Raja Saeed Akram Khan, J.-- The titled appeal by leave of the Court has arisen out of the judgment passed by the High Court on 19.2.2015, whereby, the writ petition filed by the appellant, herein, has been dismissed.
2. The facts in brief as stated are that the appellant, herein, filed a writ petition in the High Court alleging therein that he was serving as the Divisional Accounts Officer in the office of the Accountant General of the Azad Jammu & Kashmir and retired from service on 15.12.1999. It has been stated that during his service, he has made the payments against various bills presented by the different Drawing and Disbursing Officers (DDOs). An audit report was prepared by the official respondents, wherein, item No. 7, relating to the controversy that Income Tax was recovered on old rates, the appellant was charge-sheeted by the departmental authority and the matter was referred to the Public Accounts Committee (PAC). The Chairman PAC vide letter dated 9.7.2003 directed that an amount of Rs. 237075/- pertaining to the Income Tax may be recovered from the concerned and in case of failure, the matter may be referred to the Ehtesab Bureau. In compliance of the directive issued by the Chairman PAC, the Executive Engineer, vide notice dated 26.7.2003, directed the appellant to pay the said amount. The learned High Court, after necessary proceedings, vide impugned judgment dated 19.2.2015, dismissed the writ petition being without substance with the observation that the Ehtesab Bureau is at liberty to proceed in the alleged offence, if so required, strictly in accordance with law. Hence, this appeal by leave of the Court.
3. Raja Sajjad Ahmed Khan, Advocate, the learned counsel for the appellant, argued that the judgment passed by the learned High Court is against law and the facts of the case which is not sustainable in the eye of law.
The learned High Court while delivering the impugned judgment has not resolved the controversy involved in the case in a legal manner. He submitted that PAC has got no authority to itself initiate the criminal proceedings against the appellant and refer the matter to the Ehtesab Bureau. He argued that the PAC cannot play a role of investigating agency against an employee rather to direct the concerned department for the purpose in accordance with law. He further submitted that the appellant had been an employee of the Azad Jammu & Kashmir Council, therefore, the Ehtesab Bureau has no authority to initiate any proceeding against the appellant but this important aspect of the case escaped the notice of the learned High Court. The learned High Court also erred in law while not taking into consideration that the appellant was retired from service in the year 1999, therefore, no disciplinary action can be initiated against the appellant after his retirement. He argued that the act of the official respondents is discriminatory in nature as along with the appellant, many other employees are involved in the case but the respondents have only picked up the appellant with malafide intention. He lastly argued the departmental authority after holding the inquiry has awarded the punishment of censure to the appellant and the proposed action against the appellant is being initiated in order to save the favourites of the respondents, which is not warranted under law.
4. On the other hand, Syed Shahid Bahar, Chief Prosecutor, Ehtesab Bureau, submitted that the judgment passed by the learned High Court is perfect and legal which is not open for interference by this Court. He contended that the Ehtesab Bureau under law has jurisdiction to take cognizance against the employees of the Azad Jammu and Kashmir Council. He further contended that the learned High Court has rightly come to the conclusion that the criminal proceedings cannot be stopped in exercise of writ jurisdiction.
5. Mr. Raza Ali Khan, the learned Advocate-General, while appearing on behalf of the official respondents, adopted the arguments addressed by the learned Chief Prosecutor, Ehtesab Bureau, submitted that it is the duty of the PAC to scrutinize the accounts of the departments and point out the defects of the accounts, if any illegality comes on record, the same may be referred to the concerned department. He argued that no stringent measures have been taken against the appellant by the PAC rather the Chairman PAC has only directed that if the amount pertaining the Income Tax cannot be recovered on the prevailing rates from the concerned contractors, the matter may be referred to the Ehtesab Bureau.
6. We have heard the arguments of the learned counsel for the parties and gone through the record made available. The appellant, herein, challenged the directive dated 9.7.2003, issued by the Chairman PAC and the notice dated 26.7.2003, issued by the Executive Engineer, PWD Highways Division, Bagh, through writ petition before the learned High Court while showing the apprehension that he is going to be victimized on the strength of the aforesaid orders. The argument of the learned counsel for the appellant that PAC, itself cannot initiate criminal proceedings against an employee rather PAC can direct the concerned department for the purpose, it may be stated that the Chairman PAC has directed the concerned department i.e. the Executive Engineer, PWD, Highways Division, Bagh to issue the notice to the appellant to deposit the public money with the Government exchequer. The learned High Court recorded the findings in this regard in paragraph 10 of the impugned judgment as under:-- "10. As far as the claim of the learned counsel for the appellant, that the PAC, itself cannot initiate criminal proceedings against an employee rather the Committee can direct the concerned department for the purpose, stands negated from record because record shows that on the direction of the PAC dated 09.07.2003, the Executive Engineer, PWD High Ways, vide letter dated 26.07.2003 directed the petitioner to deposit the public money with the Government exchequer, otherwise the matter shall be referred to the Ehtesab Bureau, whereby, it can safely be concluded that the PAC, itself, has not initiated the proceedings rather it has directed the concerned department for necessary action, hence, this argument of the learned counsel for the petitioner stands repelled, too."
The learned High Court has rightly come to the conclusion that PAC, itself, has not initiated the proceedings against the appellant, whereas, the Chairman PAC has only directed the concerned department i.e. the Executive Engineer, PWD Highways Division, Bagh to proceed with the case in accordance with law. Therefore, the argument addressed by the learned counsel for the appellant has no substance.
7. While adverting to the other argument raised by the learned counsel for the appellant that he had been an employee of the Azad Jammu & Kashmir Council, which does not fall within the jurisdiction of the Azad Jammu and Kashmir, Ehtesab Bureau. The Ehtesab Bureau has no authority to initiate any proceeding against the appellant under the provisions of Act, 2001. To resolve the controversy we have examined the preamble of Act, 2001, which reads as under:-- "An Act to provide for the setting up of an Ehtesab Bureau in the State of Azad Jammu and Kashmir so as to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto; Whereas it is expedient and necessary to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practises, misuse/abuse of power, misappropriation of property, kickbacks, commissions and for matters connected and ancillary or incidental thereto; And whereas there is an emergent need for the recovery of outstanding amount from those persons who have committed default in the repayment of amounts to banks, financial institutions, Government and other agencies; And whereas there is a grave and urgent need for the recovery of State money and other assets from those persons who have misappropriated or removed such money and assets through corruption, corrupt practices and misuse of power and/or authority; And whereas it is necessary that an Ehtesab Bureau be set up so as to achieve the above aims."
After going through the preamble of Act, 2001, it appears that the Ehtesab Bureau apart from speedy disposal of cases involving corruption, corrupt practise etc. was to be set up so as for recovery of outstanding amount from those persons who have committed default in the repayment of amounts to banks, financial institutions, Government and other agencies and the recovery of State money and other assets from those persons who have misappropriated or removed such money and assets through corruption, corrupt practices and misuse of power and/or authority. It is a special law and use of the same in oppressive manner must be tested on the touchstone of fundamental right of a person as guaranteed under the Constitution. The Courts are under legal duty to defend, preserve and enforce the rights of people and their fundamental constitutional guarantees. The noble objective as reflected in the Preamble of Act, 2001 is to exercise powers to inspire confidence of the State-Subjects in the public institutions.
8. It may be stated that Act, 2001, was adapted by the Azad Jammu and Kashmir Council vide Azad Jammu and Kashmir Ehtesab Bureau (Adaptation and Extension Act), 2005. Subsection (3) of section 1 of Adaptation Act, 2005 speaks as under:--
(3) It shall apply to all the persons serving in, or in connection with the affairs of the departments under the administrative control of Azad Jammu and Kashmir Council and the department and functions of the Azad Government of the State of Jammu and Kashmir which have been placed or may henceforth be placed under the administrative control of the Azad Jammu and Kashmir Council under sub-section (3) of Section 19 of the AJ&K Interim Constitution Act, 1974 (Act VIII of 1974)."
Whereas, section 3 of Act, 2001, speaks that:- "3. Application:- It extends to the whole of Azad Jammu and Kashmir and shall apply to the following persons wherever they may be:-
(a) all persons in Azad Jammu and Kashmir;
(b) holders of public office;
(c) all persons who are suspected to have abetted commission of an offence triable under this Act; and
(d) all persons who are associates as defined in section 4."
Subsection (3) of section 1 of Adaptation Act, 2005, clearly provides that the Act is applicable to the persons serving in the departments under the administrative control of AJ&K Council. The argument of the learned counsel for the appellant that he was an employee of the AJ&K Council, therefore, the Ehtesab Bureau has no authority to initiate any proceeding against the appellant, has no force.
9. The Ehtesab Bureau is established in the State of Azad Jammu and Kashmir so as to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto. It is paramount duty of the Ehtesab Bureau to investigate the matters and bring out the true facts from the record. In the case in hand, PAC has not referred the case to the Ehtesab Bureau as yet, therefore, the apprehension shown by the learned counsel for the appellant would be pre-mature at this stage that the appellant is going to be victimized on the strength of the orders dated 26.7.2003, and 19.2.2015, through which a threat has been extended to him that the matter shall be referred to the Ehtesab Bureau. The learned Chief Prosecutor, Ehtesab Bureau, has assured the Court that if the matter is referred to the Ehtesab Bureau the same shall be investigated fairly and in a transparent manner and no harassment shall be caused in the garb of investigation.
10. So far as the argument of the learned counsel for the appellant that the appellant along with many other employees of the department are involved in the case but the respondents have only picked up the appellant with malafide intention, therefore, the act of the official respondents is discriminatory in nature, we are afraid that such like ground cannot be made basis and the appellant cannot be allowed to escape his own responsibilities.
Even otherwise, the appellant was charge-sheeted by the competent authority and the matter came up before this Court, therefore, we are not intended to dilate upon the other issues involved in the case. The findings recorded by the learned High Court in paragraph 10 of the impugned judgment are well reasoned and we fully endorse the same.
In view of what has been stated above, we do not find any substance in this appeal. The learned counsel for the appellant failed to point out any illegality in the judgment passed by the learned High Court. Therefore, this appeal being devoid of any force is dismissed with no order as to costs.