Raja Saeed Akram Khan, J.--The titled appeal by leave of the Court is addressed against the- judgment of the Subordinate Judiciary Service Tribunal (hereinafter to be referred as Service Tribunal) dated 10.11.2017, whereby the appeal filed by the respondent, herein, has been accepted.
2. Precise facts for disposal of the instant appeal are that the respondent, herein, was serving as Senior Civil Judge/Sub-Registrar at Muzaffarabad when a Fact Finding Committee vas constituted by the Registrar High Court to probe into certain irregularities allegedly committed in the office of Sub-Registrar, Muzaffarabad. On receipt of the report of the Fact Finding Committee, the respondent was charge-sheeted by the competent authority (Chief Justice High Court) under the provisions of Civil Servants Removal From Service (Special Powers) Act, 2001, vide letter dated 02.09.2014. According to the contents of charge sheet, the respondent was charged with the commission of negligence, inaptitude and irregularities in receipt/deposit of different fees relating to the registration of the documents. The District and Sessions Judge, Sudhnoti, was appointed as Inquiry Officer for inquiring into the matter. The Inquiry Officer submitted its report and recommended imposition of minor penalties of censure and withholding of annual increment for two years under Rule 4(1)(a) of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, however, the competent authority while disagreeing chosen to award major penalty of withholding of promotion for five years to the responden't. Feeling aggrieved, the respondent filed an appeal before the Service Tribunal. The learned Service Tribunal vide impugned judgment dated 10.11.2017, while accepting the appeal set aside the order passed by the authority, hence, this appeal by leave of the Court.
3. Mr. Raza Ali Khan, the learned Advocate-General, while appearing on behalf of the appellants argued that the impugned judgment is against law and the facts of the case. He contended that the learned Service Tribunal has accepted the appeal of the respondent on the sole ground that the alleged misconduct is relating to the office of Sub-Registrar and the learned Chief Justice of High Court was not competent to initiate the proceeding against the Sub-Registrar. He submitted that the view expressed by the Service Tribunal is inconsistent with law as the respondent was serving as Senior Civil Judge and additional duty of Sub-Registrar was assigned to him. According to the provisions of Azad Jammu and Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001, against an employee or officer of the Court only the Courts are competent authority and neither the. Prime Minister nor any other authority is vested with such powers. In this regard, he referred to and relied upon the cases reported as Muhammad Yousaf Haroon vs. Competent Authority and others [2014 SCR 1180] and Abdul Raheem Zubair Butt vs. AJ&K High Court & others [2002 SCR 455]. He also contended that the respondent himself admitted before the competent authority the wrong committed by him, therefore, the competent authority rightly awarded the major penalty to the respondent.
4. On. the other hand, Mr. Abdul Rashid Abbasi, Advocate, the learned counsel for the respondent strongly supported the impugned judgment and submitted that the same is perfect and legal which is not open for interference by this Court. He contended that according to the provisions of Section 6 of the Registration Act, 1908 the appointing authority of the Sub-Registrar is Government, therefore, the learned Chief Justice of the High Court was not competent to initiate the inquiry proceedings against the respondent in relation to any act done by the respondent as Sub- Registrar. He contended that the Hon'ble Chief Justice of the High Court having been appointed/assigned the job of Inspector General of Registration under the Registration Act, has not been empowered under the Civil Servants Removal From Service (Special Powers) Act, 2001, as competent authority for the officers/authorities appointed under the Registration Act. The entire proceedings against the respondent being coram-non-judice anfd the order dated 13.05.2015, having been issued in violation of law, has rightly been set aside by the Service Tribunal by following the principle of law laid down by this Court in a number of cases, hence, no illegality has been committed by the Service Tribunal and instant appeal is liable to be dismissed.
5.5. We have heard the arguments and gone through the record made available along with the impugned judgment. The perusal of the impugned judgment shows that the learned Service Tribunal has not decided the appeal filed by the, respondent, herein, on merits rather accepted the same on the sole ground that the Chief Justice of the High Court is not competent authority for a Sub-Registrar because Sub-Registrar has been appointed by the Government, therefore, initiation of inquiry proceedings as well as imposition of penalty by the Chief Justice High Court is without lawful authority and nullity in the eye of law. This Court has also granted the leave in the instant case mainly to consider the point; whether in the light of the provisions of Section 3 of the AJ&K Civil Servants Removal from Service (Special Powers) Act, 2001, the Chief Justice High Court cease to be the competent authority of a judicial officer who performs additional function assigned to him under any other law. The record shows that the Chief Justice High Court while performing the function as Inspector General of Registration entrusted the duties of Registrar and Sub-Registrar to the District Judges as well as Senior Civil Judges/Civil Judges, vide its order dated 21.08.2008. It is clear from the order dated 21.08.2008, which has already been reproduced by the High Court in the impugned judgment, that no new appointments of the Registrars and Sub-Registrars were made or no fresh terms and conditions of service were determined rather only the additional charge was given to the Judges of the subordinate judiciary. It is an admitted fact that the basic appointment of the respondent has been made as a judicial officer, subordinate to the High Court, and only an additional charge of Sub-Registrar was assigned to him by the Government, therefore, in such situation, in our view, if the respondent committed any illegality/irregularity while performing the additional duty the appointing authority, in whose subordination, he is performing the duty, is competent to proceed against him. We deem it proper to mention here that the Chief Justice of the High Court is also performing the duty of Inspector General of Registration; the Government delegated the powers of Inspector General of Registration to the Chief Justice High Court, therefore, it cannot be said that the Chief Justice High Court is subordinate to the Government. If while performing the function as Inspector General of Registration the Chief Justice High Court commits any illegality/irregularity, the Government is not vested with such powers to proceed against him rather the Government may refer the matter to the proper forum, i,e,, Supreme Judicial Council, as the Chief Justice High Court is not supposed to subordinate to the Government mere on the ground that the Government delegated to him the powers of Inspector General of Registration. It may be observed here that the Registrars/ Sub-Registrars, at present, are the judicial officers and any illegality committed by them may shake the confidence of public-at-large upon the administration of justice as the people are expected that the Judges cannot indulge in the malfunctions. The observation of the Service Tribunal that the Government is competent authority.relating to the judicial officers when they perform their duties as Registrar or Sub- Registrar is even against the spirit of independence of judiciary. In a case reported as The State v.
Mr. Justice Akhlaque Hussain, Judge of the High Court of West Pakistan [PLD 1960 SC 26], a reference was sent to the apex Court of Pakistan by the worthy President of Pakistan of the time, against a sitting Judge of the High Court, in which one of the allegations was that the said Judge was given the additional charge of the Chairman Election Petitions Tribunal by the Government and while performing his duty as Chairman Election Petitions he committed some serious lapses. A plea was taken in that case that the respondent didn't perform the alleged lapses in the capacity of Judge High Court, but this plea was rejected by the Court while observing as under: "The position in regard to the charge relating to travelling allowance is not materially different.
Under Section 12(2) of the Establishment of West Pakistan Act, 1955, the Election Petitions Tribunal has to be presided over by an active or retired Judge of a High Court. It was by reason of his status as a Judge of the High Court that the respondent was appointed Chairman of the Election Petitions Tribunal. The work that he was entrusted with was essentially judicial, and while travelling he was entitled to all the privileges and travelling allowance of a Judge of the High Court. While so acting, if the respondent, in order to draw for himself as much money as possible out of the public funds, so arranged his tours as to show utter disregard of the convenience of the parties and . witnesses and of the interests of public revenue, the act must be deemed to have been done by him in the exercise of his official duties as Chairman of the Tribunal which position he held by reason of his being a High Court Judge, and must therefore be held as amounting to misbehavior in the performance of the duties of his office. Again, in the preparation of his T.A. Bills he grossly abused the Rules which it was his duty to observe. As a Judge of a High Court he was his own 'controlling officer' and as such had dominion over the public funds in the sense that by presenting a T.A. Bill, which in respect of the solemn statements in it could not be checked by another authority and had to be passed for payment by the Accountant-General, he appropriated public moneys which were intended to meet his bona fide travelling expenses. If he appropriated such moneys for his private use undoubtedly misbehaved as a Judge of the High Court because it was that office which gave him the ex-officio position of being his own controlling officer. There is no authority for the proposition that misbehavior implies only a dishonest judicial decision, and we have no doubt that acts done by a High. Court Judge in his official, though not judicial capacity, may as well amount to misbehavior in respect of his office."
In a case reported as Azad Government and 3 others v. Mrs. Jamshed Naqvi and 2 others [2014 SCR 13], the controversy came under consideration before this Court in the circumstances, that the respondent, therein, Mrs. Jamshed Naqvi, was serving as Divisional Director Schools, she was transferred as Managing Director 'Teachers Foundation for a period of three years under the provisions of Section 7(2) of Azad Jammu and Kashmir Teachers Foundation Act, 1997. Before completion of the period specified in the appointment order, i,e, , 3 years, she attained the age of superannuation and notification of her retirement was issued. She filed writ petition before the High Court that her appointment was made under Section 7(2) of Azad Jammu and Kashmir Teachers Foundation Act, 1997 for a period of three years and she has a right to remain on the post till completion of , tenure. The learned High Court while accepting the writ petition issued the direction that the petitioner shall not be removed from service till the completion of the tenure. The judgment of the High Court was challenged before this Court and this. Court after thorough deliberation held that the respondent, Mrs. Jamshed Naqvi was a civil servant and her terms and conditions were governed under the provisions of Civil Servants Act, 1976, and she was appointed by transfer on deputation as Managing Director Teachers Foundation, however, she remained civil servant as by transfer on deputation her terms and conditions of service have not been changed and under law, i,e, Civil Servants Act, on attaining the age of superannuation there was no other option available to a civil servant except retirement. This Court held that when the respondent retired from the original post under the provisions of Civil Servants Act, i,e, DPI Schools, she is not entitled to hold the post of Managing Director Teachers Foundation on the ground that her appointment was made under the provisions of Azad Jammu and Kashmir Teachers Foundation Act, 1997. In the case in hand, the additional charge of Sub-Registrar was assigned to the respondent being a judicial officer and his terms and conditions of service remained as judicial officer, therefore, any lapse on his part While performing the duty of Sub Registrar clearly relates to the office of judicial officer, and this Court in the cases referred to by the learned Advocate- General has held that only the High Court has the power to proceed against judicial officers or the employees of the subordinate judiciary. Keeping in view the circumstances of the case and the survey of case law, we are of the considered view that in the instant case the Chief Justice High Court is the competent authority and the findings recorded by the Service Tribunal that the competent authority was Government and the Chief Justice passed the order without lawful authority, are not tenable in the eye of law. As the learned Service Tribunal has not decided the case on merits, therefore, we do not intend to make any sort of comments upon the merits of the case and deem it proper to remand the same to the Service Tribunal for decision on merits.
In view of the above, while accepting this appeal the impugned judgment is hereby set aside and the case is remanded to the Service Tribunal to decide the same afresh on merits after providing fair opportunity of hearing to the parties. No order as to costs.