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Petitioner: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR VS Respondent: SARDAR MUHAMMAD ASHRAF KHANHonorable Justice Khawaja Muhammad Saeed, C.JRaja Muhammad Hanif Khan,M. Tabassum Aftab Alvi
2005 P L C (C
2005 P L C (C.S.) 1098
[Supreme Court (AJ&K)]
Before Khawaja Muhammad Saeed, C.J, Syed Manzoor Hussain Gilani and Chaudhary Muhammad Taj. JJ
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary at Muzaffarabad and others
Versus
SARDAR MUHAMMAD ASHRAF KHAN and others
Civil Appeal No.45 of 2003, decided on 18th March, 2005.
(On appeal from the judgment of the Service Tribunal dated 18-10-2002 in Service Appeal No.441 of 2001).
(a) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---
----Ss. 3,4, 5, 6 & 7---Appeal before Service Tribunal---Appeal finally could be decided by the whole Tribunal, be it consisting of two Members including the Chairman or more---Chairman, besides being head of the Tribunal was a Member at the same time for the purpose of hearing of the appeal-2-Only exception recognized by law as enshrined in subsection (5) of S.6 of Azad Jammu & Kashmir Service Tribunal Act, 1975, was that if proceedings were conducted by a single Member or the Chairman of the Tribunal, those would not be rendered illegal and ineffective simply for that reasons.
Nighat Yasmin Nizami v. Shaheen Manzoor and 4 others 2001 PLC (C.S.) 963; Arshad and Co. v. Capital Development Authority Islamabad through its Chairman 2000 SCMR 1557; Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Muhammad Farash Khan v. Nishadar Jan PLD 1983 SC (AJ&K) 43; Ghulam Muhammad and 3 others v. The State PLD 1979 Quetta 1; Abdul Karim v. Kala Khan and another PLD 1987 AJK 139; Al-Khair. Trust of Pakistan and another v. Prof G.J. Preshan Khattak and 4 others 2002 SCR 476; Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation) Punjab Lahore and 4 others PLD 1979 SC 846; Province of East Pakistan v. Sharafatullah and 87 others PLD 1970 SC 514; and Jan Muhammad and another v. Home Secretary, Government, of West Pakistan and others PLD 1968 Lah. 1455 ref.
(b) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---
----Ss. 5, 6, 7 & 9---"Proceedings"---Meaning and scope, explained---`Proceedings' were the gradual stages of the case leading to its final disposal e.g. summoning of parties, summoning of the record, interlocutory or interim relief orders, etc.---All steps taken in connection with a case, right from its institution to the final decision, fell within the ambit of word 'proceedings'---Stages preliminary to final judgment, stricto senso, were interlocutory proceedings while the final judgment was the culmination of proceedings followed up by execution proceedings of judgment till its satisfaction in accordance with procedure---Meaning and scope of word "proceedings" elaborated.
Muhammad Farash Khan v. Nishadar Jan PLD 1983 SC (AJ&K) 43; Yusuf Ali Khan, Bar-at-Law v. Muhammad Javed Iqbal Cheema, Additional District Judge Lyallpur and others PLD 1975 Lah.. 1339; Messrs K.J Lingan and A.V. Mahayalam v. Jt. Commercial Tax Officer AIR 1968 Mad. 76; Firm Ratanchand Darbarilal Saina and others v. Rejendra Kumar Khobchand and others AIR 1970 Madh. Pra.l; Abdul Karim v. Kala Khan and another PLD 1987 AJ&K 139; Ghulam Muhammad and 3 others v. The State PLD 1979 Quetta 1; Emperor v. Fazlul Rehman and others PLD 1939 Pesh. 52; Jan Muhammad and another v. Home Secretary Government of West Pakistan and others PLD 1968 Lah. 1455 and Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 ref.
(c) Interpretation of Statutes---
---Application of law---Principles---Law had to be read and applied as awhole---While applying a provision of law, it would be so interpreted and applied that its compatibility with the other provisions of same law or other laws, was ensured---Provisions of law were not to be read and applied in isolation of each other.
Al-Khair Trust of Pakistan and another v. Professor G.J Preeshan Khattak and 4 others 2002 SCR 476; Raja Muhammad Sohrab v. Azad Govt. and others 2002 PLC (C.S.) 1138 and Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595 ref.
(d) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---
----Preamble, Ss.6 & 7---Object of Azad Jammu and Kashmir Service Tribunal Act, 1975---Purpose of Azad Jammu and Kashmir Service Tribunal Act, 1975 was the expeditious hearing for decision of service matters relating to civil servants and to achieve that object, Legislature had endured to plug the lacunas by incorporating subsections (1) and (5) in S.6 of the said Act that the Chairman could constitute a Single or Division Bench for hearing appeals under the Act---If proceedings were taken by a single Member only, that would not be rendered illegal and ineffective---Government was obliged under S.7 of Azad Jammu and Kashmir Service Tribunal Act, 1975 to appoint a Chairman or the Member, as the case might be, to hear and finally dispose of appeal if the office of Chairman or the Member was temporarily vacant---All such steps were for achieving the final object, that was, the decision of the case, which was regulated by subsection (2) of S.6 of Azad Jammu and Kashmir Service Tribunal Act, 1975 and under said provision, the conclusion arrived at by a Single Member or the Division Bench would be placed before the Tribunal as a whole who would take the decision in the case, if there were more than two Members of the Tribunal---Under subsection (1) of S.6 of Azad Jammu and Kashmir Service Tribunal Act, 1975, the Chairman was competent to constitute a Single or Division Bench for hearing appeals and 'hearing' would mean the 'hearing only', not the decision---Conclusion arrived at by a Single or Division Bench after hearing was to be placed before Full Bench, who alone was competent to take decision---Judgment of Service Tribunal being contrary to provisions of subsection (2) of S.6 of Azad Jammu and Kashmir Service Tribunal Act, 1975 was set aside by the Supreme Court and case was remanded to Service Tribunal to decide afresh, accordingly.
Raja Muhammad Hanif Khan for Appellants.
M. Tabassum Aftab Alvi for Respondents.
Sardar Rafique Mehmood Khan, Amicus Curaie for Respondent No.2.
Date of hearing: 11th March, 2005.
JUDGMENT
SYED MANZOOR HUSSAIN GILANI, J.---This appeal, with leave of the Court, is filed against the judgment of the Service Tribunal of Azad Jammu and Kashmir dated 18-10-2002, whereby the Notification of Government No. Admin/Inquiry Wing/1-3(14)/2001 dated 28-8-2001, through which respondent No. 1 who was Chief Engineer in the Public Works Department is reverted to the position of Superintending Engineer in consequence of a disciplinary proceedings for misconduct against him under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977.
2. The facts giving rise to the filing of present appeal are that respondent was served with a show-cause notice along with the statement of allegations for misconduct committed by him in connection with the construction of Greater Water Supply Scheme Rawalakot under order No.Admin/Inquiry Wing/238-46 dated 20-5-2000. After completion of the inquiry, the report was submitted by the Inquiry Officer to the Authorized Officer, who according to the appellants, provided a copy of the inquiry report to the respondent and recorded his statement. The Authorized Officer submitted his report to the Prime Minister. The Prime Minister who is the Authority in the case, vide Notification dated 18-6-2001 appointed Muhammad Ilyas Sulahria, Chairman AKMIDC to hear the respondent on his behalf. The said officer heard the respondent after providing him the copies of relevant record against him, recorded his statement on 2-7-2001 and then submitted his report to the Authority i.e. the Prime Minister on 14-7-2001. The Prime Minister accorded approval to the recommendations, in consequence of which a notification impugned before the Service Tribunal was issued reverting the respondent to the lower rank.
3. An appeal by the respondent before the Service Tribunal against the above order of his reversion was accepted on 18-10-2002 and the Government Notification dated 28-8-2001, to the extent of respondent was set aside and he was reinstated in service with all back-benefits.
4. Raja Muhammad Hanif Khan, the learned Advocate appearing on behalf of the appellant, assailed the order of the Service Tribunal on various grounds, but concentrated on one ground only that the order is passed by as single Member of the Service Tribunal, while it was incumbent that the case should have been heard and decided by a Full Bench of the Service Tribunal not by a single Member in view of subsection (3) of section 3 of the Azad Jammu and Kasshmir Service Tribunal Act, 1975 (hereinafter to be referred as the Act). In furtherance of this argument the learned Advocate contended that the appeal was admitted by the Chairman of the Service Tribunal; but on 20-9-2001 he showed his inability to hear the appeal for the reasons recorded in his order, but the Chairman again associated himself in the hearing of the case on different dates stated in the appeal. However, later on, the Member Service Tribunal alone conducted hearing of the case on different dates and finally decided the appeal alone. The learned counsel contended that under subsection (3) of sections 3 and 4 of the Act, the Service Tribunal consists of a Chairman and a Member, hence the case could not be decided by a single Member be he the Chairman or the Member. The learned counsel submitted that the earlier view of the Supreme Court enunciated in the case titled Nighat Yasmin Nizami v. Shaheen Manzoor and 4 others 2001 PLC (C.S.) 963, requires review as the law has not been considered in its true perspective and in a composite and comprehensive manner, rendering some of the provisions as redundant. The learned Advocate stated at bar that as this point alone goes to the root of the case and vitiates the judgment, hence the other points need not be argued and decided. The learned counsel for the appellants placed reliance upon the following authorities in support of his contentions:--
1. M/s. Arshad and Co. v. Capital Development Authority Islamabad through its Chairman 2000 SCMR 1557;
2. Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344;
3. Muhammad Farash Khan, v. Mst. Nishadar Jan PLD 1983 SC (AJ&K) 43;
4. Ghulam Muhammad and 3 others v. The State PLD 1979 Quetta 1;
5. Abdul Karim v. Kala Khan and another PLD 1987 AJK 139;
6. Al-Khair Trust of Pakistan and another v. Prof G.J. Preshan Khattak and 4 others 2002 SCR 476.
5. On the other hand, the learned Advocate representing the respondent contended that the earlier view of this Court announced in Nighat Yasmin Nizami's case referred to above, is based on correct interpretation of law regulating the proceedings and procedure of the Service Tribunal, hence the learned Member of the Service Tribunal has not committed any illegality in deciding the case sitting alone. He further contended that no proceedings shall be rendered illegal and ineffective simply for the reason that such proceedings were taken by a single Member or Chairman of the Tribunal, in view of subsection (5) of section 6 of the Act and that the matter has been finally set at rest by the Supreme Court in Nighat Yasmin's case referred to above. He placed reliance upon the definition of word "proceedings" given in the Black's Law Dictionary besides the cases reported as Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 and Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation) Punjab Lahore and 4 others PLD 1979 SC 846.
6. Sardar Rafique Mehmood Khan, the learned Advocate was specially requested to assist the Court in the matter. He also endorsed the arguments of the learned Advocate for the respondent and contended that the single Member of the Tribunal is competent to hear and decide the cases fixed under the Act. He placed reliance upon cases reported as Province of East Pakistan v. Sharafatuallah and 87 others PLD 1970 SC 514, Muhammad Farash Khan v. Mst. Nishadar Jan PLD 1983 SC (AJ&K) 43 and Jan Muhammad and another v. Home Secretary, Govt. of West Pakistan and others PLD 1968 Lahore 1455.
7. We have considered the arguments advanced at bar, gone through the judgment of the Service Tribunal, earlier judgment of this Court in Nighat Yasmin's case and have had the benefit of going through the scheme of law of the Act, besides the Authorities referred by the learned Advocates for the parties.
8. The Act of 1975 is a special Act constituting the Service Tribunal to exercise the exclusive jurisdiction in respect of matters relating to the terms and conditions of the persons who are or have been in the service of Azad Jammu and Kashmir, including the disciplinary matters in view of section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Under subsection (3) of section 3, of the Act, the Tribunal shall consist of Chairman and one Member who possesses the required qualification. The appeals are preferred before the Service Tribunal under section 4 of the Act. The Tribunal is competent to confirm, set aside, vary or modify the order appealed against under section 5 of the Act. Under section 6 of the said Act, the Chairman is competent to constitute a single or a Division Bench of the Tribunal for hearing the appeals under the Act, however, if the appeal is heard by a single or Division Bench of the Tribunal, as the case may be, the conclusions arrived at after hearing an appeal along with the record of the appeal, shall be considered by the Tribunal as a whole and the decision shall be expressed in the terms of the views of the majority and if there is a difference of opinion, the opinion shall be expressed in the terms of the views of the majority, but if there is no such majority, the opinion of the Chairman shall prevail.
9. Subsection (5) of section 6, on the basis of which this Court had the advantage of passing the judgment in Nighat Yasmin's case, and on which the learned Advocate for the respondents relied by contending that a single Member of the Bench can decide the case, requires to be reproduced here.
"6(5).--The Tribunal shall consist of a Chairman and one member but no proceedings of the Tribunal shall be rendered illegal and ineffective simply for the reason that such proceedings were taken by a single Member or Chairman of the Tribunal."
10. Section 7 of the Act empowers the Government to appoint duly qualified person to act as a Chairman or as a Member, as the case may be, to hear and finally dispose of the appeal, if the Chairman or the Member of the Tribunal is absent or unable to take part in the proceedings of the Tribunal.
11. The juxtaposition reading of the above provisions of the Act makes it abundantly clear that the appeal can finally be decided by the whole Tribunal, be it consisting of two Members including the Chairman or more. The Chairman of course besides being head of the Tribunal is a Member at the same time for the purpose of hearing of the appeal. The only exception recognized by law as enshrined is subsection (5) of section 6 is that, if the proceedings are conducted by a single Member or the Chairman of the Tribunal, those shall not be rendered illegal and ineffective simply for this reason.
12. The word "Proceedings" used in the section is of significance. Proceedings are the gradual stages of the case leading to final disposal of the case e.g. summoning of the parties, summoning of the record, interlocutory or interim relief orders, etc. The Authority of this Court cited in support by the learned Advocate for the respondent is also laid down within the same spirit. In the cited case an order of transfer was suspended by the Service Tribunal pending appeal filed before it. The Supreme Court was pleased to hold that the order of suspension of the transfer of respondent passed by the learned Member of the Service Tribunal, is in the nature of interim relief subject to objections to be filed by the other side which hardly calls for interference by this Court. In the cited cafe the order was passed by a single Member of the Tribunal and was assailed on the ground that the case could be decided by the Chairman and the Member sitting jointly not by a single Member of the Tribunal. Thus the entire edifice of the case build on this authority falls flat. This word is defined in Black's Law Dictionary 7th Edition as such:
"Proceedings.---I. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment. 2. Any procedural means for seeking redress from a Tribunal or agency. 3. An act or step that is part of a larger action. 4. The business conducted by a Court or other official body; a hearing. 5. Bankruptcy. A particular dispute or matter arising within a pending case as opposed to the case as a whole.
"`Proceeding' is a word much used to express the business done in Courts. A proceeding in Court is an act done by the Authority or direction of the Court, express or implied. It is more comprehensive than the word 'action' but it may include in its general sense all the steps taken or measures adopted in the prosecution or defence of an action, including the pleadings and judgment. As applied to actions, the term `proceeding' may include. (1) the institution of the action; (2) the appearance of the defendant; (3) all ancillary or provisional steps, such as arrest, attachment of property, garnishment, injunction, writ of ne exeat; (4) the pleadings; (5) the taking of testimony before trial; (6) all motions made in the action; (7) the trial; (8) the judgment; (9) the execution; (10) proceedings supplementary to execution, in code practice; (11) the taking of the appeal or writ of error; (12) the remittitur, or sending back of the record to the lower Court from the appellate or reviewing Court; (13) the enforcement of the judgment, or a new trial, ,as may be directed by the Court of last resort." Edwin E. Bryant. The Law of Pleadings Under the Codes of Civil Procedure 3---4 (2d ed. 1899)."
13. While interpreting the word "proceedings" as used in section 24 of the Civil Procedure Code, it is held in the case reported as Muhammad Farash Khan v. Mst. Nishadar Jan PLD 1983 SC (AJ&K) 43, as under:--
" The legislature does not use any word without any reason and this proposition admits of no exception. It would, therefore, be only right to give to the word "proceedings" a comprehensive meaning so as to include within it all matters coming up for judicial adjudication and not to confine it to suits and appeals alone. This expression, used under section 24 of the Code of Civil Procedure, is not a term of art which has acquired a definite meaning.
13. On its general acceptation, the term "proceedings" means the form in which the action is brought or defended and the mode of deciding issues. It follows that the expression "civil proceedings" must be interpreted to mean the form of proceedings in the exercise of its civil jurisdiction.
14. The "proceeding", in fact, is a very general term. It is not limited to proceedings connected with the civil suits. However, when applying to suits that might be used to mean the suit as a whole or that might be used, and often was used to express the separate steps taken in the course of suit, the aggregate of which made up the suit. On the point in Yusuf Ali Khan, Bar-at-Law v. Muhammad Javed Iqbal Cheema, Additional District Judge Lyallpur and others PLD 1975 Lah. 1339, it has been held:--
What is exactly meant by the `proceedings' giving rise to the constitution petition under Article 199 of the Constitution in the contexts of this proviso. This term has been construed in a general sense differently in different contexts. In Deb Narain Dutt v. Narandra Krishna [ILR 16 Cal. 267], it was observed that the word "proceedings" was a very general one, that was not limited to proceedings connected with civil suits, but included proceedings other than civil proceedings, and civil proceedings other than suits. When applied to suits, that might be sued to mean the suit as a whole, or that might be used, and often was used, to express the separate steps taken in the course of suit the aggregate of which made up the suit.
15. `Proceeding' is a comprehensive term and, generally speaking, means prescribed course of action for enforcing a legal right and hence it necessarily embraces the requisite steps by which a judicial action is invoked. 'Messrs K.J Lingan and A.V. Mahayalam v. Jt. Commercial Tax Officer [AIR 1968 Mad. 76], fortifies our view.
Similarly in `Firm Ratanchand Darbarilal Saina and others v. Rajendran Kumar Khobchand and others [AIR 1970 Madh. Pra. 1], it has been held:--
"The word `proceedings' in a general sense means `the form and manner of conducting judicial business before a Court of Judicial Officer' (Black's Law Dictionary. P. 1368)."
14. In the case reported as Abdul Karim v. Kala Khan and another PLD 1987 AJ&K 139, while discussing the word "proceeding" in relation to section 52 of the Transfer of Property Act, it was held after discussing the various meanings assigned to the word in the Black's Law Dictionary as follows:--
"-------------The word "proceeding" is very comprehensive as no specific form or kind of action is ascribed to it. Ordinarily, a matter on the file of a Court or Tribunal necessitating application of judicial mind for its settlement, may be called a "proceedings." It may not refer to a comprehensive and complete remedy in a subject of dispute but when it relates to a remedy, howsoever small or slightest it may be, it shall be called a `proceeding' in a Court."
15. In the case reported as Ghulam Muhammad and 3 others v. The State PLD 1979 Quetta 1, the word "proceedings" discussed in relation to Criminal Law (Special Provisions) Ordinance' (II of 1968), it was held as follows:--
"Among others the word "proceeding" would require such construction which may be best suited and best fitted in the scheme of a particular enactment. Generally it would mean "all what is done in a ease" and would include every step and transaction commencing from the first step whereby the machinery of law is put into action upto the stage of the case where it concludes and does not require any further action. This last stage would not necessarily mean the stage of judgment, for, it may further include all steps taken till the stage of the execution of the judgment. Accordingly in the light of the scheme of the Ordinance the interpretation of the word `proceeding' given in the case of Emperor v. Fazlul Rehman and others PLD 1937 Pesh. 52 above, i.e. "whole bundle of actions taken and recorded by the Court from the moment of taking cognizance of the case until its disposal" would be most relevant .."
16. In the case reported as Jan Muhammad and another v. Home Secretary Government of West Pakistan and others PLD 1968 Lahore 1455, while discussing the word "Proceedings" in relation to West Pakistan Criminal Law (Amendment) Act (VII of 1963), it was held as follows:--
"Therefore, taking every thing into consideration, in our opinion the expression "proceedings under this Act" within the meaning of section 25, is quite comprehensive so as to include the very first step taken by the Commissioner to put the machinery of the law under section 3 in motion and all the proceedings taken in pursuance thereto in which the parties are entitled to be represented by a legal practitioner of their choice as allowed by section 25 of the Act. It, therefore follows, that the accused has a right of hearing before the Commissioner in the course of the proceedings taken by him under section 3 of the Act."
17. In the case reported as Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344, while discussing the word "proceeding" used in Law Reforms Ordinance (XII of 1972), it is held as under:
"The term 'proceeding' is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A `proceeding' would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment."
18. What transpires from the perusal of above authorities of law is that all steps taken in connection with a case, right from its institution to the final decision, fall within the ambit…
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