RAJA SAEED AKRAM KHAN, J. -- The above titled appeals by leave of the Court has arisen out of the judgments of the Service Tribunal and the High Court dated 30.08.2017 and 21.x9.201 /, respectively. Through judgment dated 30.08.2017, the learned Service Tribunal dismissed the appeal filed by the appellant, Ch. Khalid Sultan whereas through judgment dated 21.09.2017, the learned High Court has dismissed the writ petition filed by the appellant, Muhammad Saleem. As identical legal and factual proposition is involved in both the titled appeals, therefore, these are being disposed of through this single judgment.
2. The common facts forming the background of he instant appeals are that the appellants in uoth the appeals i,e, On. Khalid Sultan arid Muhammad Saleem were appointed and -hosted in Mirpir Development Authority as Director Works and Divisional Accountant, respectively. The appellants alongwith some other officials were suspended from service and proceeded against under the provision of provisions of Removal from Service (Special Powers) Act, 2001 (hereinafter to be referred as Act 2001) by the competent authority vide notification dated 09.10.2012, on account of professional negligence, misconduct, corruption, misuse of powers etc. To probe into the matter an inquiry committee was constituted by the competent authority vide notification dated 01.11.2012.
After conducting necessary proceedings, the inquiry committee submitted its report on 07.06.2013, wherein the major punishment of removal from service was recommended against the appellants and two other officials.After receiving theaforesaid recommendations, the competent authority issued final show-cause notice to the appellants and others under the provisions of Section 3(2) of Act, 2001, for personal hearing. The competent authority while disagreeing with the recommendations made by the inquiry committee awarded minor punishment i,e, censure and stoppage of annual increments for two years to the appellants vide order-dated 04.07.2013. On 24.07.2013, the appellants alongwith two others, filed a writ petition in the High Court on the ground that the order passed by the Chief Executive/competent authority dated 04.07.2013, has not been implemented by the Chief Secretary and the matter is being procrastinating for one or the other reasons. In the writ petition the direction to the respondents, therein, for implementation of the order of the competent authority was sought alongwith the prayer to pay the salary and allowances as admissible under law for the period of suspension. After necessary proceedings, the learned High Court vide judgment dated 04.02.2015, disposed of the writ petition with the following observation:--- "In view of the above, the order passed by the Chief Executive, whereby different punishments awarded to the civil servants involved in the scandal have been substituted is hereby set aside and the case is sent back for passing fresh order after having regard to the inquiry report, evidence collected and gravity of the offences allegedly have been committed by the accused civil servants.
After the aforesaid judgment, another writ petition titled Raja Muhammad Farooq Haider Khan v.
Azad Government & others, was filed in the High Court on 13.02.2015, wherein, the following prayer was made:--- "It is very humbly prayed in the interest of justice, rule of law command of the Constitution, to save the public money of the taxpayers and bring the culprits to justice the following relief is solicited:
(i) The authority may kindly be substituted and some other impartial independent person be kindly designated/appointed as Authority in the special circumstances and in the background of this case.
(ii) The Chairman Ehtesab Bureau may kindly be directed to take cognizance of the matter as offences against the State have been committed as proved in the inquiry committee.
(iii)Any other relief which this Hon'ble Court deems fit may also be granted to the petitioner in the interest of justice."
Alongwith the aforesaid writ petition, an application for maintaining status quo was filed. On the said application, the learned High Court on 11.11 2015, ordered that status quo prevailing at the moment shall be maintained subject to the objections by the other side. The said writ petition was dismissed on 23.11.2016, having not been pressed. Meanwhile, in compliance of the previous judgment of the High Court dated 04.02.2015, the competent authority after necessary proceedings issued fresh notification dated 22.09.2016 through which the appellants were restored to their positions and attached with the Services and General Administration Department. The said notification was cancelled from the date of its issuance vide notification dated 15.11.2016. Feeling aggrieved from the said notification the appellant, Ch. Khalid Sultan, filed an appeal in the Service Tribunal, whereas, against the same notification the appellant, Muhammad Saleem filed a writ petition before the High Court, which have been dismissed by both the forums through the impugned judgments dated 30.08.2017 and 21.09.2017, respectively, hence the titled appeals by leave of the Court.
3. Barrister Hamyun Nawaz Khan, Advocate, the learned counsel for the appellant, Ch. Khalid Sultan, argued that the impugned judgment of the Service Tribunal is against law and the facts of the case which is not sustainable in the eye of law. He contended that in the matter in hand the authority imposed minor penalties upon the appellant vide notification dated 22.09.2016, but subsequently without adhering to the provisions of Section 24-A of the General Clauses Act, 1897, cancelled the same vide notification dated 15.11.2016. The subsequent notification was issued against law but the learned Service Tribunal failed to appreciate this aspect of the case in a legal manner. He contended that the worthy Prime Minister of the State earlier being Opposition Leader himself filed a writ petition against the appellant, therefore, after holding the status of authority he cannot deal with the matter as under law no one can act as a Judge in his own cause. In this way, the subsequent notification dated 15.11.2016; issued on the instructions of worthy Prime Minister is against the norms of justice but the learned Service Tribunal has not considered and resolved this important legal aspect of the case. He forcefully contended that the subsequent notification dated 15.11.2016, has been issued on the sole ground that notification dated 22.09.2016, was issued during the period when the order for maintaining the status quo issued by the High Court in the writ petition .titled Raja Muhammad Farooq Haider Khan v. Azad Government & others, was holding the field, whereas, the main writ petition was dismissed on 23.11.2016 an the status quo order have no legal consequences. He submitted that in the light of the direction issued by the learned High Court vide its judgment dated 04.02.2015, the competent authority after issuing fresh show-cause notices and hearing the appellant and others issued notification dated 22.09,2016, thus, in such state of affairs, there was no occasion to cancel the said notification. The subsequent notification has been issued with mala fide intention and if the same remains intact the appellant will be vexed twice for the same charge which is not permissible under law. The learned Counsel referred to and relied upon the case-law reported as Muhammad Tariq Amin and 3 others v. Muhammad Hussain and 3 others [1999 SCR 317], Raja Abdul Majid and 24 others v. Syed Abdul Latif Shah and 4 others [1999 SCR 459], Board of Intermediate and Secondary Education, Mirpur and another v. Quaid College of Education for Elementary Teachers, District Bhimber and another [2003 SCR 410] and Muhammad Younis Tahir and another v. Shaukat .Aziz, Advocate, Muzaffarabad [2012 SCR 213].
4. Mr. Muhammad Younis Tahir, Advocate, while appearing on behalf of the appellant, Muhammad Saleem, submitted that the impugned judgment passed by the High Court is contrary to law and the facts of the case. He contended that notification dated 15.11.2016, through which the notification dated 22.09.2016, is cancelled has been issued in a colourable exercise and with mala fide intention. The notification dated 22.09.2016, has been cancelled on the ground that the same was issued in violation of the stay order issued by the High Court, whereas, the writ petition in which the stay order was issued, was dismissed for having not been pressed. After the dismissal of writ petition there exists no stay order and now the authority in the garb of said stay order wants to initiate fresh proceedings against the appellant which is not permissible under law. He added that the competent authority has already imposed penalty upon the appellant, therefore, initiation of any fresh disciplinary proceedings against the appellant will be illegal, The learned High Court failed to attend and resolved the points involved in the matter, hence, impugned judgment is liable to be set aside. The learned counsel referred to and relied upon the case-law reported as Superintendent of Police Reserve v. Khalid Mehmood [2014 SCR 967] and Chairman AJ&K Council and 2 others v. Muhammad Munir Raja and another [2017 SCR 1168].
5. Mr. Raza Ali Khan, Advocate-General, and Mr. Muhammad Zubair Raja, Additional Advocate- General, while appearing on behalf of the respondents strongly controverted the arguments advanced by the learned counsel for the appellants. They submitted that the impugned notification dated 15.11.2016, has lawfully been issued by the authority and the appellants have the ample opportunity to place their point of view at the proper forum, thus, both; the learned High Court as well as the learned Service Tribunal rightly dismissed the appeals filed by the appellants and have not committed any illegality. They prayed for dismissal of both the appeals.
6. We have heard the arguments and gone through the record alongwith the impugned judgments. The appellants were proceeded against under the provisions of Act, 2001 on the allegation of misconduct, corruption, etc. The competent authority after necessary proceedings vide its order dated 04.07.2013, imposed penalty of censure and stoppage of annual increments for two years upon the appellants. The record shows that on the non-implementation of the order of the competent authority dated 04.07.2013, the appellants themselves filed writ petition before the High Court and sought implementation of the order of the authority. The learned High Court vide its judgment dated 04.02.2015, sent the matter back to the authority for passing fresh order. The competent authority, after issuing fresh notices for personal hearing and reconsidering the matter imposed minor penalty of stoppage of annual increments for three years upon the appellants vide notification dated 22.09.2016. It is evident from the record that the notification dated 22.09.2016, was implemented and the appellants .were attached with the Services and General Administration Department for further suitable postings in their parent departments in the light of the notification dated 22.09.2016, when the subsequent notification dated 15.11.2016, was issued whereby the earlier notification dated 22.09.2016, which had already been implemented was cancelled. The version of the appellants is that the authority while recalling the notification dated 22.09.2016, wants to initiate fresh proceedings against the appellants which is against law. It may be observed here that it is settled principle of law that once a civil servant is' punished or acquitted of the charges, he cannot be again inquired into or tried on the same set of allegations as no one can be vexed twice, therefore, initiation of fresh proceedings on the same set of allegations cannot be permitted.
Reference may be made to a case reported as Superintendent of Police Reserve v. Khalid Mehmood [2014 SCR 967], wherein this Court held as under-- "It may be observed that once a civil servant is exonerated from the allegations, the said allegations cannot be made foundation for, any adverse action against an accused civil servant. If, a civil servant is again charge-sheeted on the allegation from which he has already been exonerated then it may amount to vexed twice the civil servant, which is not permissible under law."
Similarly, in a case reported as Chairman AJ&K Council and 2 others v. Muhammad Munir Raja and another [2017 SCR 1168], this Court while dealing with the proposition held that:--- "There is unanimity in the opinion of the Courts that once a civil servant is punished or acquitted of the charges, he cannot be again inquired into or tried on the same set of allegations. In this regard the reference may be made to the cases reported as Bashir Ahmed v. Superintendent of Police and another [1988 PLC (CS) 199], Muhammad lshfaq v. Superintendent of Police and others [1988 PLC (C.S) 211] wherein while dealing with the principle of double jeopardy it has been held that no one can be vexed twice for one and the same cases."
7. The perusal of the impugned notification dated 15.11.2016, shows that the authority cancelled the notification dated 22.09.2016, on the sole ground that the same was issued during the period when the stay order issued by the High Court was holding the field. It appears from the record that in the light of the direction issued by the High Court vide judgment dated 04.02.2015, the competent authority (worthy Prime Minister) of the time, took-up the matter. Subsequently a writ petition was filed by the Opposition Leader of the time in which the High Court issued stay order and later on the said writ petition was withdrawn. The petitioner in the subsequent writ petition after being elected as Prime Minister has cancelled the notification dated 22.09.2016. The perusal of the memo. of subsequent writ petition shows that although different prayers were made but the very purpose for filing the same was imposition of the penalties recommended by the inquiry committee which clearly relates to the terms and conditions of the civil servants. From this angle, the writ petition was even not competent and the learned High Court without jurisdiction issued the status quo order. In this regard, there is a series of judgments of this Court. Reference may be made to the recent judgment titled Tahir Farooq v. Dr. Muhammad Qasim and others (civil appeal No, 171 of 2017, decided on 08.02.2018), wherein this Court has shown serious displeasure that the learned High Court without jurisdiction repeatedly entertained the matters relating to the terms and conditions of civil servants. The relevant paragraph of the judgment (supra) reads as under:---
8. As discussed hereinabove that the jurisdiction of the High Court and Service Tribunal in the light of Constitutional provisions has been very lucidly demarcated and determined while interpreting the Constitutional provisions in a number of cases since Ghiasul Haq's case [PLD 1980 SC(AJ&K) 5] to Ejaz. Awan's case (supra) but despite this it is on the record that the High Court is not following the Constitutional provisions as well as the principle of law enunciated by this Court. According to the Constitutional provisions, the principle of law enunciated by this Court has binding force on all the subordinate Courts and all the judicial and executive authorities have to act in aid of this Court and not by raiding on this Court, Such intentional and deliberate practice not only amounts to violate the Constitutional provisions but is also against the judicial conduct of learned Judges of such superior Constitutional Court. Since decades, the referred principle of law is holding the field and at least in every month this Court has expressed its observation and decided the matters wherein repeatedly it has been held that the matters involving the terms and conditions of service could not be entertained by the High Court but despite this continuously entertaining the .writ petitions relating to the terms and conditions of service and issuing interim injunction has not only created hardships but it is also violation of Constitutional provisions calling for initiation of action under Sections 42-B and 45 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. In this context, for enforcement of Constitutional provisions and judgments of this Court we are constrained to take notice of such practice, thus, a copy of this judgment shall be sent to the Registrar High Court to apprise the learned Chief Justice and the Judges of the High Court."
Moreover, the writ petition in which the status-quo order was issued, was dismissed for non- prosecution, meaning thereby that the writ was not decided on merits and it is settled principle of law' that the stay orders, interim injunctions, etc. are the offshoots of the original lis, when the original lis has ceased to an end, no sanctity can be given to a stay order issued in such writ petition. Reliance may be placed to a case reported as Board of Intermediate and Secondary Education, Mirpur and another v. Quaid College of Education for Elementary Teachers, District Bhimber and another [2003 SCR 410], wherein, it has been held that:-- "11. Another point stressed by the learned counsel for respondent No, 1 is that 117 students, whose admission forms were sent for appearing in I e examination, were ordered to appear in the examination by the order of the Court and as ,such the Board should be directed that their result may be announced. In our view the permission granted to these students for appearing in the examination was conditional one, therefore, in case we order for dismissal of the writ petition filed by respondent No, 1, then obviously these students cannot get any benefit although they appeared in the examination on the order of the Court, which was clearly conditional, but when the writ petition is ordered to be dismissed by us, they cannot get the benefit of their appearance in the examination, conditionally under the order of the Court."
There is an amazing aspect of the matter that in the subsequent writ petition the petitioner who is authority at present took the plea that to save the public money of the taxpayers and bring the culprits to justice the authority may kindly be substituted and the Chairman Ehtesab Bureau may kindly be directed to take cognizance of the matter but astonishingly when he himself took the charge as competent authority withdrew the writ petition. Nothing is available on record to ascertain whether the public money of the taxpayers has been saved by bringing the culprits to justice and the Ehtesab Bureau has taken the cognizance of the matter or the authority turned around its previous stance. As per appellants' version, the authority by cancelling the notification dated 22.09.2016, wants itself to proceed against the appellants. From this angle too, the act of the authority is not justified as previously he himself filed writ petition against the appellants for imposition of major penalty of dismissal from service and now after holding the charge of authority how he can act as a Judge in his own cause. It may be observed here that as per legal maxim nemo judex in sua causa, no person should be judge in his own cause, thus, the authority cannot be allowed to act as a Judge in the present matter.
Keeping in view the overall circumstances of the case, we are of the unanimous view that the notification dated 15.11.2016, is contrary to law and the norms of justice. Thus, while accepting these appeals the notification dated 15.11.2016, is hereby set aside and the respondents are directed to adjust the appellants in view of the notification dated 22.09.2016. No order as to costs.