' RAJA SAEED AKRAM KHAN, J.--- The supra titled appeal, with the leave of the Court, has been filed to assail the judgment passed by the High Court on 5-10-1999, whereby the writ petition filed by respondent No,1, herein, is accepted.
2. The respondent was functioning as Secretary to the Government when disciplinary proceedings were initiated against him. According to the allegation he secured an order from the Prime Minister.
Subsequently, the respondent interpolated the order to read it as an order of promotion to B-21. He was proceeded against under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter to be referred as E&D Rules, 1977) and was dismissed from service on the ground that he had been found guilty of misconduct. The proceedings against the respondent were taken under sub-rules (3) and (4) of rule 6 of E&D Rules, 1977 wherein a short procedure for proceedings is provided and no Inquiry Officer is appointed. However, on a writ petition filed by the respondent, the High Court has reinstated him by holding that he was not guilty of misconduct. Azad Government of the State of Jammu and Kashmir, Chief Secretary to the Azad Government and Secretary Services and General Administration Department has filed this appeal with leave of the Court to challenge the order of the High Court. The respondent was also demoted as Information Officer by issuing successive orders before him termination of his services.
3. The facts forming the background of this appeal are that on 14th November, 1997 Chaudhry Bashir Hussain, a B-20 officer of the Management Group, was appointed as Senior Member Board of Revenue in B-21. The respondent presented a review petition before the Prime Minister of Azad Jammu and Kashmir. The Prime Minister of Azad Jammu and Kashmir on 2nd December 1997 passed an order which, according to the version of the Prime Minister, was as follows:--- {{URDU TEXT}}
4. According to the allegation the respondent, after getting the 2013] Azad Government of the State of Jammu and Kashmir v. 941 Mujahid Hussain Naqvi (Raja Saeed Akram Khan, J) signatures of the Prime Minister, changed the order through tampering to read it as follows:--- {{URDU TEXT}} ' After the alleged interpolation, the application was kept by the respondent with himself instead of transmitting it to the Chief Secretary to whom it was marked. He then filed a writ petition in the High Court in which he attached a copy of the order, as interpolated by him, and prayed that a writ of mandamus may be issued for implementing the said order about which he claimed that it was the order of his promotion to B-21. After three days from filing of writ petition, he moved ail application for stay order that the respondents in the writ petition may be restrained from cancelling the said order. The stay order was issued. In due course, the stay order issued by the High Court came to the knowledge of Chaudhry Bashir Hussain, Senior Member Board of Revenue; Chaudhry Bashir Hussain moved an application before the Prime Minister praying for recalling the order dated 2nd of December, 1997. The application bears the date of 19th January, 1998. In the application, Chaudhry Bashir Hussain stated that the order had been passed without hearing him and without calling any comments from the Services and General Administration Department. He also stated that according to the relevant rules Senior Member Board of Revenue could only be appointed from amongst officers of the Management Group. The Prime Minister passed the following order on this application on 19th January 1998 whereby the Chief Secretary was directed that after hearing the parties a report be submitted to him before 20-2-1998. The order reads as under:--- {{URDU TEXT}}
5. The order reproduced above is the basis on which the penalty of dismissal from service imposed on the respondent has been set aside by the High Court by accepting the writ petition filed by the respondent. The High Court has held that the Prime Minister did not mention in the order reproduced above that the order of promotion of the respondent dated 2nd December, 1997, which was allegedly tampered with, had not been passed by him. This has been taken by the High Court as proof of the fact that the Prime Minister had in fact passed the order of promotion of the respondent. The relevant portion of the judgment of the High Court is as follows:--- "From the perusal of this order, it becomes clear that the Prime Minister recalled his order dated December 2, 1997 mainly on the ground that it was passed by him without providing a right of hearing to Ch. Muhammad Bashir and without inviting comments from the Services Department and without the recommendation of the Selection Board. There is no mention in the order that order of promotion of the petitioner in B-21 was not passed by him. In the light of the order of Prime Minister dated January 19, 1998, referred to above, it becomes clear that order of promotion of the petitioner in B-21 was passed by the Prime Minister himself. There was, therefore, no justification for proceeding against the petitioner under the (Efficiency and Discipline) Rules, 1977 on this ground."
6. The respondent had been dismissed after being found guilty of forgery but the High Court has not specifically held anywhere in the judgment that the charge of forgery was false. However in the passage reproduced above the High Court has by necessary implication held so by holding that the order of promotion of the respondent was passed by the Prime Minister himself. This sentence implies that the order was genuine and had not been tampered with. The order of dismissal of the respondent, which was passed on 9th May, 1998, contains a recital that the charges of tampering etc. Had been proved in the proceedings conducted in light of Government Notification issued on 1 1 th March, 1998. By the said notification it was ordered that inquiry would be held against Mujahid Hussain Naqvi for misconduct under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 for, inter alia, tampering with the order of the Prime Minister. Necessary details of tampering were mentioned in the Notification. Therefore, the effect of the judgment of the High Court is that the finding of fact recorded during the proceedings that charges of tampering etc. Had been proved has been set aside vide impugned judgment.
7. Initially this case was heard by the Bench consisting of Mr. Justice Basharat Ahmad Shaikh and late Mr. Justice Muhammad Yunus Surakhvi (as their Lordships then were). A difference of opinion arose between the learned members of the Bench. Mr. Justice Basharat Ahmad Shaikh accepted the appeal while Mr, Justice Muhammad Yunus Surakhvi dismissed the same. In view of difference of opinion, the case was referred to third Judge for hearing and disposal. Late Mr. Justice Sardar Said Muhammad Khan, Chief Justice of Azad Jammu and Kashmir of the time, was only the third Judge available at the relevant time for hearing and disposal of the case but on objection raised by respondent No,1 by submitting an application, he did not hear the case and passed the following order:- "Despite the fact that the allegations made in the application are baseless, except that Sardar Muhammad Latif Khan, Secretary Works, is my brother, I decline to hear the appeal in view of the unfounded apprehensions entertained and allegations made by the applicant/ appellant.
Therefore, it is directed that the office shall prepare a list of those cases in which the appointment of an ad hoc Judge is necessitated due to the inability of the present Judges to hear the same so that the Government may be moved to appoint an ad hoc Judge for the hearing and disposal of the present appeal etc. As well as other appeals in which bench cannot be constituted."
8. Consequently, Mr. Justice Chaudhry Muhammad Taj was appointed as ad hoc Judge of this Court for the purpose of hearing this case as third Judge along with some other cases. The file was placed before Mr. Justice Chaudhry Muhammad Taj for hearing and disposal but once again respondent No,1 submitted an application that when his writ petition was pending in the High Court he consulted him as such the learned Judge should not hear his case. In view of this application, Mr. Justice Chaudhry Muhammad Taj passed an order on 14-3-2002, the relevant portion of, which is reproduced as under--- "The facts stated in the application moved by the applicant are not correct and are untrue. The applicant has made frivolous and baseless allegations. I have never solicited any advice in any matter to the said applicant. The application as it appears from the record has been moved to prolong the proceedings.
' Though the facts stated in the application are not correct and the allegations made are baseless as such the application is without any substance but for the reasons that he has moved the application though on unfounded, apprehensions and for the safer administration of justice, I should not hear these cases. Thus, I would not like to hear the cases where the applicant is either appellant/petitioner or respondent; placed before me for hearing and disposal. The matter may be, brought in the notice of the learned Chief Justice/Acting Chief Justice for further proceedings.
' Whether the applicant's conduct amounted to a contempt of Court and is also a misconduct on his behalf, the question shall be considered later on."
' The file was placed before the Acting Chief Justice of the time, Mr. Justice Muhammad Yunus Surakhvi (late), who passed the following order on 1-4-2002:--- "Mr. Mujahid Hussain Naqvi, the respondent, has moved another application on 26-3-2002 (Miscellaneous Application No,40 of 2002) stating therein that under section 42(13) proviso 1st of the AJ&K Interim Constitution Act, 1974, the judgment of the High Court may be declared to be the judgment of the Supreme Court.
' Before passing any order or giving notices to the parties for hearing them, it would be in the interest of justice that in the first instance the Miscellaneous Application No,40 of 2002, moved by Mr. Mujahid Hussain Naqvi on 26-3-2002, is decided and then to proceed with the other cases. Till the disposal of Miscellaneous Application No,40 of 2002 the files of above titled cases shall remain pending till further orders."
9. After the sad demise of Mr. Justice Muhammad Yunus Surakhvi, the Chief Justice of the time, an application was moved by some lawyers of Muzaffarabad in which it was alleged that Mr. Mujahid Hussain Naqvi, who is basically a civil servant, is avoiding hearing of his appeal by the third Judge as he has adopted the profession of advocacy. It was submitted that it will be in the interest of justice to decide his appeal one way or the other. This application was placed before the then Acting Chief Justice, Mr. Justice Khawaja Muhammad Saeed, who vide order dated 9-12-2004, after recording detailed reasons, passed an order, the concluding part of which is reproduced as under:- "Presently I and Mr. Justice Syed Manzoor Hussain Gillani cannot associate in the hearing of this case on account of reasons detailed hereinbefore. Mr. Justice Ch. Muhammad Taj, learned ad hoc Judge of this Court, has denied that he ever was consulted by the respondent or he ever tendered any advice to respondent when his appeal was pending before any Court. In these circumstances in my view the respondent is prolonging the decision of his appeal without any lawful justification.
The appeal along with the collateral petitions and miscellaneous application is entrusted for hearing and disposal to my learned colleague Mr. Justice Ch. Muhammad Taj, ad hoc Judge of this Court. The cases shall come up before my learned colleague for arguments on 20-1-2005. Notices to the learned counsel for the parties."
' The record shows that Mr. Justice Ch. Muhammad Taj heard arguments in the case on 18-5-2005 and kept the judgment reserved but perhaps before writing the judgment, the learned Judge was sent back to the High Court and the case remained pending.
10. The case remained pending for a considerable time and on the appointment of Mr. Justice Muhammad Reaz Akhtar Chaudhry as Chief Justice of Azad Jammu and Kashmir, respondent No,1 stressed for the disposal of a miscellaneous application which had been filed by him by taking the ground that under section 42(13)(c) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the judgment of the High Court dated 5-10-1999 may be deemed to be the judgment of the Supreme Court as at the time of difference of opinion, no other Judge was available to hear this appeal. After hearing the arguments of the parties on this application, Mr. Justice Muhammad Reaz Akhtar Chaudhry (as he then was) accepted the same vide order dated 14-9-2009 and ordered that the judgment of the High Court dated 5-10-1999 shall be deemed to be the judgment of the Supreme Court with effect from 1-8-2001, when Mr. Justice Sardar Said Muhammad Khan (late), the Chief Justice of Azad Jammu and Kashmir stated that all the available Judges were unable to hear the case. Against the said order dated 14-9-2009, a review petition was filed by the appellants, herein, which was accepted by the Full Bench of this Court vide order 9-5-2011 and the appeal was restored, Therefore, this appeal has been placed before this Bench for hearing and disposal.
11, Mr. Asghar Ali Malik, the learned counsel for the appellants, has argued that while setting aside the finding of fact recorded by the competent authority to the effect that the respondent had been guilty of forgery, the High Court has acted without jurisdiction. He contended that the High Court has no jurisdiction to decide the question of tampering and forgery in a writ petition. He further submitted that the High Court erred in setting aside the finding of forgery recorded by an administrative authority. The High Court also failed to take into consideration that it cannot substitute its opinion for the opinion of an administrative authority. The learned counsel for the appellants further argued that the High Court erred in law while disbelieving the Prime Minister who is the Chief Executive of the Government, a disinterested and independent person as there is not an iota of evidence to disprove the finding. He submitted that the High Court could have, if at all, in exercise of its supervisory jurisdiction, examined the fact whether the relevant procedure had been followed or not before recording the finding of guilt.
12. On the other hand, respondent No,1 has submitted written arguments stating therein that the written arguments previously submitted by him may be considered which are available on the record. The respondent has submitted that since he had ceased to be a civil servant, he could not at the relevant time approach the Service Tribunal and the High Court had the jurisdiction to entertain and decide the writ petition filed by him. He has further submitted that the appeal has been filed without the sanction of the Government. He has submitted that in the instant case the sanction was accorded by the Law Minister who had no jurisdiction to do so at the relevant time, therefore, the appeal 'filed by the Government is incompetent. The respondent has also submitted that no affidavit in support of facts, as required by the relevant provisions of the Azad Jammu and Kashmir Supreme Court Rules, 1978, has been filed by the appellants. The affidavit filed by the counsel for the appellants is not considerable because the counsel for the appellants was not acquainted with all the facts of the case. He further submitted that the appellants did not file any proper written statement before the High Court and the comments submitted by the Government which were requested to be treated as written statement by the counsel for the appellants were not accompanied by any documents mentioned therein. Therefore, the documents which were not filed before the High Court could not be filed along with memo. Of appeal before this Court. It is further submitted that in the instant case the High Court was the only forum which possessed proper jurisdictional competence to adjudicate upon the matter. It was submitted that the respondent, by repeated unlawful notifications of reductions/r6ersions to lower ranks and grades dated 26-3-1998, 27-3-1998, 30-3-1998 and 1-4-1998, was illegally dismissed from service vide notification dated 9-5-1998 as neither any charge sheet nor any show-cause notice was served under the provisions of the E&D Rules, 1977. The respondent was provided no opportunity of hearing; therefore, the aforesaid notifications were rightly set aside by the High Court. The respondent has referred to the cases titled Sardar Muhammad Ayub Khan v. Secretary S&GAD and 4 others 2000 YLR 2868, Chairman M.D.A. Mirpur and 4 others v. Muhammad Ajmal Qureshi and another 2001 PLC (C.S.) 127, Alain Din v. Mayor, Municipal Corporation, Mirpur and 4 others 2000 YLR 189, Muhammad Ajaib v. Public Service Commission and 3 others 1997 PLC (C.S.) 222, Aisha Hameed Qadri v.
Nomination Board and 6 others 1997 CLC 1713, Muhammad Arshad Khan v. Chairman MDA and 6 others 1997 MLD 3066, Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 3 others PLD 1994 SC (AJ&K) 13, Qurban Hussain v. Mst.
Bashir Begum and 6 others PLD 1987 SC (AJ&K). 109 and Azad Government and another v. Aftab Ahmed Cheema 2005 PLC (C.S.) 1253.
' In Sardar Ayub Khan's case [2000 YLR 2868], it has been held that the executive authority shall be exercised by the Government consisting of Prime Minister and Ministers.
' In the case titled Chairman M.D.A. Mirpur and 4 others v. Muhammad Ajmal Qureshi and another 2001 PLC (C. S.) 127, referred to by the respondent, it has been held that a civil servant who ceases to be a civil servant is no more entitled to go to the Service Tribunal for redress of his grievance. It may be observed that at the time of filing writ petition in the High Court, the respondent was demoted to the post of Information Officer, therefore, he was a civil servant at the relevant time.
This case is not helpful to the respondent.
' In Alam Din's case 2000 YLR 1891 and Qurban Hussain's case PLD 1987 SC (AJ&K) 109, it has been held that evasive denial may be taken to have been admitted the allegations made therein, whereas in the instant case the appellants have specifically denied the allegations levelled by the respondent.
' In Muhammad Ajaib's case [1997 PLC (C.S.) 222], referred to by the respondent, it was held that under rule 38 of the AJK High Court (Procedure) Rules, 1984 where it appears to the High Court that it is just, it may direct that question falling for determination in a writ petition may be proved by such other evidence and in such manner as the High Court may consider fit. This case has no nexus with the case in hand.
' In Aisha Hameed Qadri's case 1997 CLC 1713 relied upon by the respondent, it has been held that before granting interim relief no notice was issued by the High Court to the other party. The other party must have been heard before passing the order. In the instant case, notices were duly served, upon the respondent but he deliberately did not join the proceedings.
' In Muhammad Arshad Khan's case 1997 MLD 3066 it has rightly been held that an affidavit can only be acted upon if it has been sworn by a person who has personal knowledge. In this case the affidavit was rightly sworn in by the counsel for the appellants under the relevant provisions of the Azad Jammu and Kashmir Supreme Court Rules, 1978.
' In Muhammad Siddique Farooqi's case [PLD 1994 SC (AJ&K) 13], it has been held that the Prime Minister occupies an exalted office as an executive head but he alone is not 'Government' as stipulated under section 12 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. In the present case the Prime Minister has acted as an 'Authority' and not as 'Government', therefore, this case is not helpful to the respondent.
' In Aftab Ahmed Cheema's case 2005 PLC (C.S.) 1253 it was held that in presence of the Government, there was no necessity to implead the Prime Minister as party. In the case in hand since the Prime Minister had acted as 'Authority' and not as 'Government', therefore, he was a necessary party.
13. We have heard the learned counsel for the appellants, perused the written, arguments submitted by respondent No,1 as well as the judgment of the High Court. We propose to take up the argument of the respondent that since he had ceased to be a civil servant, he could not at the relevant time approach the Service Tribunal and the High Court had the jurisdiction to entertain and decide the writ petition filed by him. After initiating the disciplinary proceedings against the respondent, some administrative orders were also passed by the Government, whereby the respondent was demoted from the post of Secretary to Government as a Director General and ultimately as Information Officer B-16. All orders of demotion have been set aside by the High Court.
In the instant appeal, it has been contended by the appellants that the High Court had no jurisdiction to set aside the aforesaid orders of demotion of the respondent because it was the Service Tribunal which had the exclusive jurisdiction to deal with the matter. The orders of demotion of respondent from the post of Secretary to Government to the post of Director General was passed on 26-3-1998, from the post of Director General to the post of Director on 27-3-1998, from the post of Director to the post of Deputy Director on 30-3-1998 and finally from the post of Deputy Director to the post of Information Officer on 1-4-1998. The assertion of the respondent is that when the amendment was carried out on 28-2-1999, a civil servant could file an appeal before the Service Tribunal. The expression 'civil servant' has been defined in section 2 of the Azad Jammu and Kashmir Civil Servants Act, 1976 which reads as under:--- "2. Definitions.--- In this Act, unless there is anything repugnant in the subject or context; (a)
(b) 'Civil Servant' means a person who is appointed to any service or holds a civil post in the service of Azad Jammu and Kashmir, employed in connection with the affairs of the State, but does not include.-- (i)
(ii)
The final order of reversion of the respondent was passed on 1-4-1998 and he remained in service till 9-5-1998; the date when he was dismissed from service. He filed three appeals before the Service Tribunal to challenge the orders of his reversion, The appeals were pending before the Service Tribunal when he was dismissed from service. However, later on he withdrew the appeals and filed a consolidated writ petition to challenge all the orders, including the order of his dismissal from service. It is clear that cause of action arose to the respondent in respect of his reversion orders on four different dates, i,e,, 26-3-1998, 27-3-1998, 30-3-1998 and 1-4-1998. When these causes of action arose his appeals before the Service Tribunal were maintainable and it was only the Service Tribunal which had the jurisdiction to decide whether the reversion orders were validly passed or not. The respondent had filed appeal before the Service Tribunal which was the competent A forum. The dismissal of the respondent from service did not have the effect of taking away the jurisdiction from the Service Tribunal to decide the appeals. Therefore the respondent wrongly withdrew the appeal from the Service Tribunal. According to section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the High Court has no jurisdiction to entertain dispute over which the Service Tribunal has the exclusive jurisdiction. It was the duty of the High Court to first determine the question of its jurisdiction before passing the impugned judgmeit. In these circumstances the writ petition filed by the respondent in respect of his reversion orders was not maintainable. Therefore, it can safely be held that the High Court had no jurisdiction to entertain a writ petition in respect of the reversion orders passed against the respondent. We are fortified in our view in a case titled Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir etc. [PLD 1980 SC (AJ&K) 5] in which it has been observed as under:--- "16. Subsection (2) of section 47 ousts the jurisdiction of the High Court conferred on it by section 44 inasmuch as it opens with the words 'Notwithstanding anything hereinbefore contained' and proceeds to command that where any administrative Tribunal is established 'no other Court shall grant an injunction, make any order or entertain any ,proceeding in respect of any matter to which the jurisdiction of such Administrative Tribunal extends ' The term 'no other Court' whether the word 'Court' is written with capital 'C' or not will include the superior Courts, i,e, High Court and Supreme Court. Thus there can be little doubt that ouster of jurisdiction of the High Court in respect of 'a matter relating to the terms and conditions of the persons who are or have been in service of Azad Jammu and Kashmir including disciplinary matters is absolute. If the Legislature wanted not to bar the jurisdiction of the High Court and not to give exclusive jurisdiction to the Service Tribunal, nothing would have been easier to give expression to such an intention by express words in the Constitution Act itself. The High Court can claim no inherent jurisdiction to deal with the matters reserved by the Legislature to a specially appointed Tribunal. Since the intentions of Legislature and the law indicated by it are too clear to admit of any doubt whatsoever, it is the duty of this Court as also, of every other Court, to give effect to the same, without attempting to enquire into the reasons for the enactment, because it will become the judiciary and it would be in violation of the oath of the offices of the Judges, that the Court should strain to enter territory forbidden to them by law."
' Similarly in a case titled Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others [1997 SCMR 169] it was observed by the Supreme Court of Pakistan as under:--- "2. Clearly, the matters relating to the posting and transfer of a civil servant relate to the terms and conditions of his service, Disputes about these matters fall within the exclusive jurisdiction of the appropriate Service Tribunal. The jurisdiction of High Court is barred in these matters by the express provisions of Article 212(2) of the Constitution. We are therefore unable to support the interim order made by it in this case. Accordingly, we convert this petition into appeal and set aside the said order. The High Court should first determine the question of its jurisdiction before making any interim order in this case. This appeal is disposed of accordingly."
14. Now we advert to the next question that whether proper sanction was accorded by the Government or not for filing petition for leave to appeal/appeal before this Court. The respondent, in his written arguments, has submitted that the sanction for filing an appeal before this Court was granted by the Law Minister whereas under sections 29 and 39 of the Azad Jammu and Kashmir Law Department Manual, 1984, no suit/appeal can be filed without the sanction of the Government.
He has further submitted that the ministers of the cabinet had recommended that in the instant case no appeal should be filed before the Supreme Court. He placed reliance on a document placed on record of this Court which is available at page 141 of the paper book. This is a document signed by some ministers and Deputy Speaker of the Azad Jammu and Kashmir Legislative Assembly, whereby they have requested the Prime Minister that no appeal should be filed against the judgment of the High. Court by which respondent No,1 was reinstated in service.. This document contains two parts; one part is photostat copy containing signatures of seven ministers and the Deputy Speaker, whereas the other part contains the original signatures of nine ministers. It is apparent from the document that it was signed by all the, ministers and the Deputy Speaker on the same date, i,e, 26-11-1998. From the document it is not clear that the same was presented before the Prime Minister or not, even if it is presumed that the same was presented before the Prime Minister, it creates serious doubt in our mind that one side of the document is a photo copy whereas the other side is original. How can it be possible that the whole document was presented before he Prime Minister requesting him not to file the appeal before this Court. The Government order for filing a petition before this Court was issued on 11-11-1998, whereas the alleged document was signed on 26-11-1998, which also creates a doubt that the document is an afterthought on the part of the respondent which carries, no value in the eye of law. This Court is bound by the Government order by which it was directed that appeal may be filed against the respondent which was issued in accordance with the Rules of Business as it has been issued in the name of the President. Therefore, the argument of the respondent that no proper sanction was issued by the Government is of no help to the respondent which is hereby repelled.
15. The respondent, in his written arguments,- has also submitted that the documents which have been placed on the record of this Court were not appended with the written statement before the High Court, therefore, these documents cannot' be filed in this Court. The record shows that the High Court summoned the file from the Services and General Administration Department in which the disciplinary proceedings against the respondent were conducted. In the written statement it is specifically stated in almost every paragraph that the relevant documents were being attached with the written statement which were marked as Annexures 'A' to 'G', It appears that these documents are not available on the file of the High Court. It cannot be determined by us that whether the documents have been detached and stolen from the file of the High Court or 'they were not actually filed as both the possibilities are there. The record also reveals that the High Court summoned the relevant file in which the original documents were available. The respondent did not raise any objection when the file was requisitioned. Since the documents marked as annexures 'A' to 'G' were missing from the file of the High Court, therefore, to ascertain the correctness of the averments made in the written statement with regard to the aforesaid documents, the record was summoned and it was found that the averments made in the written statement are correct.. Therefore, the argument of the respondent that the documents were not filed before the High Court has no force and is hereby repelled.
16. Now we advert to the contention of the respondent that the affidavit in support of the contents of the memorandum of appeal sworn in by Mr. Abdur Rashid Abbasi, Advocate, is in his personal capacity. We are afraid we cannot agree with the contention of the respondent. Under Order XVII, rule 4 of the Azad Jammu and Kashmir Supreme Court Rules. 1978 it is clearly provided that the affidavit in support of the contents of memorandum of a petition/appeal shall be filed by the Advocate on record who is filing the petition/appeal. It would be appropriate to reproduce rule 4 of Order XVII of the Azad Jammu and Kashmir Supreme Court Rules, 1978, which reads as under:--- "A petition not relating to any appeal of which the record has been registered in the Registry, and any other petition containing allegations of fact which cannot be verified by reference to the registered record of any certificate, or duly authenticated statement of the Court appeal from, shall be supported by affidavit. Where the Petitioner prosecutes his petition in person, the said affidavit shall be sworn by the petitioner himself and shall state that, to the best of the deponent's knowledge, information and belief, the allegations contained in the petition are true. Where the petitioner is represented by an Advocate on record, the said affidavit may be sworn by such Advocate on record, and shall, besides stating that to the best of the deponent's knowledge information and belief the allegations contained in the petition are true, show how the deponent obtained his instruction and the information enabling him to present the petition." (underlining is ours)
' A glance reading of the above said rule reveals that the objection raised by the respondent has no force as the affidavit filed by the Advocate for the appellants has been filed in accordance with the aforesaid provision of the Azad Jammu and Kashmir Supreme Court Rules, 1978. The objection of the respondent that the affidavit was not sworn in before any of the authorities mentioned in rule 8 of Order VIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978 is also not helpful to him because the affidavit has been duly attested by the Notary Public as provided by the rules.
Therefore, the objections having no force are hereby repelled.
17. The respondent has also raised an objection that no counter affidavit has been filed by the appellants, herein in the High Court as well as in this Court. It may be stated that the High Court has not based its finding on the affidavit filed by the respondent. Even otherwise, this Court has never held that in absence of a counter affidavit, the uncontested affidavit must be believed. In fact the rule is that an uncontroverted affidavit has to be believed if there is no material to the contrary on the record, In the case in hand, the material, i,e,, written statement and the original file summoned from the Services and General Administration Department, was available before the High Court, therefore, the objection raised by the respondent that the affidavit was un-controverted, in the circumstances, has no force.
18. Now we advert to the crucial question, i,e,, whether the High Court has rightly set aside the finding of fact recorded by the Prime Minister being an administrative Authority. It is celebrated principle of law that finding of fact recorded by an administrative Authority performing functions under a statute is sacrosanct. It is also settled now that the High Court, while exercising writ jurisdiction, cannot substitute its opinion for the opinion of the administrative Authority. The High Court has held that actually the Prime Minister had ordered the promotion of the respondent to Grade B-21 and by implication, there was no forgery. The order of dismissal passed by the Prime Minister on 9-5-1998 after holding that the respondent was guilty of forgery was available before the High Court. In the aforesaid order it was stated that the competent Authority (the Prime Minister) had come to the conclusion in the light of the proceedings taken under notification dated 11-3-1998 that respondent, herein, had tampered with the order passed by the Prime Minister on 2- 12-1997. It was also stated in the notification dated 11-3-1998 that the Prime Minister acting as Authority under the E&D Rules, 1977, had directed for initiation of Disciplinary proceedings against the respondent on the ground that he had interpolated the order passed by the Prime Minister.
After due process, the charge was held to be proved. The finding was recorded by the Prime Minister in his capacity as the Authority under rule 8 of the E&D Rules, 1977. Rule 8 of the E&D Rules, 1977 may advantageously be reproduced below:--- "8. Action by the authority.--- In the case of any proceedings the record of which has been reported for orders under sub-rule (4) of rule 6 or rule 7-A, the authority may pass such orders as it deems fit bill before imposing a major penalty, the authority shall afford the accused an opportunity of being heard in person, either before himself or before an officer senior in rank to the accused designated for the purpose after taking into consideration the record of such personal hearing prepared by the officer so designated."
' The perusal of the above provision reveals that the Prime Minister had the exclusive authority to determine the guilt of the respondent keeping in view the recommendations of the Authorized Officer. It was incumbent upon the respondent to prove his innocence and disprove the finding recorded by the Prime Minister but he miserably failed to bring on record any such material on the basis of which it could be ascertained that he has not committed any forgery. As said earlier, the material in the shape of written statement and the file summoned from the Services and General Administration Department was available before the High Court but the same was not properly looked into. It may be observed that the finding of forgery was recorded by an independent, impartial and highest executive authority of the State. Throughout the litigation, the respondent never challenged the impartiality of the Prime Minister. According to the assertion of the respondent, the Prime Minister himself allegedly has passed the promotion order of the respondent. If it was so, then there was no question that the Prime Minister could have made a false statement that the respondent had been guilty of tampering. The averments made in the written statement filed by the appellants, herein, before the High Court, are fully supported by the record summoned from the Services and General Administration Department but the High Court failed to give any finding on it. The record shows that two orders were passed by the Prime Minister in which he stated that the respondent had interpolated his order dated 2-12-1997. On 20-1-1998, an order was passed by the Prime Minister whereby he ordered that disciplinary action may be taken against the respondent. On 5-3-1998, a similar order was passed by the Prime Minister which is a detailed order in which he has pointed out the exact interpolation and tampering and confirmed the earlier order for initiating disciplinary proceedings against the respondent. Later on when the Authorised Officer submitted his report to the Prime Minister, the same was accepted and it was ordered that the respondent be dismissed from service for misconduct. The High Court failed to consider these orders properly.
' It may be observed that the order dated 2-12-1997 which, according to the respondent, is an un- tampered is itself contradictory and shows that it had been tampered with. For better understanding the position, here we again reproduce the alleged order passed by the Prime Minister, The order reads as under:- {{URDU TEXT}} The perusal of the above order reveals that it has two parts. In its one part, the Prime Minister has directed the Chief Secretary to hear the parties and take further proceedings in the case and in the other part, while accepting the review petition; the Prime Minister has promoted the respondent to Grade B-21. In these circumstances the Prime Minister was justified to hold that the order has been tampered with. In presence of the above said material, the observation of the High Court that if the Prime Minister's order had been tampered with, he should have said so rather than withdrawing it, is merely conjectural and it is settled that conjectures cannot take the place of proof. Therefore, we have no hesitation in holding that the High Court has erred in holding that the order passed by the Prime Minister had not been tampered with which finding of the High Court is set aside accordingly.
19. The respondent has raised an objection that proper procedure has not been adopted while proceeding against him. There are two procedures provided in the E&D Rules, 1977 out of which any one can be followed while proceedings against a civil servant. According to one procedure, an inquiry is conducted by an Inquiry Officer while in the other no Inquiry Officer is appointed and the Authorised Officer informs the accused forthwith by an order in writing of the action proposed to be taken against him and the grounds of action and gives him a reasonable opportunity of showing cause against that action within a period of fourteen days from the date of receipt of the order. In the instant case the holding of inquiry was considered not necessary and the other procedure mentioned above was followed which contains in rule 6 of the Azad Jammu and Kashmir Civil Servants (Efficiency and Disciplinary) Rules, 1977. It would be appropriate to reproduce sub-rules
(2) and (5) of Rule 6 below:--- "(2) Within three days of the receipt of the direction from the authority under rule 5, or within such further period as may be allowed by the authority at the written request of the authorised officer, the authorised officer shall decide whether in the light of the facts of the case or in the interest of justice, an inquiry is necessary.
(3) If the authorised officer decides that it is not necessary to have an inquiry conducted against the accused, he shall,--
(a) inform the accused forthwith, by an order in writing, of the 'action proposed to be taken in regard to him and the grounds of the action; and
(b) Give him a reasonable opportunity of showing cause against that action within a period of fourteen days from the date of receipt of the order under clause (a).
Provided that no such opportunity shall be given where, in the interest of security of Pakistan/Azad Kashmir me any part thereof, it is not expedient to do so but before denying this opportunity, the authorised officer shall obtain the prior approval of the authority.
(4) Within seven days of the receipt of the explanation, if any, of the accused, or within such further period as may be allowed by the authority at the written request of the authorised officer, the authorised officer shall determine whether the charge has been proved. If, it is proposed to impose a minor penalty he shall pass orders accordingly. If however, the authorized officer considers it to be a case for a major penalty; he shall forthwith forward the case to the authority along with the explanation of the accused and his own recommendations regarding the penalty to be imposed.
(5) If under sub-rule (2) the authorised officer considers that an ,inquiry is necessary, he shall appoint an Inquiry Officer or an Inquiry Committee consisting of two or more persons who or one of whom shall be of a rank senior to that of the accused or if there are more than one accused, senior to all the accused."
The above said provisions reveal that it is the discretion of the Authorised Officer to hold an inquiry or himself confront the accused civil servant with the allegations levelled against him. It has to be decided "in the light of facts of the case or in the interest of justice". In the case in hand the Authorised Officer had decided to proceed against the respondent in exercise of the discretion vested in him by law. It is celebrated principle of law that in such like situation, a Court of law cannot substitute its opinion for the opinion of the administrative Authority. A Court of law can only interfere with an order if it is found that the discretion has been exercised arbitrarily or capriciously.
In our estimation, the decision taken by the Authorised Officer suffered from no such defect. The competent Authority in the instant case was the Prime Minister who had to take the final decision in the case. The version of the Prime Minister is that his own order had been tampered with by the respondent, therefore, he was the sole witness. In these circumstances whatever the procedure was adopted, it was the Prime Minister who had to take the final decision about the guilt or innocence of the respondent, therefore, in our estimation, the Authorised Officer rightly adopted the short procedure.
20. The respondent has also raised an objection that the Chief Secretary (Authorised Officer) has not provided an opportunity of showing cause to him, therefore, he has been condemned unheard.
In the written statement filed by the appellants, herein, in the High Court, comprehensive details with regard to tampering with the order of the Prime Minister by the respondent have been given. It was stated that when a notice was sent to the respondent by the Authorised Officer under rule 6(3) of the E&D Rules, 1977, he refused to receive the same by writing a note under his signature and in his own hand that the copies attached with the notice were not legible. On this, the better copies were prepared and were again sent to the respondent along with a notice which was received by his wife. His wife, under her signature, noted that she had received the notice along with the documents. It is further stated in the written statement that notices were also issued to the respondent through urgent mail service but in spite of that the respondent did not file any reply.
Thereupon, the Authorised Officer prepared his report in which he mentioned that the respondent did not join the proceedings and the Authorised Officer submitted a report to the Prime Minister that personal hearing mentioned in rule 8 of the E&D Rules, 1977 was not necessary as is provided under sub-rule (2) of Rule 9 of the aforesaid Rules. Sub-rule (2) of Rule 9 is reproduced as under:-- - "(2) Where the authority is satisfied that for reasons to be recorded in writing it is not reasonably practicable to give the accused civil servant an opportunity of showing cause it may impose any of the penalties under these rules without following the procedure laid down in rules 5, 6, 7 and 8."
' The appellants, herein, asserted in the written statement that every attempt was made to require the respondent to appear before the Authorised Officer but he intentionally and deliberately did not join the proceedings. All these facts are mentioned in the report of the Authorised Officer.
Thereupon, the Authorised Officer submitted the report on 10-4-1998 to the Prime Minister recommending the dismissal of the respondent from service.
' It is clear from the above mentioned facts that all efforts were made for the appearance and showing cause to the respondent. It may be observed that the respondent knew from the very beginning that disciplinary proceedings had been ordered against him. Notifications dated 11-3- 1998 and 9-3-2011, which are available on the file of High Court, were duly received by the respondent. In spite of all this, the respondent did not join the proceedings and no valid reason has been brought on the record for not appearing before the Authorised Officer. Therefore, it is clearly proved that the respondent all along knew about the proceedings but he failed to avail this opportunity before the Authorised Officer, therefore, we see no reason to differ with the findings recorded by the Authorised Officer as well as the Prime Minister. The judgment of the High Court is not sustainable whereby the well-reasoned findings recorded by the Authorised Officer and the Prime Minister have been set aside.
21. There is still another contention of the respondent that while passing the dismissal order against the respondent, rule 8 of the E&D Rules, 1977 has been violated because fresh notice was not issued by the Authority before passing the said order. A perusal of rule 8, reproduced in the earlier part of this judgment, shows that it does not contain that a fresh notice shall be given to the accused civil servant. However, it provides that the Authority shall afford an opportunity of being heard. As we have observed earlier that in the initial stages all efforts were made for the appearance of the respondent to show cause but on one pretext or the other he failed to appear and show cause, therefore, it is clear that he was not interested in showing cause. It can safely be held that he had no explanation to give, therefore, there was no occasion for the Authority to provide any opportunity of hearing to the respondent. In our estimation, the opportunity of hearing under rule 8 is only to be provided to a person who has joined the proceedings and has submitted his explanation. It may be stated here that on presentation of the report by the Authorised Officer, the Prime Minister observed that since the accused exhibited non-cooperation with the Authorised Officer by firstly refusing to receive the notice and subsequently by abstaining from filing a written explanation, it was not possible to give him personal hearing.
' Thus, the objection raised by the respondent that no fresh notice was issued to him by the Authority has ,no force and is hereby repelled.
22. The learned counsel for the appellants has contended that the Authority who passed the dismissal order of the respondent was not arrayed as party in the line of respondent in the High Court; therefore, the writ petition was not maintainable. In reply, the respondent has submitted in the written arguments that there was no necessity of impleading the Authority (Prime Minister) as a party in writ proceedings and the writ petition stood competently filed. After giving careful thought to the point, we have come to the conclusion that in absence of the necessary party, i,e,, Prime Minister/Competent Authority, the writ petition was not maintainable and was liable to be dismissed on this sole ground. We are fortified in our view by the case titled University of Punjab v.
Shahid Nazir [1986 SCMR 8051 in which it has been observed as under:--- "6. In the aforenoted circumstances, we do not consider it proper to permit the respondent to implead the affected persons, now as parties in this Court. If they would have been before the High Court, it is not certain, in the above circumstances; the decision could have been different. They, therefore, in the circumstances of this case cannot be deprived of that opportunity by summoning them in this Court. The prayer in this behalf of the learned counsel for the respondent is refused."
' The above said case was followed by this Court in cases titled Ch. Muhammad Anwar v. Ch. Muhammad Rashid PLD 1987 SC (AJ&K) 109, National Bank of Pakistan Circle Head and 2 others v.
Labour Appellate Tribunal and another 1996 PLC 411, Mirza Lal Hussain v. Custodian of Evacuee Property and others [1992 SCR 214], Muhammad Resham Khan v. Chairman Inspection Team and 3 others 1990 CLC 1355, Liaqat Ali and another v. Municipal Corporation Mirpur and 5 others 1997 CLC 692, Azad Jammu and Kashmir Government and others v. Gohar Rehman and others 1996 CLC 1502, Muhammad Nazir Khan v. Azad Government and 4 others 2001 YLR 3271, Khalil Ahmed Aqeel v.
Member Board of Revenue 2004 PLC (C.S.) 949, Raja Muhammad Ashraf Khan Kayani v. Azad Government and 4 others 1998 PLC (C.S.) 110, Muhammad Nazir v. Azad Government and Pearl Development Authority (Civil Appeal No, 131 of 1999 decided on 19th May, 2000), Muhammad Shafi v.
Feroz Khan [1994 SCR 19] and Abdul Hamid Khan v., Muhammad Zameer Khan and others 1990 MLD 1617. To elaborate the point, the observations made by this Court in some of the above judgment may advantageously be discussed in the following paragraphs.
' In the case titled Muhammad Resham Khan v. Chairman, Inspection Team and 3 others 1990 CLC 1355 it has been held by this Court as under:--- "Apart from that I have noticed that the Inspection Team was not impleaded as a party. The parties in the writ petition were (i) the Chairman of the Inspection Team, (ii) Azad Jammu and Kashmir Government, (iii) Mst. Fatima Bi, (who claims to be in possession of the disputed land) and (iv) The Secretary of the Inspection Team, while the order has been passed by the Inspection Team. It is elementary requirement that in a writ petition the Government or the person performing functions in connection with the affairs of the State whose order is challenged should be made a party. The word 'person' is defined in section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The definition is reproduced below:--- "44.(1) ..................................................................................
(2)
(3)
(4)
(5) ' In this section, unless the context otherwise requires, 'person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any Court or tribunal other than the (Supreme Court of Azad Jammu and Kashmir), the High Court or a Court or Tribunal established under a law relating to the Defence Services.'
' It is clear that the Inspection Team is a 'person' within the meaning of the above definition and is not interchangeable with the Chairman or the Secretary of the Team Since Inspection. Team as such was not made a party in the High Court writ petition entailed dismissal on this ground alone."
' In National Bank's case 1996 PLC 411 referred to above, it has been held by this Court as under:--- "It is clear from these judgments discussed above that in a writ petition that functionary of the State whose order or action is challenged or against whom a direction or prohibition is sought is a necessary party. In the absence of such a functionary a writ petition is not maintainable because an effective order cannot be passed...... "
' In Liaqat Ali's case 1997 CLC 692 referred to above, following observation was made by this "Court:- "6. It was held by this Court in Barkat Hussain's case that it was an elementary requirement that in a writ petition the functionary whose order is challenged must be made a party otherwise the petition entails dismissal. In that case Custodian of Evacuee Property whose order was challenged before the High Court was not arrayed as a respondent and following the dictum laid down in Abdul Hamid v. Muhammad Zameer 1990 MLD 1617 and Muhammad Resham Khan v. Chairman Inspection Team 1990 CLC 1355 we ordered the dismissal of the writ petition holding that it could not proceed in absence of a necessary party. In Muhammad Nazir's case same view was expressed by this Court.
' In unreported case of Mahboob Hussain the Allotment Committee had passed the allotment order which was impugned before the High Court by filing a writ petition but the Allotment Committee was not impleaded as a party, although Municipal Committee was impleaded as a respondent.
This Court held that in absence of the Allotment Committee, which was a necessary party, the writ petition was not properly constituted and on this sole ground the dismissal of the writ petition was upheld.
' In Muhammad Nazir Khan's case 2001 YLR 3271 it has been observed as under:--- "7 In this view of the matter it was pointed out to Mr. Muhammad Sayab Khalid, the learned counsel for the appellant, as to how relief could be given to his client even if it is found that the judgment of the High Court is not correct. The learned counsel has not been able to satisfy us that the rule mentioned above can be departed from in the present case. Therefore supposing we accept the appeal and, decide to declare that land acquired from the appellant cannot be utilised for construction of a plaza we would still not be able to give any relief because Chairman of the Pearl Development Authority, who is a respondent, is not constructing the plazas but it is the Authority which is doing so, but the Authority is not impleaded as a respondent for which reason no writ can be issued to it. There is no point in adverting to the merits of the case in view of the fact that no effective writ can be issued in the present case."
' In Khalil Ahmed Aqeel's case 2004 PLC (C.S.) 949, this Court has observed as under:--- "8 From the reading of the memo. Of appeal it becomes clear that the appellant had grievance about the constitution of the Selection Committee and the way it conducted its proceedings in formulating its recommendations for the promotion of Patwari against the vacant post of Girdawar. The Selection Committee, therefore, was a necessary party and no order could be passed against the Selection Committee without providing it a right of hearing. The Selection Committee has played important role in the present case. Its recommendations were accepted by the competent authority while passing order of promotion of respondent No,4. The procedure contained in the Code of Civil Procedure is applicable in the proceedings before the Service Tribunal therefore without impleading the necessary party, the appeal before the Service Tribunal was not maintainable. We have also noticed that this objection was specifically raised in the written statement but no effort was made by the appellant to implead the Selection Committee in the line of answering respondents.
It has been settled in the above referred judgments that the authority which has passed an order shall have to be impleaded as a respondent in a writ petition. In the light of the settled law, the writ petition was liable to be dismissed, so far as the order of dismissal of the respondent is concerned, for the fatal defect that the competent Authority had not been impleaded as a respondent.
23. So far as the authorities referred to by the respondent are concerned, the law was laid down in those cases in the peculiar facts and circumstances of those cases which have no nexus with the case in hand, therefore, we need not dilate upon the same.
24. Before parting with the judgment, it may be observed that it is a fit case in which the criminal proceedings should be ordered but keeping in view the bad health of the respondent, the dismissal of the writ petition and restoration of the orders passed by the Authority will meet the ends of justice.
In the light of what has been discussed above while accepting this appeal and setting aside the judgment of the High Court dated 5-10-1999, the writ petition filed by the respondent is dismissed with no order as to costs.