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Petitioner: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR VS Respondent: MUJAHID HUSSAIN NAQVIHonorable Justice Raja Saeed Akram KhanAsghar Ali Malik,Nemo
2013 P L C (C.S.) 934
[Supreme Court (AJ&K)]
Present: Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 2 others
Versus
MUJAHID HUSSAIN NAQVI and another
Civil Appeal No.165 of 2000, decided on 9th October, 2012.
(On appeal from the judgment of the High Court dated 5-10-1999 in Writ Petition No.215 of 1998).
(a) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---
----Rr. 3, 4 & 6---Azad Jammu and Kashmir Service Tribunals Act (XXII of 1975), S.4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 47---Civil service---Reversion and dismissal from service---Writ petition before High Court---Maintainability---Three appeals filed by the employee against order of his reversion were pending before Service Tribunal when he was dismissed from service---Employee, later on withdrew said appeals and filed writ petition to challenge all orders, including the order of his dismissal from service---When cause of action arose to the employee in respect of his reversion order, his appeals before the Service Tribunal were maintainable; and it was only the Service Tribunal which had jurisdiction to decide, whether the reversion orders were validly passed or not---Dismissal of the employee from the service, did not have the effect of taking away the jurisdiction from the Service Tribunal to decide appeals---Employee, in circumstances, had wrongly withdrew the appeals from the Service Tribunal---According to S.47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, High Court had no jurisdiction to entertain a dispute over which the Service Tribunal had the exclusive jurisdiction---High Court was to first determine the question of its jurisdiction before passing the impugned judgment---Writ petition filed by the employee in respect of his reversion order before High Court was not maintainable.
Sardar Muhammad Ayub Khan v. Secretary S&GAD and 4 others 2000 YLR 2868; Chairman M.D.A. Mirpur and 4 others v. Muhammad Ajmal Qureshi and another 2001 PLC (C.S.) 127; Alam Din v. Mayor, Municipal Corporation, Mirpur and 4 others 2000 YLR 189; Muhammad Ajaib v. Public Service Commission and 3 others 1997 PLC (C.S.) 222; Aisha Hameed Qadri v. Nomination Board and 6 others 1997 CLC 1713; Muhammad Arshad Khan v. Chairman MDA and 6 others 1997 MLD 3066; Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 3 others PLD 1994 SC (AJ&K) 13; Qurban Hussain v. Mst. Bashir Begum and 6 others PLD 1987 SC (AJ&K) 109 and Azad Government and another v. Aftab Ahmed Cheema 2005 PLC (C.S.) 1253 distinguished.
Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir and others PLD 1980 SC (AJ&K) 5 and Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169 rel.
(b) Azad Jammu and Kashmir Law Department Manual, 1984---
----Ss. 29 & 39---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42--- Appeal to Supreme Court, competency of---Respondent/employee had contended that appeal filed by the appellants was not competent as sanction for filing appeal was granted by the Law Minister, whereas under Ss.29 & 39 of Azad Jammu and Kashmir Law Department Manual, 1984, no suit/appeal could be filed without the sanction of the Government---Validity---Supreme Court was bound by the Government order by which it was directed that appeal could be filed against the employee which was issued in accordance with the Rules of Business as it had been issued in the name of the President---Argument of the respondent employee that no proper sanction was issued by the Government, was repelled, in circumstances.
(c) Azad Jammu and Kashmir Supreme Court Rules, 1978---
----O. XVII, Rr.4 & 8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Appeal to Supreme Court---Respondent/employee had contended that affidavit in support of the contents of the memorandum of appeal sworn by Advocate, was in his personal capacity---Contention was repelled as under O.XVII, R.4, Azad Jammu and Kashmir Supreme Court Rules, 1978, it was provided that affidavit in support of the contents of memorandum of appeal would be filed by the Advocate-on-record who was filing appeal---Other objection of the respondent was that affidavit was not sworn in before any of the authorities mentioned in R.8 of Azad Jammu and Kashmir Supreme Court Rules, 1978---Objection was not helpful to respondent because affidavit had been duly attested by the Notary Public as provided by the Rules.
(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----Ss. 42 & 44---Azad Jammu and Kashmir Supreme Court Rules, 1978, Rr.4 & 8---Appeal to Supreme Court---Non-filing of counter-affidavit by appellants in the High Court---Effect---Respondent had raised objection that no counter affidavit had been filed by the appellants, in the High Court as well as in Supreme Court---Validity---In the absence of a counter-affidavit, the uncontested affidavit could not be believed---Uncontroverted affidavit had to be believed, if there was no material to the contrary on the record---Written statement and the original file summoned from the Services and General Administration Department was available before the High Court---Objection raised by the respondent that the affidavit was uncontroverted, had no force, in circumstances.
(e) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S. 44---Writ jurisdiction of High Court---Scope---Finding of fact recorded by an administrative authority performing functions under a statute, was sacrosanct---High Court, while exercising writ jurisdiction, could not substitute its opinion for the opinion of the administration authority.
(f) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---
----Rr. 3, 4, 6 & 8---Dismissal from service on ground of forgery/misconduct---Prime Minister as competent authority had directed for initiation of disciplinary proceedings against the employee, on the ground that he had interpolated the order passed by the Prime Minister---Charge against the employee was held to be proved---Finding was recorded by the Prime Minister in the capacity as the competent authority under R.8 of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---Prime Minister had the exclusive authority to determine the guilt of the employee in view of the recommendations of authorized officer---Employee was bound to prove his innocence and disprove the finding recorded by the Prime Minister, but he failed to bring on record any such material on the basis of which it could be ascertained that he had not committed any forgery---Finding of forgery was recorded by an independent, impartial and highest executive authority of the State---Throughout the litigation, the employee had never challenged the impartiality of the Prime Minister/competent authority---Prime Minister being justified to hold that the employee had committed forgery, High Court was not right to hold otherwise.
(g) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---
----Rr. 4 & 6---Dismissal from service---Employee had raised objection that proper procedure had not been adopted while proceeding against him---Validity---Two procedures had been provided in the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, out of which any one could be followed while proceeding against a civil servant---One prescribed procedure was that an inquiry was conducted by an Inquiry Officer, while in the other no Inquiry Officer was appointed; and the authorized Officer would inform the accused employee forthwith by an order in writing of the action proposed to be taken against him---In the present case, the holding of inquiry was considered not necessary and other procedure as contained in R.6 of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, was followed---Authorized officer having decided to proceed against the employee in exercise of the discretion vested in him by law, objection of the employee was repelled, in circumstances.
(h) Administration of justice---
----Court of law could not substitute its opinion for the opinion of administrative authority and could only interfere with an order, if it was found that the discretion had been exercised arbitrarily or capriciously.
(i) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---
----Rr. 4, 6, 7, 8 & 9---Misconduct---Dismissal from service---Employee had raised objection that Authorized Officer had not provided an opportunity of showing cause to him; and that he had been condemned unheard---Validity---Authorities in their written statement before the High Court, had given comprehensive details with regard to tampering with the order of Prime Minister / competent authority by the employee---Employee had refused to receive the notice sent by Authorized Officer under R.6(3) of Efficiency and Discipline Rules, 1977---Authorized Officer in his report had mentioned that employee did not join the proceedings---Every attempt was made to require the employee to appear before the Authorized Officer, but he intentionally and deliberately did not join the proceedings---Employee knew from the very beginning that disciplinary proceedings had been ordered against him---Findings recorded by Authorized Officer as well the competent authority, could not be differed with---Objection was overruled, in circumstances.
(j) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---
----Rr. 4 & 8---Dismissal from service---Employee had contended that while passing dismissal order against him, R.8 of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 had been violated, because fresh notice was not issued by the authority before passing said order---Rule 8 did not contain that a fresh notice would be given to accused employee, but had provided that authority would afford an opportunity of being heard---In the initial stage all efforts were made for the appearance of the employee to show cause, but on one pretext or the other he failed to appear and show cause and he could not explain said failure---Authority had no occasion to provide any opportunity of hearing to the employee---Under said R.8 the opportunity of hearing was only to be provided to a person who had joined the proceedings and had submitted his explanation---Objection raised by the employee that no fresh notice was issued to him by the authority, was repelled, in circumstances.
(k) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---
----Rr. 4 & 6---Azad Jammu and Kashir Interim Constitution Act (VIII of 1974), S.44---Dismissal from service---Writ petition before High Court---Maintainability---Counsel for employers had contended that the authority who passed the dismissal order of the employee, having not been arrayed as party in the line of respondent in the High Court, writ filed by the employee was not maintainable---In absence of the necessary party i.e. competent authority, the writ was not maintainable, and was liable to be dismissed on that sole ground.
University of Punjab v. Shahid Nazir 1986 SCMR 805; Ch. Muhammad Anwar v. Ch. Muhammad Rashid PLD 1987 SC (AJ&K) 109; National Bank of Pakistan Circle Head and 2 others v. Labour Appellate Tribunal and another 1996 PLC 411; Mirza Lal Hussain v. Custodian of Evacuee Property and others 1992 SCR 214; Muhammad Resham Khan v. Chairman Inspection Team and 3 others 1990 CLC 1355; Liaqat Ali and another v. Municipal Corporation Mirpur and 5 others 1997 CLC 692; Azad Jammu and Kashmir Government and others v. Gohar Rehman and others 1996 CLC 1502; Muhammad Nazir Khan v. Azad Government and 4 others 2001 YLR 3271; Khalil Ahmed Aqeel v. Member Board of Revenue 2004 PLC (C.S.) 949; Raja Muhammad Ashraf Khan Kayani v. Azad Government and 4 others 1998 PLC (C.S.) 110; Muhammad Nazir v. Azad Government and Pearl Development Authority Civil Appeal No. 131 of 1999; Muhammad Shafi v. Feroz Khan 1994 SCR 19 and Abdul Hamid Khan v. Muhammad Zameer Khan and others 1990 MLD 1617 rel.
Asghar Ali Malik, Advocate for Appellants.
Nemo for Respondent No.1.
Date of hearing: 11th July, 2012.
JUDGMENT
RAJA SAEED AKRAM KHAN, J.--- The supra titled appeal, with the leave of the Court, has been filed to assail the judgment passed by the High Court on 5-10-1999, whereby the writ petition filed by respondent No.1, herein, is accepted.
2. The respondent was functioning as Secretary to the Government when disciplinary proceedings were initiated against him. According to the allegation he secured an order from the Prime Minister. Subsequently, the respondent interpolated the order to read it as an order of promotion to B-21. He was proceeded against under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter to be referred as E&D Rules, 1977) and was dismissed from service on the ground that he had been found guilty of misconduct. The proceedings against the respondent were taken under sub-rules (3) and (4) of rule 6 of E&D Rules, 1977 wherein a short procedure for proceedings is provided and no Inquiry Officer is appointed. However, on a writ petition filed by the respondent, the High Court has reinstated him by holding that he was not guilty of misconduct. Azad Government of the State of Jammu and Kashmir, Chief Secretary to the Azad Government and Secretary Services and General Administration Department have filed this appeal with leave of the Court to challenge the order of the High Court. The respondent was also demoted as Information Officer by issuing successive orders before he termination of his services.
3. The facts forming the background of this appeal are that on 14th November, 1997 Chaudhry Bashir Hussain, a B-20 officer of the Management Group, was appointed as Senior Member Board of Revenue in B-21. The respondent presented a review petition before the Prime Minister of Azad Jammu and Kashmir. The Prime Minister of Azad Jammu and Kashmir on 2nd December 1997 passed an order which, according to the version of the Prime Minister, was as follows:---
4. According to the allegation the respondent, after getting the signatures of the Prime Minister, changed the order through tampering to read it as follows:---
After the alleged interpolation, the application was kept by the respondent with himself instead of transmitting it to the Chief Secretary to whom it was marked. He then filed a writ petition in the High Court in which he attached a copy of the order, as interpolated by him, and prayed that a writ of mandamus may be issued for implementing the said order about which he claimed that it was the order of his promotion to B-21. After three days from filing of writ petition, he moved an application for stay order that the respondents in the writ petition may be restrained from cancelling the said order. The stay order was issued. In due course, the stay order issued by the High Court came to the knowledge of Chaudhry Bashir Hussain, Senior Member Board of Revenue, Chaudhry Bashir Hussain moved an application before the Prime Minister praying for recalling the order dated 2nd of December, 1997. The application bears the date of 19th January, 1998. In the application, Chaudhry Bashir Hussain stated that the order had been passed without hearing him and without calling any comments from the Services and General Administration Department. He also stated that according to the relevant rules Senior Member Board of Revenue could only be appointed from amongst officers of the Management Group. The Prime Minister passed the following order on this application on 19th January 1998 whereby the Chief Secretary was directed that after hearing the parties a report be submitted to him before 20-2-1998. The order reads as under:---
5. The order reproduced above is the basis on which the penalty of dismissal from service imposed on the respondent has been set aside by the High Court by accepting the writ petition filed by the respondent. The High Court has held that the Prime Minister did not mention in the order reproduced above that the order of promotion of the respondent dated 2nd December, 1997, which was allegedly tampered with, had not been passed by him. This has been taken by the High Court as proof of the fact that the Prime Minister had in fact passed the order of promotion of the respondent. The relevant portion of the judgment of the High Court is as follows:---
"From the perusal of this order, it becomes clear that the Prime Minister recalled his order dated December 2, 1997 mainly on the ground that it was passed by him without providing a right of hearing to Ch. Muhammad Bashir and without inviting comments from the Services Department and without the recommendation of the Selection Board. There is no mention in the order that order of promotion of the petitioner in B-21 was not passed by him. In the light of the order of Prime Minister dated January 19, 1998, referred to above, it becomes clear that order of promotion of the petitioner in B-21 was passed by the Prime Minister himself. There was, therefore, no justification for proceeding against the petitioner under the (Efficiency and Discipline) Rules, 1977 on this ground."
6. The respondent had been dismissed after being found guilty of forgery but the High Court has not specifically held anywhere in the judgment that the charge of forgery was false. However in the passage reproduced above the High Court has by necessary implication held so by holding that the order of promotion of the respondent was passed by the Prime Minister himself. This sentence implies that the order was genuine and had not been tampered with. The order of dismissal of the respondent, which was passed on 9th May, 1998, contains a recital that the charges of tampering etc. had been proved in the proceedings conducted in light of Government Notification issued on 11th March, 1998. By the said notification it was ordered that inquiry would be held against Mujahid Hussain Naqvi for misconduct under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 for, inter alia, tampering with the order of the Prime Minister. Necessary details of tampering were mentioned in the Notification. Therefore, the effect of the judgment of the High Court is that the finding of fact recorded during the proceedings that charges of tampering etc. had been proved has been set aside vide impugned judgment.
7. Initially this case was heard by the Bench consisting of Mr. Justice Basharat Ahmad Shaikh and late Mr. Justice Muhammad Yunus Surakhvi (as their Lordships then were). A difference of opinion arose between the learned members of the Bench. Mr. Justice Basharat Ahmad Shaikh accepted the appeal while Mr. Justice Muhammad Yunus Surakhvi dismissed the same. In view of difference of opinion, the case was referred to third Judge for hearing and disposal. Late Mr. Justice Sardar Said Muhammad Khan, Chief Justice of Azad Jammu and Kashmir of the time, was only the third Judge available at the relevant time for hearing and disposal of the case but on objection raised by respondent No.1 by submitting an application, he did not hear the case and passed the following order:---
"Despite the fact that the allegations made in the application are baseless, except that Sardar Muhammad Latif Khan, Secretary Works, is my brother, I decline to hear the appeal in view of the unfounded apprehensions entertained and allegations made by the applicant/ appellant. Therefore, it is directed that the office shall prepare a list of those cases in which the appointment of an ad hoc Judge is necessitated due to the inability of the present Judges to hear the same so that the Government may be moved to appoint an ad hoc Judge for the hearing and disposal of the present appeal etc. as well as other appeals in which bench cannot be constituted."
8. Consequently, Mr. Justice Chaudhry Muhammad Taj was appointed as ad hoc Judge of this Court for the purpose of hearing this case as third Judge along with some other cases. The file was placed before Mr. Justice Chaudhry Muhammad Taj for hearing and disposal but once again respondent No.1 submitted an application that when his writ petition was pending in the High Court he consulted him as such the learned Judge should not hear his case. In view of this application, Mr. Justice Chaudhry Muhammad Taj passed an order on 14-3-2002, the relevant portion of which is reproduced as under---
"The facts stated in the application moved by the applicant are not correct and are untrue. The applicant has made frivolous and baseless allegations. I have never solicited any advice in any matter to the said applicant. The application as it appears from the record has been moved to prolong the proceedings.
Though the facts stated in the application are not correct and the allegations made are baseless as such the application is without any substance but for the reasons that he has moved the application though on unfounded apprehensions and for the safer administration of justice, I should not hear these cases. Thus, I would not like to hear the cases where the applicant is either appellant/petitioner or respondent, placed before me for hearing and disposal. The matter may be brought in the notice of the learned Chief Justice/Acting Chief Justice for further proceedings.
Whether the applicant's conduct amounted to a contempt of Court and is also a misconduct on his behalf, the question shall be considered later on."
The file was placed before the Acting Chief Justice of the time, Mr. Justice Muhammad Yunus Surakhvi (late), who passed the following order on 1-4-2002:---
"Mr. Mujahid Hussain Naqvi, the respondent, has moved another application on 26-3-2002 (Miscellaneous Application No.40 of 2002) stating therein that under section 42(13) proviso 1st of the AJ&K Interim Constitution Act, 1974, the judgment of the High Court may be declared to be the judgment of the Supreme Court.
Before passing any order or giving notices to the parties for hearing them, it would be in the interest of justice that in the first instance the Miscellaneous Application No.40 of 2002, moved by Mr. Mujahid Hussain Naqvi on 26-3-2002, is decided and then to proceed with the other cases. Till the disposal of Miscellaneous Application No.40 of 2002,, the files of above titled cases shall remain pending till further orders."
9. After the sad demise of Mr. Justice Muhammad Yunus Surakhvi, the Chief Justice of the time, an application was moved by some lawyers of Muzaffarabad in which it was alleged that Mr. Mujahid Hussain Naqvi, who is basically a civil servant, is avoiding hearing of his appeal by the third Judge as he has adopted the profession of advocacy. It was submitted that it will be in the interest of justice to decide his appeal one way or the other. This application was placed before the then Acting Chief Justice, Mr. Justice Khawaja Muhammad Saeed, who vide order dated 9-12-2004, after recording detailed reasons, passed an order, the concluding part of which is reproduced as under:-
"Presently I and Mr. Justice Syed Manzoor Hussain Gillani cannot associate in the hearing of this case on account of reasons detailed hereinbefore. Mr. Justice Ch. Muhammad Taj, learned ad hoc Judge of this Court, has denied that he ever was consulted by the respondent or he ever tendered any advice to respondent when his appeal was pending before any Court. In these circumstances in my view the respondent is prolonging the decision of his appeal without any lawful justification. The appeal along with the collateral petitions and miscellaneous application is entrusted for hearing and disposal to my learned colleague Mr. Justice Ch. Muhammad Taj, ad hoc Judge of this Court. The cases shall come up before my learned colleague for arguments on 20-1-2005. Notices to the learned counsel for the parties."
The record shows that Mr. Justice Ch. Muhammad Taj heard arguments in the case on 18-5-2005 and kept the judgment reserved but perhaps before writing the judgment, the learned Judge was sent back to the High Court and the case remained pending.
10. The case remained pending for a considerable time and on the appointment of Mr. Justice Muhammad Reaz Akhtar Chaudhry as Chief Justice of Azad Jammu and Kashmir, respondent No.1 stressed for the disposal of a miscellaneous application which had been filed by him by taking the ground that under section 42(13)(c) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the judgment of the High Court dated 5-10-1999 may be deemed to be the judgment of the…
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