' CH. MUHAMMAD IBRAHIM ZIA, J.--- This appeal with the leave of the Court is addressed against the judgment of the Service Tribunal dated 4-12-2010 whereby the appeal filed by the appellant herein, has been dismissed.
2. The summary of facts necessary for disposal of appeal is that the appellant herein, who was serving as Naib Qasid in the Local Government and Rural Development Department, alleged that he was compelled by the Assistant Director Local Government to resign from service only for the purpose to appoint some of his favourites on the post. Subsequently, the salary of appellant was stopped and he was not allowed to mark his presence in the attendance register. Ultimately, the appellant compulsorily retired from service, vide order dated 22-6-2010. The appellant, feeling dissatisfied, challenged the compulsory retirement order dated 22-6-2010, through an appeal in the Service Tribunal on 24-6-2010. The learned Service Tribunal admitted the appeal for regular hearing. The respondents therein, filed objections whereas the appellant also filed replication in the Service Tribunal. The learned Service Tribunal, after necessary proceedings, vide judgment dated 4-12-2010, dismissed the appeal on the ground that the appellant has attained the age of superannuation on 3-11-2010, which means that in ordinary course of nature, his retirement was due on 30-11-2010, therefore, now he cannot be reinstated in the service.
3. Mr. Mushtaq Ahmed Janjua Advocate, the learned counsel for the appellant, after precise narration of facts, submitted that the compulsory retirement is punishment which cannot be imposed without due course of law. Admittedly, in this case, neither any show cause notice has been issued to the appellant nor any proceedings or inquiry has been conducted and the authority, in sheer violation of the statutory provisions of law, issued the order of compulsory retirement which is ab initio void. He further submitted that the department has changed its stance and now they have come forward with the defence that the appellant has attained the age of superannuation whereas neither this factual aspect was subject matter neither of the appeal nor in the peculiar facts of this case, is relevant proposition to be resolved by the Courts. Therefore, the impugned judgment of the Service Tribunal is totally against law and facts of the case.
4. Sardar Abdul Sammie Khan Advocate, the learned counsel for the respondents, defended the impugned judgment on the ground that the Service Tribunal has rightly observed that the appellant's retirement because of superannuation was due on 30-11-2010; hence, the impugned retirement order has been rightly issued. However, he conceded on the factual aspect of the matter that before issuance of the compulsory retirement order, neither any show cause notice has been issued nor any inquiry or proceeding has been conducted. Despite this, according to his version, the order is perfectly in accordance with law.
5. We have considered the respective arguments of learned counsel for the parties and also gone through the record. In the light of stated facts and arguments of learned counsel for the parties, the scope of controversy has been narrowed down only to the extent of the validity of the compulsory retirement order of the appellant dated 22-6-2010 which speaks as under:--- {{URDU TEXT}}
6. The counsel for the respondents has conceded that neither any proceeding or inquiry has been conducted nor show cause notice has been issued to the appellant before passing the impugned compulsory retirement order. Thus, the only legal proposition which has to be resolved by the Court is whether without issuing sh6w cause notice, conducting the required proceedings and holding an inquiry, the departmental authority is empowered to issue compulsory retirement order of a civil servant merely on the ground of alleged serious misconduct. According to law governing the conduct of civil servants, a comprehensive procedure regarding the misconduct of civil servants has been laid down. Under the statutory provisions of civil service laws, compulsory retirement is a major punishment and for imposing such punishment on a civil servant, the authority is under legal obligation to follow the procedure prescribed by law.
7 . Presently, in the Azad Jammu and Kashmir, for imposing punishment upon a civil servant on ground of misconduct, two statutory laws are holding the field; one is "The Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977", (hereinafter to be referred as Rules, 1977) and the other is" The AJ&K Civil Servants Removal from Service (Special Powers) Act, 2001 (hereinafter to be referred as Act, 2001. Under sub-rule (1)(b)(ii) of Rule 4 of Rules, 1977, compulsory retirement is included in the major penalties and for imposing such major penalty, procedure in chapter III of these rules has been laid down. Same like, under subsection (1), clause (f) of section 3, Act, 2001, the punishment of compulsory retirement can only be imposed by the authority after inquiry by the committee constituted under section 5 of this Act. Furthermore, a comprehensive procedure has been laid down for conducting inquiry before imposing such punishment.
Admittedly, in this case, before passing the impugned departmental punishment order, the mandatory procedure laid down by law has not been adopted by the authority, thus, the order challenged before the Service Tribunal on the face of it is illegal.
8. The other question whether the appellant's retirement was due or not on a specific date or he has attained the age of superannuation, has no concern with the case in hand. According to law, issuance of retirement order after attaining the age of superannuation is a different matter. Thus, we are constrained to accept this appeal while setting aside the impugned judgment of the Service Tribunal as well as the order of compulsory retirement of the appellant dated 22-6-2010.
Consequently, the compulsory retirement order has no affect and the appellant will be deemed reinstated in service. However, the question of retirement on attaining the age of superannuation falls within the competence of the departmental authority and it has no concern with the controversy in hand or any nexus with this appeal.
' The appeal is accepted in the manner indicated above.