' MUHAMMAD AZAM KHAN, C.J.---The captioned appeal, by leave of the Court, arises out of the judgment of Azad Jammu and Kashmir Service Tribunal dated 20th January 2010, whereby Service Appeal No,148 of 2008 has been dismissed.
2. The appellant filed Service Appeal No,148 of 2008 in the Service Tribunal on 24th March 2008, alleging therein that he was serving as Washman in Prime Minister Secretariat, when by an order dated 5th March 2008, he was compulsorily retired under the provisions of section 3(e) of the Removal from Service (Special Powers) Act, 2001 (hereinafter to be referred as Act, 2001). He challenged the order dated 5-3-2008 on the ground that any order under section 3(1) clauses (a) to (t) of Act 2001 cannot be passed till an inquiry under section 5 of the Act has been conducted and the civil servant is proved guilty. His services were terminated without conducting an inquiry and without providing him an opportunity of hearing. The punishment to a civil servant can only be awarded on the proof of allegation. The Service Tribunal vide impugned judgment dated 20-1-2010 dismissed the appeal on the ground that he has not placed on record the inquiry report. Hence this appeal with leave of the Court.
3. Kh. Iftikhar Ahmed, counsel for the appellant argued that the judgment of the Service Tribunal is against law. The appellant proceeded on leave for 15 days but due to illness, he submitted his joining report after 10 days of sanctioned leave. He argued that under section 3(1)(e) of Act, 2001, if a person is reasonably believed to be engaged, in subversive activities, and his retention in service is prejudicial to national security or he is guilty of disclosure of official secrets to any unauthorized persons, he can be terminated from service or compulsorily retired. The case of the appellant does not fall under the provision of section 3(1)(e) of Act, 2001, therefore, the order of compulsorily retirement is illegal. No inquiry under the provision of sections 3 to 5 of Act, 2001 was conducted against the appellant.
4. While controverting the arguments Ch. Shoukat Aziz, Additional Advocate-General, counsel for the respondents, argued that the judgment of the Service Tribunal is perfectly legal. The appellant failed to attach a copy of inquiry report with the appeal, therefore, on this sole ground the appeal merits dismissal.
5. We have heard the learned counsel for the parties and perused the record. The leave in the case was granted to consider the point whether an order of major punishment under the provision of Act, 2001 can be passed without following the procedure prescribed under sections 3 to 5 of said Act.
6. The case of the appellant is that he remained absent from the duty for 10 days. He was compulsorily retired from service without adopting due process of law, without affording an opportunity of hearing, without conducting an inquiry and the procedure prescribed in sections 3 to 5 of Act, 2001. His case is that since no inquiry was conducted and no allegation of misconduct was proved against him, therefore, the order of compulsorily, retirement issued under section 3(1)
(e) of Act, 2001 on the ground of proof of absence is illegal. The order under section 3(1)(e) does not relate to absence. For proper appreciation, we deem it proper to reproduce section 3 of Act, 2001 which reads as under:-- ' "Removal, Suspension of certain persons in Government or corporation service etc;---
(1) Where, in the opinion of the competent authority, a person in Government or corporation service, is---
(a) inefficient, or has ceased to be efficient for any reason; or
(b) guilty of being habitually absent from duty without prior approval of leave; or
(c) guilty of misconduct; or
(d) corrupt, or may reasonably be considered as corrupt, because:-
(i) he, or any of his dependents or any other person, through him or on his behalf, is in possession of pecuniary resources or of property, for which he cannot reasonably account for, and which are disproportionate to his known resources of income; or
(ii) he has assumed a style of living beyond his known sources of income; or
(iii) he has a persistent reputation of being corrupt; or
(iv) he has entered into a plea bargain under any law for the time being in force and has returned the assets or gains acquired through corruption or corrupt practices voluntarily, or
(e) engaged, or is reasonably believed to be engaged, in subversive activities, and his retention in service is prejudicial to national security or he is guilty of disclosure of official secrets to any unauthorized person; or
(f) found to have been appointed or promoted on extraneous grounds, in violation of law and the relevant rules, the competent authority, after inquiry by the Committee constituted under section 5, may, notwithstanding anything contained in any law or the terms and conditions of service of such person, by order in writing dismiss or remove such person frbm service, compulsorily retire from service or reduce him to lower post or pay scale, or impose one or more minor penalties as prescribed in the AJ&K Civil Servants (Efficiency and Discipline) Rules, 1977.
(2) Before passing an order under subsection (1) the competent authority shall:
(a) by order in writing inform the accused of the action proposed to be taken with regard to him and the grounds of the action and
(b) give him a reasonable opportunity of showing cause against that action within seven days or within such extended period as the competent authority may determine: ' Provided that no such opportunity shall be given where the competent authority is satisfied that in the interest of security of Azad Kashmir or Pakistan or any part thereof it is not expedient to give such opportunity; ' Provided further that no such opportunity shall be given where the accused is dismissed or removed from service or reduced in rank on the ground of conduct which has led to a sentence of fine or of imprisonment by a Court. f1 ' A perusal of the section reveals that if in the opinion of the competent authority, a person in Government or corporation service is inefficient, or has ceased to be efficient, guilty of being habitually absent from duty without prior approval or leave, or guilty of misconduct or corrupt, or may reasonably be considered as corrupt, is engaged, or reasonably believed to be engaged, in subversive activities or is appointed or promoted against the Act and rules, he can be dismissed or removed from service, compulsorily retired or reduced to lower post or pay scale, or one or more minor penalties can also be imposed under AJ&K Civil Servants (Efficiency and Discipline) Rules, 1977. Subsection (2) of section 3 of Act 2001 postulates that before passing an order under subsection (1), the competent authority shall inform in writing the accused of the action proposed to be taken and provide him an opportunity of showing cause against that action within seven days or within the extended period as the competent authority may determine. Two provisos are attached to subsection (2). It is provided that no opportunity shall be given to the accused civil servant where the competent authority is satisfied that in the interest of security of Azad Kashmir or Pakistan or any part thereof it is not expedient to give such opportunity. It is further provided that in case the accused is dismissed or removed from service or reduced in rank on the ground of conduct which has led to a sentence of fine or of imprisonment by a Court, no opportunity of hearing shall be extended to the accused.
7. What appears from phraseology implied in subsection (2) of section 3 of Act, 2001 that if, the competent authority forms the opinion that action has to be taken against a civil servant then it shall constitute an Inquiry Committee under section 5 of the Act and after inquiry if the accused is proved guilty, then the Authority can impose a penalty provided in AJ&K Civil Servants (Efficiency and Discipline) Rules, 1977 and before passing an order under subsection (1) of section 3, the competent authority shall inform him of the action proposed to be taken against him.
8. Under section 5 of Act, 2001, the competent authority before passing an order under section 3, appoint an Inquiry Officer or Inquiry Committee to scrutinize the conduct of a person in Government service or a person in a corporation service, who is alleged to have committed any of the acts or omissions specified in section 3. The Inquiry Committee so constituted shall conduct the inquiry in due process of law and shall submit its report to the competent authority. After receipt of report if the competent authority is satisfied that the accused is proved, guilty of such acts, mentioned in section 3, he shall be informed of the action proposed to be taken and after receipt of reply, action may be taken.
9. The inquiry into the allegation is mandatory under the provisions of sections 3 to 5 of Act, 2001. It is mandatory for competent authority to constitute an Inquiry Committee and if after the inquiry and due process of law the allegation is proved and the competent authority is satisfied that allegation is proved, he may be proceeded under subsection (2) of section 3 of Act, 2001. It may be observed that under proviso to subsection (2), no opportunity shall be given to a person B where the competent authority is satisfied that in the interest of security of Azad Kashmir or Pakistan or any part thereof it is not expedient to give such opportunity. The exception given in the said proviso cannot be used arbitrarily. The reason for not providing such opportunity must be born out from the record. A person cannot be removed from service merely on the ground of allegation without proving the same. Hearing is a time tested right based at maxim audi alteram partem i,e, nobody can be punished without providing him an opportunity of hearing.
' In a case titled Muhammad Khurshid and another v. Secretary Education Schools and 4 others (2011 SCR 175) while dealing with the question of right of hearing, it was observed as under:-- ' "The hearing based on .principle of audi alteram partem is a fundamental right of every person.
No adverse order can be passed against a civil servant without providing him an opportunity of hearing. The constitution guarantees fundamental rights but when any order has been passed in violation of the rules or it is void ab initio, such an order can be cancelled or taken away without issuing a notice or hearing. The Service Tribunal has committed no illegality nor any law or rule has been ignored."
' In a case titled Muhammad Irshad v. Medical Superintendent and 3 others (2010 SCR 99) it was observed as under:-- ' "Removal from service under any of the codal provisions is regulated by the checklist and a civil servant can only be removed from service on the basis of misconduct etc. and not merely on the ground of an allegation without details. Nothing has been brought on record to show that the appellant has been removed after due process of law and after providing him opportunity of hearing."
10. In the instant case, it appears that no inquiry was conducted against the appellant. He was condemned unheard. No opportunity of hearing was afforded to the appellant. The order has been passed in and arbitrary manner, without due process of law.
' The result of the above discussion is that this appeal is accepted and the judgment of the Service Tribunal is set aside. The order dated 5th March 2008 is set aside and the appellant is restored to service, however, the competent authority is at liberty to conduct the inquiry against the appellant according to law.