1. This is a service appeal filed by Kh. Saddar-ud-Din appellant against an order dated 3-12-68 passed by respondent No. 2 whereby the services of the appellant were terminated in consequence of his absence from duty without leave. The brief facts which culminated in this appeal second time before this Tribunal are briefly stated below: Mr. Saddar-ud-Din, the appellant, was senior Dispenser in the Health Department who had put in about fifteen years service in this Department on 4-8-1968. The appellant proceeded on nine months furlough leave combined with privilege leave on account of his family affairs. On the request of appellant respondent No. 2, as Head of Department, vide order dated 23-10-64 permitted the appellant to do private business during the period of his leave. On 24-2-65 one year leave without pay was granted to the appellant in continuation of his previous leave. Two years more leave was again granted by respondent No., 2 upto 26-2-68. On 26-2-68 the appellant submitted another application for further extension of the leave which was recommended by District Medical Officer, Muzaffarabad and forwarded for sanction to respondent No. 2 under his No. 917/D. M. O. Dated 25-3-68. The respondent No. 2 instead of sanctioning leave applied for, issued a letter dated 25-4-68 requiring the appellant to join his duty immediately on receipt of this letter.
2. The appellant submitted a represen--tation to respondent No. 2 on 7-5-68 explaining his difficulties in rejoining and requested him to reconsider his order and to grant extension by one year. The appellant received another notice from the District Medical Officer dated 29-8-68 requiring him to resume his duties on which he represented the matter to the Senior Secretary and requested for the grant of two years leave without pay: The matter of grant of leave was still pending decision when by the impugned order dated 31-12-68 the respondent No. 2 terminated the services of the appellant on the grounds that be was absent without leave and was also engaged in private business without permission of the appropriate authority.
3. Feeling aggrieved by this impugned order the appellant invoked the writ jurisdiction of the High Court for his redress and filed a writ petition. The High Court heard and finally disposed of his service writ petition and dismissed the same vide its judgment dated 29-5-75 holding that the writ had abated by virtue of establishment of Service Tribunal as under the Service Tribunal Act, 1975 the Service Tribunal only had the exclusive jurisdiction with regard to matters relating to the terms and conditions of service and the jurisdiction of High Court had been taken away. In consequence of this decision of the High Court the appellant filed an appeal before the Service Tribunal which was by then established under the Service Tribunal Act. A preliminary objection was raised before the Tribunal that the appeal was not tenable by the Service Tribunal as the impugned order was made before 1st of July, 1969 and proviso `C' to section 4 of Azad J & K Service Tribunal Act 1975 clearly and expressly laid down that no appeal would lie to a Tribunal against an order/decision of a Departmental authority made at any time before 1st July 1969. This objection found favour with the Tribunal. And consequently the appeal was dismissed on 9-8-76 as the Tribunal held that under section 4(c) of the Service Tribunal Act, 1975 the Tribunal had no jurisdiction to entertain an appeal against a departmental order which was passed before the 1st day of July, 1969.
4. Having failed to seek any redress at the hands of the Service Tribunal the appellant preferred a second writ petition before the High Court challenging the correctness and legality of aforesaid impugned order dated 3-12-68 passed by the departmental authority. The High Court vide its judgment dated 18-10-78 dismissed the writ petition holding that the second writ petition was misconceived and untenable as in its view the principle of res judicata was applicable to writ proceedings as well and a second writ petition on the same facts and grounds could not legally lie.
5. The appellant having second time failed in the High Court again filed the present appeal before this Tribunal calling in question the same impugned order. The Chairman of the Tribunal made over this appeal to me as Member of the Tribunal for preliminary hearing.
6. I have heard the learned counsel for the appellant and have also perused the record. A preliminary question was posed to the learned counsel for the appellant as to how this second appeal before this Tribunal on the same facts and grounds was competent when this Tribunal had already heard the appeal and given a finding that the impugned order was not appealable before this Tribunal as proviso (c) to section 4 of the Service Tribunal Act, 1975 clearly placed a bar on the jurisdiction of this Tribunal to entertain any appeal against a departmental order passed before 1st July 1969 and that why the principle of res judicata, the importance of which can never be under-estimated, should not apply and stand as bar 2n the way of the appellant to knock the door of this Tribunal second time in appeal on the same facts.
7. Mr. B. A. Farooqi, the learned counsel for the appellant argued that under section 3 of the Service Tribunal Act, 1975 the Tribunal has sole juris--diction in respect of matters relating to the terms and conditions of service of a civil servant to the exclusion of all civil Courts and the present appeal was filed under proviso to section 8 read with section 3 of the said Act which provides a remedy of appeal to aggrieved civil servant against an order of departmental authority passed before 1st July, 1969 and that the appellant had originally filed a writ petition in the High Court which was held to have abated under section 8 of the Act. According to the learned counsel for the appellant proviso (c) to section 4 of the Service Tribunal Act was not applicable to the appeal in hand and the jurisdiction of the Tribunal was in no way ousted as unlike section 3 of the said Act section 4 did not lay down or fix the jurisdiction of the Tribunal and rather it only conferred the right of appeal upon a civil servant subject to certain conditions.
8. As regards the objection of bar under the principle of res judicata Mr. B. A. Farooqi, contended that the said principle does not hold good in the case of present appeal as the High Court vide its judgment dated 18-10-78 on the second writ petition of the appellant has held that the view of the Service Tribunal that it has no jurisdiction in the matter of this appeal was incorrect and that only that' Service Tribunal was legally competent to hear appeal against an order or decision passed or made before 1st July, 1969 and a suit or an appeal against such order pending in any civil Court had abated by operation of law.
9. I have given thorough consideration to the arguments advanced by the contention counsel for the appellant but feel constrained to disagree with his contentions.
10. In order to ascertain whether the appellant could legally file this appeal before the Service Tribunal and whether the Service Tribunal has jurisdic--tion under law to entertain and hear this appeal the relevant provisions of the Azad Jammu and Kashmir Service Tribunal Act, 1975 which confer jurisdiction upon the Service Tribunal to hear appeals and also vest, right of appeal in an aggrieved civil servant with respect to terms and conditionsof his service need to be dealt with and discussed thoroughly so as to arrive at a correct conclusion. The Service Tribunal Act, 1975 was enacted with a view to providing remedy to an aggrieved civil servant in matters relating to terms and conditions of his service including disciplinary matters. Section 3 of the Act confers exclusive jurisdiction upon the Service Tribunal with regard to matters relating to terms and conditions of service of civil servant to the exclusion of all other Courts as would be seen from the wording of this section which is reproduced below :- Section 3. Tribunals.-(1) There shall be one or more Tribunals, each consisting of a Chairman and one or two Members possessing the qualification hereinafter provided to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service including disciplinary matters"
11. The above-quoted section 3 is followed by section 4 which confers a right of appeal upon a civil servant in respect of such matters of service of a civil servant over which section 3 of the Act empowers the Service Tribunal to exercise exclusive jurisdiction to hear the same but this right of appeal of the civil servant is curtailed and made subject to certain limitations which are enumerated in provisos (a), (b) and (c) to section 4 of the Act. To facilitate the understanding of the provisos to section 4 of the Act the same is reproduced below as a whole.
12. Section 4.-Appeals to Tribunals.-Any civil Servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matters may, within thirty days of the com--munication of such order to him or within six months of the establish--ment of the appropriate Tribunal, which ever is later, prefer an appeal to the Tribunal: Provided that:
(a) Where an appeal, review or representation to a depart--mental authority is provided under any law, regulations or rules for the time being in force, no appeal shall lie to a Tribunal unless the aggrieved civil servant had preferred an appeal or application for review or representation to such departmental authority and period of ninety days has elapsed from the date on which such appeal, application or representation was to be preferred.
(b) No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining:-
(i) The fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade, or
(ii) The quantum of departmental punishment or penalty imposed on civil servant as a result of a departmental inquiry except where the penalty imposed is dismissal, removal, reduction in rank or compulsory retire--ment from service; and
(c) No appeal shall lie to a Tribunal against an order or decision of departmental authority made at any time before the 1st July 1969.
13. Explanation. In this section, `departmental authority' means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants.
14. Thus reading together both the sections 3 and 4 of the Service Tribunals Act, 1975 it becomes abundantly clear that, when judged from the point of jurisdiction of the Service Tribunal, these sections are not independent of each other but interconnected and inseparable. It would be an anomaly to think that section 4 of the Act only confers a right of appeal and prescribes a period of limitation for filing the appeal under the Act and has -got nothing to do with the matter of jurisdiction of the Service Tribunal. Had the provisos (at, (b) and (c) not been incorporated in section 4 of the Act then it was correct to say that this section is only a procedural on and prescribes mode of appeal and limitation therefor but when read with provisos appended thereto then it becomes amply clear and leaves no room for doubt that an appellant is certainly debarred from filing an appeal in the circumstances mentioned in these provisos. 1n other words it plainly means that Service Tribunal is not competent to hear the appeals if it is covered by these provisos to section 4 of the Act. If the Tribunal is rendered incompetent to entertain and hear such appeals under provisos to section 4 that by itself reflects upon the jurisdiction of the Tribunal and takes away its jurisdiction in such matters as are enumerated in these provisos. Thus to think and to interpret otherwise that on the one hand under section 4 of the Act an aggrieved person is debarred from bringing an appeal to the Service Tribunal under certain given conditions and, on the other hand that these conditions do not affect the jurisdiction of the Service Tribunal vested in it under section 3 of the Act would be a contradiction in terms. To construe or hold that provisos (a),
(b) and (c) to section 4 do not control the general jurisdiction of the Tribunal or that section 3 of the Act is not subject to provisos to section 4 would lead to anamolous results which the Legislature can never be imagined to have meant at all. After the above discussion I am fully convinced that for purposes of determining the jurisdiction of the Service Tribunal under the Service Tribunal Act, 1975 one has to read sections 3 and 4 of the Act conjunctively and not separately or independent of each other.
15. Now remains the interpretation of another connected section, that is, section 8 of the Act which also vests a right of appeal upon an aggrieved party under certain special circumstances as laid down in it. For the sake of convenience section 8 of Act is reproduced below verbatim.
16. Section 8. Abatement of suits and other proceedings.-All suits, appeals and applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the establishment of the Appropriate Tribunal shall abate on the establishment of such Tribunal: Provided that any party to such a suit, appeal or application may, within ninety days of establishment of the appropriate Tribunal prefer an appeal to it in respect of any such matter which is in issue in such suit, appeal or application.
17. From the close perusal of the wording of this section it becomes evident that the law-makers were fully and sufficiently conscious of the fact that after the enforcement of the Service Tribunal Act, 1975 two classes of cases pertaining to the terms and conditions of service of civil servants would arise, that is, one class of such civil servants who would be aggrieved by the final order or decision whether original or appellate, of the Depart--mental authority passed or made after the promulgation of the Service Tribunal Act, 1975 and the other class of such cases that had already arisen from such orders or decisions prior to the promulgation and enforcement of the Service Tribunal Act, 1975. Out of this second class of cases the Legislature, in its wisdom "thought expedient to classify these cases further in two categories" namely, cases relating to period prior to 1st July, 1969, and cases pending in any civil Court pertaining to the period commencing from 1st July, 1969 upto the date of establishment of Service Tribunal under the Constitution and the Service Tribunal Act, 1975. In order to make legal provisions to meet all the above-mentioned classes of cases sections 3, 4 and 8 were incorporated in the Service Tribunal Act and for the class of cases which could relate to the period prior to 1st July 1969 it was specifically and categorically provided in proviso `c' to section 4 of the Act that no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before 1st July 1969. This candidly shows that cases before 1st July 1969 were once for all extinguished so for the jurisdiction of the Service Tribunal was concerned and were explicitly taken out of its jurisdiction. Then remained the class of cases which could relate to a period extending from 1st July 1969 up to the date of establishment of the Service Tribunal and pending in any civil Court of original o appellate jurisdiction. To give relief to this class of cases section 8 was incorporated which provides procedure as well as remedy to the aggrieve persons. On the one hand section 8 lays down that all suits, appeals an applications pending in any Court immediately before the establishment of the appropriate Tribunal shall abate on the establishment of such Tribunal with relief that any party to such proceedings may prefer appeal to such appropriate Tribunal within ninety days of its establishment in respect of a matte which is in issue in such suit, appeal or application but while making a legal provision for such like case the Legislature again very wisely, con--sciously and meaningfully used the words "within the jurisdiction of a Tribunal" in section 8 so as to bring about uniformity and consistence in sections 3, 4 and 8 of the Act meaning thereby that only such proceed--ings would abate under section 8 of the Act which have already been brought under scope and ambit of the Service Tribunal under section 3 read with section 4 of the Act and no suit or appeal shall abate in which the matter in issue is not within the jurisdiction of the Service Tribunal as fixed under sections 3 and 4 combined.
18. As a reasonable and uniform conclusion of all these provisions it becomes abundantly clear chat jurisdiction of the Service Tribunal in respect of cases relating to period prior to 1st July 1969 is undoubtedly ousted under proviso (c). To section 4 of the Act and a matter which is not within' the jurisdiction of the Service Tribunal a contemplated by section 8 of the Act shall not abate on the establishment o the Service Tribunal if the same is pending in any civil Court and such civil Court shall perfectly be within its legal jurisdiction to continue its proceeding to its final legal and logical conclusion. To hold otherwise in such given cir--cumstances would amount and lead to an absurdity as it would mean to confer two inconsistent jurisdictions at the same time on both Service Tribunal as well as on a civil Court. How can it possibly be interpreted that under proviso (c) to section 4 the Service Tribunal is debarred from taking cognizance of 3 service matter relating to a period prior to 1st July 1969 but the same matter can be agitated before it under section 8 of the Act and the Service Tribunal can exercise its jurisdiction to hear and decide the same. Similarly the vice versa would come true about the civil Court as well which would be quite unreasonable and a wrong interpretation of law.
19. My these views are fully supported by various authorities of superior Courts out of which (i) PLD 1974 SC 291, (ii) 1976 PLC (C. S. T.) 16, (iii) PLD 1976 Quetta 59, and (iv) PLD 1978 Kar. 1 are referred to and relied upon. A minute study of these authorities leads one to an irresistible and unrebuttable conclusion that sections 3, 4 and 8 of the Act must be read together in order to determine the ambit of exclusive jurisdiction of the Service Tribunal in respect of matters relating to the terms and conditions of service of a civil servant under the Azad Jammu & Kashmir Service Tribunal Act, 1975 and that the exclusive jurisdiction of the Tribunal under section 3 and the right of appeal of an aggrieved civil servant under sections 4 and 8 of the Act are undoubtedly subject to and controlled b the exceptions mentioned in provisos (b) and (c) to section 4 of the Act an consequently neither the civil servant has got any right of appeal nor the Service Tribunal is competent to exercise jurisdiction in matters which are hit by the mischief of these provisions.
20. As a result of the above discussion I have no hesitation in my mind to hold that under proviso (c) to section 4 of the Service Tribunal Act, 1975 the present appeal is absolutely incompetent and untenable by the Service Tribunal and that appellant too is debarred from filing this appeal in the Tribunal.
21. If by any stretch of imagination or argument it be for a while assumed that the present appeal in the Service Tribunal is legally competent yet the same is hit by a well-founded principle of res judicata under section 11 of the Civil Procedure Code because the appellant after dismissal of his first writ petition in the High Court had filed an appeal in the Service Tribunal and the same was rightly dismissed by the Service Tribunal vide its judgment dated 9-8-76 holding that the appellant had no right of appeal and the Service Tribunal also had no jurisdiction to entertain the same as the impugned order was passed before the 1st July 1969 and was covered by proviso (c) to section 4 of the Service Tribunal Act. As such so far as the Service Tribunal was concerned the matter was finally and conclusively determined by the Tribunal and the appellant if feeling aggrieved by this decision of the Tribunal was left with a remedy of appeal to the Supreme Court of Azad Jammu & Kashmir under subsection (3) of section 47 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. The proper course for the appellant was to file an appeal against this judgment but instead of following the right path of lodging an appeal under law before the Supreme Court the appellant chose to go in a second writ in the High Court. To the bad luck of the appellant his second writ petition also met the same fate of dismissal as his previous writ except that the High Court made a remark in its judgment that the view of the Service Tribunal that it had no jurisdiction to entertain the appeal of the appellant against the impugned order was erroneous. However, the High Court very rightly pointed out that the remedy available to the appellant against the decisions of ether of the Service Tribunal or High Court was to go in appeal in the Supreme Court. The appellant did not still feel advised to tread upon the right course by filing an appeal in the Supreme Court against the judgment of the High Court or that of Service Tribunal but thought fit to rely on the remarks of the High Court that the view of the Service Tribunal that it lacked the jurisdic--tion in the case of appeal of the appellant was erroneous in law an thus filed the present appeal in this Tribunal second time. Without making any comments upon the correctness or otherwise of the above- mentioned remarks of the High Court it would suffice to say that the Service Tribunal is in no way subordinate to High Court for purposes of appeal against its decision and under law only the Supreme Court is competent to entertain and hear an appeal against the judgment of Service Tribunal and give finding whether any view or decision of the Service Tribunal is good or bad in law.
22. At any rate the appellant has to thank his stars for the protrac--tion of his case and for being shuttled or tossed from one Court to an--other over and again and one can simply sympathies with such a situation as the law is supreme and it must have its course. The net result of all this discussion is that the appeal is hit and covered by proviso (c) to section 4 of the Act and also by section 11 of Civil Procedure Code as discussed in detail above and consequently the same is dismissed in limine.