1. ' GHULAM MUSTAFA MUGHAL, C.J.--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 order No,F-1-2/5/2012-AJKC dated 30-11-2012 whereby de novo inquiry has been ordered against the petitioner and order dated 15-10-2012 whereby he has been suspended from the service have been challenged for having been issued without jurisdictional competence.
2. ' Precise facts forming the background of the captioned petition are that the petitioner is a permanent employee of B-18 of the Accounts Department of Azad Jammu and Kashmir and as per his claim has unblemished and spotless service of more than 25 years in his credit. It is alleged that before his suspension he was posted as District Accounts Officer Mirpur and in that capacity he was given additional charge of Accounts Officer Mirpur Development Authority by respondent No,6 vide order dated 7-2-2012. It is further alleged that on the basis of unfounded and baseless charges respondent No,2 illegally and unlawfully suspended the petitioner from the service under section 4 of the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000, vide order No, F 1-2/5/2012-AJKC dated 15-10-2012 and vide order No, F 1-2/5/2012-AJKC dated 15-10-2012 respondent No,7 was appointed as Inquiry Officer purportedly to have been issued under section 5 of the aforesaid Act to hold an inquiry into the charges levelled against the petitioner. The Inquiry Officer in compliance with the aforesaid order held the inquiry into the allegations and finally came to the conclusion that the petitioner was not guilty of the charges of the negligence, misconduct, misuse of the authority or embezzlement of the public money and exonerated the petitioner from all the charges. It is contended that respondent No,2 without providing a right of hearing rejected the recommendations with mala fide intention and appointed another Inquiry Officer vide order No, F 1-2/5/2012-AJKC dated 30-11-2012. The case of the petitioner is that suspension of the petitioner and de novo inquiry despite exoneration from the charges levelled against him and de novo inquiry is illegal against the law. It is stated that neither the petitioner has been suspended by the competent authority nor the order of the inquiry initiated against the petitioner has been ordered by the authority authorized in this behalf. It is further stated that respondent No,5 is a contract employee of the Council and is holding his position subject to the pleasure of the respondents, therefore, right of fair trial and inquiry is not expected from him.
3. ' The petition has been contested by the respondents by filing written statement. It is pleaded on behalf of the respondents that Controller General Accounts is a Federal Officers who is not subordinate to the Council in the terms of subsection (13) of section 21 of the Interim Constitution Act, 1974, therefore, notification dated 18-1-2011 is nullity in the eye of law and the order of suspension and appointment of the Inquiry Officer as well as the order of de novo inquiry of the petitioner in view of the law declared in 2001 PLC (C.S.) 11, 2001 YLR 2372 and 2007 SCR 419 is perfectly legal. It is stated that notification dated 18-1-2011 was erroneously notified and fact of the matter is that it is the Secretary Azad Jammu and Kashmir Council Secretariat who is competent authority in accordance with Table (II) of the notification dated 28-7-2011. It is further stated by the respondents that the Azad Jammu and Kashmir Council Removal from Service (Special Powers)
4. Act, 2000 has been repealed and Government Servants (Efficiency and Disciplines) Rules, 1973 now are holding the field and another notification dated 4-6-2013 has been issued whereby the Secretary of the Azad Jammu and Kashmir Council Secretariat has been designated authority in the case of the petitioner. It is contended that matter agitated in the petition relates to the terms and conditions of the service of the petitioner, therefore, proper forum for adjudication is Council Service Tribunal and jurisdiction of this Court is barred in view of section 27 of the Interim Constitution Act, 1974.
5. ' Mr. Tahir Aziz Khan, the learned Advocate appearing for the petitioner contended that as the petitioner is District Accounts Officer B-18 hence, the competent Authority for initiation proceedings under the provisions of Azad Jammu and Kashmir Council Removal from Service (Special Powers)
6. Act, 2000 was the Chairman Jammu and Kashmir Council or an officer authorized by him in that behalf in view of section 2(b) of the Act. The learned Advocate further contended that vide Government notification dated 26-4-2001 the Council, firstly authorized the Auditor General Azad Jammu and Kashmir to exercise the powers of competent authority under section 3 of the Azad Jammu and Kashmir Council Removal From Service (Special Powers) Act, 2000 in respect of the employees/Auditors of Accounts Department of AJ&K Council in B-17 to 19, however, subsequently vide notification dated 18-1-2011 Controller General of accounts AJ&K was designated as authority for the purpose of section 3 of the said Act. The learned Advocate argued that vide order dated 15- 10-2012 the petitioner has been suspended by the Secretary Azad Jammu and Kashmir Council who was not a designated authority for the purpose hence, the order dated 15-10-2012 was issued without jurisdictional competence and is void ab initio. He further argued that appointment of the Inquiry Officer vide notification dated 15-10-2012 was also without lawful authority and the order of de novo inquiry dated 30-11-2012 is also void ab-initio for having been issued without lawful authority. The learned Advocate submitted that as in case of the petitioner the authority was Controller General of Azad Jammu and Kashmir, therefore, the Secretary Kashmir Council was not vested with the authority/jurisdiction to suspend the petitioner and thereafter initiate inquiry proceedings including the de novo inquiry. The learned Advocate further submitted that under the provisions of section 5 of the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000 de novo inquiry cannot be ordered because only one inquiry is visualized by the aforesaid section, therefore, after exoneration of the petitioner from the charge the order of de novo inquiry is void ab initio and without lawful authority. The learned Advocate stated that even otherwise the appointment of the member of the Tribunal as Inquiry Officer for the de novo proceedings is violative of the principle of natural justice for the reasons that the inquiry office in Council Service has been appointed on contract basis, therefore, the right of fair inquiry has been curtailed by the respondents. He argued that after appointment of the Member Council Service Tribunal as Inquiry Officer no officious remedy is available to the petitioner. The learned Advocate contended that Accountant General Azad Jammu and Kashmir has admitted the claim of the petitioner and reply of the respondents is an evasive denial. He further contended that no counter affidavit of an authorized officer on behalf of the respondents has been filed with written statement. The learned Advocate submitted that different notifications have been placed by the respondents before the apex Court and this Court whereby the contradictory stands have been taken by the respondents which is against the record. The learned Advocate in support of his submissions placed reliance on the following cases:---
(1) Ghulam Abbas Niazi v. Federation of Pakistan and others (PLD 2009 SC 866);
(2) Muslimabad Cooperative Housing Society Ltd. Through Secretary v. Mrs. Siddiqa Faid and others (PLD 2008 SC 135);
(3) Rana Muhammad Naveed and another v. Federation of Pakistan through Secretary M/O Defence. (2013 SCMR 596);
(4) Messrs Ahmed Clinic v. Government of Sindh and others (2003 CLC 1196);
(5) Muhammad Irshad and another v. Tehsil Municipal Administration through Tehsil Nazim Lodhran and 3 others (2006 CLC 1902);
(6) Muhammad Nawaz v. Secretary to the Government of the Punjab Agriculture Department (1981 PLC (C.S.) 194);
(7) The Muree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others (PLD 1972 SC 279);
(8) Federation of Pakistan and another v. Malik Ghulam Mustafa Khar. (PLD 1989 SC 26);
(9) Muhammad lqbal v. Secretary, Ministry of Interior Islamabad and 2 others (1993 PLC (C.S.) 1522);
(10) Miss Zubaida Khatoon v. Mrs. Tehimina Sajid Sheikh and others (2011 SCMR 265);
(11) Inayatullah and others v. Director-General and others (2006 SCMR 535);
(12) Azad Jammu and Kashmir University and another v. Muhammad Malik and others (1998 CLC 783);
(13) Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidydalaya, Sitapur (U.P.) and others (AIR 1987 SC 2186);
(14) AJ&K Government and others v. Ch. Abdul Majeed and others (2004 MLD 844);
(15) Muhammad Arshad Khan v. Chairman, M.D.A. And 6. Others. (1997 MLD 3066);
(16) Divisional Personal Officer Pakistan Railways, Lahore v. Chairman, Punjab Labour Appellate Tribunal Lahore and 2 others. (1987 CLC 1397);
(17) Tabassum Arif v. Azad Government and others (2013 SCR 134).
7. ' The ratio of the above cases is that bar under Article 199(3) of the Constitution is not attracted to a case where the authority involved has acted without jurisdiction, mala fide and coram non judice.
8. ' In Muslamabad Cooperative Housing Society Ltd.'s case it was further held that High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was also held that when a statutory functionary acts mala fide or in a partial, unjust and oppressive manner the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party.
9. ' In Muhammad Iqbal's case it was held that order of suspension was not a final order but was only of interim nature after initiating disciplinary proceedings. Appeal against such order would not be competent.
10. ' In Miss Zubaida Khatoon's case it was argued that High Court could not undertake a factual inquiry. The argument was repelled and it was opined that the same is misplaced, first because the High Court was not recording any new evidence but was proceeding on the basis of the admitted facts and second, if having examined the admitted facts, it had come to the conclusion that the authority had passed the order in colourable exercise of powers conferred on it, or an authority having power to promote or appoint to a particular post had done so against the law or without jurisdiction or while doing so as for mala fide reasons had not taken into consideration the relevant record, it could come in aid of person aggrieved to redressed the wrong.
11. ' In case titled Azad J&K Government and others v. Ch. Abdul Majeed and others it was observed that under Order VIII, rules 3 to 5 of the C.P.C. It is not sufficient in the written statement to simply deny the averment made in the plaint or the writ petition; rather the facts show that the averment made in the suit or writ petition is untrue must be stated.
12. ' In Muhammad Arshad Khan's case it was ruled that an affidavit can only be acted upon if it had been sworn by a person who had personal knowledge about facts pleaded in the petition or written statement.
13. ' In Divisional Personal Officer Pakistan Railways, Lahore's case it was opined that the petition is supported by the affidavit sworn by the learned counsel for petitioner, which does not bear any date and states that nothing has been concealed from this Court. I wonder how the learned counsel can categorically make a statement of this nature on oath, because he is not expected to know as to what had transpired between respondent and petitioner or within the office of petitioner during litigation. This practice is not appreciated, to say the least.
14. ' In Tabassum Asif's case it was held that the Courts have to interpret the law as it is and not as it should be. The Courts cannot add or subtract anything in the law.
15. ' The same principles have been reiterated in the other cases referred to and relied upon by the learned Advocate, therefore, need not to be discussed.
16. ' Syed Nazir Hussain Shah Kazmi, the learned Advocate for the other side has placed on record an order issued by the Council Secretariat dated 4-6-2013 in which it is stated that Controller General of Azad Jammu and Kashmir has not been appointed in the terms of sections 2 and 4 of the Azad Jammu and Kashmir Controller General of Accounts Appointment and Sanction of Powers Act, 2005, hence, competent authority under the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000 is the Secretary Kashmir Council. The learned Advocate also relied on notification dated 7-8-2013 which is the legal advice of the Law Department in support of his assertion. The learned Advocate argued that petition is not maintainable because grievance voiced through this petition relates to the terms and conditions of the service of the petitioner and after the final order the petitioner has an adequate right of appeal before the Council Service Tribunal, therefore, interference by this Court in the process of inquiry would not be justified. The learned Advocate further argued that even if the orders initiated for proceedings as well as de novo inquiry including suspension of the petitioner for the sake of arguments are admitted to have been passed without jurisdiction or by an in competent authority even then the same can be challenged before the proper forum and want of jurisdiction or illegal exercise does not furnish a ground for interference by this Court. The learned Advocate in support of his submissions placed reliance on the following cases:---
(1) Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and another (1999 PLC (C.S.) 1439);
(2) Muhammad Tariq Amin and 3 others v. Muhammad Hussain and 3 others (1999 PLC 941);
(3) Habibullah Gannaie v. Wajahat Rashid Bain and 3 others (1999 PLC (C.S.) 615);
(4) Qazi Muhammad Suleman and 5 others v. AJ&K Government and 2 others (2002 PLC (C.S.)
17. 769);
(5) Syeda Shahista Mumtaz v. Secretary Education and 6 others (2003 SCR 446);
(6) The Accountant General and others v. Zaman Hussain Khan (1998 PLC (C.S.) 431); ' In the first case the apex Court of Azad Jammu and Kashmir has laid down some principles for guidance of this Court for entertaining writ jurisdiction as under:---
(1) If an adverse order has been passed by a departmental authority, it can only be challenged by filing appeal before the Service Tribunal to the total exclusion of the jurisdiction of the High Court;
(2) If a favourable order has been passed by a departmental authority but it is not being implemented without just cause and the matter suffers from procrastination a writ, subject to just exceptions, may issue to enforce its implementation provided always that the order is valid and legally enforceable;
(3) Principle laid down in No,2 above would not apply if the previous order is being reconsidered or is being recalled in which case reasonable time should be allowed for the reconsideration and final disposal of the matter. In such cases High Court cannot issue a direction to the relevant departmental authorities not to withdraw or amend the order sought to be implemented through the writ petition;
(4) If a final order has not been passed the concerned civil servant should wait till passing of such order and then challenge it before the Service Tribunal instead of approaching the High Court for a declaration or injunction regarding a matter which falls within the ambit of terms and conditions of his service e.g. Seniority, promotion, posting etc.
(5) If an application, appeal or review is pending for disposal with the departmental authorities, the High Court is competent to issue a direction for its disposal within a reasonable time by fixing a time limit. However, this power will be exercisable only if the High Court is satisfied that the departmental authorities are procrastinating or contumaciously refuse to pass a final order.
18. ' In the second case matter relating to the terms and conditions of a civil servant was brought before this Court through a writ petition and a direction was issued by this Court for determination of seniority. On appeal the judgment was vacated on the ground that jurisdiction of this Court was barred by section 47 of the Interim Constitution Act, 1974.
19. ' In the third case the same principle was reiterated by the apex Court that where matter relates to the terms and conditions of a civil servant this Court has no jurisdiction under section 47 of the AJ&K Interim Constitution Act, 1974 to entertain the controversy.
20. ' In Qazi Muhammad Suleman's case it was observed that any matter which falls within the ambit of terms and conditions of civil servants cannot be resolved by any Court including this Court in exercise of their jurisdiction except the Service Tribunal.
21. ' In Syeda Shahista Mumtaz's case it was concluded that disputed question of facts when required evidence of parties for and against normally is not resolved in writ jurisdiction, however, the High Court has the jurisdiction to resolve the disputed question of fact in suitable cases.
22. ' In last cited case referred to herein above it was observed that order without jurisdiction can be challenged before the Service Tribunal. It was further observed that this Court has no jurisdiction to entertain writs relating to the service matters on the ground that order in question was passed by an incompetent tribunal or authority.
23. ' I have heard the learned counsel for the parties and gone through the record of the case as well as the case-law.
24. ' I have no quarrel with the proposition that grievance relating to the terms and conditions of a civil servant has to be decided by the Service Tribunal on a regular appeal. In the present case admittedly no adverse order has been passed against the petitioner, therefore, there is no occasion for him for approaching the Service Tribunal.
25. ' The contention of Syed Nazir Hussain Shah Kazmi, the learned Advocate for the respondents that petitioner should wait till the time when the final order is passed against him and thereafter he should approach the Service Tribunal, in view of the law laid down in Ejaz Ahmed Awan's case, relied upon by him, has no substance and the rule of law laid down in the other cases relied upon by him, in my humble view, is also not attracted. Of course, this Court is precluded from deciding as to whether the petitioner has committed misconduct, misuse of authority or anything else which shall be judged by the Inquiry Officer and the competent Authority. In the present case the claim of the petitioner is that his suspension as well as initiation of disciplinary proceedings under the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000 against him has been initiated by an incompetent authority. If the authority, who has suspended the petitioner and has passed the order for inquiry and subsequently for de novo inquiry, has no jurisdiction in the matter the order passed by him is coram non judice then, in my humble view, the bar contained in section 47 of Azad Jammu and Kashmir Interim Constitution Act, 1974 is not attracted in the case.
26. This Court cannot ask the petitioner to wait till he is illegally hanged. Writ of prohibition can be issued to an authority or tribunal to refrain from proceeding further in any proceedings in which it has no jurisdiction to proceed under law. In the cases relied upon by Mr. Muhammad Tahir Aziz Khan, the learned Advocate the same principle has been approved. In a case titled Munawar Hussain v. The University of AJ&K and others (2011 SCR 27) at page 48 it was observed as under:- "The power/authority in fact is a limitation which has to be exercised as stipulated by law, rules and Regulations and if a bar is constituted, it cannot be exercised or performed particularly in absence of specific provision."
27. ' Again at page 49 of the report it was observed as under:--- "If the Statute does not authorize the University authorities or the Syndicate to inquire into correctness of a degree after three years of issuance, this power cannot be vested by the High Court to the University authorities. The High Court and this Court like other institutions are creation of law and have only such jurisdiction which is conferred by law. The same principle is applicable to University authorities that they have only that jurisdiction which is vested in them by law and no more. Similar is the answer to the objection wherein it has been pleaded on behalf of respondents that one of the appellants has -himself surrendered before the Committee and accepted the authority. No acquiescence against law is permissible."
28. ' The Azad Jammu and Kashmir Council issued a notification on 18-1-2011 under clause (b) of section 2 of the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act,.
29. 2000 whereby Chairman Azad Jammu and Kashmir Council has authorized Controller General Accounts of Azad Jammu and Kashmir to exercise the powers of the competent authority under section 3 of the said Act in respect of the officers in B-17 to B- 19 of the Accounts Department of Azad Jammu and Kashmir. Previously these powers were given to Auditor General of Azad Jammu and Kashmir as is evident from notification dated 26-4-2001, Annexure "H", available at page 28 of the file. The petitioner herein was suspended vide order dated 15-10-2012 issued from the office of the Secretary of the Azad Jammu and Kashmir Council. Vide order dated 15-10-2012 an inquiry was initiated against the petitioner under section 5 of the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000 and respondent No,7 was appointed as Inquiry Officer.
30. Respondent No,7 exonerated the petitioner from all the charges and submitted his recommendations to the competent authority for final order. The competent authority Secretary Azad Jammu and Kashmir Council being dissatisfied from the proceeding vide notification dated 30-11-2012 appointed Raja Gull Muhammad, Member Azad Jammu and Kashmir Council Service Tribunal as Inquiry Officer and directed for de novo inquiry. The petitioner has placed on the record a notification dated 18-7-2011 which postulates that the Chairman Azad Jammu and Kashmir Council (P.M. Pakistan) has authorized the Controller General Azad Jammu and Kashmir to exercise the powers of competent authority. This notification is admitted by Accountant General in his written statement. A perusal of the above notification reveals that the proceedings for inquiry could be initiated only by the Controller General of Accounts of Azad Jammu and Kashmir and the petitioner can also be suspended by him and de novo inquiry could only be ordered by the Controller General Azad Jammu and Kashmir.
31. ' The contention of Syed Nazir Hussain Shah Kazmi, the learned Advocate that the Controller General Pakistan has not been appointed by the Council is devoid of any force because under section 4 of the Azad Jammu and Kashmir Controller General of Accounts (Appointment, Functions and Powers) Act, 2005 the Controller General Accounts Pakistan shall act as Controller General of Azad Jammu and Kashmir who shall not be paid salary for performance of the functions as Controller General of Azad Jammu and Kashmir, therefore, it was not necessary to issue any notification of appointment.
32. ' The contention of the learned Advocate that notification whereby Controller General of Pakistan has been authorized to act as authority of the employees of the Accounts Department has not been issued is devoid of any force. 2 contradictory documents have been relied upon by the Department. One has been presented before the apex Court and the other has been presented to this Court. No doubt, on 4-6-2013 the Secretary Azad Jammu and Kashmir Council has been authorized to act as authority in respect of employees of the Azad Jammu and Kashmir Council Secretariat and the other institutions working under the administrative control of the Azad Jammu and Kashmir Council but the proceedings initiated against the petitioner have been initiated prior to issuance of the aforesaid notification. It is also an admitted position that Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000 has been repealed. Clause 2 of section 2 provides that all the proceedings pending under the repealed Act or rules made thereunder immediately before commencement of this Act against any person in the service of Azad Jammu and Kashmir Council shall continue under the repealed Act or rules made thereunder. Therefore, issuance of notification dated 4-6-2013 cannot override the statute and even otherwise pending proceedings are to be continued under the old law.
33. 'The contention of Syed Nazir Hussain Shah Kazmi, the learned Advocate that notification is based on the opinion of the Law Department, has no substance. As the opinion of the Law Department, if any, is of advisory nature and is not binding on the Courts that too, when the same is against the statutory provisions of law. Reliance in this behalf can be placed on a case titled Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources v. Dewan Petroleum (Pvt.)
34. Ltd. Through M.D./Chief Executive and another. (PLD 2012 SC 189).
35. 'The contention of the learned Advocate that Inquiry Officer -is biased and it was enjoined upon the respondents to appoint an impartial Inquiry Officer because no fair trial is expected from a contract employee who is at the mercy of the hi-ups of the Council for extension, is correct. The proceedings are of semi-criminal nature and should have been initiated in accordance with the spirit of law because as civil servant has a right to have fair trial, which includes appointment of an impartial, independent Inquiry Officer. In this regard we may refer case titled Azad Government of the State of Jammu and Kashmir, Muzaffarabad and another v. Muhammad Akram Shah (1989 CLC 905).
36. ' The contention of Mr. Tahir Aziz Khan, the learned Advocate that only one inquiry is contemplated by the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000 and de novo inquiry is not permissible under law is devoid of any force. Firstly, the inquiry has not been initiated by the competent authority which has resulted into acquittal of the petitioner. Secondly, it cannot be said that authority is not competent to pass an order of de novo inquiry, if is not satisfied with the report of the Inquiry Officer. The only requirement is that Authority should be competent and right of hearing should be provided before ordering the de novo inquiry, especially in those cases where an accused civil servant has been exonerated from the charges. This argument even otherwise is not available to the learned Advocate because he has challenged all the orders, right from his suspension to appointment of Inquiry Officer as well as order of de novo inquiry.
37. ' In view of above I am of the view that as very initiation of the proceedings against the petitioner including his suspension is without lawful authority and jurisdictional competence, therefore, his suspension as well as appointment of Inquiry Officer including de novo proceedings are hereby quashed. As the petitioner has been granted relief on technical grounds, therefore, the competent authority, if so advised, may initiate de novo proceedings (1996 SCR 127).
38. ' The petition is accepted in the manner indicated above.