' MUHAMMAD YUNUS SURAKHVI, C.J.---This appeal, by way of leave of the Court, has been directed against the judgment of the Service Tribunal passed on 18-8-2001, whereby the appeal filed by the appellant against the order of respondent No.1, wherein he was compulsorily retired from service, was dismissed.
2. Facts as claimed by the appellant, precisely stated, are that he was serving as Head Constable in the Police Department and was posted at Police Chowki Dhalkot when on 22-7-2000, he was served with a charge-sheet in which he was blamed for negligence. The appellant denied the allegations through his detailed written reply dated 3-8-2000. The Superintendent of Police Rawalakot appointed PDSP Rawalakot, as Inquiry Officer who submitted his report on 18-8-2000, recommending punishment of censure to the appellant. The respondent No.2, Superintendent Police Rawalakot, in utter disregard to the provisions of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, by ignoring the recommendations of the Inquiry Officer, dismissed the appellant from his service vide his order dated 24-8-2000. This order was assailed in appeal before respondent No.1, who vide his order dated 18-12-2000, converted the order of dismissal of appellant into his compulsory retirement. The appellant, thereafter, filed an appeal before the Service Tribunal which was dismissed vide its judgment under challenge passed on 18-8-2001. It is the aforesaid judgment of the Service Tribunal which is the subject-matter of present appeal.
3. In support of appeal, it was vehemently contended by Khawaja Attaullah Chak, the learned counsel for the appellant, that proceedings against the appellant were conducted contrary to the mandatory provisions of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline)
Rules, 1977, therefore, the order of dismissed by S.P. Poonch Rawalakot, was liable to be set aside which was wrongly converted into order of compulsory retirement by respondent No.1, DIG Police Range Muzaffarabad and maintained by the Service Tribunal without any legal justification. The learned counsel further contended that no one was appointed as authorized officer by respondent No.1, in the case of appellant, nor he was served with a show-cause notice or to provide him an opportunity, as to why the order of dismissal from service, may not be passed against him.
According to the learned counsel for the appellant, the Service Tribunal by ignoring these mandatory provisions has wrongly maintained the order passed by respondent No.1 He further argued that there was no complaint of negligence in past against the appellant, as such, the Inquiry Officer rightly recommended the punishment of censure but the S.P. District Poonch, who was authority in the case, contrary to the recommendations of the Inquiry Officer awarded punishment of dismissal to the appellant. The learned counsel also argued that the judgment of the Service Tribunal even on facts is wrong and it runs counter to the findings of the Inquiry Officer.
The learned counsel for the appellant in support of his contention placed reliance upon a case titled Chairman AKLASC and 2 others v. Abdul Hameed Siddique and another 2002 PLC 163 wherein it was provided as under:-- "11. Under the provisions of the E&D Rules before awarding major penalty of removal from service and passing an order for recovery of amount of alleged loss to the Department, the authority was bound to provide hearing to respondent. Although there is presumption of regularity attached to all the official acts unless the presumption is rebutted but in the instant case there is nothing brought on record showing that the respondent was given hearing before passing the impugned order against him. The mere observation that the respondent was heard, without any further` detail of such hearing or plea taken by him does not satisfy our concience that in fact he was heard within the spirit of the relevant provisions In our considered view, the proceedings against the respondent have been conducted under the E&D Rules in flagrant disregard of mandatory procedure prescribed in the relevant rules which illegality has vitiated the whole proceedings rendering the impugned order passed in consequence thereof as null and void."
4. The learned counsel for the appellant also placed reliance upon a case titled Mehtabuddin v.
Government of N.-W.F.P. And 3 others 1988 PLC (C.S.) 276, wherein it was observed as under:-- "We have given our patient hearing to the arguments and we are of the opinion that the appellant was discharged from service for the alleged misconduct as maintained in the written statements filed by the respondents. The allegation of misconduct can only be established through some evidence...Oral or documentary. In the present case there is nothing on the record to suggest that the appellant was involved in the activities rendering him liable for misconduct. Mere absence from duty should not entail such drastic action. If he could not qualify the examination none else but he was to suffer for it. Besides this, the punishing authority in the case of appellant was the S.P. And not the D.I.G., under the present rules. Violation of the rules would make the order illegal and without jurisdiction."
4. The learned counsel further relied upon an unreported judgment of this Court titled Habibullah v.
Deputy Inspector-General of Police and another, Civil Appeal No.190 of 2002, decided on 8-6-2004, wherein at page 11 of the judgment, it was provided as under:-- "In the instant case under the provisions of the Efficiency and Discipline Rules, 1992, only the SP is competent to award punishment and no provision has been provided that if a person is not promoted to the rank of SP but is working as SP on officiating basis, he for the purpose of Efficiency and Discipline Rules shall be presumed to be the SP and competent to award any punishment
4. In another case relied upon by the learned counsel for the appellant titled Muhammad Yaqoob Khan v. Secretary Forest/Tourism AJ&K and another 1999 MLD 1862; it was observed as under:-- ' There is a long chain of judgments of this Court in which it has been authoritatively laid down that in the service laws of Azad Jammu and Kashmir there is no concept of transferring, permanently or temporarily, a civil servant to a post carrying higher grade in his own pay and scale.
7. The learned counsel also relied upon a case titled Dr. Khawaja Musthaq Ahmad v. Azad Govt. And others 1995 PLC (C.S.) 410 wherein it was observed that in the service laws of Azad Jammu and Kashmir there is no concept of appointing permanently or temporarily a civil servant to a post carrying higher grade in his own pay and scale.
8. In reply, Raja Ibrar Hussain, the learned Advocate-General, appearing on behalf of the respondents, fully defended the judgment recorded by the Service Tribunal and, submitted that it suffers from no illegality or infirmity on the basis of which the impugned judgment may be set aside. He contended that the appellant has now brought a totally different and inconsistent case than the one built up in the Service Tribunal. The only point which was argued before the Service Tribunal, according to the learned counsel for the respondents, is that the order of Police Authorities was without any jurisdictional competence. The learned counsel submitted that the SP Poonch who was on acting charge basis, was competent under law to pass the impugned order.
9. After hearing the respective contentions of the learned counsel for the parties and perusal of the record, it may be stated that the allegation against the appellant was to the effect that he should have sent the daily reports ({{URDU TEXT}} ) to the Police Station but by not doing so he had been negligent and derelict, as such, did not discharge his duties/obligations and by his this act a complaint could have been made before the relevant Court. In reply to the said allegation the appellant submitted his detailed reply at pages 9 and 10 of the paper book and denied the allegation of sending the daily reports by late. He furnished the explanation that he had handed over the warrant of Sajid Hussain, Constable, which after due service by him were sent to the Police Station. The P.D.S.P. After receiving the detailed reply of the appellant held both the Constables guilty but, however, did not impose any punishment upon both the Constables, one of them is the appellant. The P.D.S.P. Poonch vide his order dated 18-8-2000, observed that as the appellant and the other Constable have committed this negligence for the first time, therefore, they need to mend their ways. He, therefore, recommended that both the Constables should be awarded the sentence of censure and the same may be entered in their service books. However the officiating SP Poonch did not agree with the sentence of censure imposed by the P.D.S.P. Poonch and awarded the sentence of termination of service of the appellant vide his order dated 24-8-2000. The appellant being aggrieved by the aforesaid order filed an appeal before the Service Tribunal which was also dismissed.
10. It is pertinent to note that the appellant was punished by the officiating SP, whereas the competent Authority to punish the Head Constable was SP, in accordance with the Azad Kashmir Police Disciplinary Rules, 1992, as shown in Column No.2 of the punishment table. The contention of Raja Ibrar Hussain, the learned counsel for the respondents, that the officiating SP includes the SP is devoid of any legal force and has no merits to be taken into consideration. In the explanatory note of Amirullah's book at page 648 in column (iii) the definition of `SP' has been mentioned which is as under:-- "(iii) SP includes all police officers of equivalent rank/grade whether known by the designation of SSP, Additional SP or otherwise."
11. Since the officiating SP was virtually an ASP, therefore, he was not competent to impose the punishment of termination of service upon the appellant. Another important factor which requires resolution is that the punishment of termination from service is a major punishment but at the time of awarding the said punishment, the appellant was never heard by the officiating SP Poonch.
Before awarding major punishment of removal from service to the appellant, it was enjoined upon the officiating SP to give a show-cause notice to the appellant in order to hear his point of view but by not doing so, the principle of Audi Alteram Partem was violated, which is presumed to be in every statute unless the same is clearly excluded by the statute itself. The objection of the learned counsel for the respondents, Raja Ibrar Hussain, is that the appellant did not raise a plea before the Service Tribunal that the allegation against him was of different nature but the punishment was awarded to him in some other allegation, as such, the same could not have been done by the officiating SP. The view point of Raja Ibrar Hussain, the learned counsel of the respondents, seems to be correct that the appellant has failed to take this plea in his pleadings before the Service Tribunal but the fact remains that the appellant challenged the jurisdictional competence of the Authority who terminated him from service. If the very jurisdiction of the terminating authority is E held to be without any lawful authority, the other points become immaterial.
F ' In the light of what has been stated above, we allowed this appeal by setting aside the impugned judgment passed by the Service Tribunal on 18-8-2001. In the circumstances of the case, we pass no order as to costs.