the authority be restored.

4. Conversely, Sardar M.R. Khan and Ch. Shoukat Aziz, Advocates, counsel for the respondent forcefully defended the impugned judgment and submitted that according to the statutory provisions dealing with the subject matter the proceedings can only be initiated by the competent authority. As the respondent is a driver and his appointing/competent authority is (Additional Development Commissioner/ Chief of Section/ Assistant Chief) (ADC/COS/ AC) in their respective jurisdiction. Thus, only the appointing/competent authority can initiate the proceedings. As in the instant case, the proceedings as a whole were initiated by the Secretary of the Department who is not the competent authority and the final penalty imposing order passed by the Secretary is against law. In this state of affairs, the appellants have got no locus standi, therefore, this appeal is liable to be dismissed with costs.

5. We have considered the arguments of the counsel for the parties and perused the record made available. According to the admitted facts the respondent is a civil servant serving as a driver and as per enforced rules the appointing authority of the driver is (Additional Development Commissioner/Chief of Section/Assistant Chief) (ADC/COS/AC) in their respective jurisdiction. Thus, the Secretary of the Department is not the appointing authority. As the proceedings against the respondent have been conducted under the Removal from Service (Special Powers) Act, 2001 and final order of compulsorily retirement has also been passed under the same law by the Secretary of the Department, whereas under the provision of section 3 of the Removal from Service (Special Powers) Act, 2001, only the competent authority can initiate the proceedings and under the provisions of section 2 of the said Act, the competent authority means the Prime Minister or any officer or authority designated by the Prime Minister. In pursuance of the provisions of the Removal from Service (Special Powers) Act, 2001, the Prime Minister vide Notification dated 7th May, 2003 designated the relevant appointing authorities to exercise powers as "Competent Authority". Thus, the appointing authority is the competent authority.

6. As hereinabove mentioned that the Secretary is not the appointing authority of the respondent, hence he is not the competent authority according to law. Therefore, the conclusion drawn by the Service Tribunal is quite consistent with the statutory provisions of law. The appeal filed by the appellants is not maintainable. Therefore, finding no force this appeal stands dismissed with no order as to costs. ZC/15/SC(AJ&K) Appeal dismissed.