2010 PLP (C (PLC(CS))

MUHAMMAD REAZ AKHTER CHAUDHRY, C.J.

Through this appeal with the leave of Court the appellant has craved for annulment of the judgment of the Service Tribunal dated 26-3-2007.

2. The relevant and necessary facts, forming background of the instant appeal, are that in the year 1994 respondent No.1 was promoted as Junior Clerk from the post of Naib Qasid. He remained posted in the Court of learned Sub-Judge-Thorar as Incharge Criminal Branch up to 8-8-1999.

3. In a case titled State v. Abbas Ali an application was moved by Muhammad Nazir Khan, P.W., before Tehsil Criminal Court Rawalakot, that Kh. Abdul Razzaque, respondent No.1, introduced cuttings and additions in the statement of Muhammad Ishaque, upon which the learned Civil Judge Thorar started inquiry. He recorded the statements of respondent No.1 and Muhammad Khaliq, Junior Clerk. Muhammad Khaliq denied the allegation, while respondent No.1 admitted the allegation. The learned Civil Judge recommended that respondent No.1 should be compulsorily retired from the post of Junior Clerk. He referred the matter to the appellant. The appellant .passed an order for compulsory retirement of respondent No.1.

4. Feeling aggrieved from the said order, the respondent filed an appeal before the service Tribunal of Azad Jammu and Kashmir. The appeal was accepted by the said Tribunal vide judgment dated 26-3-2007. The order of compulsory retirement was set aside and the respondent was reinstated in service. A petition for leave to appeal was filed before this Court against the aforesaid judgment of the Service Tribunal. Leave was granted and arguments on the appeal have been heard.

5. Raja Gul Majeed Khan, the learned Advocate General, argued that no doubt the learned District and Sessions Judge, Mr. Riaz Nomani, was not aware of the AJ&K Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter to be referred as E&D Rules), and he has no knowledge about the service laws, therefore, the inquiry was not properly conducted according to the law. He submitted that violation of procedure prescribed in the E&D Rules was committed by both the learned District and Sessions Judge and the Civil Judge. The learned Advocate-General submitted that it was not a case of E&D Rules, but the case was cognizable under the provisions of Removal from Service (Special Powers) Act, 2001. The learned District and Sessions Judge and Civil Judge failed to follow the law. It was further submitted by him that now the department has been restrained from proceeding against the respondent after the decision of Service Tribunal, therefore, the appellant may be allowed to initiate fresh proceedings against the respondent under the aforesaid Act.

6. While controverting the arguments of the learned counsel for the appellant, Kh. Attaullah Chak, the learned counsel for respondent No.1, submitted that violation of E&D Rules was committed by the learned Civil Judge and the appellant. He submitted that authorized officer had failed to decide whether in this case inquiry was necessary or not. He further submitted that major penalty was awarded to respondent without following the prescribed procedure. No chance for leading evidence was provided to the respondent. Even he was not allowed to cross-examine the witnesses. It was further submitted by him that it was enjoined upon the authority under section 8 of the E&D Rules to provide the accused an opportunity of hearing before imposing the major penalty, but no such opportunity was provided to him, therefore, the learned Service Tribunal has rightly held that the procedure of E&D Rules was not followed. It was next submitted by the learned counsel that now the learned Advocate-General wants to obtain a permission from this Court for proceeding afresh against the respondent, which should not be allowed because the respondent has already undergone the agony for six years. He submitted that the respondent should not be penalized for the fault of authority and the authorized officer.

7. We have heard the learned counsel for the parties, perused the relevant record and have given our utmost muse to the respective arguments advanced by the learned counsel for the parties. The perusal of record shows that an application was moved before Tehsil criminal Court that forgery was committed by respondent No.1. On this very application the learned Civil Judge, Rawalakot recorded the statement of respondent. Subsequently the learned Civil Judge was appointed authorized officer by the learned District and Sessions Judge, Rawalakot. When the statement of respondent was recorded, at that time the learned Civil Judge was not an authorized officer, but he was subsequently appointed authorized officer by the authority. No charge sheet was furnished to 'respondent. Even the statement of allegations was not provided to him and the authorized officer also did not decide whether in the instant case inquiry was necessary or not and he without deciding as such suggested for major penalty to respondent. The learned District and Sessions Judge, who was authority, also did not consider that no chance for evidence was provided to respondent. Even the respondent was not allowed to cross-examine the witnesses produced against him. It was mandatory for the authority, (District and Sessions Judge) under section 8 of the E&D Rules to issue a notice and provide an opportunity of hearing to respondent before imposing major penalty, but no such opportunity was provided to him. It shows that the learned District and Sessions Judge Rawalakot was not aware of the procedure of E&D Rules. He did not apply his mind and has not taken trouble of going through the provisions of E&D Rules. It is most unfortunate that a District and Sessions Judge has failed to follow the prescribed procedure. He decided the matter without following the procedure prescribed in E&D Rules.

8. As the contention of the learned Advocate General that the appellant may be allowed to initiate fresh proceedings against respondent is concerned, such permission could not be allowed because the proceedings were initiated against the respondent in the year 2003 and he is under trial from the last six years. Now such permission could not be allowed to the appellant on the ground that the authorized officer and the authority were not aware of the procedure prescribed for proceeding against the respondent. It is not the fault of respondent. The respondent could not be penalized for the lack of knowledge of authority and authorized officer.

9. The nub of the above discussion is that finding no force in this appeal it is hereby dismissed. H.B.T./4/SC(AJ&K) Appeal dismissed.