' M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petition has been directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby vires of suspension order of petitioner dated 15-10-2012 along with order of de novo inquiry dated 30-11-2012 have been challenged for having been issued without lawful authority.
2. Precise facts giving rise to the instant writ petition are that petitioner is a permanent employee of Accounts Department of Azad Jammu and Kashmir with spotless service of 25 years who was appointed as District Accounts Officer BPS-18, of District Mirpur, Azad Kashmir. It is claimed that petitioner being District Accounts Officer, Mirpur, was given additional charge of Accounts Officer Mirpur Development Authority vide order dated 7-2-2012. It is alleged that on the basis of false and fabricated charges respondents with mala fide intention and by misuse of power unlawfully suspended petitioner from his service under section 4 of the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000 vide impugned order dated 15-10-2012 and thereafter, pro-forma respondent No,7 was appointed to conduct formal inquiry vide even dated order. It is averred that respondent No,7 in compliance of the afore-stated illegal order issued charges and statement of allegations to petitioner vide order dated 1-11-2012. After inquiry proceedings, respondent No,7 exonerated petitioner from false and fabricated charges and recommended that he may be reinstated in service. It is further alleged that when respondents did not find favourable result of the preliminary inquiry, they in collusion with each other, in order to victimize petitioner, respondent No,2, appointed a new Inquiry Officer in order to hold de-novo inquiry vide order dated 30-11-2012. It is averred that respondent No,2 illegally in violation of relevant law while styling himself as competent authority appointed respondent No,5 as Inquiry Officer through order supra. It is further stated that under section 3 of the AJ&K Council Removal from Service (Special Powers) Act, 2000 Controller General Accounts of Azad Jammu and Kashmir was empowered to exercise the powers of competent authority. The petitioner has challenged vires of the above-mentioned orders through the instant writ petition.
3. A pre-admission notice was served upon the respondents for filing parawise comments vide order dated 22-12-2012 who despite service failed to do the needful.
4. Mr. Tahir Aziz Khan, Advocate, the learned counsel for petitioner through written arguments submitted that the impugned suspension order dated 15-10-2012 and de novo proceedings order dated 30-11-2012 were malicious and coram non judice, therefore, the same are liable to be quashed as such. The learned counsel further submitted that the concerned respondents issued the impugned orders against basic provisions of Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000. The learned counsel further submitted that although petitioner is a civil servant, however, as the impugned suspension order is not a final order on the basis of disciplinary proceedings, therefore, no remedy is available to petitioner except invoking writ jurisdiction. The learned counsel in support of his contentions referred to and relied upon the following case-law:---
(i) Ghulam Abbas Niazi v. Federation of Pakistan and others (PLD 2009 SC 866);
(ii) Syed Muhammad Ayyub v. The Government of West Pakistan (PLD 1957 (W. P.) Lah. 487);
(iii) Muhammad Iqbal v. Secretary, Ministry of Interior, Islamabad and 2 others (1993 PLC (C.S.)
1522); and
(iv) Muhammad Nawaz v. Secretary to the Government of the Punjab Agriculture Department, (1981 PLC (C.S.) 194).
5. After hearing the learned counsel for petitioner at great length, I have perused the contents of writ petition and examined the documents appended thereto minutely.
6. Admittedly petitioner is a civil servant performing his functions as District Accounts Officer BPS-18 who was assigned the work of Accounts Officer, Mirpur Development Authority, additionally till permanent posting of an officer in the said Development Authority, by the Accountant General of Azad Jammu and Kashmir vide office order dated 7-2-2012. The petitioner was suspended by Secretary-respondent, on the basis of charges pertaining to illegal payment of mobilization advance to the tune of Rs,300,901,727 to contractor by violating PEC rules and without checking the Admin approval of the project, plus verification of advance insurance guarantee and additional loss of Rs,4.00 million due to early encashment of investment of Rs,100.00 million with Habib Bank, Mirpur, during pendency of inquiry, vide impugned order dated 15-10-2012. It appears that pro- forma respondent No,7 was firstly appointed as Inquiry Officer to conduct preliminary inquiry vide even dated order 15-10-2012. It further reveals that in exercise of powers conferred by section 5 of the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000 Secretary- respondent appointed respondent No,5 as Inquiry Officer for de-novo proceedings vide order dated 30-11-2012. The petitioner by considering himself aggrieved from the above-mentioned orders challenged the same through the instant writ petition. The point that whether this Court has got jurisdiction to set aside the impugned orders in exercise of writ jurisdiction or the Service Tribunal alone has jurisdiction to adjudicate upon the matter? For the purpose of terms and conditions of civil servants while exercising powers as visualized under section 47 of the Azad Jammu and Kashmir Interim Constitution Act. 1974 administrative Tribunals have been established by the Azad Jammu and Kashmir Government and Council respectively. It will be useful to reproduce the above Section to emphasize the point:--- "Administrative Courts and Tribunals.--- (1) Notwithstanding anything herein before contained, the [Council in respect of matters to which its executive authority extends, and the Assembly in respect of matters to which the executive authority of the Government extends,] may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of:--
(a) matters relating to the terms and conditions of persons who are or have been in the service of [Azad Jammu and Kashmir including disciplinary matters];
(b) matters relating to claims arising from tortuous acts of [the Council or the] Government or any person in the service of [Azad Jammu and Kashmir] or of any local or other authority empowered by law to levy any tax or cess and any servant or such authority acting in the discharge of his duties as such servant; or
(c) natters relating to acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything herein before contained, where any administrative Court of Tribunal is established under subsection (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment.
(3) An appeal to the Supreme Court of Azad Jammu and Kashmir from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court of Azad Jammu and Kashmir being satisfied, that the case involves a substantial question of law of public importance, grants leave to appeal."
A bare reading of section 47 (2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 reveals that where any administrative Court or Tribunal is established under subsection (1), no other Court shall grant an injunction, make any order or entertain proceedings in respect of any matter to which the jurisdiction of such administrative Court or Tribunal extends. The terms and conditions of service of civil servants have been defined in Chapter-II of the Azad Jammu and Kashmir Civil Servants Act, 1976. Section 3 which is the first section in the Chapter lays down as follows:--- "The terms and conditions of service of civil servant shall be as provided in this Act and the rules."
7. One of the sections in Chapter-H is section 4 which relates to appointments while section 5 deals with probation. Sections 6, 7 and 8 are relating to confirmation, seniority and promotion. Section 9 deals with posting and transfer. Likewise sections 10, 1 , 12, 13 and 14 are relating to termination of service, reversion to a lower grade, retirement from service, employment after retirement and conduct of a civil servant. Another section namely section 15 deals with Efficiency and Discipline of a civil servant. As according to section 15 supra the efficiency and discipline of a civil servant are also included in the terms and conditions, therefore, I am of the considered view that impugned suspension order affects the terms and conditions of petitioner, hence, the same is amenable before the Service Tribunal. The point that whether a suspension order is covered in definition cf "final order" came under consideration before the apex Court of Pakistan in case titled Muhammad Sadiq Khokhar v. Engineer-in-Chief Pakistan Army, G.H.Q. And another, [1981 PLC (C.S.) 123]. It was held by their lordships as under:--- "Learned Advocate-on-Record further submitted that section 4 of the Service Tribunals Act, 1973 envisages an appeal against "final order" of the Tribunal and since no final order has so far been made in the fresh enquiry, therefore, the appeal before the Tribunal will be incompetent and the writ petition in the High Court under Article 199 of the Constitution would therefore lie.
' The argument, however, is devoid of substance. The petitioner feels aggrieved from the order of his suspension and insofar as it has taken effect it has attained finality. It is not disputed either that the petitioner's grievance is germane to the terms and conditions of service and a dispute with regard thereto falls within the exclusive jurisdiction of the Tribunal under clause (2) of Article 212 of the Constitution. Non obstante clause in Article 212(2) gives it overriding effect and consistently with the principle of harmonious interpretation of the Constitution the High Court rightly dismissed the writ petition moved by the petitioner for want of jurisdiction."
' The point was also consideration by the Federal Service Tribunal in case of Kh. Mehmood Ahmad v. Ministry of Education [1982 PLC (C.S.) 554]. At page 557 of the precedent case, it was held as follows:--- "10. After hearing both the sides, the correct position regarding the nature of suspension order becomes clear from the latest judgment of the Honourable Supreme Court in Civil Petition for Special Leave to Appeal No,951 of 1976 Muhammad Sadiq Khokhar v. Engineer-in-Chief G.H.Q. Their Lordships have observed as follows:--- If .... ' The petitioner feels aggrieved from the order of his suspension and in so far as it has taken effect, it has attained finality. It is not disputed either that the petitioner's grievance is germane to the terms and conditions of service and a dispute with regard thereto falls within the exclusive jurisdiction of the Tribunal under clause (2) of the Article 212 of the constitution..."
' We, therefore, hold that irrespective of any judgment issued by any Service Tribunal so far, the correct position in this respect is that after the issue of the above referred judgment of the Supreme Court, an order of suspension is a final order within the meaning of the Service Tribunal Act, and is appealable to the Service Tribunal."
8. The point with regard to "final order" in.a famous precedent of "scattered terms and conditions" was also considered by the Hon'ble Supreme Court of Azad Jammu and Kashmir in case titled The Accountant General and others v. Zaman Hussain Khan [1993 SCR 259]. At page 273 of the report, it was held by their lordships as follows:--- "I fully endorse the view that the explanation of 'departmental authority' in section 4 of the Service Tribunal Act refers to an authority competent to make an order in respect of any of the terms and conditions and does not have the effect of lying down the condition that the authority must be competent to pass the particular order from which the appeal has to be filed. The words "an order in respect of any terms and conditions" are words of liberal import and a restricted construction is not possible. It may be added that it is significant that the main section lays down that an appeal lies against a "final order" but in the explanation the reference is to "order" in contradistinction to "final order". This further clarifies that the law-maker never intended to lay down in the explanation that "final order" from which an appeal was to be filed should have been competently passed in order to qualify it to be appealable. Thus, the liberal interpretation of the term "departmental authority" would include any authority which can pass an order in respect of any terms and conditions.
9. The contention of the learned counsel for petitioner that the impugned suspension order dated 15-10-2012 was not a final order is misconceived which is hereby repelled. However, it is liable to be observed that in case of Muhammad Nawaz v. Secretary to the Government of the Punjab Agriculture Department reported in [1981 PLC (C.S.) 194] Lahore High Court and in case of Muhammad lqbal v. Secretary, Ministry of Interior, Islamabad and 2 others [1993 PLC (C.S.) 1522] Federal Service Tribunal, which were referred to and relied upon by the learned counsel for petitioner, it was held that suspension order is not a final order which view is inconsistent with the view of apex Courts, therefore, I respectfully follow the view laid down by the apex Court of Pakistan in Muhammad Sadiq Khokhar's case [1981 PLC (C.S.) 123].
10. The contention of the learned counsel for petitioner that the impugned orders are void which cannot be challenged before Service Tribunal is also devoid of force, therefore, the same is repelled. As already held that matter pertaining to suspension is included in terms and conditions of service of civil servants, therefore, the question relating to eligibility, mala fide and coram non judice can be decided by the Service Tribunal.
11. The crux of the above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed in limine. The learned counsel for petitioner has moved two applications one for constitution of larger bench and other for production of documents which are hereby rejected and consigned to record.