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Petitioner: ABDUL RAHIM ZUBAIR BUTT VS Respondent: COMPETENT AUTHORITY and 8 others
Court Name: Azad Jammu and Kashmir Subordinate Service Tribunal Judge(s): Munir Ahmed Chaudhary Title: ABDUL RAHIM ZUBAIR BUTT vs COMPETENT AUTHORITY and 8 others Case No.: Appeal No,2 of 2011 Date of Judgment:2013-04-22 Reported As: 2013 C.L.R. 1358, 2013 PLC (C.S.) 1011 Result: Appeal dismissed
Judgment ORDER MUNIR AHMED CHAUDHAR Y, (CHAIR MAN).-- - This appeal has been filed against the order of competent authority/Hon'ble Chief Justice of High Court of Azad Jammu and Kashmir dated 21-8-2002, whereby the appellant was removed from his service. Orders dated 21-11-2002 and 25-11-2002 have also been challenged through the instant appeal, through which the joining report of the appellant after his reinstatement by the worthy Prime Minister of Azad Jammu and Kashmir was refused and order of removal of the appellant by the competent authority/Hon'ble Chief Justice was declared as final. 2. Brief facts of the present matter are that the appellant was employed in judicial service of Azad Jammu and Kashmir and was serving as Judge Family Court, Bagh. He received a show cause notice on 7-3-2002 to explain regarding a telephone call made on 19-1-2002 at 12-00 noon to the Hon'ble Chief Justice of High Court from Telephone No,44206 installed at the residence of the appellant when he was posted as Senior Civil Judge, Kotli. In consequence of the said notice, proceedings against the appellant were initiated under the Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001. An Inquiry Committee was constituted on 4-7-2002. The aforesaid committee also issued show cause notice to the appellant on 7-10-2002 and the appellant filed his reply . After completion of inquiry , the committee submitted its report on 5-8-2002 to the competent authority . A final show cause notice was issued to the appellant who also replied the same. The appellant was ultimately removed from his service on 21-8-2002 by the Hon'ble Chief Justice of High Court of Azad Jammu and Kashmir being competent authority . Thereafter , the appellant made a representation before the worthy Prime Minister of AJ&K under section 9 of the Act to which comments were submitted by the Registra r of the High Court. The Prime Minister accepted the representation of the appellant and set aside the order of his removal from service and a notification regarding the same was issued on 1-11-2002. The appellant presented his joining report to the Registrar High Court on 2-11-2002. The said joining report was refused by the learned Judges of the High Court in
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a meeting on 21-11-2002 declaring that no representation or appeal can be filed before the worthy Prime Minister and order of removal of the appellant passed by the Hon'ble Chief Justice being competent authority was final. The decision made by the Judges of the High Court was conveyed to the appellant through Registrar on 25-1 1-2002. 3. Thereafter , the present appellant filed a petition for leave to appeal before the apex Court of AJ&K against the decision of the learned Judges of the High Court. After hearing the then Hon'ble Chief Justice of the apex Court of AJ&K dismissed the petition for leave to appeal. The appellant, then, filed the instant appeal against the order of his removal from service dated 21-8-2002 , the decision of the learned Judges of the High Court dated 21-11-2002 and 25-1 1-2002 before the Service Tribunal on 31-12-2002. 4. It was stated in the appeal that the appellant was asked through a notice to explain regarding a telephone call allegedly made on 19-1-2002 at 12-00 O'clock noon to the Hon'ble Chief Justice of the High Court from Telephone No,44206 installed at his residence when he was posted as Senior Civil Judge Kotli. It was alleged that the appellant impersonated him as a Genera l of the Army and tried to pressurize the Hon'ble Chief Justice to get the order of his transfer cancelled. The appellant denied the said allegation through an explanation submitted by him. The appellant, later on lodged a complaint with the Officer Commanding, Speci al Communication Organization Kotli regarding misuse of said telephon e number through a letter dated 14-3-2002. The Inquiry Committee constituted by the competent authority served the statement of allegations to the appellant on 10-7-2002. The appellant submitted his reply on 16-7-200 2 and denied the allegations. The Inquiry Committee submitted its report to the competent authority on 31-7-2002. It was reported that the alleged calls were made at the instance and with the consent of the appellant and the appellant was declared guilty of misconduct. The Inquiry Committee recommended the punishment of removal of the appellant from his service and ultimately the appellant was removed from his service after personal hearing on 21-8-2002. 5. It was further stated in the memorandum of appeal that the appellant submitted his representation to the worthy Prime Minister of AJ&K under sections 9 and 12 of the Act against the order of his removal after consulting a legal expert. The worthy Prime Minister after inviting comments from the Hon'ble Chief Justice and hearing of the said representation, accepted the same and reinstated the appellant with all benefits from the date of his removal, setting-aside the removal order passed by the Hon'ble Chief Justice. The appellant submitted his joining report on 2-11-2002 to the Registrar of the High Court, which was not accepted. The said joining report was placed before the Judges of the High Court on 21-11-2002 who decided that the joining repor t of the appellant could not be accepted as the order of Hon'ble Chief Justice was final and could not be repres ented against before the Prime Minister . So, the order of the worthy Prime Minister could not be acted upon and implemented. Thereafter , the appellant assailed the aforesaid orders of the Hon'ble Chief Justice and Judges of the High Court through a petition for leave to appeal in the apex Court on 2-12-2002 on advice of leading advocates of Mirpur and Muzaf farabad. The said petition for leave to appeal was dismissed on 13-12-2002. It was held by the apex Court that no petition/appeal lies to the Supreme Court against the orders of Hon'ble Chief Justice and Judges of the High Court and no representation was competent before the Prime Minister against the order of Hon'ble Chief Justice of High Court. In accordance with the order of the apex Court, the only remedy available to the appellant against the orders of Hon'ble Chief Justice and Judges of the High Court was to file an appeal before the Service Tribunal. So, the appellant has preferred the instant appeal before this court. The appellant further stated that the impugned orders passed by the Hon'ble Chief Justice and Judges of the High Court are violative of the provisions of law, rules, principles of natural justice and against the record of the case and violative of fundamental rights of the appellant and are liable to the set-aside. 6. It was further stated in the grounds of appeal that the provisions of AJ&K Removal from Service (Special Powers) Act, 2001 are only applicable to the employees of such courts or tribunals, which are functioning under the Government, whereas the appellant was neither in his capacity as Presiding Officer/ employee of the Family Court nor as an employee of the High Court could be deemed an employee of a court functioning under the Government. In case, the provisions of Special Powers Act are presumed to be applicable in case of the appellant, the said Act is violative of fundamental rights being discriminatory in nature. It deprives the employees/Civil Servants of their valuable rights as provided in the Civil Servants (Efficiency and Discipline) Rules. The orders of Hon'ble Chief
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Justice regarding constitution of Inquiry . Committee and subsequent orders regarding removal from service are without jurisdiction. Such like orders could only be made by the Hon'ble Judges of High Court in their meeting in accordance with the Rules 112 and 113 of High Court Procedure Rules, 1984. The impugned orders except refusal of the joining report, have been passed by the Hon'ble Chief Justice alone, therefore, the said orders are without jurisdiction. 7. The appellant further stated that the Hon'ble Chief Justice of the High Court of AJ&K was a complainant and the only witness in the matter . The dictates of justice demanded that the matter should have been decided in the meeting of Hon'ble Judged of High Court besides the Hon'ble Chief Justice, the complainant could not be the final arbiter in the case. The learned Chairman/Members of Inquiry Committee refused to call important witnesses in the case and to record their evidence even to record, the statement of the appellant, despite repeated requests of the appellant. No proof was available against the appellant regarding the telephone calls having been made by the appellant himself or at his instance. The alleged facts were full of doubts, which must be considered in favour of the appellant. The. Inquiry Committee conducted proceedings in absence of the appel lant without associating him and affording him an opportunity to cross-examine the witnesses and to explain his position. The appellant has been pursuing the remedy of representation before the worthy Prime Minister and thereafter the petition for leave to appeal before the apex Court under expert legal advice and under sections 9 and 12 of Special Powers Act. The time consumed in making representation and till decision of the Hon'ble Supreme Court and the time consumed in obtaining certified copies of the relevant documents till the filing of the present appeal, i,e, from 4-9-2002 to 30-12- 2002, must be excluded from prescribed period of limitation. So, the appeal was filed without any delay . Even otherwise, the order under appeal passed by the Hon'ble Chief Justice dated 21-8-2002 was affirmed by the Hon'ble Judges of the High Court at their meeting on 21-11-2002 and was conv eyed to the appellant on 25-11- 2002. So, the appellant deserves the condonation of delay for the afore-said period for reasons and grounds mentioned. The appellant prayed as under:--- "In view of the above, it is most humbly prayed that by accepting the appeal, the impugned orders of the Hon'ble Chief Justice and Hon'ble Judges of the High Court of Azad Jammu and Kashmir dated 21-11-2002 conveyed by letter No,11837/HC/Admin/2002 dated 25-11-2002 and No,7710- 25/Admin/HC/2002 dated 21-8-2002 may kindly be set-aside and the humble appellant be restored/reinstated to service with effect from 21-8-2002 with all benefits of service. Any other relief to which the appellant is deemed by the Hon'ble Tribunal as entitled to, may also very kindly be awarded." 8. The appeal was admitted for regular hearing and respondents were ordered to submit written statement. Written statement was submitted on behalf of real respondents, stating therein that the appeal was hopelessly time barred and was not maintainable on this sole ground. The High Court is a constitutional Court, which has been vested with extraordinary constitutional powers and also has got powers of superintendence and control of all other courts under section 26 of the Interim Constitution Act, whereas the Service Tribunal is established through a subordinate legislation, hence the instant appeal offends the constitutional powers and is liable to be rejected. Any order passed and action taken by the High Court or council of Judges of the High Court can only be assailed in Supreme Court and not before any Subordinate/Inferior Court or Tribunal, therefore, the present appeal is not maintainable. The present appeal is legally incompetent because the Service Tribunal has got jurisdiction in respect of orders relating to terms and conditions of service, whereas the impugned order in this appeal does not relate to terms and conditions of service, therefore, the appeal is liable to be dismissed for want of jurisdiction. 9. It was further stated in the written statement that the acts of impersonation and misconduct committed by the appellant were legally proved against him. No representation before the worthy Prime Minister was competent regarding any case related to a judicial officer. The appellant filed the said repres entation with mala fide intention and made an attempt to create confrontation between the Executive and Judiciary . In light of the judgment of the apex Court dated 13-12-2002, the present appeal is legally incompetent and liable to be dismissed. The appellant submitted his explanation against show-cause notice through which he admitted the Hon'ble Chief Justice as competent authority , so the appellant is estopped by his conduct to raise this version that the Hon'ble Chief Justice acted without jurisdiction. The appellant has challenged Special Powers Act, which is passed by the Legislative
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Assembly and the vires of this law cannot be challenged before Service Tribunal. The Inquiry Committee has considered in detail all the documents and statements and the findings recorded by the Inquiry Committee and the competent authority are self-speaking proof to rebut the appellant to wrong stand. The Hon'ble Chief Justice has recorded his findings, which are based on legal evidence and the order has been passed in accordance with principles of law and justice. The real respondents prayed to dismiss the appeal. 10. Written statement on behalf of Government and the worthy Prime Minister (respondents Nos. 8 and 9) was submitted by the learned Additional Advocate-General. It was stated by the said respondents that according to the provisions of the Removal from Service (Special Powers) Act, 2001, an order passed by the competent authority is appealable before the worthy Prime Minister or his nominee. An order passed under the provisions of a statute, even if without jurisdiction or coram-non-ju dice is assailable in appeal, revision, review or representation before the forum created by the said statute and in the same manner as an order with jurisdiction can be challenged. The Hon'ble Chief Justice of High Court had no jurisdiction to pass the impugned order dated 21-8-2002 as the appellant was not a Presiding Officer of any court or tribunal, which was functioning under the Government. The provisions of the Act are applicable to the employees, Presiding Officers of such courts only as are functioning under the Government. The appellant did not fall amongst the said category . So, the provisions of said law did not apply to the appellant's case. Since the provisions of Special Powers Act are not applicable to the case of the appellant. The appellant is not an aggrieved person to challenge the vires or otherwise of the said law. The proceedings against the appellant could have been taken under the Civil Servants (Efficiency and Discipline) Rules, 1977 only. As the order regarding removal of the appellant from service dated 21-8-2002 was not passed in accordance with the provisions of the relevant law, so the worthy Prime Minister exercising the powers vested by him under the provisions of Special Powers Act, accepted the representation filed by the appellant and ordered for his reinstatement in service, for the reasons that the aforesaid order of removal was not found to be valid on facts and law . 11. It was further stated by the said respondents that the appellant has been pursuing remedy before the worthy Prime Minister and thereafter in the High Court and the Supreme Court for redressal of his grievance. It was only after the judgment of the apex Court dated 13-12-2002 that the legal position was clarified. It was prayed to decide the appeal keeping in view the record of the case and requirements of law and justice. 12. Arguments were advanced by the learned counsel for the parties. Kh. Muhammad Nasim Advocate, the learned counsel for the appellant advanced his arguments and repeated version of the appellant as taken in the appeal. The learned counsel argued further that the appellant was present in the court and performing his functions from 10-30 a.m. To 2-00 p.m., while the alleged call was made from Telephone No,44 206 (Kotli) to Phone No,39151 (Muzaf farabad) at 12-00 noon on 19-1-2002. The said Phone No,44206 was installed at the official residence of the appellant. The appellant submitted a complaint to the Commanding Officer of Special Communication Organization (SCO) regarding misuse of the said telephone number . The appellant could not think even to make a call to the Hon'ble Chief Justice directly . The competent authority prepared statement of allegations, which was sent to the appellant on 3-7-2002. The Inquiry Committee prepared its separate statement of allegations, which was conveyed to the appellant on 10-7-2002. The appellant filed an application before the Inquiry Committee to summon some important witnesses and to record their statements, but the said witnesses were not summoned. The Inquiry Committee submitted its report to the Hon'ble Chief Justice violating the provisions of law. The appellant was removed from his service on 21-8-2002. The instant appeal against the order made by the competent authority on 21-8-2002 and by the Hon'ble Judges of the .High Court on 21-11-2002 was filed on 31-12-2002. The appeal has been filed beyond the prescribed period of limitation against the order dated 21-8-2002, while it was within prescribed period of limitation against the order dated 21-1.1-2002. An applica tion to condone the period of limitation has been appended with the appeal. The appellant has mentioned the causes of delay in the application. The appellant made a representation before the worthy Prime Minister under section 9 of the Act. The worthy Prime Minister reinstated the appellant setting-aside the order of removal. The Hon'ble Judges of the High Court decided in their meeting on 21-11-2002 that the order of the Hon'ble Chief Justice being competent authority was final. As a result joining report of the appellant was refused. The appellant filed a petition for leave to appeal before the apex
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Court of Azad Jammu and Kashmir , but the same was not granted. Thereafter , the appellant filed the instant appeal. 13. The learned counsel for the appellant argued further that the Inquiry Committee was bound under section 5(1) of the Act to convey the statement of allegations prepared by the authority to the appellant but the Inquiry Committee prepared its own statement of allegations and provided that to the appellant. The said committee had no power to prepare its own statement of allegations. Moreover , the Hon'ble Chief Justice of High Court was a complainant in the present case, so he should not have been acted as competent authority . His lordship's statement was not recorded as well. The Hon'ble Chief Justice was competent authority and members of Inquiry Committee were judicial officers subordinate to the Hon'ble Chief Justice. The appellant was not heard properly . The learned counsel for the appellant requested to accept the appeal and to reinsta te the appellant from the date of removal from his service. The learned counsel referred the following precedents in support of his arguments. 1. AIR 1963 SC 1719 2. PLD 1964 SC 64 3. PLD 1966 Lah. 1 112 4. PLD 1967 Lab. 1 112 5. AIR 1970 SC 2086 6. AIR 1971 SC 22 7. AIR 1973 SC 207 8. PLD 1975 AJ&K 131 9. 1976 SCMR 79 (B) 10. PLD 1986 SC (AJ&K) 1 10 11 1989 CLC 905 12. 1990 PLC (C.S.) 598 13. 1992 SCR 370 14. 1992 SCR 370 (B) 15. 2000 YLR 1891 16. 2002 SCMR 81-B 17. PLD 2006 SC (AJ&K) 43-D 18. 2007 PLC (C.S.) 870(C) 19. 2008 PLC (C.S.) 79 20. KLR 2008 (L&S) 212 21. 2010 SCR 131 14. While controverting the learned counsel for the appellant, Mr. Muhammad Yaqoob Khan Mughal Advocate the learned counsel for respondents Nos.1 to 7 contended that the instant appeal has been filed beyond the prescribed period of limitation and liable to be dismissed on this sole ground. Moreover , the appellant has admitted the occurrence in the memorandum of the appeal. The proceedings initiated by the competent authority were concluded strictly in accordance with the provisions of law. The Inquiry Committee prepared statement of allegations and conveyed that to the appellant in accordance with the provisions of law. It was not necessary for the competent authority to convey the statement of allegations. The Inquiry Committee was empowered to inquire the matter by adopting any mode necessary for the purpose. The worthy Prime Minister was not competent authority regarding judicial officers including the appellant. The Hon'ble Chief Justice of High Court of Azad Jammu and Kashmir was a competent authority in case of the appellant. The appellant was bound to file his appeal before Service Tribunal within prescribed period of limitation. Pursuing the matter before wrong forums could not be made a valid cause for filing the appeal beyond prescribed period of limitation. The learned counsel for the respondents requested to dismiss the instant appeal and referred the following precedents in support of his arguments. 1. 1998 MLD 416 2. 2001 CLC 946
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15. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record available and the precedents referred carefully and minutely . The main proposition to be resolved firstly is that;--- Whether the instant appeal was filed within prescribed period of limitation or not? The facts regarding this have to be cons idered that the appellant filed a representation before the worthy Prime Minister . As a result, the appellant was reinstated and the order of his removal from service was set-aside by the worthy Prime Minister . The appellant presented his joining report on the basis of the decision made by the worthy Prime Minister , which was refused by the Hon'ble Judges of the High Court in their meeting on 21-11-2002 and it was observed by the learned Judges of the High Court that order of removal by the Hon'ble Chief Justice being competent authority was final. The appellant filed a petition for leave to appeal before the apex Court, which was dismissed and the said leave was not granted. Thereafter , the appellant filed the instant appeal on 31-12-2002 before this tribunal. The appellant has taken this version that he submitted a representation under Section 09 of the Special Powers Act before the worthy Prime Minister considering him the competent authority . He also filed the petition for leave to appeal and assailed the orders of Hon'ble Chief Justice and Judges of High Court before the apex Court of Azad Jammu and Kashmir on advice of leading Advocates of Muzaf farabad/Mirpur , on 2-12-2002. The said petition was dismissed by the apex Court vide judgment dated 13-12-2002. It was also contended on behalf of the appellant that the apex Court held that no petition/appeal lies against the impugned order of Hob'ble Judges of High Court before Supreme Court and also no representation was competent against the order of Hon'ble Chief Justice before the Prime Minister . In view of judgment of the Hon'ble Supreme Court dated 13-12- 2002, the only remedy available to the appellant against the orders of Hon'ble Chief Justice and Judges of High Court was to file an appeal before Service Tribunal. 16. The learned counsel for the appellant argued during his arguments that due to pursuing the case in shape of representation and the petition for leave to appeal, the time consumed must be excluded while having assessment of the period of limitation for the instant appeal. It seems pertinent to reproduce the findings recorded by the Hon'ble Supreme Court of Azad Jammu and Kashmir while disposing of the petition for leave to appeal of the present appellant (Civil PLA No,264 of 2002 titled Abdul Raheem Zubair Butt v. AJ&K High Court and others decided on 13-12-2002), regarding representation before the worthy Prime Ministe r and filing of petition before the apex Court, as under:--- "7. The moot point for determination, therefore, arises as to whether the order impugned before the Court is 'order' passed by the High Court and can be challenged through petition for leave to appe al or not. A perusal of the order dated 25-11-2002 reveals that it is an intimation of some decision taken by the learned Judges of the High Court in their meeting convened on 21-11-2002. The recital of the alleged order dated 25-11-2002 reveals that the order of the High Court is not passed in a case or in a judicial proceeding, but it appears to have been passed in a meeting which purportedly appears to be administrative meeting of the High Court Judges. The Supreme Court is the apex appellate Court against the judicial order , judgments, decrees and sentences passed by the High Court or any other Court or Tribunal established under law and not the controlling authority in respect…
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