Raja Tariq Javed, Chairman.--The appellant herein, was a Excise Constable in the Department of Inland Revenue Mirpur and, has preferred the present appeal on 27-07-2015 against the order dated 23.4.2015 of Respondent No, 1 vide which the major penalty of dismissal from service was imposed upon him in exercise of powers of Competent Authority under the Government Servants (Efficiency and Discipline) Rules, 1973. As per prayer clause, the appellant prayed for setting aside the impugned order.
2. The Deputy Registrar, AJ&K Council Service Tribunals made an objection on' he aforesaid Appeal as under: "Please place on the file the order of the Appellate Authority as required under Section 4 of the Service Tribunals Act, 1974 in view of the dictum laid down in 2012 PLC (C.S.) 507."
3. The appellant presented this Appeal again on 31-08-2015 without any order of the Appellate Authority and heard as objection case.
4. Admittedly, the Appellant did not prefer any Appeal to the Appellate Authority against the impugned order dated 23-04-2015 and directly approached this Tribunal in the shape of the present Appeal.
5. Preliminary arguments heard and record perused. We have given our anxious conscious to the submissions made by the Appellant and have gone through the record.
6. It has been observed that under Paragraph 6 of impugned order, it is mentioned that: "6. Mr. Maqbool Hussain, Excise Constable shall have right to appeal to the Appellate Authority as provided under the relevant Rules."
7. The foremost legal point involved in this appeal is that after passing of impugned order the appellant has not filed departmental appeal before the appellate authority as contemplated by proviso (a) to sub-section (1) of Section 4 of the Service Tribunals Act, 1973 (Act LXX of 1973) which is reproduced below for facility of reference: "4. Appeals to Tribunals.--(1) Any civil servant aggrieved by any order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: Provided that--
(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rule against any such order no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such, departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred."
(Underlining is our to supply emphasis)
8. The expression "departmental authority" is appended to Section 4 of the Service Tribunals Act, 1973 (Act LXX of 1973) which reads as under: "Explanation.--In this section, "departmental authority" means any authority other than a Tribunal, which is competent to make-an order in respect of any of .the terms and conditions of civil servants."
9. The expression "departmental authority" besides being used in sub-section (1) of Section 4 is also used at several other places in Section 4 of the Act ibid. It has been used in proviso (a) to the section in connection with the requirement of filing appeal or application for review or representation to such departmental authorities as provided under the Civil Servants Act, 1973, or any rules made there-under. Section 22 of the Civil Servants Act, 1973 (Act LXXI of 1973) specifically refers to the right of appeal or representation or review which reads as under: "22. Right of appeal or representation.--(1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is provided to a civil servant under any rules applicable to him, such appeal or application shall, except as may be otherwise prescribed be made within thirty days of the date of such order.
(2) Where no provision for appeal or review exists under the rules in respect of any order or class of orders, a civil servant aggrieved by any such order may, within thirty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order"
Reading Section 22 of the Civil Servants Act, 1973 (Act LXXI of 1973) with proviso (a) to sub-section
(1) of Section 4 of the Service Tribunals Act, 1973 (Act LXX of 1973) it will be clear that the, expression "departmental authority" occurring in the said proviso relates to "an authority next above the authority which made the order". This to our mind is the key to the interpretation of the expression in question. Clearly the scheme of the Civil Servants Act, 1973 (Act LXXI of 1973) which is a sister enactment to the Service Tribunals Act, 1973 (Act LXX of 1973) shows that in the hierarchy of the departmental authorities and order passed by any officer can be challenged before the next Senior Officer in the Department in absence of specific rules Ito the contrary. Therefore, the expression "departmental authority" can mean an authority or officer senior in rank, to the officer who passed the order. Even if a literal construction of the wording employed in the Explanation is adopted, the expression "departmental authority" would mean any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants.
10. In our opinion the words competent departmental authority would mean an authority which falls in the hierarchy of officers superior to the authority/officers who passed the impugned order against an aggrieved civil servant. No doubt in this case technically, the competent departmental authority for the purpose of appeal was, the Secretary of Azad Jammu and Kashmir Council Secretariat and the appellant failed to comply with the mandatory requirement of law.
11. In the context of the subject matter of the legislation pertaining to the terms and conditions of civil servants it is difficult to conceive of a Tribunal of original jurisdiction. The Tribunal as presently constituted under the Service Tribunals Act, 1973 (Act LXX of 1973) has been empowered to give redress to aggrieved civil servants against any order passed to their detriment in relation to their terms and conditions of service, which fully satisfies the requirements of proviso (a) to Section 47 of the AJ&K Interim Constitution Act, 1974.
12. From the proviso (a) to sub-section (1) of Section 4 of the Service Tribunals Act, 1973 (Act LXX of 1973), it is quite clear that an appeal before this Tribunal without complying with the mandatory conditions, as contemplated aforesaid, is not maintainable. It was not permissible for the appellant to bypass all appropriate and lawful legal forums for redressal of his alleged grievances. The jurisdiction ,of this Tribunal cannot be used to circumvent an already prescribed and well defined legal course enunciated by the Statute itself. We are also of the considered opinion that negative terms used in a law are mandatory; therefore, the matter in hand is a case of non-compliance of mandatory requirement of law.
13. As we have come to the conclusion that the instant appeal is not maintainable; therefore, we do not chose to decide the other questions or merits of the case.
14. The upshot of this judgment is that the direct appeal before this Tribunal is not maintainable.
The same is, therefore, dismissed with no order as to costs. Resultantly, the objection is hereby affirmed. File after completion be consigned to record.,