1980 PLP (C (PLC(CS))

"That during your tenure as Secretary of the Board you in spite of official residence provided by the Board of Intermediate and Secondary Educa tion Mirpur drew house rent against rules and orders of the Govern ment." .

7. Both the appellants submitted their respective explanation to the respective show‑cause notice and were also provided with an opportunity of personal hearing by the Chief Executive of the Government. The Govern ment after considering the report of the Commission of inquiry and explanation of the appellants to the show‑cause notice found Muhammad Hanif Khawaja appellant guilty of misconduct and corruption under rule 3 (b) and (c) of Efficiency and Discipline Rules and imposed upon him the penalty of stoppage of one annual increment under rule 4 (i) (u) (ii) of the said rules. Professor Muhammad Aslam Khan appellant was found guilty of misconduct under rule 3 of the Efficiency and Discipline Rules and conse quently under rule 4 (i) (a) (ii) of the said rules was awarded the punishment of stoppage one annual increment and the amount drawn by him as house rent during his tenure as Secretary of the Board was also ordered to be recovered from him.

8. The review petitions filed by the appellants against the aforementioned orders of the respondent having also been rejected by the respondent they have now come to this Tribunal for the redressal of their grievances by filing separate appeal against the order of the respondent imposing minor penalty upon each of them.

9. In view of the nature and quantum of the penalty imposed upon each of the appellant in a departmental disciplinary proceeding by the respec tive impugned order we are of the opinion that this Tribunal is not competent to entertain and bear these appeals. The right of appeal to an aggrieved civil servant before the Service Tribunal is conferred by section 4 of the Act which runs as under :‑ Section

4. Appeals to Tribunal.‑Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, which ever is later, prefer an appeal to the Tribunal: Provided that: (a) Where an appeal, review or representation to a departmental authority is provided under any law, regulations or rules for the time being enforced, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or represen tation to such departmental authority 'and period of ninety day's has elapsed from the date on which such appeal, application or representation was to be preferred; (b) no appeal shall lie to a Tribunal against an order or decision of a de partmental, authority determining (i) the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade ; or (ii) 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 retire ment from 'service ; and (c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the first July 1969."

10. The plain reading, of the proviso to (ii) to section 4 of the Act reproduced above leaves o manners of doubt that this Tribunal is only competent to hear appeal against the order of the competent authority made in consequence of a departmental inquiry if the penalty imposed on a civil servant by such an order in one of dismissal, removal, reduction in rank or compulsory retirement from service and its jurisdiction to hear the appeal is completely abolished and ousted where by such an order the punishment awarded to a civil servant is other than that of the four major penalties mentioned above. When the appeals under consideration are considered in the light of the above legal position we are left with no alternative but to hold that the same are incompetent by reasons of being covered by the aforesaid proviso to section 4 of the Act as the penalty imposed by each of the order impugned in these appeals as a result of departmental inquiry falls short of any of the major penalties enumerated in the said proviso which in the case of Muhammad Hanif Khawaja appellant is only the stoppage of one annual! increment while in the case of Professor Muhammad Aslam Khan appel lant it consists of stoppage of one annual increment and recovery of amount drawn by him as house rent during his tenure as Secretary of the Board.

11. In pursuance of the constitutional requirement the Service Tribunal was established by an enactment of the legislature and as such this Tribunal has to exercise its power within the four corners of the law which created it. Thus this Tribunal would be travelling beyond the province of its jurisdiction conferred on it by law if it assumes jurisdiction in a matter which is specifically taken away from its competence by an express provision of law as is the case in the, present appeals where proviso (b) (ii) to section 4 of the Act places embargo upon its powers to entertain the same as the penalty imposed by the order impugned in. each 'of them is not one of those enumerated in the aforesaid proviso. The appellants have chosen wrong forum for the redress of their grievances arising out of the impugned orders who in our opinion, ought to have approached the appropriate Court of taw for the grant of reliefs sought in the present appeals. In our view they are entitled to the same remedies in the same manner which were available against the impugned orders before the coming into being of this Tribunal. The establishment of Service Tribunal made no difference in their cases because section 47 (ii) of Azad Jammu and Kashmir Interim Constitution Act, 1974 debars other Courts to grant an injunction, make an order or entertain any proceeding in respect of only those matters relating to the terms and conditions of service of the civil servant to which the jurisdiction of the Service Tribunal extends and, therefore, the matter which falls outside the ambit of the jurisdiction of the Service Tribunal can be taken by the aggrieved civil servant for adjudication to other appropriate Court of law which can take cognizance of it in the same manner as was the case before the establishment of the Service Tribunal.

12. For the foregoing reasons both the above appeals are dismissed as the same being hit by proviso (b) (ii) to section 4 of the Act are not maintainable before this Tribunal. The parties are left to bear their own costs. Parties be informed of this order. A copy of this order be placed on the file of other appeal. KH. GHULAM QADIR (MEMBER).‑I agree. Appeal dismissed.