MUNIR AHMED CHAUDHARY, CHAIRMAN --- This appeal has been filed against the order of competent authority/Hon'ble Chief Justice of High Court of Azad Jammu & Kashmir dated 21.08.2002, whereby the appellant was removed from his service. Orders dated 21.11.2002 and 25.11.2002 have also been challenged through the instant appeal, through which the joining report of the appellant after his reinstatement by the worthy Prime Minister of Azad Jammu & Kashmir was refused and order of removal of the appellant by the competent authority/Hon'ble Chief Justice was declared as final.
2. Brief facts of the present matter are that the appellant was employed in judicial service of Azad Jammu & Kashmir and was serving as Judge Family Court, Bagh. He received a show-cause notice on 07.03.2002 to explain regarding a telephone call made on 19.01.2002 at 12:00 noon to the Hon'ble Chief Justice of High Court from telephone No. 44206 installed at the residence of the appellant when he was posted as Senior Civil Judge, Kotli. In consequence of the said notice, proceedings against the appellant were initiated under the Azad Jammu 13, Kashmir Removal from Service (Special Powers) Act, 2001. An Inquiry Committee was constituted on 04.07.2002. The aforesaid committee also issued show-cause notice to the appellant on 7.10.2002 and the appellant filed his reply. After completion of inquiry, the committee submitted its report on 05.08.2002 to the competent authority. A final show-cause notice was issued to the appellant who also replied the same,. The appellant was ultimately removed iron his service on 21.08.2002 by the Hon'ble Chief Justice of High Court of Azad Jammu & Kashmir being competent authority. Thereafter, the appellant made a representation before the worthy Prime Minister of AJ&K under Section 9 of the Act to which comments were submitted by the Registrar of the High Court. The Prime Minister accepted the representation of the appellant and set aside the order of his removal from service and a notification regarding the same was issued on 01.11.2002. The appellant presented his joining report to the Registrar High Court. On 02.11.2002. The said joining report was refused by the learned Judges of the High Court in a meeting on 21.11.2002 declaring that no representation or appeal can be filed before the worthy Prime Minster and order of removal of the appellant passed by the Hon'ble Chief Justice being competent authority was final. The decision made by the Judges of the High Court was conveyed to the appellant through Registrar on 25.11.2002.
3. Thereafter, the present appellant filed a petition
4. For leave to appeal before the apex Court of AJ&K against the decision of the learned Judges of the High Court. After hearing the then Hon'ble Chief Justice of the apex Court of AJ&K dismissed the petition tor leave to appeal. The appellant, then filed the instant appeal against the order of his removal from service dated 21.08.2002, the decision of the learned Judges of the High Court dated 21.11.2002 and 25.11.2002 before the Service Tribunal on 31.12.2002.
5. It was stated in the appeal that the appellant
6. Was asked through a notice to explain regarding a telephone call allegedly made on 19.01.2002 at 12:00 O'clock noon to the Hon'ble Chief Justice of the High Court from telephone No. 44206 installed at his residence when he was posted as Senior Civil Judge Kotli. It was alleged that the appellant impersonated him as a General of the Army and tried to pressurize the Hon'ble Chief Justice to get the order of his transfer cancelled. The appellant denied the said allegation through an explanation submitted by him. The appellant, later on lodged a complaint with the Officer Commanding, Special Communication Organization Kotli regarding misuse of said telephone number through a letter dated 14.03.2002. The Inquiry Committee constituted by the competent authority served the statement of allegations to the appellant on 10.07.2002. The appellant submitted his reply on 16.07.2002 and denied the allegations. The Inquiry {{BLUR PAGE}} Committee submitted its report to the competent authority on 31.7.2002. It was reported that the alleged calls were made at the instance and with the consent of the appellant and the appellant was declared guilty of misconduct. The Inquiry Committee, reon--- Int of removal of the ,,,A1 his service a= ./ the appellant, wz.Ss ierrioved from his service aft: 'onal hcanng on 21.08.2002.
5 It was further stated in the memorandun appeal that the appellant submitted his representation to tIR worthy Prime Minister of AJ&K under Sections 9 ard 12 of the Act against the order of his removal after conswling a legal expert. The Prime Minisier after inviting comment '. On) 'stice and hearing of the said rE;..-Jsentation, accepted I.. Ame and reinstated the appellant with all benefits from the date of his removal, setting aside the re:-:72,/ai order passed by the Hon'ble Chief Justice. The ar;::c. Suomitted his joining report on 02.11.2002 to the Heu -ar of the High Court, which was not accepted. The said joining report was placed before the Judges of the High Court on 21.11 2002 who decided that the joining report of the appellant could not be accepted as the order of Hon'ble Chief Justice was final and could not be represented against before the Prime Minister. So, the order of the worthy Prime Minister could not be acted upon and implemented. Thereafter, the appellant assailed the aforesaid orders of the Hon'ble Chief Justice and Judges of the High Court through a petition for leave to appeal in the apex Court on 02.12.2002 on advice of leading advocates of Mirpur and Muzaffarabad. The said petition for leave to appeal was dismissed on 13.12.2002. It was held by the apex Court that no petition/appeal lies to the Supreme Court against the orders of Hon'ble Chief Justice and Judges of the High Court and no representation was competent before the Prime Minister against the order of Hon'ble Chief Justice of High Court. In accordance with the order of the apex Court, the only remedy available to the appellant against the orders{{BLUR PAGE}} of Hon'bie Chief Justice and Judges of the High Court was to the an appeal before the Service Tribunal. So. The appellant has preferred the instant appeal before this Court. The appellant further stated that the impugned orders passed by the Hon'ble Chief Justice and Judges of the High Court are violative of the provisions of law, rules, principles of natural justice and against the record of the case and violative of fundamental rights of the appellant and are liable to be set aside
6. It was further stated in the grounds of appeal that the provisions of AJ&K Removal from Service (Special Powers) Act, 2001 are only applicable to the employees of such Courts or Tribunals, which are functioning under the Government, whereas the appellant was neither in his capacity as Presiding Officer/employee of the Family Court nor as an employee of the High Court could be deemed an employee of a Court functioning under the Government, in case, the provisions of Special Powers Act are presumed to be applicable in case of the appellant, the said Act is violative of fundamental rights being discriminatory in nature. It deprives the employees/Civil Servants of their valuable rights as provided in the Civil Servants (Efficiency and Discipline) Rules. The orders of Hon'ble Chief Justice regarding constitution of Inquiry Committee and subsequent orders regarding removal from service are without jurisdiction. Such-like orders could only be made by the Hon`ble Judges of High Court in their meeting in accordance with the Rules 112 and 113 of High Court Procedure Rules. 1984. The impugned orders except refusal of the joining report, have been passed by the Hon'ble Chief Justice alone, therefore, the said orders are without jurisdiction.
7 The appellant further stated that the Hon'ble Chief Justice of the High Court of AJ&K was a complainant and the only witness in the matter.. The dictates of justice demanded that the matter should have been decided in the meeting of Hon'ble Judges of High Court besides the Hon'ble Chief Justice, the complainant could not be the final arbiter in the case, The learned Chairman/Members of Inquiry Committee refused to call important witnesses in the case and to record their evidence even to record the statement of the appellant, despite repeated requests of the appellant. No proof was available against the appellant regarding the telephone calls having been made by the appellant himself or at his instance. The alleged facts were full of doubts, which must be considered favour of the appellant. The Inquiry Committee conducted proceedings in absence of the, appellant without associating him and affording him an opportunity to cross- examine the witnesses and to explain his position. The appellant has been pursuing the remedy of representation before the worthy Prime Minister and thereafter the petition for leave to appeal before the apex court under expert legal advice and under Sections 9 and 12 of Special Power Act.
The time consumed in making representation and till decision of the Hon'ble Super Court and the time consumed in obtaining certified copies of the relevant documents till the filing of the present appeal. i.e. From 04.09.2002. To 30.12.2002. Must be excluded from prescribed period of limitation.
So. The appeal was filed without any delay. Even otherwise, the order under appeal passed by the Hon'ble Chief Justice dated 21.08.2002 was affirmed by the Hon'ble Judges of the High Court at their meeting on 21.11.2002 and was conveyed to the appellant on 25.11.2002. So. The appellant deserves the condonation of delay for the afore-said period for reasons and grounds mentioned. The appellant prayed as under-- "In view of the above, it is most humbly prayed that by accepting the appeal, the impugned orders of the Honble Chief Justice and Hon'ble Judges of the High Court of Azad Jammu & Kashmir dated 21.11.2002 conveyed by letter No. 11837/HC/Admin/2002, dated 25.11.2002 and No. 7710- 25/Admin/HC/2002. Dated 21.08.2002 may kindly be set aside and the humble appellant be restored/reinstated to service with effect from 21.08.2002 with all benefits of service. Any other relief to which the appellant is deemed by the Hon'ble Tribunal as entitled to. May also very kindly be awarded."
8. The appeal was admitted for regular hearing
9. And respondents were ordered to submit written statement. Written statement was submitted on behalf of real respondents, stating therein that the appeal was hopelessly time-barred and was not maintainable on this sole ground. The High Court is a Constitutional Court, which has been vested with extraordinary Constitutional powers and also has got powers of superintendence and control of all other Courts under Section 26 of the Interim Constitution Act. Whereas the Service Tribunal is established through a subordinate legislation, hence the instant appeal offends the Constitutional powers and is liable to be rejected. Any order passed and action taken by the High Court or council of Judges of the High Court can only be assailed in Supreme Court and not before any Subordinate/Inferior Court or Tribunal, therefore, the present appeal is not maintainable. The present appeal is legally incompetent because the Service Tribunal has got jurisdiction in respect of orders relating to terms and conditions of service, whereas the impugned order in this appeal does not relate to terms and conditions of service, therefore, the appeal is liable to be dismissed for want of jurisdiction.
10. It was further stated in the written statement
11. That the acts of impersonation and misconduct committed by the appellant were legally proved against him. No representation before the worthy Prime Minister was competent regarding any case related to a judicial officer. The appellant filed the said representation with mala-fide intention and made an attempt to create confrontation between the Executive and Judiciary. In light of the judgment of the apex Court dated 13.12.2002, the present appeal is legally incompetent and liable to be dismissed. The appellant submitted his explanation against Show-Cause notice through which he admitted the Hon'ble Chief Justice as competent authority, so the appellant is estopped by his conduct to raise this version that the Hon'ble Chief Justice acted without jurisdiction. The appellant has challenged Special Powers Act, which is passed by the Legislative Assembly and the vires of this law cannot be challenged before Service Tribunal. The inquiry Committee has considered in detail all the documents and statements and the findings recorded by the Inquiry Committee and the competent authority are self-speaking proof to rebut the appellant to wrong stand. The Hon'ble Chief Justice has recorded his findings, which are based on legal evidence and the order has been passed in accordance with principles of law and justice.
The real respondents prayed to dismiss the appeal.
10. Written statement on behalf of Govt. And the worthy Prime Minister (respondents No. 8 & 9) was submitted by the learned Additional Advocate General, it was stated by the said respondents that according to the provisions of the Removal from Service (Special Powers) Act, 2001, an order passed by the competent authority is appealable before the worthy Prime Minister or his nominee.
An order passed under the provisions of a statute, even if without jurisdiction or coram-non-judice is assailable in appeal, revision, review or representation before the forum created by the said statute and in the same manner as an order with jurisdiction can be challenged. The Hon'ble Chief Justice of High Court had no jurisdiction to pass the impugned order dated 21.08.2002 as the appellant was not a Presiding Officer of any Court or Tribunal., which was functioning under the Government. The provisions of the Act are applicable to the employees, Presiding Officers of such Courts only as are functioning under the Government. The appellant did not fall amongst the said category. So, the provisions of said law did not apply to the appellant's case. Since the provisions of Special Powers Act are not applicable to the case of the appellant. The appellant is not an aggrieved person to challenge the vires or otherwise of the said law. The proceedings against the appellant could have been taken under the Civil Servants (Efficiency and Discipline) Rules. 1977 only. As the order regarding removal of the appellant from service dated 21.08.2002 was not passed in accordance with the provisions of the relevant law, so the worthy Prime Minister exercising the powers vested by hcm under the provisions of Special Powers Act, accepted the representation filed by the appellant and ordered for his reinstatement in service, for the reasons that the aforesaid order of removal was not found to be valid on facts and law.
11. It was further stated by the said respondents
12. That the appellant has been pursuing remedy before the worthy Prime Minister and thereafter in the High Court and the Supreme Court for redressal of his grievance. It was only atter the judgment of the apex Court dated 13.12.2002 that the legal position was clarified. It was prayed to decide the appeal keeping in view the record of the case and requirements of law and justice.
13. Arguments were advanced by the learned
14. Counsel for the parties. Kh. Muhammad Nasim Advocate, the learned counsel for the appellant advanced his arguments and repeated version of the appellant as taken in the appeal. The learned counsel argued further that the appellant was present in the Court and performing his functions from 10:30 a.m. To 2:00 p.m., while the alleged call was made from telephone No. 44206 (Kotli) to phone No. 39151 (Muzaffarabad) at 12:00 noon on 19.01.2002. The said phone No. 44206 was installed at the official residence of the appellant. The appellant submitted a complaint to the Commanding Officer of Special Communication Organization (SCO) regarding misuse of the said telephone number. The appellant could not think even to 'wake a call to the Hon'ble Chief Justice directly. The comp"nt authority prepared statement of allegations, which warrent to the appellant on 03.07.2002. The Inquiry Committee prepared its separate statement of allegations, which was conveyed to the appellant on 10.07.2002. The appellant filed an application before the Inquiry Committee to summon some important witnesses and to record their statements, but the said witnesses were not summoned. The Inquiry Committee submitted its report to the Hon'ble Chief Justice violating the provisions of law. The appellant was removed from his service on 21.08.2002_ The instant appeal against the order made by the competent authority on 21.08.2002 and by the Hon'ble Judges of the High Court on 21.11.2002 was filed on 31.12.2002. The appeal has been filed beyond the prescribed period of limitation against the order dated 21.08.2002, while it was within prescribed period of limitation against the order dated 21.11.2002. An application to condone the period of limitation has been appended with the appeal. The appellant has mentioned the causes of delay in the application. The appellant made a representation before the worthy Prime Minister under Section 9 of the Act. The worthy Prime Minister reinstated the appellant setting-aside the order of removal. The Hon'ble Judges of the High Court decided in their meeting on 21.11.2002 that the order of the Hon'ble Chief Justice being competent authority was final. As a result joining report of the appellant was refused. The appellant filed a petition for leave to appeal before the apex Court of Azad Jammu & Kashmir, but the same was not granted. Thereafter, the appellant filed the instant appeal.
13. The learned counsel for the appellant argued further that the Inquiry Committee was bound under Section 5(1) of the Act to convey the statement of allegations prepared by the authority to the appellant but the Inquiry Committee prepared its own statement of allegations and provided that to the appellant. The said committee had no power to prepare its own statement of allegations. Moreover, the Hon'ble Chief Justice of High Court was a complainant in the present case, so he should not have been acted as competent authority. His lordship's statement was not recorded as well. The Hon'ble Chief Justice was competent authority and members of Inquiry Committee were judicial officers subordinate to the Hon'ble Chief Justice. The appellant was not heard properly. The learned counsel for the appellant requested to accept the appeal and to reinstate the appellant from the date of removal from his service. The learned counsel referred the following precedents in support of his arguments.
1 AIR 1963 SC 1719
2. PLD 1964 SC 64
3. PLD 1966 Lah. 1112
4. PLD 1967 Lah. 1112
5. AIR 1970 SC 2086
6. AIR 1971 SC 22
7. AIR 1973 SC 207
8. PLD 1975 AJ&K 131 9 1976 SCMR 79(B)
10. PLD 1986 SC (AJ&K) 110 11, 1989 CLC 905
13. 1992 SCR 370
14. 1992 SCR 370 (B)
15. 1999 SCR 343 16 2002 SCMR 81-B 17 PLD 2006 SC (AJ&K) 43-D
18. 2007 PLC (CS) 870(C)
19. 2008 PLC (CS) 79
20. KLR 2008 (L&S) 212
21. 2010 SCR 131
14. While controverting the learned counsel for the appellant , Mr. Muhammad Yaqoob Khan Mughal Advocate the learned counsel for respondents No. 1 to 7 contended that the instant appeal has been filed beyond the prescribed period of limitation and liable. To be dismissed on this sole ground. Moreover, the appellant has admitted the occurrence in the memorandum of the appeal.
The proceedings initiated by the competent authority were concluded strictly in accordance with the provisions of law. The Inquiry Committee prepared statement of allegations and conveyed that to the appellant in accordance with the provisions of law. It was not necessary for the competent authority to convey the statement of allegations. The Inquiry Committee was empowered to inquire the matter by adopting any mode necessary for the purpose. The worthy Prime Minister was not competent authority regarding judicial officers including the appellant. The Hon'bie Chief Justice of High Court of Azad Jammu & Kashmir was a competent authority in case of the appellant. The appellant was bound to file his appeal before Service Tribunal within prescribed period of limitation. Pursuing the matter before wrong forums could not be made a valid cause for filing the appeal beyond prescribed period of limitation. The learned counsel for the respondents requested to dismiss the instant appeal and referred the following precedents in support of his arguments:
1. 1997 SCR 71
2. 2000 SCR 618
15. After hearing the arguments advanced by the learned counsel for the parties. I have gone through the record available and the precedents referred carefully and minutely.. The main proposition to be resolved firstly is that: Whether the instant appeal was filed within prescribed period of limitation or not?
The facts regarding this have to be considered that the appellant filed a representation before the worthy Prime Minister. As a result, the appellant was reinstated and the order of his removal from service was set aside by the worthy Prime Minister. The appellant presented his joining report on the basis of the decision made by the worthy Prime Minister. Which was refused by the Hon'ble Judges of the High Court in their meeting on 21.11.2002 and it was observed by the learned Judges of the High Court that order of removal by the Hon'ble Chief Justice being competent authority was final. The appellant filed a petition for leave to appeal before the apex Court, which was dismissed and the said leave was not granted. Thereafter, the appellant filed the instant appeal on 31.12.2002 before this Tribunal. The appellant has taken this version that he submitted a representation under Section 9 of the Special Powers Act before the worthy Prime Minister considering him the competent authority. He also filed the petition for leave to appeal and assailed the orders of Hon'ble Chief Justice and Judges of High Court before the apex Court of Azad Jammu & Kashmir on advice of leading Advocates Muzaffarabad/Mirpur, on 02.12.2002, The said petition was dismissed by the apex court vide judgment dated 13.12.2002. It was also contended on behalf of the appellant that the apex Court held that no petition/appeal lies against the impugned order of Hon'ble Judges of High Court before Supreme Court and also no representation was competent against the order of Hon'ble Chief Justice before the Prime Minister. In view of judgment of the Hon'ble Supreme Court dated 13.12.2002, the only remedy available to the appellant against the orders of Hon'ble Chief Justice and Judges of High Court was to file an appeal before Service Tribunal.
16. The learned counsel for the appellant argued during his arguments that due to pursuing e case in the shape of representation and the petition for leave to appeal, the time consumed must be excluded while having assessm ent of the period of limitation for the instant appeal. It seems ( -.1..!?. pertinent to reproduce the findings recorded by the Hon'ble Supreme Court of Azad Jammu & Kashmir while disposing of the petition for leave to appeal of the present appellant (Civil PLA No. 264 of 2002 titled Abdul Raheem Zubair Butt v. AJ&K High Court & others decided on 13.12.2002).
Regarding representation before the worthy Prime Minister and filing of petition before the apex Court, as under:- "7. The moot point for determination, therefore. arises as to whether the order impugned before the Court is 'order' passed by the High Court and can be challenged through petition for leave to appeal or not. A perusal of the order dated 25.11.2002 reveals that it is an intimation of some decision taken by the learned Judges of the High Court in their meeting convened on 21.11.2002. The recital of the alleged order dated 25.11.2002 reveals that the order of the High Court is not passed in a case or to a judicial proceedings, but it appears to have been passed in a meeting which purportedly appears to be administrative meeting of the High Court judges. The Supreme Court is the apex Appellate Court against the judicial orders. Judgments, decrees and sentences passed by the High Court or any other Court or Tribunal established under law and not the controlling authority in respect of administrative matters of the High Court. The order impugned before the Court is administrative in nature. As the order in background in which it is passed appears disciplinary proceeding initiated against the petitioner for misconduct under the Act. It does not fall in the ambit of judicial order as visualized by subsection (12) of Section 42. Decisions or orders of the learned Judges of the High Court passed in their meetings are executive and administrative business of the Court regulated by Chapter XVIII of the High Court Procedure Rules, 1984. The orders passed in their meetings by the learned Judges of the High Court are, therefore, administrative orders and --Kr judicial orders subject to appeal before the Supreme Court. The petitioner, as admitted, has been removed from service by the learned Chief Justice as competent authority and as the petitioner himself alleges that he availed the remedy of representation before the Prime Minister whose order is not accepted by the learned Judges of the High Court in their meeting and the same is conveyed to the petitioner that the representation or appeal not being competent before the Prime Minister, hence, the order of the Prime Minister dated 01.11.2002 cannot be acted upon. It is, thus, continuation of the proceedings of termination of the petitioner's service which throughout is an administrative affair in a disciplinary matter. No fresh order is passed against the petitioner by the learned Chief Justice or the Judges of the High Court in their meeting. What the learned Judges have done is that the decision earlier taken by the learned Chief Justice is endorsed and the joining report filed by the petition is not accepted. The order of the Prime Minister is not set aside, which by implication is deemed to be resubmitted for review."
It has also been held by the apex Court in the last portion of para 8 that:- "8. Thus, seeing from any angle, the subject- matter of dispute before the Supreme Court is administrative and executive business/order of the High Court and not a judicial order which relates to the service rights of the petitioner, remedy against which is not provided before the Supreme Court, unless the order of the learned Chief Justice is challenged before the proper forum or direction for implementation of the order of the Prime Minister is refused by proper forum. The appeal is competent before the Supreme Court only after the judicial determination by the competent forum on the order of removal of petitioner from service or validity of the order of the Prime Minister, The Hon'ble apex Court also observed that:--- "10. The contention of the learned advocate for the petitioner that the proceedings against the petitioner were taken under the Act which itself provides representation to the Prime Minister is misconceived and misunderstood. The word 'competent authority' is defined in Section 2(a) of the Act as follows,- "(a) 'competent authority' means the Prime Minister and where, in relation to any person or class of persons, the Prime Minister authorizes any Officer or Authority to exercise the powers of - competent authority under this Act, that Officer or Authority, and, in relation to an employee of a Court or Tribunal functioning under the Government, the appointing authority or the Chairman or Presiding Officer of the Court or the Tribunal".
11. I have considered the above argument of the learned advocate in the light of the provisions of the Act. The definition of the 'competent authority' given above visualizes two categories of the authorities, firstly the Prime Minister or any officer or authority authorized by him is 'competent authority', in relation to all persons in the service of the Government and secondly, in relation to Court employees, the appointing authority', 'Chairman' or 'Presiding Officer' of the Court or Tribunal is the competent authority. The Courts and Tribunals have been separated and segregated from the authority of the Prime Minister. The wisdom behind this segregation is to upkeep the integrity, independence and authority of the judiciary as a special organ of the State and not a subordinate institution of the Government. All other provisions of the Act will have to be read in light of the definition given above.
12. Section 9 regulating representation and review postulates that when an order is passed under Section 3 of the Act, by an officer or authority other than the Prime Minister, representation to the Prime Minister is competent, but where an order has been passed by the Prime Minister himself, review is competent before the Prime Minister. The orders passed by the appointing authorities of the Court employees is not catered by this Section. The order in the case of the petitioner is initially passed by the learned Chief Justice and then endorsed by all the Judges of the High Court. The learned Chief Justice or the Judges of the High Court are not officers or authority subordinate to the Prime Minister nor authorized by the Prime Minister to be competent authority. In view of above definition of the competent authority, the learned Chief Justice is himself competent in relation to the petitioner for being his appointing authority and the learned Judges of the High Court are equally competent for being controlling and supervising authority of the Courts subordinate to it when a matter is placed before them by the learned Chief Justice."
17. The above-mentioned principles regarding controversy have been settled down by the apex Court and have attained finality. It has been held that the order passed by the Hon'ble Judges of the High Court dated 21.11.2002 was an administrative order and the order dated 25.11.2002 was an intimation of a decision taken by the Hon'ble Judges of the High Court in their meeting. High Court did not pass these orders in a case or in a judicial proceeding. The Supreme Court is the apex Court against the judicial orders, judgments, decrees and sentences passed by the High Court or any other Court or Tribunal established under law and not the controlling authority in respect of administrative matters of the High Court. An administrative order dues not fall within the ambit of judicial order. So, the refusal to accept the joining report of the appellant by the Hon'ble Judges of High Court through the order dated 21.11.2002 was continuation of the proceedings of termination of appellant's service and no fresh order was passed against the appellant by the Hon'ble Chief Justice or Judges of the High Court. It was also held that no appeal was competent before the apex Court against any Minister was not competent to entertain any representation in case of an employee of a Court. The competent authority regarding the appellant was only the Hon'ble Chief Justice of High Court.
18. It was contended by the learned counsel for the appellant that the time consumed in pursuance of representation before the worthy Prime Minister and petition for leave to appeal before the apex Court should be excluded while assessing the period of limitation. It is crystal clear according to the findings of the Hon'ble Supreme Court that the appellant has been pursuing his case on the forums, which were not competent to hear his case. Meaning thereby that the appellant has been pleading his case on wrong forums. It is an admitted and settled fact that the order of removal of the appellant was passed by the competent authority on 21.08.2002 which was appealable before this Tribunal within ninety days. The instant appeal was filed on 31.12.2002, after 132 days. The explanation mentioned by the appellant for the delay was that he has been pursuing his case before the worthy Prime Minister and the apex Court of Azad Jammu & Kashmir on advice of legal experts/Advocates. Representation before the Prime Minister and petition for leave to appeal were not maintainable as per dictum of the apex Court dated 13.12.2002 As far as the advice of an expert counsel is concerned, it cannot be regarded as a sufficient cause for condoning the delay. This principle has been laid down in the precedent 1997 SCR 71 as under:- "A negligent advice of a counsel cannot be regarded as a sufficient cause for condoning the delay, if the law on the point of limitation can easily be found out from the relevant statute, this would not be a case of bona fide mistake but a case of negligence."
The same principle has been laid down in the precedent 1992 SCR 214 as under, --- "10. Even the legal aspect of the contention of Mirza Lal Hussain has no validity, the benefit of the period spent by a litigation in pursuing a remedy in a wrong forum can only extended to one who chooses the forum with due care and caution. He has to show that he was misled by some practice of the Court or an erroneous judgment. If a litigant spends time in pursuing a remedy under a mistaken advice the period spent by him goes waste and no consideration can be shown in such a situation. On this point the law is settled as is apparent from a recent judgment of this Court in Masud Ahmad v. United Bank Ltd. [Civil Appeal No. 46 of 1991, decided on 23.11.1991] para 8 of the judgment may be usefully reproduced:--- "This takes us to the question whether the appellant can successfully urge that the Appeal filed in the Court of District Judge had been filed and prosecuted with good faith. If the appellant's contention is shown to be well-founded, it would furnish a "sufficient cause" for condonation of delay. Notwithstanding the fact that both the learned counsel who appeared in this appeal were not aware of it, this proposition stands concluded by judgments of this Court that circumstances as appearing in the present case cannot be termed as being the result of 'good faith' rather in fact they constitute "gross negligence" and cannot be treated as a sufficient cause for condonation of delay. Where the provision of law is clear question of condonation does not arise. It may arise when a litigant is misguided by some practice of a Court or by an erroneous judgment."
The above-mentioned principle has been reiterated in the precedents 1992 SCR 98-292 also.
19. Having in view the facts of the present case in the light of above-mentioned precedents, it is clear that the appellant has been pursuing his case on wrong forums and consumed time in pursuing his case cannot be excluded from the prescribed period of limitation. This principle has been laid down in the precedent 2000 SCR 618 as under:--- "12. The plaintiffs-appellants could also not claim the benefit of pursuing their remedy before a wrong forum. If a forum is not chosen with due care and diligence the same cannot be made a ground for the condonation of delay,"
It is pertinent to mention the identical facts of a case decided by the Hon'ble Supreme Court of Pakistan titled "Agha lnam-ur-Rehman Khan v. Registrar, Lahore High Court, Lahore (2013 SCMR .109). According to the facts of the said case, a Civil Judge was dismissed from service by the competent authority/Chief Justice of the High Court. He filed an appeal before the Hon'ble Chief Justice of High Court, which was returned for presentation before the proper forum having jurisdiction. Civil Judge. Thereafter filed a representation before the Governor which remained undecided and then he filed an appeal before the Service Tribunal. The said appeal was dismissed as being time-barred. The said Civil Judge contended that the remedy of representation was available before the authority next above the authority which made the dismissal order. That Governor of the Province was the authority above the Chief Justice of High Court, who had passed the dismissal order therefore, representation before Governor was competent and a validily invoked remedy, which was not decided within time constrained him to avail his right of appeal. It was held by the Hon'ble Supreme Court of Pakistan that the learned Chief Justice of the High Court was not competent to entertain an appeal filed by the said Civil Judge, therefore, the said appeal was returned for presentation before the proper forum having jurisdiction, which never communicated that Civil Judge in question should avail any remedy of representation before the Governor. It was Civil Judges own deed or comprehension of the law that he approached the Governor instead of the Service Tribunal within time. The Governor of a Province by no strech of the Constitutional scheme or interpretation of any prevision of the Constitution or the law on the subject could be held to be an authority next above the Chief Justice and Judges of the High Court. The representation filed by the Civil Judge before the Governor was not within the purview and contemplation. Of Section 5(a) of Punjab Subordinate Judiciary Service Tribunal Act, 1991 read with Section 21(2) of Punjab Civil Servants Act. 1974. Therefore.. Appeal filed before the Service Tribunal was filed much beyond the prescribed period of limitation. The appeal filed by the said Civil Judge was dismissed accordingly.
20. The present appellant has been pursuing his
21. Case before the forums having no competence and jurisdiction, so the time consumed while pursuing the case before the wrong forums cannot be excluded from the prescribed period of limitation. It is crystal clear that the instant appeal was filed beyond the prescribed period of limitation. A delay of 42 days for filing the instant appeal has not been justified and no reliable causes have been mentioned. Therefore, the instant appeal is hopelessly time-barred.
22. Furthermore, it is just and proper to record
23. Findings on merit as well. It was contended on behalf of the appellant that the proceedings against the appellant were not conducted in accordance with the provisions of law. The Hon`ble Chief Justice was a complainant and a witness in the matter. Sc he could riot ce an arbiter of his own case The Inquiry Committee did not call the important witnesses as requested by the apellant and no opportunity of cross- examination was afforded to the appellant. It was also contended that the alleged telephone call has not been proved to be made by the appellant himself or at his instance and the commission of misconduct was not proved at all.
It is settled principle of law that the Hon'ble Chief Justice of the High Court is a competent authority regarding employees of a Court or Tribunal. The appellant was a Judicial officer and his case fell within the ambit of the competency of the Hon'bie Chief Justice. The Hon'ble Chief Justice of High Court passed an order on the report and recommendation of an Inquiry Committee, which was constituted under the provision of law. The Hon'ble Chief Justice constituted an Inquiry Committee and put the matter before the committee to inquire that whether the alleged telephone call was made by the appellant or not and whether misconduct has been committed by the appellant or not? The Hon`ble Chief Justice did what the provisions of law empowered him to do. It cannot be observed that the Hon'ble Chief Justice became an arbiter of his own case.
22. The appellant has admitted that the competent authority asked him to Show-Cause regarding commission of misconduct and a statement of allegations was also framed and sent to the Inquiry Committee. It was contended on behalf of the appellant that Inquiry Committee was bound to convey the statement of allegations framed by the authority to the appellant under Section 5(1)(a).
But the inquiry Committee framed its own statement of alienations and communicated that to the appellant, but communicated him the statement framed by itself. So. The said provision of law has been violated. The communication of statement of allegations by the authority is not a requirement of law. The appellant himself has admitted that a statement of allegations was framed by the authority and the Inquiry Committee did not communicate that to the appeallant.
But communicated him the statement framed by its :! Tt :')re;:ics;tmr-) resnyea ny the apex Court c'
J;iinnu Kashmir in a case titled Muhammad As/vat Qureshi v. Competent Authority & others (Civil Appeal No. 10 of 2010) decided on 26.08.2011, as under:--- "11. The next legal question raised on behalf of the appellant is that the list of allegation and show- cause notice have not been served by the authority, whereas under the provisions of the Removal from Service (Special Powers) Act, 2001, it is mandatory that the list of allegations and show-cause notice must be served upon the accused by the authority and any departure from the statutory provision vitiates the whole proceedings. We have considered the arguments of the appellant, but this argument appears to be result of some misconception. Under the provisions of Section 5 of the Azad Jammu & Kashmir Removal from Service (Special Powers) Act, 2001. The Inquiry Committee shall have to communicate to the accused the charges and the statement of allegations specified in the order of Inquiry passed by the competent authority. Thus in the Instant case the communication of statement of allegation by the Inquiry Committee is in accordance with the provisions of law. The communication of statement of the allegation by the authority is not the requirement of law. Whereas the appellant himself has pleaded this fact that after submission of the recommendations of the Inquiry Officer, the authority has also served upon him the show- cause notice and provided the opportunity of hearing. Thus the appellant couldn't succeed to point out any departure made in the proceedings from the mandatory statutory provisions".
The record reveals that the competent authority framed statement of allegations and the Inquiry Committee also communicated the statement of allegations to the appellant. It cannot be said that Inquiry Committee framed its Own statement of allegations while ignoring the statement of allegations framed by the competent authority. Although, the Inquiry Committee communicated the statement of allegations, which was framed by itself, but the statement was framed in accordance with the statement framed by the competent authority. The appellant has pleaded fact that after submission of recommendations of Inquiry committee, the authority has also served upon him the show-cause notice and provided him the opportunity of hearing. So, the appellant could not point out any departure from the mandatory statutory provisions made in the proceedings.
23. The record reveals that the telephone number from which alleged call was made was installed at the official residence of the appellant. The appellant took this version that the alleged call to the Hon'ble Chief Justice was made by someone else misusing the telephone line of his telephone number. The appellant could not place any proof regarding this fact that someone else misused the said telephone line regarding the said telephone number. The appellant placed some letters concerning a complaint to the telephone authorities regarding misuse of his telephone number.
But it was done after he received the show-cause notice from the competent authority. Even no case was registered under the provisions of law regarding misuse of telephone line. The appellant admitted this fact that the said call was made from telephone No. 44206 installed at his residence to the telephone number of the residence of the Hon'ble Chief Justice. This call was made having duration of 58 minutes and 26 seconds. The record also reveals that five more calls were made from the said number to the telephone numbers of Deputy Registrars of the High Court before and after the call made to the Hon'ble Chief Justice. It shows that the said calls were made in the presence of the appellant or at his instance. The appellant produced some witnesses including some Advocates who placed their affidavits and got recorded their statements showing that the appellant was present In his Court from 10:30 a.m. To 2:00 p.m. The Inquiry Committee inspected the judicial files of that particular date. Ail the interim orders were handed down by reader of the Court and the appellant only signed those orders. Not a single order was handed down by the appellant himself on that date. The appellant adopted the only version that the said calls were made by someone else. Misusing his telephone number, but the appellant could not prove this version at all. The register regarding presence was also inspected by the inquiry Committee, which shows that the appellant came to the Court at 10:30 a,m. And left the Court at 2:00 p.m. While the official working hours were from 8.30 a.m. To 2.30 p.m. It shows that this entry was made only to cover the time when the said calls were made.
23. It was also objected on behalf of the appellant
24. That the Inquiry Committee refused to call some important witnesses and did not provide an opportunity of cross-examination to the appellant, so the appellant was not heard properly. The record reveals that some of the witnesses were abandoned by the appellant himself and he also stated not to produce any witness in his defence. Although, the Inquiry Committee did not call some witnesses for recording of their statements, but it is the prerogative of the Inquiry Committee to adopt the mode of inquiry whatever it thinks and proper. Under Section 7 of the Special Powers Act, the inquiry Committee has got power to regulate its own procedure
25. Having in view the above findings regarding
26. Merits of the case, it is crystal clear that the findings and recommendations of Inquiry Committee and the final order of the competent authority are based on sound and cogent reasons. The behaviour and role of the appellant was not like a judicial officer. The appellant committed misconduct impersonating himself as a Genera: of Pakistan Army and managed to call to the Hon'ble Chief Justice of High Court, which was done with his consent and it was in his knowledge that what was going on. It was done only to pressurize the Hon'ble Chief Justice to cancel his transfer orders. The appellant involved himself in blackmailing and impersonation regarding high-ups of judiciary and Pakistan Army, so the appellant committed misconduct and not eligible for any relaxation. No indulgence is required into the findings recorded by the competent authority/Hon'ble Chief Justice of High Court. The facts of the precedents referred by the learned counsel for the appellant in support of his arguments have no conformity with the facts of the present case. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.