' CHAUDHARY MUHAMMAD TAJ, J.---This appeal, by leave, is directed against the judgment passed by the Service Tribunal of Azad Jammu and Kashmir on 1-8-2001 whereby the appeal filed by the respondent was accepted.
2. The facts, as disclosed, are that the respondent was inducted in the service as Assistant Engineer (B-17) on 11-1-1975. He was dismissed from service on certain charges vide Government order dated 11-10-1979. He preferred an appeal before the Service Tribunal and subsequently took the matter to this Court where finally it was concluded that the respondent shall be reinstated and a fresh inquiry was to be conducted. It was also held that the payment of salary to the appellant for the period he remained out of service shall be decided by the competent authority after fresh inquiry. The competent authority initiated fresh inquiry. The respondent was awarded punishment of stoppage of one year's increment and promotion for remaining absent from 1-3-1978 to 11-10- 1979. The aforesaid period was also declared as leave without pay. This order was assailed before the Prime Minister through an appeal which was partly accepted. The order of stoppage of increment and promotion was set aside and the punishment of 'censure' was awarded through an order passed on 31-10-1991. However, the order of treating the period from 1-3-1978 to 11-10-1979 as leave without pay was maintained.
3. The respondent through was reinstated but the matter of his emoluments from 12-10-1979 to 8- 2-1989 remained pending. The respondent filed a complaint before the Ombudsman which was accepted and a direction was issued that the respondent be made payment of emoluments of the aforesaid period. The appellants through a subsequent order held the aforesaid period as leave without pay. The respondent filed an appeal before the Prime Minister which was not decided hence he filed an appeal before the Service Tribunal which was accepted vide impugned order.
This appeal challenges the aforesaid order.
4. Mr. Abdul Rashid Abbasi, the learned counsel for the appellants, raised following points in support of the appeal:--
(i) That the appeal filed on behalf of the respondent was incompetent because the competent authority which withheld the pay of the respondent was not impleaded as a party. It was explained that the Prime Minister of Azad Jammu and Kashmir had passed the aforesaid order in his capacity as "Authority" he should have been impleaded as a party; .(ii) that during the period falling between 12-10-1979 to 8-2-1989 the respondent did not discharge any duty because the inquiry was in progress and he was found guilty of misconduct for absenting himself from duty, thus, the respondent was not entitled to get the emoluments for the period during which he 'did not perform any duty;
(iii) that the Service Tribunal has failed to appreciate that under rules the mater regarding pay etc., for certain period lies which the competence of the Authority; and
(iv) that the Ombudsman had no lawful competence to pass any order in respect of the matter in hand as such the Service Tribunal could not rely upon the aforesaid order. The learned counsel referred to the following authorities in support of his assertions:--
(1) Rule 23 of Fundamental Rules.
(2) Muhammad Ajmal v. Superintendent of Police, City Division Lahore Range and 2 others 1983 PLC (C.S) 5.
(3) Ameer Ali Barq v. Secretary to Government of Pakistan, Establishment Division, Rawalpindi 1983 PLC (C.S.) 142.
(4) Mr. Shafi Khalique v. Government of Pakistan and another 1984 SCMR 939.
(5) Qader Ahmad v. Punjab Labour Appellate Tribunal Lahore and another PLD 1990 SC 787.
(6) Mst. Khurshid Naz v. Azad Kashmir Government and 5 others 1999 PLC (C.S.) 267.
5. Mr. Mujahid Hussain Naqvi, who appeared on behalf of the respondent, while controverting the arguments addressed on behalf of the appellants, argued in the following manner:--
(i) That after inquiry the respondent was acquitted of the charges levelled against him. The order of dismissal from service was set aside. However, the absence from service from 1-3-1978 to 11-10- 1979 was declared as leave without pay;
(ii) that the Prime Minister of Azad Jammu and Kashmir (the Authority) was not a necessary party in the proceedings in hand as such the point merits no consideration that the appeal was liable to be dismissed on the aforesaid ground;
(iii) that the authority (the Prime Minister of Azad Jammu and Kashmir) vide an order dated 23-11- 1995 against the order passed on 31-10-1991 set aside the punishment, of stoppage of promotion and an increment substituted by the punishment of "censure" while maintaining the order of treating the period from 1-3-1978 to 11-10-1979 as leave without pay. The aforesaid order was final and could not be reviewed under Appeal Rules, 1991. Any party aggrieved by the aforesaid order could file appeal before the Service Tribunal. The order of punishment was set aside and the respondent was reinstated, therefore, under no law the period commencing from 12-10-1979 to 8- 2-1989 could be treated as leave without pay through a subsequent order issued on 23-11-1995.
There was no lawful justification for the aforesaid action when the matter had already been resolved on 31-10-1999 and
(iv) that the Service Tribunal after careful consideration of the facts and law proceeded to pass the order which does not warrant any interference by this Court, therefore, the appeal is not maintainable. The learned counsel referred to the dates of orders of dismissal and the date of filing the writ petition in support of his assertions apart from the following authorities:--
(1) Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad PLD 1990 SC (AJ&K) 23.
(2) Azad Government and others v. Qamar-uz-Zaman Khan Niazi 1993 SCR 9.
(3) AJK Government and others v. Mujahid Hussain Naqvi 1996 SCR 305.
(4) Mujahid Hussain Naqvi v. Chief Secretary Azad Govt. Of the State of Jammu and Kashmir and 2 others 1996 PLC (C.S.) 770.
(5) Azad Government of the State of Jammu and Kashmir through Chief Secretary of Azad Government, Muzaffarabad v. Mujahid Hussain Naqvi and another PLJ 2001 SC (AJK) 50.
(6) Sardar Sabir Hussain Khan Abbasi v. Azad Government and another 2004 PLC (C.S.) 914.
6. We have heard the learned counsel for the parties and also gone through the record carefully.
The respondent was inducted in the service as Assistant Engineer in B-17 on the recommendation of Public Service Commission on 11-1-1975. He was dismissed from service on certain charges vide Government order dated 11-10-1979 against which he preferred an appeal before the Service Tribunal which was accepted and the order was set aside. The case was remanded to the Secretary Works to dispose of the matter after reply to the show-cause notice or to conduct a fresh inquiry. The respondent took the matter to this Court where the order passed by the Service Tribunal was maintained with the slight modification where the observation with regard to the inclusion of fresh charges in the inquiry report by the Service Tribunal were held to be, non-existent.
The competent authority initiated fresh inquiry and after the completion of inquiry the respondent was awarded punishment of stoppage of promotion and one year's increment. The absence from duty for the period between 1-3-1978 to 11-10-1979 was treated as leave without pay. The respondent preferred an appeal to the Prime Minister, the Authority, against the aforesaid punishment which was accepted and the respondent was awarded the punishment of 'censure' vide order dated 31-10-1991. The period falling between 1-3-1978 to 11-10-1979 treated as leave without pay remained intact. The respondent thereafter moved the departmental authorities for his emoluments of the period falling between 12-10-1979 to 9-2-1989 but the matter remained pending and after a long time the aforesaid period was also treated as leave without pay by the competent authority. The respondent moved Ombudsman who recommended that the respondent was entitled to emoluments for the aforesaid period but the Government did not accept the aforesaid recommendation, Consequently, the respondent filed an appeal before the Service Tribunal which was accepted to the extent that the respondent was entitled to the emoluments of the said period specially under the orders of the Ombudsman. The aforesaid order was challenged by the appellants.
7. The first question requiring resolution is whether the appeal filed by the respondent before the Service Tribunal without impleading the Authority as party in the proceedings was maintainable.
The learned counsel for the appellants laid a stress that the law by now is settled that in absence of a necessary party the appeal was not competent. The assertion was opposed by the other side that in such situation there was no legal necessity to implead the Prime Minister when the Government has already been arrayed as party in the proceedings. Reference in this regard may be made to a case reported as Azad Government of the State of Jammu and Kashmir through chief Secretary of Azad Government, Muzaffarabad and 2 others v. Mujahid Hussain Naqvi and 2 others (PLJ 2001 SC (AJK) 50 where divergent views were expressed by the Bench consisting of two learned Judges constituting the Bench. A contrary view was given by one member of the Bench while the other learned Judges expressed the view in favour of the proposition and we follow that view for the reasoning given therein. The difference recorded between the Judges could not finally be resolved for one or the other reasons. The relevant observations are reproduced:-- "20. It is true that the Court itself took notice of the fact that the competent authority in the case being Prime Minister, who was not impleaded as one of the respondents in, the writ petition and whether in that case the writ petition was liable to be dismissed. Thus the learned counsel for the parties were given notices to hear them on the said point. Mr. Abdul Rashid Abbasi, the learned counsel for the appellants, addressed his verbal arguments while Mr. Mujahid Hussain Naqvi, Respondent No.1, submitted his written arguments on the said point. In my view to personally implead the Prime Minister in the line of respondents was not essential, as necessary party is only one in whose absence no effective order or decree could have been passed. In presence of Government there was no necessity of impleading the Prime Minister as a party in the proceedings.
Therefore, even on this score, the writ petition filed by respondent before the High Court was not liable to be dismissed. Moreover, this objection was not raised by the appellants in their written statement nor this point was urged or argued before the High Court. Similarly, this point was neither raised in the concise statements of the appellants nor in the memorandum of appeal filed by appellants before this Court. In my considered view without impleading the Prime Minister in his personal capacity or in his executive capacity, an effective order could have been passed as the Government was already in the line of respondents.
21. The learned counsel for the appellants could not produce any authority in support of the proposition that if the Government is already impleaded as a party even then the impleadment of the Prime Minister in his capacity as such would be essential to effectually adjudicate upon the controversy in issue."
8. Now, the next question arises that the Prime Minister of Azad Jammu and Kashmir (the Authority) while hearing the appeal decided through an order passed on 31-10-1991 that the punishment of the respondent was substituted by the punishment of 'censure' along with maintaining the order of treating the period from 1-3-1978 to 11-10-1979 as leave without pay. The aforesaid order could not be reviewed subsequently by the authority as that was final in its form and there was hardly any occasion for passing the order on 23-11-1994 whereby the period from 12-10-1979 to 8-12-1989 was held as leave without pay, Reference may be made to a case reported as Mujahid Hussain Naqvi v.
Chief Secretary Azad Govt. Of the State of Jammu and Kashmir and 2 others 1996 PLC (C.S.) 770 where it was held as under:-- "10. The provisions of above referred Appeal Rules have not been brought to the notice of the Prime Minister while obtaining the order on 16-8-1994, on the basis of which it is argued that the order passed in review has been cancelled by the Prime Minister. The Prime Minister has also not been apprised that the orders passed on appeal, representation and review are final when passed by the authority himself and cannot be reopened in second review, appeal or representation in any manner by an authority whatsoever. It has also not been brought to the notice of the Prime Minister that his directions dated 22-2-1994; 25-6-1994; 13-7-1994; 27-8-1994 and 17-1-1995 directing the execution of the order dated 27-12-1993 have not been given effect. Assuming there being any power left with the Prime Minister to cancel or review his order passed on review, it was the responsibility of the Secretary, Services to apprise the Prime Minister of the true legal position enshrined under the Appeal Rules and to submit his own proposal on the directions obtained from time to time in the light of Appeal Rules instead of resorting to prevarication of different paras."
9. In view of the above state of facts and law, the appeal is found to have no substance in it which is dismissed. However, the other points raised by the parties in the appeal are not required to be resolved at this stage and are left to be decided at some other appropriate occasion.
Appeai dismissed accepted.