1. ' SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-Through this service appeal under section 4 of the Azad Jammu & Kashmir Service Tribunals Act, 1975, Gul Hussain appellant has challenged the order of the Commissioner dated 3rd May, 1978 whereby the appellant was compulsorily retired from service and the Government Order dated 15th October, 1980 rejecting his appeal against the said order of his compulsory retirement.
2. ' Briefly stated, the facts of the case are that the appellant while employed as Girdawar in the Revenue Department informed his Department in 1973 that he had passed the Matriculation examination in proof whereof he produced the Matriculation Certificate No, 38970 issued by the Board of Intermediate and Secondary Education, Lahore and requested for his promotion to the post of Naib-Tehsildar. The appellant on the basis of the said certificate was promoted as Naib- Tehsildar vide of the respondent No, 2 dated 3rd March, 1975. Later on it was brought to the notice of the Department that the Matriculation Certificate produced by appellant was not genuine one whereupon he was called by the respondent No, 2 in his office for explanation where he filed an affidavit to the effect that aforesaid Certificate was correct and genuine. To verify the correctness or otherwise of the said certificate the aforesaid Board was contacted which testified that the Matriculation Certificate produced by the appellant was forged one. Consequently the appellant was proceeded against for misconduct on the charge of producing forged Matriculation Certificate in proof of his Educational qualification under Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter to be called Efficiency and Discipline Rules) and accordingly show cause notice was served on him on 16th January, 1979 requiring him to put in his reply to the abovesaid charge and also to show cause against the imposition of one or more penalties mentioned in rule 4 of Efficiency and Discipline Rules. The appellant in his reply to the show-cause notice categorically denied the above charges and took up the position that he could also produce the verification from the Board about the genuineness of his Matriculation Certificate.
3. The appellant was then directed by respondent No, 2 to appear before him for producing his defence but as the appellant did not avail of the opportunity an order of his compulsorily retirement was passed by the said respondent on 3rd July, 1975. An appeal against this order was preferred by appellant before Government-respondent but the same was rejected vide order dated 13th October, 1981. Feeling aggrieved by the aforesaid orders of respondents the appellant has now approached this Tribunal by way of this appeal for redress of his grievances arising out of the said orders.
4. ' In the Memo of appeal the impugned orders have been challenged on the following grounds :-
(i) That the show-cause notice has not been served by an authorised Officer as provided under Rules with the result that the whole proceedings against the appellant have become null and void.
(ii) That no enquiry at all was conducted into the charge against the appellant as required under Rules and as such the impugned order has resulted in gross miscarriage of justice.
(iii) That the Efficiency and Discipline Rules are against the basic concept and spirit of Azad Jammu & Kashmir Interim Constitution Act, 1974 as the same are discriminately inasmuch as they give unguided and uncontrolled arbitrary powers to the authorised officer to decide according to his likes and dislikes, whether or not regular enquiry should be conducted into the charges against the civil servants.
(iv) That the order is unlawful as the procedure adopted in the Disciplinary proceedings against the appellant violates the principles of natural justice embodied in the maxim Audi alteram partem.
(v) That it is not the requirement of law to be a matriculate for a person to be eligible for promotion to the post of Naib-Tehsildar.
5. ' The appeal has been contested by respondents on whose behalf written objections have been filed in which it is alleged that the appeal is unmaintainable. It is further averred that the appellant was compulsorily retired from service on the charge of misconduct for having produced forged Matriculation Certificate in support of his educational qualification after taking necessary proceedings under Efficiency and Discipline Rules.
6. ' We have heard the learned counsel for the parties and have also gone through the relevant record. In the first place we proceed to take up the question of limitation in regard to the filing of the present appeal. The appellant has requested for condonation of delay caused in filing the appeal on the ground that the final impugned order of respondent No, 1 dated 13th October, 1980 was passed without notice to the appellant and that he came to know of the same when he came to enquire about the fate of his appeal. This plea is neither specially denied nor any objection regarding the appeal being time-barred is taken up in written objections. There is also nothing on the record pertaining to the disciplinary proceedings against the appellant that the order of rejection of his appeal by the respondent No, 2 was ever communicated to him. In these circumstances the stand taken by the appellant in this regard is to he believed and thus the appeal is within time as the period of limitation would commence from 27th December, 1980, the date on which appellant came to know about the final order of the respondent No, 2 rejecting his departmental appeal. Anyhow, if there is any delay in filing the appeal, the same is condoned in view of the circumstances mentioned above.
7. ' The learned counsel for the appellant has argued that the impugned order of the compulsory retirement of the appellant is unlawful and void because relevant Rules have not been followed in the disciplinary proceedings taken against the appellant. This contention of the appellant has much force in it. After going through the Efficiency and Discipline Rules applicable in the case, under which the disciplinary proceedings against the appellant were also taken as is apparent from the record itself. We are of the firm view that the procedure prescribed in the said Rules has altogether been ignored in the instant case. Chapter III of the said Rules prescribes the procedure for enquiries and imposition of penalties on civil servant, whose rules 5, 6 and 8 are relevant for our purposes which are reproduced below :-
(5) Initiation of proceedings.-If in the opinion of the authority, there are sufficient grounds for proceeding against a civil servant, it shall direct the authorised officer to proceed against the said civil servant.
(6) Inquiry procedure to be observed by the authorised Officer.-The following procedure shall be observed by the authorised officer when a civil servant is proceeded against under these rules :-
(1) In case where a civil servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave, if due, or, with the approval of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.
(2) The authorised officer shall decide whether in the light of the facts of the case or the interest of the justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, he shall appoint an Inquiry Officer or Inquiry Committee consisting of two or more persons who or one of whom shall be of the rank senior to the accused or all of the co-accused and the procedure indicate in rules 7 and 8 shall apply.
(3) If the authorised officer decides that it is not necessary to have an Inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall-
(a) by order, in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(b) give him a reasonable opportunity of showing cause against that action : ' Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.
(4) On receipt of the explanation of the accused, if any, the Authorised Officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the explanation of the accused, and his own recommendations regarding the penalty to be imposed.
(8) Action by the authority.-In the case of any proceedings the record of which has been reported for orders under sub-rule (4) of rule 6 or sub-rule (8) of rule 7 the authority shall, after affording the accused an opportunity of being heard in person, pass such order 33 may deem Bt.
8. ' The perusal of the afore-quoted provisions of Rules would show that in a disciplinary proceedings against a civil servant two persons, namely, `Authority and Authorised Officer' are indispensable.
9. Out of them the powers of the authority are limited who after taking decision for initiating disciplinary action against the civil servant and giving direction to the Authorised Officers to proceed against him serves at his connections with further proceedings and goes into the background to reappear on the scene only for the purpose of imposing major penalty if the same is decided and recommended by the Authorised Officer to be imposed on the accused civil servant. But in comparison to the authority the Authorised Officer after receiving the direction from the authority for proceeding against the civil servant comes to occupy the position of prominence and importance enjoying the wide range of powers and performing the important and vital role and functions in the conduct of the remaining Disciplinary Proceedings. It is the "Authorised Officer" who has been given the power to make fundamental and basic decision as to whether or not the inquiry should be conducted through an Enquiry Officer/Inquiry Committee. In case the regular inquiry through Inquiry Officer/Inquiry Committee is dispensed with. It lies within his competence to inform the accused civil servant of the action proposed to be taken in regard to him and the grounds thereof. Even in the event of inquiry being conducted through Inquiry Officer/ Inquiry Committee the powers to appoint the Inquiry Officer/Inquiry Committee and to frame the charge- sheet and communicate the same to the accused civil servant, also fall within the purview of the jurisdiction of the 'Authorised Officer'. Again it is for the Authorised Officer to see as to whether or not the charges have been proved against the accused civil servant. Not only that but he is also empowered to decide the nature of the penalty to be imposed upon the civil servant and can himself award the minor penalty if it is so proposed.
10. ' Before proceeding to decide as to whether or not the disciplinary action in this case has been taken in accordance with the relevant Rules it becomes necessary to first determine the 'Authority and Authorised Officer' in the case of the appellant. The "Authority and Authorised" Officer are defined under clauses B and C respectively of sub-rule (1) of rule 2 of the Efficiency and Discipline to which the authority" means the Government, or an officer or authority designated by it to exercises powers of the authority under the rules an Authorised Officer" means an officer to perform functions of an authorised officer -under these Rules provided that in relation to certain civil servants, the authority may be authorised to act as authorised Officer". At the time of the initiation of the disciplinary proceedings against the appellant the Government had nut as yet designated the authority and authorised Officer in respect of any of the employee of the Revenue Department and it was only subsequent to the passing of the impugned order dated 13th May, 1979 that the authority and authorised officer in respect of the civil servants of various departments including Revenue Department were designated by the Government vide its Notification No, S & GAD/R-80/ SO-I/21864.924 of 1979 dated 17th October, 1979 in exercise of its power under the above-stated provision of Efficiency and Discipline Rules. Thus in the absence of any designation of authority and authorised officer under the aforesaid such Rules the provisions of sub-rule (4) of the rule 2 of the Efficiency and Discipline Rules were applicable for ascertaining the authority and authorised Officer in the case of the appellant. The above sub-rule reads as follows:-
(4) The various authorities empowered to award major punishments under the various delegation of powers rules, shall, in respect of civil servants to whom they are competent to award major punishment, exercise the powers of the authority under these rules and the authorities empowered to award minor punishment under the said Delegation of Powers Rules 'are, in respect of the civil servants to whom they are competent to award minor punishment, authorised to exercise the powers of 'Authorised Officer' under these rules: ' In view of the above provisions of sub-rule (4) reproduced above the authority and Authorised Officer in the instant case were determinable under the Delegation of Power Rules applicable at the relevant time relating to the powers of the various authorities of awarding punishment on the civil servants. At the time of the passing the original impugned order administrative powers including the powers of imposing penalties on various categories of the Government servants were contained in Schedule V, Part III appended to the Rules of Business, 1975 framed under section 58 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. According to the said Schedule the Category I Officer and 'Head of Office' were empowered to award the major and minor punishments respectively on the employees of their Department falling within Grades 9 to 15 of the National Pay Scale. The appellant being an official of Grade 9 and posted in a Sub-Division, the Commissioner and Administrative Head of the Sub-Division concerned were authority and authorised officer respectively in his case.
11. After determining authority and Authorised Officer we now proceed to decide the preliminary objection regarding the impugned order of compulsory retirement having been passed in contravention of the relevant service Rules. From the perusal of the record of the case one cannot help in coming to the conclusion that in the disciplinary proceedings taken in the present case which ultimately resulted in the passing of the order of compulsory retirement of the appellant the procedure prescribed in the relevant Rules has altogether been disregarded so much so that even certain important and basic functions and powers have been per formed exercise by a person not legally authorised under the relevant Rules. In this case the whole of the proceedings right from the beginning to the end have been taken by the Commissioner who, as seen above was only the authority and the Authorised Officer does not make its appearance at any stage of the proceedings to discharge his functions and to exercise his powers assigned to him under the Efficiency and Discipline Rules. Here it was the Commissioner who took the decision to commence disciplinary action against the appellant, served show-cause notice on him dispensing with the regular enquiry and finally passed the order compulsorily retiring him from service whereas the right and correct procedure to be adopted as envisaged by the Efficiency and Discipline Rules, was that the Commissioner in his capacity as authority should have confined himself to giving direction to the Authorised Officer for proceeding against the appellant leaving the further proceedings to be conducted by him (Authorised Officer) . Then it fell within the domain of the jurisdiction of the Authorised Officer to decide as to whether or not the facts of the case or the interest of the justice demanded the regular enquiry into the charge against the appellant to be conducted through the Enquiry Officer or Enquiry Committee. In the event of the decision in favour of the enquiry to he conducted through Enquiry Officer or Enquiry Committee it was also the Authorised Officer who was equipped with such fundamental powers as the appointment of Enquiry Officer, framing of charge-sheet and communication of the same to the appellant and after receiving the Enquiry Report affording him the opportunity of personal hearing. Even in the case of the regular enquiry against the appellant being considered unnecessary, it was again the Authorised Officer who should have informed the appellant in writing of the action proposed to be taken in regard to him and the grounds thereof and given him the reasonable opportunity of showing cause against the same. Nature of the penalty to be imposed was also to be decided by the Authorised Officer and it was only when major penalty was called for, he was required to submit the case to the authority for proper orders alongwith his recommendation regarding the penalty to he imposed on the appellant. But in this case the Commissioner perhaps due to inadvertence did not confine himself within the four corners of his authority conferred on him by Efficiency and Discipline Rules and rather travelling far beyond them and assuming for himself the duties and responsibilities of the Authorised Officer performed and exercised functions and power which exclusively fell within the jurisdictional competence of the Authorised Officer. This intrusion into the sphere of jurisdiction of the Authorised Officer and rather his elimination altogether from the field constitutes the clear infraction of the mandatory provisions of the service rules for which reason alone the whole of the Disciplinary proceedings against the appellant have become null and void and stands vitiated and resultantly the order of the compulsory retirement from service impugned in this appeal is rendered unlawful, in operative and unsustainable. The original order have been found illegal, the impunged order of the Government made in petition for review automatically falls to the ground.
12. ' For the foregoing reason the impunged orders are set aside with no order as to costs. Since the impunged orders are being vacated merely on the technical ground of non-compliance with the relevant service rules, it would be open to the competent authority to take fresh Disciplinary Proceedings, if so desired, against the appellant in accordance with the law keeping in view the above observations.
13. ' The parties shall be informed of this order. KH. GHULAM QADIR (MEMBER).-1 agree.