1977 PLP 1C (PLC(CS))

MALIK MUAHMMAD ASLAM KHAN (CHAIRMAN).‑‑This appeal arises out of the following facts: At the relevant time the appellant was posted at Forest Check‑Post `Bhring', Tehsil Mirpur, when he was suspended on the allegation that he had abetted the smuggling of timber from the check post into Gujrat District. It was also alleged that on the night of 2nd April, 1974 respondent No. 3, the D. F: O. Soil Conservation Bhimber, alongwith S. D. M., Bhimber, was coming towards Bhimber from Gujrat side when they spotted two trucks loaded with timber speeding towards Gujrat at Chiryala at 8 p. m. but no entry of these trucks was found in the record at Bhring check post. They also ?found two trucks loaded with timber at the check post which contained timber in excess of the entries in the permit. The behaviour of the appellant was also stated to be insolent towards respondent No.

3. The appellant was accordingly suspended and charge‑sheeted by respondent No. 4 on the complaint of respondent No. 3 to respondent No.

2. In reply to the charge? sheet the appellant took the stand that Chiryala was in Gujrat District where two other roads from Kot Jaimal and Pindi Junjah ran from Bhimber, by?passing the Bhring Check‑Post, and as such the trucks seen by the officers might have passed via those two roads, which did not run through the Bhring Check‑Post. He also denied the other allegations contained m the charge‑sheet Exh. P. A. vide his reply Exh. P. B. The then D. F. O., Mirpur, under whom the appellant was serving at that time, instead of holding a regular enquiry himself against the appellant, sent appellant's explanation to the D. F. O. Soil Conservation and on his comments the appellant was served with a show‑cause notice on 11‑7‑74 (Exh. P. D.) as to why he should not be dismissed: The appellant again denied the charges and demanded an enquiry vide his reply Exh. P. E. But strangely enough, the D. F. O. instead of holding a regular inquiry himself submitted his report (Exh. P. C.) to the Conservator of Forests. In this report the then D. F. O. opined that the explanation of the appellant was correct with the observations that the appellant had clean previous record of service. But quaintly, after giving the appellant a clean bill, he recommended that since there were lots of cases of smuggling generally the appellant could be suspected of involvement, and that he should be down‑graded in pay from the start. The Conservator of Forests instead directed the D. F. O. to relieve the appellant from his service as a consequence of which the impugned order was passed by respondent No. 4 dispensing with eleven years service of the appellant. The strange thing is that even Conser?vator of Forests did not bear the appellant, not to speak of holding any enquiry himself. The appellant then filed a declaratory suit in the High Court challenging the impugned order, which was later on transferred to the Court of Sub‑Judge, Bhimber. As the Service Tribunal had been established by then in Azad Kashmir, Sub‑Judge Bhimber held that suit had abated in his Court and accordingly returned the suit to the appellant on 14‑2‑76 for presentation in proper Court. It was under these circumstances that present, appeal was lodged with this Tribunal on‑.18‑.5‑76,

2. The respondents in their objections controverted appellant's stand that the impugned order was illegal as well as the allegation that no enquiry was conducted or opportunity afforded to the appellant of being heard. It was further pleaded that the appeal was time barred and also hit by proviso (a) of section 4 of the Azad Jammu & Kashmir Service Tribunals Act (hereinafter called the Act) as the appellant had not preferred an appeal or representation to the departmental authority before coming to this Tribunal.

3. We have heard the learned‑ counsel of the both sides and gone through the relevant record. We would like to dispose of, at first, the legal objections raised by the learned counsel for the respondents: First objection is that since the appeal falls under section 8 of the Azad Jammu & Kashmir Service Tribunals Act, 1975 the appeal` should have been filed within 04 days of the return of the suit by the Sub‑Judge to the appellant. As the suit was returned on 14‑2‑76 the appeal should have been filed on 14‑5‑76; but it was piled on 18‑5‑76 thereby being beyond the period of limitation by four days. It is conceded by the learned ‑counsel of the appellant that there has been a delay of 'four days in bringing the present appeal but he has contended that due to several deaths is the fatuity of the appellant during the intervening period, there was a genuine case for condoning the delay of four days. That fact is clearly stated in para 10 of the appeal, which is supported by an affidavit to the effect that during the past three months four deaths of near relatives of the Appellant had taken place resulting in the delay. This affidavit has not been met by arty counter affidavit by the respondent no other evidence has butt either produced in rebuttal. In view of this fact ?of the appellant's affidavit having gone, unchallenged, we accept the plea and the prayer of the learned counsel of the appellant limitation under section 9 of the Act. It may be stated herd that under the Act, affidavit is itself a good piece of evidence and it cannot be lightly banished aside unless there is a cogent evidence to the contrary. In the present case the respondents did not care, even to put in a counter‑affidavit. Therefore, by condoning the period' of four days, we allow the appeal so far as limitation is concerned. Second objection is that the appeal, is hit by proviso (a) ties' CG 4 the Act. The argument is that after tile passing: of the impugned order by respondent No. 4, the appellant could and' should have, preferred a representa?tion to the higher departmental authority and since this available relief was sought by the appellant,, the appeal is. barred. ??????????? The learned counsel for the appellant has on the other hand contented that this is an, appeal under the section 8 of the Act, which being a special section for lodging appeals, under certain given circumstances is not controlled by the proviso on 4 of the Act, which is a general section concerning lodging of appeals. We have given due consideration to the point raised at the bar and our views is that this legal objection taken by the learned counsel for the respondents is untenable. From the joint perusal of sections 3, 4 and 8 of the Act it appears that it is section 3 of the Act, which deals with the jurisdiction of the Tribunal and not section

4. Therefore the words "within the jurisdic?tion of a Tribunal" occurring in section 8 of the Act are referable to section 3 and not to section 4 of the Act. Since section 3, unlike section 4, does not place any such restriction of appealing to the departmental authority before; coming to the Service Tribunal, proviso of section 4 cannot be attracted to appeals lodged under section 8 of the Act which is an enabling section. To section 8 seems to have been specially enacted for meeting a situation arising prior to the passing of the Act concerning suits, appeals and applica?tions which were pending in any Court immediately before the establishment of the Tribunal under the Act. Proviso to section 8 deals with such cases enabling an aggrieved civil servant to seek his remedy before the Service Tribunal for abated suit, etc. Proviso of section 4 containing the ouster or jurisdiction clause has, therefore, no application to appeals filed under section 8 of the Act. Section 8 is a special section and is neither controlled by, nor subservient to section 4 of the Act. Besides, it is an elementary principle of interpretation of statutes that a proviso of a section is referable only to the main provisions of that section alone and its operation cannot be extended to other sections of the Act unless expressly so provided. In view of this legal position we cannot agree with the contention of the learned counsel of the respondents that the appeal is barred under proviso (a) of section 4 as the appellant did not seek his remedy by way of appeal or representation with the Departmental authority prior to the lodging of this appeal. It is conceded by the learned counsel of the respondents that there was no such bar for the appellant for lodging a suit in a civil Court and that the suit of the appellant had abated in the Court of Sub‑Judge, Bhimber by the operation of section 8 of the Act. It is~ clear from this that section 8, and not section 4, applies to the present appeal and under the proviso of section 8, the appellant can properly seek his remedy in this Tribunal without going in appeal before the departmental authority. Wti therefore, repel this legal objection and hold that the appeal squarely falls, within the jurisdiction of the Service Tribunal.

4. After having disposed of these legal objections we advert to appellant's main plank of attack against the impugned order. It is contended by the learned counsel for the appellant that the then D. F. O., Mirpur passed the impugned order without fulfilling the legal requirements of conducting a proper enquiry under Art 32 of K. S. R., Vol. II or under Public Servants Enquiry Act rendering the proceedings and the consequent removal order as void and illegal. We find this objection well merited. The D. F. O. seems to have adopted a very novel method of sending his recommendations to the Conservator of Forests without himself holding any inquiry worth the name and even denying the appellant any opportunity of being proper heard. When the appellant repeatedly denied the charges and even demander: an enquiry, the D. F. O. was bound under law to hold a proper enquiry before taking the extreme action of removing a civil servant from service. But instead of holding the inquiry as required under Law, the D. F. O. sent the explanation of the appellant to the D. F. (1 Soil Conservation on whose comments he sent his recommendations to the Conservator. This is no, enquiry in the eyes of law. Nay he even did not provide, despite demand the comments of the D. F. O. Soil Conservation to the appellant who had beer, clamouring all along for holding of proper enquiry. The recommendations' sent by the D. F. O. to the Conservator make a strange reading. We arc; surprised to note that though the D. F. O. exonerates the appellant of all the charges levelled against him and even gives him a clean bill of past servant yet he recommends appellant's downgrading in pay. He seems to be hunting with the hounds and running with the hare. Again an other novel feature of the episode is that though the D. F. O. himself was competent to hold an enquiry and take action, lie sought and acted upon the directions of the Conservator who had neither heard nor held any enquiry against the appellant. In fact he was not seized with the enquiry at all. And yet the impugned order was passed by the Inquiry Officer, not on his own findings, but on and in accordance with the instructions passed by the Conservator of Forests. An order of termination of service passed under and in accordance with the directions of a higher officer when the Inquiry Officer is himself' competent to do so, is a nullity in the eye of law. This is more so when the higher officer had held no enquiry himself. To say the least, the so‑called enquiry proceedings are nothing but a caricature of an enquiry and as; such the impugned order resulting there from cannot be upheld. In view of the foregoing reasons we accept the appeal and vacate the impugned order dated 5‑9‑

74. The appellant may be re‑instated and fresh inquiry held according to law if so desired by the competent authority. In view of the complex questions of law involved, we pass no order as to cost. ?????????????????????????? ???????????????????????????????????????????????????????????????????????????Appeal accepted.