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Petitioner: ABDUL KHALIQ, PRIMARY TEACHER, PRIMARY SCHOOL, RAJKOT, TEHSIL AND DISTRICT MUZAFFARABAD VS Respondent: ZAHEER AHMED
2000 PLC (C
2000 PLC (C. S.) 706
[Supreme Court (AJ&K)]
Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ
ABDUL KHALIQ, PRIMARY TEACHER, PRIMARY SCHOOL, RAJKOT, TEHSIL AND DISTRICT MUZAFFARABAD
Versus
ZAHEER AHMED and 4 others‑‑‑Respondents
Civil Appeal No. 145 of 1999, decided on 18th February, 2000.
(On appeal from the judgment of the Service Tribunal, dated 10‑7‑1999 in Service Appeal No. 109 of 1999).
Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑
‑‑‑Ss.4 & 5‑‑Direction of Service Tribunal after dismissing appeal‑‑Validity‑‑‑Service Tribunal dismissed appeal holding that it was not maintainable, but despite said dismissal directed the Authority to investigate dispute between the parties and to pass a final order‑‑‑After finding that appeal was not maintainable, no power was left with Service Tribunal to issue any direction‑‑‑Service Tribunal could only act on appeal and could set aside, vary or modify order against which appeal was filed before it and had no suo motu powers to issue any direction or pass any order after doing any such action‑‑‑Direction given by Service Tribunal being not covered by any of said actions, Supreme Court vacated the same.
Faroog Hussain Kashmiri, Advocate for Appellant.
Shiraz Kayani, Advocate‑General for Respondent No.3:
Date of hearing: 17th February, 2000.
JUDGMENT
BASHARAT AHMAD SHAIKH, J.‑‑‑Respondent Zaheer Ahmad filed appeal before the Service Tribunal which was dismissed by holding that Zaheer Ahmad had filed appeal against certain letters which were not orders, therefore, his appeal was not maintainable.. It was also held that in any case letters did not amount to final orders in respect of terms and conditions of service within the meaning of section 4 of the Service Tribunal Act. This finding has not been challenged by Zaheer Ahmad and has, thus, attained finality.
However, the Tribunal also passed the following order:‑‑
"(6) Therefore, in the aforementioned circumstances the appeal filed by the appellant is dismissed being unsustainable. However, the District Education Officer Elementary (Male) Muzaffarabad is directed to investigate the dispute between the appellant and respondent No.5 and pass a final order."
Respondent No.5 before the Tribunal, Abdul Khaliq, has ‑filed this appeal with leave of the Court to challenge the direction given by the Tribunal. It is submitted by Mr. Farooq Hussain Kashmiri, his learned counsel, that after the appeal was not maintainable, the order passed by the Tribunal is without jurisdiction. His contention is opposed by the learned Advocate‑General, Raja Sheraz Kayani.
In our view the direction reproduced above has been given by the! Service Tribunal without legal warrant. The powers of Service Tribunal are given in subsection (1) of section 5 of the Service Tribunals Act which reads as follows:‑‑
"(5) Power of Tribunal.‑‑‑(1) A Tribunal, may, on appeal, confirm, set aside, vary or modify the order appealed against."
The phraseology of the legal provision reproduced above shows that the Tribunal can only act on an appeal and has no suo motu powers to issue any direction or pass any order. After finding that the appeal filed by Zaheer Ahmad was not maintainable no power was left in the Tribunal to issue any direction. It is also clear from the provisions reproduced above that the Tribunal may confirm, set aside, vary or modify an order against which appeal has been filed before it. The direction given by the Service Tribunal is not covered by any of the actions mentioned above.
Therefore, the appeal is accepted and the direction given by the Tribunal in para.6 of its judgment is vacated. The result is that the appeal filed by Zaheer Ahmed before the Service Tribunal shall stand dismissed in
H.B.T/6/S(AJ&K) Appeal accepted