The supra titled appeal has been addressed under Section 4 of the Azad Jammu and Kashmir Subordinate Judiciary Service Tribunal Ordinance, 2012 against impugned order bearing No, 72/9 dated 1.10.2013 and No, 812-819 dated 1.10.2013, passed by District and Sessions Judge Bhimber, Respondent No, 1, as being competent authority through which appellant was dismissed from service.
2. The precise facts culminating into filing of the instant appeal are that appellant was permanent employee of Azad Jammu & Kashmir Subordinate Judiciary Service, as a Junior Clerk, who was posted in office of District and Sessions Judge Bhimber, as Record Keeper. The appellant received an order from Respondent No, 1, for sending File No, 81 titled Muhammad Ayub and others vs. Abdul Aziz and others decided on 8.11.2002, to the Court of District Judge Mirpur, on 23.4.2009. He in compliance of order supra, searched the required file, however, the same could not be traced in the record room. As per claim of appellant during search he found that a bag containing 52 files was missing from the record room. He immediately reported the matter to District and Sessions Judge Bhimber, upon which the learned District Judge suspended the appellant and one Amjad Hussain, Junior Clerk, with further direction for registration of F.I.R. against them. Consequently F.I.R.
No, 61/2009 under Sections 409, APC, 14 EHA, and 5(2) of Anti-Corruption Act, was registered against appellant and Amjad Hussain, Junior Clerk, at Police Station Bhimber, on 4.9.2009. The investigation of the aforesaid case was, later on entrusted to Anti-Corruption Department and after completion of investigation co-accused namely Amjad Hussain was given benefit of Section 169 of Cr.P.C, whereas challan under Sections 409, 201, 202/204 A.P.C. 5(2) Anti-Corruption Act, was submitted against appellant which is still subjudice before the Court of competent jurisdiction. It is stated that vide order dated 26.05.2009, Respondent No, 1 ordered a preliminary inquiry and appointed Respondent No, 2 as an inquiry officer, who submitted a report on 28.07.2009, through which appellant was held responsible for loss of the files. After the report supra disciplinary proceedings, under The Azad Jammu & Kashmir Civil Servants Removal from Services (Special Powers) Act, 2001, were initiated against appellant and Civil Judge Bhimber, Respondent No, 3, was appointed as inquiry officer by Respondent No, 1, vide order dated 3.8.2009. In pursuance of the aforesaid order Respondent No, 3 served a notice upon appellant for filing written reply within seven days vide order dated 04.08.2009. After detailed inquiry Respondent No, 3 submitted his report before Respondent No, 1 on 19.09.2009. On the basis of inquiry report submitted by Respondent No, 3, appellant was served with a show-cause notice as to why he may not be awarded major penalty of dismissal from service. The appellant challenged all the above proceedings before the High Court by invoking writ jurisdiction, however, the writ petition was dismissed vide order dated 10.06.2011. Against the aforesaid order dated 10.06.2011, an appeal was filed before the apex Court which was subsequently also dismissed. The appellant was later on served with another show-cause notice dated 06.09.2013, by Respondent No, 1, requiring as to why he may not be awarded major penalty of dismissal from service. After issuing show-cause notices and granting an opportunity of hearing to appellant, Respondent No, 1, awarded to him major penalty of dismissal from service vide impugned orders dated 1.10.2013, hence, the instant appeal.
3. After admission of appeal, respondents despite service failed to file written statement, therefore, proceeded ex-parte vide order dated 22.10.2013.
4. Raja Gul Majeed Khan, the learned counsel for appellant has filed written arguments, wherein it is submitted that it is an un-denied fact that neither competent authority framed charge sheet nor supplied statement of allegations to appellant which was mandatory requirement and non- compliance of the same vitiate the entire proceedings. It is craved that in case of major penalty, strict adherence to relevant provisions of law is sine-qua-non as they have the affect of penalizing a civil servant if he is found guilty. It is emphasized since appellant was not provided with a charge sheet and statement of allegations, therefore, his dismissal is tantamount to condemn him unheard which is against the norms of justice. The learned counsel in support of his contentions referred to and, relied upon the following case law:--
(i) Accountant General and another vs. Muhammad Shafique Mughal [2005 SCR 86).
(ii)District and Sessions Judge Rawalakot vs. Kh. Abdul Razaq and another [2009 SCR 01].
(iii)Pakistan International Airlines Corporation through Managing Director, PIAC, Head Office, Karachi Airport, Karachi vs. Ms. Shaista Naheed [2004 SCMR 316].
(iv)Federation of Pakistan through Secretary Establishment Division, Islamabad and another vs. Gohar Riaz [PLJ 2005 SC 113].
In case of Accountant General and another, supra, it was held by, the apex Court that Efficiency and Discipline Rules are to be followed strictly, as they have the effect of penalizing a civil servant, if he is found guilty.
In case of District and Sessions Judge Rawalakot, ibid, it was held by the apex Court that as no charge sheet and statement of allegations were furnished to respondent-employee, therefore, all proceedings were rightly set at naught by Service Tribunal restoring to respondent in service, against which appeal filed by the competent authority was dismissed.
In Pakistan International Airline's case it was held by the apex Court of Pakistan that due to failure of first inquiry, second inquiry was initiated, under Removal from Service (Special Powers)
Ordinance, 2000, which action was unjustified. It was further held that in case charge of misconduct, under Section 5 of Removal from Service (Special Powers) Ordinance, 2000, a full- fledged inquiry was mandatory which was not conducted in the case, hence, by upholding the judgment of the Federal Service Tribunal, petition for leave to appeal was dismissed.
In case of Federation of Pakistan and another, ibid, it was held by the apex Court of Pakistan that in case of awarding major penalty, proper inquiry is to be conducted in accordance with law, however, as no full-fledged inquiry was conducted in the case, hence, against acceptance of appeal of respondent-employee by the Federal Service Tribunal, petition for leave to appeal filed by the Federation was dismissed.
5. After examining written arguments filed by, the learned counsel for appellant, I have perused the contents of appeal and examined the record with utmost care.
6. Admittedly appellant was permanent employee of Azad Jammu & Kashmir Subordinate Judiciary Service, who was performing his duties as Junior Clerk B-07 and posted as Record Keeper in the office of District and Sessions Judge Bhimber. The appellant was directed by District and Sessions Judge Bhimber-Respondent No, 1, for sending file No, 81 titled Muhammad Ayub and others vs. Abdul Aziz and others decided on 08.11.2002, to the Court of District Judge Mirpur, on 23.04.2009. It appears that during search of the aforesaid file, appellant found that a bag containing of 52 files was missing from the record room. He was suspended along with another Junior Clerk, Amjid Hussain, by the competent authority and an F.I.R. No, 61/2009 under Sections 409 APC, 14 EHA, and 5(2) of Anti-Corruption Act, was registered against them at Police Station Bhimber, on 04.09.2009. After investigation, co-accused Amjid Hussain, was exonerated by police while exercising powers as visualized under Section 169 of Cr.P.C, however, challan under Sections 409, 201, 202/204 A.P.C. and 5(2) of Anti-Corruption Act, was submitted against appellant before competent Court of criminal jurisdiction, which is still subjudice. Besides, the aforesaid criminal proceedings, the learned District and Sessions Judge, Respondent No, 1, appointed Senior Civil Judge Bhimber, to conduct preliminary inquiry, who submitted his report on 28.07.2009 and it was held that appellant was responsible for loss of the files. After preliminary inquiry, disciplinary proceedings were initiated against appellant and Civil Judge Bhimber, was appointed as inquiry officer vide order dated 03.08.2009. The inquiry officer after detailed inquiry held that appellant was responsible for loss of the files who also recommended to award him major punishment of dismissal from service. After giving show-cause notices and hearing, the appellant was consequently dismissed from service vide impugned even dated orders 01.10.2013. It appears from record that all the aforesaid proceedings against appellant were initiated under provisions of The Azad Jammu & Kashmir Civil Servants Removal from Services (Special Powers) Act, 2001. A perusal of the impugned orders supra, reveals that the learned District and Sessions Judge, as being competent authority, by exercising his powers as visualized under clause (f) sub-section (1) of Section 3 of The Azad Jammu & Kashmir Civil Servants Removal from Services (Special Powers) Act, 2001, dismissed the appellant from service on the ground of misconduct.
7. The point, however, that whether disciplinary proceedings could be initiated against appellant in accordance with provisions of The Azad Jammu Kashmir Civil Servants Removal from Services (Special Powers) Act, 2001, was neither raised in memorandum of appeal nor argued, however, as it goes to the root of the case and policy of law is to administer Justice according to law and not in violation of the same, hence, it is mandatory for this Tribunal to decide the aforesaid point.
8. For the first time in Azad Jammu & Kashmir The High Court Establishment (Appointment and Conditions of Service) Rules, 1975, were framed by the Government while exercising its powers as visualized under Section 58 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, vide notification dated 16.10.1975. Later on the Azad Jammu & Kashmir Judicial Department Ministerial Service Rules, 1984, were promulgated on 11.04.1984, by the Government while exercising its powers as enshrined under Section 23 of The Azad Jammu & Kashmir Civil Servants Act, 1976. The aforesaid rules were repealed and the Azad Jammu & Kashmir (Judicial Department) High Court Establishment Rules, 1991, were framed vide notification dated 13.04.1991. However, by 10th Amendment Act, 1993, Section 47-A was inserted in the Azad Jammu & Kashmir Interim Constitution Act, 1974, which reads as under:-- "47-A. Employees of Court.--The Supreme Court and the High Court, with the approval of the President, may make rules providing for the appointment of employees of the Court and for their terms and Conditions of employment."
In exercise of the powers conferred by Section 47-A supra, the High Court of Azad Jammu & Kashmir, with prior approval of the President, framed The Azad Jammu & Kashmir High Court Establishment (Appointment and Conditions of Service) Rules, 1994, vide notification dated 19.10.1994. However, the above rules were repealed and lastly in exercise of the powers conferred under Section 47-A of the Interim Constitution Act, 1974, the High. Court, with prior approval of the President, has promulgated The Azad Jammu & Kashmir High Court Establishment (Appointment and Conditions of Employment) Rules, 2011, vide notification dated 6.8.2011. However, at the time of incident in question the Azad Jammu & Kashmir High Court Establishment (Appointment and Conditions of Service) Rules, 1994 were applicable. As per Rule 13 supra, a complete mechanism including minor and major penalties have been provided. According to Rule 14 of the above mentioned rules, the procedure as laid down in The Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, shall, be observed as nearly a may be, in all matters of disciplinary proceedings against a member of the High Court Establishment. The employees of the High Court Establishment are, therefore, not civil servants. The disciplinary law, for the employees of the High Court Establishment, is independent and enshrined in the Azad Jammu & Kashmir High Court Establishment (Appointment and Conditions of Service) Rules, 1994, read with the Azad Jammu & Kashmir High Court Establishment (Appointment and Conditions of Employment) Rules, 2011, promulgated by The High Court, with prior approval of the President, under Section 47-A of the Interim Constitution Act, 1974. Thus, provisions of Civil Servants Removal from Services (Special Powers) Act, 2001, were not attracted upon appellant, who was an employee of the High Court Establishment. An identical point has recently been arisen before the apex Court in Civil Appeal No, 246/2013 titled Muhammad Yousaf Haroon vs. Competent Authority and others decided on 10.6.2014. The relevant para 18 of the aforesaid unreported precedent is reproduced as follows:-- "18. Same like for the employees of the High Court and the Supreme Court, under the provisions of Section 47-A of Constitution Act, 1974, rule making powers have been delegated to the Supreme Court and the High Court subject to approval by the President. Presently, the special law, i,e, Supreme Court Establishment (Appointment of Officers and Servants Terms & Conditions of Service) Rules, 1994 and AJ&K High Court Establishment (Appointment and Conditions of Service)
Rules, 2011 are made under the Constitutional provisions of Section 47-A. Regarding these laws, Act, 2001 has not been given overriding effect thus, is not applicable to the employees of the Supreme Court and High Court."
In view of the above as The Azad Jammu & Kashmir Civil Servants Removal from Services (Special Powers) Act, 2001, was not applicable upon the appellant, therefore, all the proceedings initiated against him are coram-non-judice.
9. It is celebrated principle of law that when there are two laws applicable to the subject, one general and the other is special, the special law will have to prevail. As for the employees of the High Court Establishment, special law has been framed, hence, general law will not apply. An identical point was arisen before the apex Court of Pakistan in case titled The State vs. Zia-ur- Rehman and others [PLD 1973 SC 49]. At page 89 of the report it was opined by their lordships as follows:-- "It is well-established rule of interpretation that where in a statute there are both general provisions as well as special provisions for meeting a particular situation, then it is the special provisions which must be applied to that particular case or situation instead of the general provisions ...."
The similar view was expressed by the Karachi High Court, in case titled Agha Muhammad vs. Additional Collector, Pakistan Coast Guards [2002 CLC 1584], wherein at page 1590 of the report, it was held as follows:-- "16. It is established principle of law that special provision overrides the general provision and the special enactment prevails over the general enactment. The Qanun-e-Shahadat Order, 1984 is a general law and Customs Act, 1969, is a special law, therefore, the provisions contained in Section 187 of the Customs Act, 1969, shall prevail over and override the general provisions contained in the Qanun-e-Shahadat Order, 1984."
The same view was expressed by the Lahore High Court, in case titled Punjab Province through Secretary to Government of the Punjab, Housing and Physical Planning Department and 4 others vs. Muhammad Ishaque [2005 YLR 148]. At page 151 of the report it was held as under:-- "....It is also settled principle of law that special law excludes the general law."
10. The Azad Jammu and Kashmir Civil Servants Removal from Services (Special Powers) Act, 2001, has no overriding effect upon the Azad Jammu and Kashmir High Court Establishment (Appointment and Conditions of Service) Rules, 1994 and the Azad Jammu and Kashmir High Court Establishment (Appointment and Conditions of Employment) Rules, 2011. It may be observed that in case of application of the aforesaid act, the provisions of the High Court Establishment (Appointment and Conditions of Employment) Rules, 2011, will become redundant. It is celebrated principle of interpretation of statutes that in case of any conflict of two provisions the rule of harmonious interpretation is followed. The aforesaid point was considered by the apex Court of Pakistan in case titled Fazali Rehmani vs. Chief Minister N.-W.F.P. Peshawar and others [PLD 2008 SC 769], wherein at page 817 of the report it was opined as follows:- "The narrow interpretation of the above provisions of law in respect of power of Election Commission would virtually render these provisions as redundant and defeat the very purpose of law. The power of the Commission is not confined only to the extent of ministerial and administrative job of election rather the Commission also has to ensure free, fair and transparent election in terms of Articles 218 and 219 of the Constitution and consequently, the provision of Sections 103 and 103-AA have to be given effect in letter and spirit which empowers the Commission to supervise and ensure the conduct of election fairly, honestly, justly and in accordance with law. The different interpretation may redundant these provisions, and this is settled principle of interpretation of statutes that redundancy cannot be attributed to any provision of law rather in the wisdom of legislature in case of any conflict of two provisions, the rules of harmonious interpretation is followed."
An identical view was expressed by the Karachi High Court, in case titled Saeed Farooq vs. The State and 2 others [1996 MLD 434]. At page 440 of the report it was opined, as follows:-- "....Any attempt to sanction the interpretation offered by the learned Single Judge in Ashfaq Ahmed's case would render the words "as such" to be redundant. It is a settled proposition of law that while interpreting statutes redundancy to any word or expression has to be avoided."
A similar view was expressed by the Lahore High Court, in case titled Sarfraz Ahmed Tarar vs. Province of Punjab through Secretary, Government of Punjab, Lahore and another [PLD 2007 Lahore 57], wherein at page 60 of the precedent case it was observed as follows:-- "....The contention of the learned counsel for the petitioner that even the amended provision should be construed in the manner' that only a person having judicial knowledge and background should be appointed, as. Ombudsman, cannot be countenanced inasmuch as the intention of the legislature is quite obvious and clear by the words employed by it "or any other person". Any restricted construction of the amended provisions will not only defeat the intendment of the legislature, it would rather render the phrase "any other person" as meaningless and otiose. It is settled law that each word of the statute is entitled to be given meaning and no part of it is to be treated as redundant. Mere desire that such an Office should be held by a person belonging to judiciary cannot be made a ground for striking down .a provision of law validly made by the competent legislature."
11. A perusal of record also reveals that before initiating disciplinary proceedings against appellant, neither any charge sheet nor statement of allegations were served upon him, therefore, all the proceedings conducted by respondents are accordingly bad in law even from this angle.
12. There are, however, serious allegations against appellant that he was responsible for missing a bundle of 52 files, who at the relevant time was Record Keeper, against whom a criminal case is also subjudice in the Court of competent criminal jurisdiction, hence, I am inclined to allow the competent authority to initiate denovo proceedings against him in accordance with provisions of the Azad Jammu & Kashmir High Court Establishment (Appointment and Conditions of Service)
Rules, 1994, by adopting procedure laid down in the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977.
13.The crux of above discussion is that by accepting the instant appeal, the Impugned Orders No, 72/2009 dated 1.10.2013 and Nos, 812819 dated 01.10.2013, are hereby set at naught. The learned District and Sessions Judge Bhimber, as being competent authority, is allowed to initiate denovo proceedings against appellant in accordance with provisions of the Azad Jammu & Kashmir High Court Establishment (Appointment and Conditions of Service) Rules, 1994. However, due to peculiar facts of the case, the parties shall bear their own costs.