1. ' SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-This service appeal under section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975 (hereinafter referred to as the Act) is directed against the order dated 28th October, 1978 and order dated 30th June, 1979 of the respondent Government whereby by the former the appellant was awarded the penalty of stoppage of his one annual increment in a disciplinary proceedings taken against him and by the latter his review petition against the order imposing penalty was rejected.
2. ' Briefly stated, the facts leading to the filing of the present appeal are that the appellant is a permanent employee of the Education Department of the Government in the cadre of Headmaster whose service were lent on deputation to the Board of Intermediate and Secondary Education Mirpur (hereinafter to be called as Board) to serve there in the capacity of Controller of Examinations, After his reversion to his parent department and while posted as Headmaster Government Pilot High School Mirpur, disciplinary action was initiated against him for committing certain irregularities during the tenure of his office in the Board on the basis of the report submitted by the Commission of Enquiry set up by the Government and headed by Raja Muhammad Khurshid Khan the then Judge of Supreme Court to examine the affairs of the Board and accordingly a show-cause notice was served upon him enlisting the following charges :- "(1) That during your tenure as Controller Examinations Board of Intermediate and Secondary Education Mirpur alteration and amendment in the result sheets of the candidates/students were made and BOGUS certificates were issued presumably with your complicity.
(2) That you being Controller did not keep keen and close supervision of the staff specially in the secrecy office at the time of typing and cyclostyling the question papers which resulted into leakage-of these question papers."
3. ' In compliance with the direction contained in the show-cause notice the appellant submitted his reply to the charges and also availed of the opportunity of personal hearing before the Government. The Government-respondent after taking into consideration the report of the said Commission, and the reply of the appellant to the show-cause notice found him guilty of misconduct and accordingly imposed upon him the penalty of stoppage of one annual increment under rule 4 (1) (ii) of the Azad Jammu (St Kashmir Civil Servant (Efficiency and Discipline) Rules, 1977 (hereinafter referred to as Efficiency and Discipline Rules,) vide its order dated 28th October, 1978. The appellant filed a petition for review against the said order but the same was rejected vide Government Order dated 30th June, 1979. Feeling aggrieved by the above-stated orders of the respondent, the appellant has now approached this Tribunal for the redress of his grievances arising out of them.
4. ' The appellant in his memorandum of appeal has assailed the impunged orders on the following grounds :- ' That the Efficiency and Discipline rules were not applicable to the appellant as the Board being an autonomous body is governed by its own special rules and regulations in disciplinary matters.
(2) That charges levelled against him were not covered by the definition of 'misconduct' as given in the Efficiency and Discipline rules.
(3) That rule 6 of the Efficiency and Discipline rules under which the disciplinary proceedings were initiated against the appellant has been declared null and void by the High Court by reason of being violative of the provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
(4) That the appellant was not provided with the opportunity of beingTheard by the respondent before deciding bis review petition against the order imposing penalty of stoppage of one annual increment upon him.
(5) That according to the rules of the Board, the Controller of Examinations has nothing to do with the issuance of any type of certificate or result sheets of the candidates and has no power to control or supervise the working of the secrecy office which is directly controlled by the Chairman of the Board.
5. ' The respondent has contested the appeal and a written statement has been filed on his behalf in which it is averred that the appeal does not he before the Service Tribunal. It was further alleged that the show-cause notice was issued by a duly authorised officer under the orders of the competent authority and that the impugned order was perfectly lawful having been issued after giving a personal hearing to the appellant by the Chief Executive of the Government. It is also contended that the appellant being permanent employee of the Government was subject to the Efficiency and Discipline rules and that he was responsible for the conduct of the Examinations of the Board and maintenance of secrecy in his capacity as Controller of Examinations.
6. ' We have heard the learned counsel for the parties and have also perused the relevant record. The counsel for the respondent has raised a preliminary objection in regard to the maintainability of the present appeal before the Service Tribunal. In this connection, it is contended by him that the present appeal does not lie before this Tribunal as the same is barred by the provision b(ii) to section 4 of the Act. This contention of the learned counsel for the respondent has much force in it.
7. In order to appreciate the above contention it would be advantageous to reproduce the relevant portion of the said section of the Act. It reads :- "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 matter may, within 30 days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, refer an appeal to the Tribunal : ' Provided that- (a)
(b) the appeal shall not lie to the Tribunal against an order or decision of a departmental authority determining.
(ii) the quantum of departmental punishment or penalty imposed on civil servant as a result of a departmental enquiry except where the penalty imposed is dismissal, removal, reduction in rank or compulsory retirement from service."
8. From the perusal of the provision of the law reproduced above it becomes quite clear that the aggrieved civil servant has been given the right of appeal before Service Tribunal against an order of the competent authority made in disciplinary proceedings against him only where such an order imposes upon him the penalty either of dismissal, removal, reduction in rank or compulsory retirement from service and he is debared from seeking any remedy before the Service Tribunal against an T order awarding departmental penalty on him other than any of the' enumerated above.
9. ' This Tribunal being a creature of a statute is legally bound to exercise its jurisdiction and perform its functions within the for corners of the Act and it would be travelling beyond the scope of its jurisdiction if it entertains and decides a matter which is specifically excluded from its purview by a provision made in an Act to which it owe its very existence. In view of this legal position the present appeal I 13 maintainable before the Service Tribunal as the same has been lodged against an order under which the competent authority has inflicted th punishment of stoppage of one annual increment on the appellant con sequent upon the departmental enquiry against him.
10. ' We have already repeatedly taken the view in a number of cases that an order of departmental authority imposing penalty upon the civil servant short of dismissal, removal, reduction in rank or compulsory retirement from service cannot be made the subject of appeal before the Service Tribunal as such an order is specifically taken out of the ambit of its jurisdiction by a provision contained in proviso 'b' 00 to section 4 of the Act. In this respect mention of a few cases decided by this Tribunal such as reported in 1980 PLC 564 and 1979 PLC 111 may be made.
11. ' As this appeal is held to be barred on a point of law discussed above it is not necessary to go into the facts and merits of the case and accordingly the same is dismissed with no order as to costs.