1979 PLP (C (PLC(CS))

4. The appeal has been contested by the respondent who has put in written statement in which it is alleged that the appeal is barred by time; that the Government was quite competent to appoint Deputy Commissioner as Enquiry Officer to hold departmental inquiry against the appellant and that the appointment of District and Sessions Judges as ex officious enquiry officers in their respective Districts was no bar to the appointment of any other officer as Enquiry Officer for the purpose of conducting departmental inquiry under the Kashmir Service Regulations.

5. We have heard the learned counsel for the parties arid have also gone through the relevant record. The learned counsel for the respondent has raised the preliminary objections to the maintainability of the appeal which are to the effect that the appeal is barred by time and that it is incompetent in view of the provisions contained in proviso (b) (ii) to section 4 of the Act as the impugned order has determined the quantum of punishment as a result of departmental enquiry other than that of dismissal, removal, reduction in rank or compulsory retirement from service. Both the above objections raised by the counsel for the appellant are substantial and must prevail As regards the objection as to limitation it is argued that the appeal has been lodged beyond the period prescribed for filing tin appeal under section 8 of the Act. This contention of the learned counsel for the respon dent is correct. As is apparent from para. I of memo of appeal the appellant's writ petition in the High Court having abated by operation of law the present appeal has been filed under proviso to section 8 of the Act which provides that any party to a suit, appeal or application which has abated on the establishment of the Service Tribunal may prefer an appeal to the Service Tribunal in respect of any of such matter which was in issue in such suit, appeal or application within 90 days of the establishment of the appropriate Service Tribunal. It means that the appellant could file an appeal before this Tribunal within 90 days after the establishment of this Tribunal. The Administrative Tribunal was established on 19‑4‑75 by virtue of promulgation of Azad Jammu & Kashmir Administrative Tribunal Ordinance, 1975 which was later on replaced by the Act.

6. The present appeal has been filed on 20‑7‑75 whereas the Administra tive Tribunal was established on 19‑4‑75 on the promulgation of Administrative Tribunal Ordinance, 1975. If the period of 90 days within which an appeal under proviso to section 8 of the Act is allowed is reckoned from the date of establishment of the Administrative Tribunal on which the writ petition of the appellant had abated in the High Court, then the appellant was entitled to prefer this appeal up to 17th July, 1975. This being the case, the appeal is clearly barred by limitation by 3 days. The appellant has made neither any application for condonation of delay caused in filing the appeal within the period of limitation nor his counsel during his argument made any request for excusing the delay. The learned counsel for the appellant has tried to get out of the difficulty encountered in the way of entertainment of appeal on ground of limitation by arguing that this Tribunal was established not on the date of promulgation of the Ordinance but on the date when both the Chairman and the Member of the Tribunal were appointed by the Government. His contention in this respect is that since the Tribunal consists of a Chairman and a Member in view of the provision of section 3 of the Act the Tribunal would be deemed to have been established on the date when its Member, namely Kh. Abdus Samad was appointed by the Government and as such if the period of limitation commenced from the date of appointment of the said Member which is 25.8‑1975 then the appeal is clearly within time. We do not find any substance in this contention of the learned counsel for the appellant. In our view the Administrative Tribunal was established on the date on which the Ordinance was promulgated and we find support for this view from the provisions contained in clauses (1) and (2) of section 47 of the Azad Jammu & Kashmir Interim Constitution Act, 1947 (hereinafter referred to as the Constitution Act) and‑section 2(g) of the Act which for the sake of facility of discussion are reproduced below Section 47‑of the Constitution Act Section

47. Administrative Cants and Tribunals.‑(1) Notwithstanding anything hereinbefore contained, the (Council in respect of matters to which its executive authority extends, and the Assembly in respect of matters to which the executive authority of the Government extends) may by Act provide far the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of‑ (a) matters relating to the terms and conditions of persons who are or have been in the service of (Azad Jammu dt Kashmir) including disciplinary matters; (2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under subsection (I), no other Courts shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment. Section 2 (g) of the Act: Section 2 (g).‑‑" 'Tribunal' means Service Tribunal established by this Act, or a Bench thereof."

7. The plain reading of clause (1) of section 47 of the Constitution Act would show that the Legislative Assembly has been empowered to pass an Act providing for the establishment of one or more Administrative Tribunal to exercise exclusive jurisdiction in respect of matters relating to terms and conditions of persons who are or were in service of the Azad Jammu & Kashmir Government and that when an Administrative Tribunal is established by an enactment of the Assembly in pursuance of the aforementioned clause of section 47 of the Constitution Act, then under clause (2) of the said section any other Court is debarred from granting an injunction, making order or entertaining any proceedings in respect of any matter which falls within the jurisdiction of such Administrative Tribunal and all proceedings in respect of any such matter pending before the establishment of Administra tive Tribunal abate on its establishment. Similarly sub‑clause (g) of section 2 of the Act makes it further clear that the Service Tribunal was established under the Act. In other words the Administrative Tribunal is established by an Act of Legislature to be enacted in pursuance of the powers vested try it under section 47 of the Constitution Act. Thus the Tribunal shall be deemed to have been established on the date on which Ordinance was promulgated by the President in exercise of his legislative power conferred on him by the Constitution. Even the preamble of the Act is indicative of the fact that the Tribunal stood established on the passing of the Act as the same clearly declares that the Act is being enacted to provide for the establishment of Service Tribunal. When the argument of learned counsel for the appellant referred to above is considered in the light of the above‑quoted provisions of law there remains no doubt that the establishment of the Administrative Tribunal took place on the 19th of April, 1975 on the promulgation of the Ordinance by the President and consequently the writ petition of the appellant abated on the said date. Section 3 of the Act which has been made the basis of argument advanced by the learned counsel for the appellant does not in any way provide for the establishment of the Service Tribunal and it only speaks of the general jurisdiction of the Service Tribunal and incidentally it also states that the Tribunal shall consist of Chairman and one or two Members. The Chairman or Member is not appointed by an Act of Legislature and power of their appointment vests in the Government. Thus the establishment of the Tribunal does not depend upon the appointment of Chairman and Member and rather it is after the establishment of the Service Tribunal by an Act of the Legislative Assembly or by the promulgation of an Ordinance that the Chairman and Member are appointed. The establishment of the Service Tribunal and the appointment of its Chairman or Member are not synonymous and are quite distinct and separate functions to be performed by different Constitutional forums. The contention of the learned counsel for the appellant that the Administrative Tribunal would be considered to have been established on the appointment of the Member, namely, Kh. Abdus Samad is also contrary to the position taken in the appeal. In para 1(a) of the memorandum of appeal it is averred that the present appeal is being filed by the appellant as his writ petition in the High Court had abated by the operation of law. On the date of presentation of the appeal the said Member of the Service Tribunal bad not yet been appointed and thus if the argument of the learned counsel for the appellant is accepted then the writ petition of the appellant had not abated before the High Court on the date of filing of this appeal and consequently the present appeal of the appellant is premature and is liable to be dismissed on this ground alone. In view of what has been stated above we hold that the appeal has not been filed within the' period prescribed for filing an appeal under section 8 of the Act and is accordingly barred by time.

8. Now we proceed to take up the next preliminary objection of the counsel for the respondent that the appeal does not lie in view of the provisions contained in proviso (b) (ii) to section 4 of the Act which read as under :‑‑ Section 4, proviso (b) (i) No appeal shall lie to the Tribunal against an order or decision of a departmental authority determining; (iii) the quantum of departmental punishment or penalty imposed on civil servant as a result of a departmental inquiry except where the penalty imposed is dismissal, removal, reduction in rank or compulsory retirement from service;"

9. From the above quoted provisions of the Act it becomes quite clear that an order or decision of the competent authority whereby a penalty is imposed on a civil servant as a result of departmental inquiry is appealable before Service Tribunal only if the punishment awarded there under is on of dismissal, removal, reduction in rank or compulsory retirement from service and not otherwise. By the impugned order none of the abovementioned penal ties are imposed on the appellant and the only punishment awarded to him is that of reducing him to lower stage in a time scale. The learned counsel for the appellant has endeavoured to meet the objection of counsel for the respondent regarding appeal being incompetent under proviso (b) (ii) to sec tion 4 of the Act by contending firstly that the provisions to said section of the Act are not applicable to the appeal filed under section 8 of the Act under which the present appeal has been preferred and thus the bar to the maintain ability of appeal created by the provision of law referred to by the counsel for the respondent does not stand in the way of the appellant in filing the same and secondly that it is only the quantum of departmental punishment against which the appeal lies to the 'tribunal under the said provisos of section 4 of the Act but the appeal would be quite competent, against the order of the competent authority awarding any departmental punishment where its very legality is challenged and that as the very legality of the impugned order has been assailed in the appeal, the .same is maintainable. We find ourselves unable to agree to the above contentions of the learned counsel for the appellant. The provisions contained in section 47 of the Constitution Act and section 8 of the Act are relevant for the purpose of appreciating the arguments advanced by the learned counsel for the appellant in order to meet the preliminary objection as to the maintainability of the appeal taken by the learned counsel for the respondent. The relevant provisions of section 47 of the Constitution Act have already been reproduced earlier and section 8 of the Act reads as under :‑ "Section

8. Abatement of suits and other proceedings.‑All suits, appeals and applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the establishment of the appropriate Tribunal shall abate on the establishment of such Tribunal Provided that any party to such a suit, appeal or application may, within ninety days of establishment of the appropriate Tribunal prefer an appeal to it in respect of any such matter which is in issue in such suit, appeal or application."

10. The provisions contained in clause (2) of section 47 of the Constitu tion Act and section 8 of the Act would show that only such suits, appeals or applications pending in any Court immediately before the establishment of the Service Tribunal stood abated on the establishment of such Tribunal in which the matters in issue were such as fell within the jurisdiction of the Service Tribunal and not otherwise. The contention of the learned counsel for the appellant on the point of jurisdiction of the Service Tribunal is that the words "matters within the jurisdiction of the Tribunal" occurring in section 8 of the Act are referable only to section 3 of the Act which confers on the Service Tribunal the exclusive jurisdiction in respect of matters relating to terms and conditions of the service of the civil servant including discip linary matter and that the limitation placed on its jurisdiction by provisos to section 4 of the Act do not extend its section

8. It is thus argued that the appellant's writ petition had abated on the establishment of the Service Tribunal irrespective of the fact that the matter in controversy therein was one covered by proviso (b) (ii) to section 4 of the Act and accordingly the present appeal is maintainable. We do not find ourselves in agreement with the interpretation placed by the learned counsel for the appellant on the words "within the jurisdiction of the Tribunal" finding place in section 8 of the Act. In our view section 3 speaks of the general jurisdiction of the Service Tribunal which is further subject to the limitation placed on the jurisdiction of the Service Tribunal to entertain an appeal. of the aggrieved civil servant by provisos to section 4 of the Act and thus the jurisdiction o r the Service Tribunal will not extend to matters which are specifically taken out of its purview of jurisdiction by the said provisos of the Act. This Tribunal after discussing the point under consideration at some length has, placing reliance on authorities reported as P L D 1974 S C 291, 1976 P L C (C. S. T.) 197, P L D 1976 Quetta 59 and P L D 1978 Kar. 1 recently held in an Appeal No. 30 of 1976 entitled "Professor Abdul Aziz. Qureshi v. Azad Government and others" decided on 5‑3‑1979 that it is not section 3 of the Act which exclusively determines the jurisdiction of the Service Tribunal but to demarcate the exact limitation of its jurisdiction the provisions of said section are required to be read together with the provisions contained in section 4 of the Act and not in isolation from them and that the cumulative afire of the provisions of sections 3 and 4 of the Act is that the jurisdiction of the Service Tribunal does not extend to all the matters relating to the terms and conditions of the service of the civil servants and matters such as an order or decisions of the departmental authority. determining the fitness or otherwise of a person to be appointed to or to hold particular post or to be promoted to higher post or grade, the quantum of departmental punishment or penalty imposed on a civil servant as a result of departmental inquiry except where the penalty imposed is one of dismissal, removal, reduction in rank or compulsory retirement from service, an order or decision of the Departmental Authority made at any time before Ist of July, 1969 are excluded from the submit of its jurisdiction. In this view of the matter the departmental punish ment imposed under the impugned order on the appellant being one which is not one of dismissal, removal, reduction in rank or compulsory retirement from service could not be made the subject of the appeal before the Tribunal in view of the proviso (b) (ii) to section 4 of the Act and as such it cannot be said that the matter in the writ petition filed by the appellant before the High Court was within the jurisdiction of the Service Tribunal on the establishment of which the same had abated. To us the writ petition of the appellant pending in the High Court at the time of the establishment of the Service Tribunal did not abate either under section 47 of the Constitution Act or under section 8 of the Act as the matter in issue therein was not within the jurisdiction of the Service Tribunal with the result that the present appeal i not competent inasmuch as an appeal under proviso to section 8 lies to the Tribunal only in those matters, in respect of which an appeal, suit, or applica tion pending in any Court before the establishment of the Service Tribunal had abated under section 8 of the Act.

11. The next contention of the learned counsel for the appellant in this regard that what is barred under proviso (b) (ii) to section 4 of the Act is only an appeal against the quantum of departmental punishment imposed on a civil servant by a competent authority and not an appeal against the legality of an order imposing such a departmental punishment has not equally impressed us at all. By this contention the learned counsel for the appellant probably means to say that under the aforesaid provisions of the Act an appeal against an order or decision of the competent authority imposing a departmental punishment on a civil servant short of dismissal, removal, reduction in rank or compulsory retirement from service, would not tie to the Service Tribunal in a case where only the amount of punishment imposed therein has been challenged in it but the same would be within its jurisdiction) competence if the legality of such an order has been called in question in it. We are sorry that we cannot appreciate the distinction sought to by drawn by the learned counsel for the appellant between an appeal against the quantum of departmental punishment imposed on the civil servant and the one in which legality of an order imposing such a departmental punishment is contested. The language employed in the section of the Act under discussion is so plain and unambiguous that it does not admit of any such construction as is sought to be placed on it by the learned counsel for the appellant. We have no doubt in our mind that under the law no appeal is competent before` this Tribunal against an order or decision of departmental authority imposing~ punishment or penalty as a result of departmental inquiry on a civil servant notwithstanding the fact that the same is unlawful unless such a departmental punishment or penalty is one of dismissal from service, removal from service, reduction in rank or compulsory retirement from service.

12. For the foregoing reasons we hold that the appeal is barred by time and as well as is incompetent for the reason that the writ petition of the appellant in the High Court had not abated on the establishment of Service Tribunal. In this view of the matter we need not ‑ go into the merits of the case. The appeal is accordingly dismissed with no order as to costs.

13. The parties shall be informed of this order, KHAWAJA GHULAM QADIR (MEMBER). ‑I agree. Appeal dismissed.