2018 PLP (C (PLC(CS)N)

AZHAR SALEEM BABAR, CHAIRMAN.

The captioned appeal has been filed to call in question the validity of order dated 13.05.2015, whereby punishment of withholding promotion for five years has been imposed upon the appellant.

2. Precise facts of the case are that the appellant was serving as Senior Civil Judge/Sub-Registrar at Muzaffarabad when a Fact Finding Committee was constituted by respondent No.3 to probe into certain irregularities allegedly committed in the office of Sub-Registrar, Muzaffarabad, during the course of registration of documents. The said Committee submitted its report on 10.05.2014 to respondent No.3. On receipt of report, the appellant was served with chharge sheet by the competent authority under Special Powers Act; vide letter dated 02.09.2014. According to charge sheet, the appellant was charged with commission of negligence, inaptitude and irregularities in receipt/ deposit of registration and other fees in registration of documents as Sub-Registrar. Respondent No.2 was appointed as Inquiry Officer for inquiring into the matters contained in the aforesaid charge sheet. The Inquiry Officer submitted his report and recommended imposition of minor penalties of censure and withholding of annual increment for two years under Rule 4(1)(a) of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, however, the competent authority choose to award major penalty of withholding of promotion for five years to the appellant, under section 8 of the Special Powers Act, 2001. It has been stressed that the orders of the competent authority (Hon'ble Chief Justice of High Court of Azad Jammu and Kashmir) dated 13.05.2015 containing reasons/ grounds and imposing punishment upon the appellant are against law, justice, record of the case and are also against the provisions of Azad Jammu and Kashmir Interim Constitution Act, 1974 being discriminatory in nature, which are liable to be set aside.

3. The appeal was admitted for regular hearing, vide order dated 20.04.2016. Respondents Nos.1 and 3 filed written statement, wherein it has been stated that the appellant has no locus standi to file the instant appeal. It has further been stated that during proceedings of inquiry, the appellant admitted his fault and sought apology. The respondents denied the contents of appeal and prayed for dismissal of the same.

4. I have heard learned counsel for the appellant and learned Additional Advocate General appearing on behalf of the respondents. It has been argued on behalf of the appellant that competent authority for Sub-Registrar is Government under Registration Act. It has been explained that a civil servant can be proceeded against under the Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001 by orders of a competent authority. Learned counsel has further stated that the competent authority has been defined in section 2(a) of the Registration Act who is the Prime Minister or a delegatee. In such circumstances it has been emphasized that the impugned order has been issued by incompetent authority i.e. Chief Justice High Court of Azad Jammu and Kashmir. Learned counsel has placed reliance on 2005 PLC (C.S.) 1317, 2007 PSC (C.S.) 5, 2007 PLJ 49, 2005 PLC (C.S.) 55 and 1994 PLC (C.S.) 1717. He has further provided a copy of judgment of the Supreme Court of Azad Jammu and Kashmir dated 09.05.2014 in a case titled Azad Jammu and Kashmir Council and another v. Munir Ahmed Raja.

5. On the other hand, learned Additional Advocate General is of the view that vide notification dated 21.03.2008 Judicial Department has been assigned with the responsibilities of registration of documents. It has further been explained that Government of Azad Jammu and Kashmir has appointed Chief Justice High Court as Inspector General of Registration, District Judges as Registrars and Senior Civil Judges/Civil Judges as Sub-Registrars. Learned Additional Advocate General has further explained that the appellant has admitted his fault during inquiry proceedings and has sought apology as well. It has been stressed that a huge amount worth Rs.75,00,000/, has been embezzled, so, it was necessary to hold the culprits accountable for the fault.

6. Learned counsel for the appellant has explained by stating that Inquiry Committee has not held appellant responsible for embezzlement of the official amount. He stated that the appellant has been held responsible for his carelessness. It has been stated that matter of embezzlement of official amount pertains to different durations under different Civil Judges but other Civil Judges have not been proceeded against. It has also been contended that the appellant has filed his personal affidavit regarding his confession before Inquiry Officer, whereby he has negated endorsement recorded by the Inquiry Officer. Learned counsel is of the view that the appellant has been discriminated. He has relied on 2015 SCR 1384 and 2014 SCR 1549 in support of argument regarding discriminatory attitude.

7. The appellant has been punished by withholding promotion for five years and with a censure, vide impugned order dated 13.05.2015. Relevant paragraph of the impugned order is reproduced for proper appreciation:-

8. A perusal of afore-produced order reveals that Chief Justice High Court of Azad Jammu and Kashmir as competent authority has imposed punishment on the appellant as Senior Civil Judge/Sub Registrar. The question arises that whether Hon'ble Chief Justice High Court of Azad Jammu and Kashmir was competent to announce such punishment? Registration Act as adopted in Azad Jammu and Kashmir mentions the appointment of Registrars and Sub Registrars under section 6 of the Act. It states as under:- "Registrars and Sub-Registrars. The Provincial Government may appoint such persons, whether public officers or not, as it thinks proper, to be Registrars of the several districts and to be Sub-Registrars of the several sub-districts, formed as aforesaid respectively."

9. The term competent authority has been defined under section 2(a) of the Azad Jammu & Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001 as under:- "Competent authority means the Prime Minister and where, in relation to any person or class of persons, the Prime Minister authorizes any Officer or Authority to exercise the powers of competent authority under this Act, that officer or authority, and, in relation to an employee of a Court or Tribunal functioning under the Government, the appointing authority or the Chairman or Presiding Officer of the Court or the Tribunal."

10. It is, therefore, very much clear that Prime Minister or a delegatee is the competent authority to order inquiry or award punishment under Special Powers Act, 2001. It has already been mentioned that the appellant has been punished for censure and withholding of promotion for five years, vide impugned order by Chief Justice High Court of Azad Jammu and Kashmir. The impugned punishment has been awarded to the appellant in his capacity as Sub-Registrar. Chief Justice High Court is neither appointing nor competent authority of a Sub Registrar because Sub Registrars are appointed by Provincial Government under section 6 of Registration Act. It has been argued on behalf of the respondents that the Government of Azad Jammu and Kashmir has delegated powers of registration of documents to Judicial Department, vide notification dated 21.08.2008. It would be useful to reproduce the notification as under:-

11. Vide notification dated 21.08.2008, Government of Azad Jammu and Kashmir has appointed Inspector General of Registration, Registrars and Sub Registrars from Judicial Department in the territory of Azad Jammu & Kashmir. This notification augments the argument advanced on behalf of the appellant that the Chief Justice High Court is not competent authority for a Sub Registrar because Sub Registrar has been appointed by Government under the afore-cited notification. The afore discussed situation makes it abundantly clear that the Prime Minister Government of Azad Jammu and Kashmir is the competent authority for initiating proceedings under the Special Powers Act, 2001. Proceedings conducted and order announced by Hon'ble Chief Justice High Court of Azad Jammu and Kashmir is, therefore, without jurisdiction and a nullity in the eye of law. This view finds support from a case titled Secretary Azad Jammu and Kashmir Council and another v. Muhammad Munir Raja decided by the Supreme Court of Azad Jammu and Kashmir on 09.05.2014. For proper appreciation, relevant paragraph 14 of the judgment is reproduced as under:- "After taking into account the arguments of the learned counsel for the parties and going through the relevant record/pro visions of law and the case law referred to above on the subject, we came to the conclusion that respondent No.1 is an officer of grade, B-19 and Secretary AJ&K Council was not competent authority in his case rather Chairman AJ&K Council/ P.M. of Pakistan was competent authority in the matter. There is nothing on the record to show whether the proceedings conducted against respondent No.1 were initiated by Chairman AJ&K Council or the Secretary AJ&K Council was delegated with the powers in this regard or not, therefore, the powers exercised by the Secretary AJ&K Council in the instant case is clear departure from the statutory provision, i.e. AJ&K Council Rules of Business, 1983, which have been enacted under the AJ&K Interim Constitution Act, 1974 as AJ&K Council Rules of Business have the preference over the other rules framed under any other Act. As we have reached the conclusion that the Secretary AJ&K Council has no power to initiate the proceedings against respondent No.1, therefore, it would be irrelevant to give findings on the point whether the subsequent proceedings through Inquiry Committee after conclusion of the proceedings regarding the same allegation through Inquiry Officer, can be conducted validly or not. The matter is left open to be decided in any other case at proper time."

12. It has been held by Hon'ble Supreme Court of Azad Jammu and Kashmir that when an order is passed against a civil servant without jurisdiction, merits of the case need not to be probed into. While following dictum of the Apex Court in the afore-produced judgment, it looks unnecessary to examine merits of the case. Upshot of the above discussion is that impugned order dated 13.05.2015 to the extent of appellant is held without jurisdiction and is held to be a nullity in the eye of law. The appeal is, therefore, accepted and the impugned order dated 13.05.2015 is set aside to the extent of Rashid Iftikhar Hashmi, the appellant. ZC/2/ST(AJ&K) Appeal allowed.