1991 PLP (C (PLC(CS))

Sardar Rafique Mahmood for Appellant. Raja Muhammad Hanif Khan for Respondents. Date of hearing: 26th June, 1990. SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).

The instant appeal is directed against the Order No. 2073-76/DA/88 dated 02-07-1988 made by Director of Agriculture Department Azad Government of the State of Jammu and Kashmir by which the order of Deputy Director (Agriculture) issued under No. 7115-19/87, dated 2-7-1987 was set aside without assigning any reason. 2.The relevant facts of the case are that the appellant was employed in the Agriculture Department as Chaukidar in the year 1980 and he continued as such till 13-9-1986 when all of a sudden his child fell ill and he was forced to take him to the Doctor for his medical check up. The appellant applied for leave of absence for 13th day of which according to him was firstly granted to him, but subsequently, he was shown to have absented himself from duty without permission and was ultimately removed from service w.e.f. the said date. He brought an appeal before the Minister Incharge of the Agriculture Department and was reinstated on 18-6-1987 vide Order No. 7115-19/87, dated -7-1987 issued by the Office of Deputy Director Agriculture (HO). On 2-7-1987, the appellant presented himself to the Deputy Director (Procurement) for duties but he was not permitted to join his duties and was marked absent from that date. He made an application to the Prime Minister for the implementation of his reinstatement order but in the meantime, the order of his reinstatement was cancelled suo motu by the Director of Agriculture Department without assigning any reason for that. The appellant filed an appeal with Secretary of Agriculture Department, but no decision was taken on that within the prescribed period and he was forced to invoke the jurisdiction of this Tribunal under section 4 of Service Tribunal Act, 1975.

3. The appellant seeks reversal of the impugned order on the grounds that it is against the principles of natural justice. He was granted leave of absence for 13-9-1986 but was preceded against maliciously showing him to have absented himself on that date without permission. He has been given major punishment which is ordinarily not awarded to a civil servant for one day's absence from duty. The Director of Agriculture Department (respondent No. 2) was not competent to cancel the order of reinstatement of the appellant which was made by the Minister Incharge of the Agriculture Department. The appellant has been condemned unheard and the ex parte proceedings taken against him are mala fide.

4. We have heard the arguments as were addressed by the learned counsel of each party. It is submitted on behalf of the respondents that the present appeal is time-barred and is not maintainable in its present form. The appellant having been found absent from duty was declared indisciplined and removed from service.

5. We have carefully examined the service record of the appellant and the impunged order placed on the file. It may be noted here that the proceedings against the appellant were not conducted in accordance with the provisions of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter to be referred as Efficiency and Discipline Rules, 1977). Through a copy of Notification No. S&GAD/R-80/S.O-1/82, dated 4-1-1982 issued by the Service Department, the Deputy Director of the Agriculture Department is the designated authority within the Agriculture Department for any disciplinary action to be taken against a civil servant whose pay scale is between Grades 1 to 4 and the authorised officer is the District Agriculture Officer. But here under the orders of Director of Agriculture Department, the charge-sheet was supplied to the appellant by the Deputy Director (HO) himself and after obtaining his reply he recommended to the Director Agriculture for a stern action to be taken against the appellant. It was on the report of Deputy Director (HO) that the appellant was discharged from service by the Director of the Agriculture. Under the Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1982, the appellate authority means, the officer or authority next above the authority. In case of the appellant, the Deputy Director (Agriculture) was himself the authority but he failed to exercise his powers and the Director made the order of discharge of the appellant. Since in the Appeal Rules, 1982 an appeal is provided to an officer next above the authority making the order, the appellant should have brought his appeal before the Secretary of the Department. But instead of making an appeal before that forum the appellant brought his appeal before the Minister for the Agriculture Department and under his order he was reinstated on his post. But the unfortunate aspect of the case is that, the appellant was not permitted to join his duties till the date on which the order of his reinstatement was cancelled by the Director of Agriculture Department under the impugned order. There is no denying the fact that the Minister Incharge of the Department admitted that appeal of the appellant in utter disregard of the aforesaid Civil Servants (Appeal) Rules and the order passed by him on that appeal was without jurisdiction. But this would not mean that the order of Minister Incharge of the Department can be brushed aside by a subordinate office holder. Under Rule 6 of Azad Jammu and Kashmir Rules of Business, 1985 a Minister is the Incharge of the Department and he is held responsible for all policy matters and for the conduct of the business of his Department. The Director of Agriculture Department is holding an office subordinate to him and under no rule of law he held the power to make the impugned order and rather he has transgressed the limits and powers as are vested in him for conducting his departmental business. The impugned order is definitely not capable of sustaining judicial scrutiny and the same is hereby vacated.

6. Before parting with the present judgment, we would like to place it on the record that if a Minister Incharge of a Department is found to have deviated from following the correct rule of procedure, then the matter is to be referred back to him by the Secretary of the Department inviting his attention to the facts involving the departure of rules and if for any reason the Minister does not agree to the views of the Department, then the Minister would bring the matter to the notice of the Prime Minister for final decision. In the instant case, the appellant does not seem to have earned good record of service and presumably for that reason in the opinion of his officers he might have rendered himself unfit for further service. In that case the Department can be well-advised to resubmit the case to the Minister Incharge for withdrawing the order of renistatement of the appellant in accordance with the provisions of sub-rule (g) of Rule 8 of Azad Jammu and Kashmir Rules of Business, 1985 but under no circumstances the appellant can be penalized for any dereliction of his duty without following the relevant rules of procedure.

7. For the foregoing reasons the impunged order dated 2-7-1988 is set aside and appeal is accepted with cost. M.Y.H./110/Sr.A Appeal allowed.