Raza Ali Khan, J. The captioned appeals by leave of the Court arise out of the judgments dated 30.12.2020 and 22.5.2021 passed by the Service Tribunal in service appeals No. 950 of 2019 and 274 of 2020. As all the titled appeals involve common question of law and facts, hence, were heard together and being decided through the proposed judgment.
2. The brief facts forming the background of the captioned appeals are that Khushal Ahmed, appellant, (Civil Appeal No. 273/2021) after conducting inquiry, was removed from service vide order dated 28.8.2019 passed by Respondent No. 1, herein, on account of making and issuing fictious driving license, NOCS, keeping forged official seal and unauthorized withdrawal of money from the Bank. Feeling dissatisfied, the appellant, herein, challenged the legality and correctness of the said order before the learned Service Tribunal by filing an appeal inter-alia on the grounds that under the Azad Jammu & Kashmir & Kashmir Police Department Ministerial Establishment Service Rules, 1983, prior to initiation of disciplinary proceedings against the appellant, herein, the authority of the appellant was Deputy Inspector General of Police Headquarter, but these rules were amended during the pendency of the inquiry proceedings against the appellant and according to the amended rules, the authority of the appellant is Inspector General of Police, thus the order passed by Respondent No. 1 is nullity in the eye of law. It was averred that the order for conducting disciplinary proceedings against the appellant was neither passed by the Inspector General of Police nor Deputy Inspector General of Police Headquarter, therefore, entire proceedings against the appellant are void ab-initio, corum-non-judice and without lawful authority, hence, the impugned order of removal of the appellant from service is not maintainable. The appeal was contested by the respondents by filing objections whereby they negated the version of the appellant and reiterated the allegations levelled against him in the impugned order dated 28.8.2019 as correct. The learned Service Tribunal, after hearing the parties disposed of the appeal in the manner that as the proceedings conducted and punishment awarded to the appellant have been set aside on technical ground, therefore, the respondents would at liberty to hold de-novo inquiry in accordance with law.
3. The brief facts necessary for disposal of appeal No. 201 of 2021 are that the respondent. Herein, who was serving as Junior Clerk in the Police Department, was proceeded under the AJ&K Civil Servants (Efficiency and Discipline) Rules, 1977, on account of committing irregularities and misconduct. After completion of the inquiry proceedings, he was awarded minor punishment of withholding the promotion for one year along with censure, vie order dated 07.05.2020. Against the said order the respondent, herein, preferred an appeal before the Service Tribunal. After necessary proceedings, the learned Service Tribunal through the impugned judgment, has accepted the appeal and set aside the departmental order dated 07.05.2020, hence this appeal by leave of the Court.
4. Syed Zulqarnain Raza Naqvi, the learned Advocate appearing for the appellant while reiterating the grounds incorporated in the memo of appeal argued that the learned Service Tribunal has travelled beyond its jurisdiction while issuing direction regarding initiation of a de-novo inquiry against the appellant, for which the learned Service Tribunal was not competent. He further argued that the conclusion drawn by the learned Service Tribunal that the appellant could not be proceeded under the provisions of the Removal from Service (Special Powers) Act, 2001, was sufficient to declare the impugned order as illegal, hence, the addition of paragraph No. 8 in the impugned judgment was not warranted by law and the same. was not even agitated by the respondents at any stage of the proceedings before the learned Service Tribunal. The learned Advocate further argued that although the appeal of the appellant before the Service Tribunal has been accepted but Paragraph No. 10 in the impugned judgment caused prejudice and miscarriage of justice, hence, the same may be ordered to be deleted from the body of the impugned judgment.
5. Mr. Mazhar Waheed Khan, the learned Additional Advocate General and Mr. Saqib Javed, Advocate, the learned counsel for Inspector General of Police and others. Submitted that the impugned judgment of, the Learned Service Tribunal is based on misconception of law and the facts of the case, hence the same is not sustainable in the eye of law. They forcefully argued that the learned Service Tribunal has accepted the appeal of the respondent/appellant on the sole ground that in Presence of the Azad Jammu and Kashmir Police (Efficiency and Discipline) Rules, 1992, the respondent could not be proceeded under the provisions of AJ&K Civil Servants (Efficiency and Discipline) Rules, 1977. While referring to Rule 2 of the Azad Jammu & Kashmir Police (Efficiency and Discipline) Rules, 1992, forming Part of the record of the paper book at page 25, the learned counsel submitted that in the said rule, it is categorically distinguished that the same are applicable only to the uniform police officers and the ministerial and clerical staff of the Police Department is not included. They added that the schedule pertaining to the types of punishments and employees only includes the uniform police officers. Thus, it is clear that the learned Service Tribunal has not properly applied and appreciated the relevant rules on the subject matter and accepted the appeal illegally while relying upon the pronouncements of this Court, which are not applicable to the case in hand.
6. Raja Muhammad Arif Rathore, the leaned Advocate appearing for Muhammad Naseer, argued that the Police Act, 1862 is applicable only to the Police force, which is specially meant for Police Service, having its own AJ&K Police (Efficiency and Discipline) Rules, 1992, therefore the learned Service Tribunal while accepting the appeal of the respondent, herein, has committed no illegality.
He argued that the appellants failed to point out any error or defect in the impugned judgment of the Service Tribunal, therefore, the appeal filed by them may be dismissed.
7. We have heard the learned Advocates representing the parties and gone through the record of the case along with the impugned judgments. The argument of the learned Counsel representing Khushal Ahmed, appellant, that the learned Service Tribunal travelled beyond its jurisdiction while issuing direction for de-novo proceedings against the appellant, is misconceived, as the learned Service Tribunal in paragraph No. 8 of the judgment has not issued any direction rather the respondents, therein, were set at free to hold de-novo inquiry in accordance with law, if so advised.
The relevant paragraph is reproduced as under: "08. As the proceedings conducted and punishment awarded to the appellant have been set aside on technical ground, therefore, the respondents would be free to hold de-novo inquiry in accordance with law, if so advised."
Thus, it is clear that the learned Service Tribunal has not issued any sort of direction as the respondents, therein were not made bound to initiate de-novo inquiry rather they have been given the option to do so, if so advised. Even otherwise, as the allegations against the appellant are of serious nature and the Service Tribunal has not discussed the merits of the case in view of the proceedings initiated by the department under an irrelevant law, hence, in our view, there is no harm to initiate de-novo proceedings. If the appellant is proved not guilty, no action shall be taken against him, therefore, the appellant does no need to be afraid.
8. The contention of the learned Additional Advocate General as well as counsel for the appellants in appeal No. 201 of 2021 that Police (Efficiency and Discipline) Rules, 1992 only deal with the uniform police officers i.e. Constables to Inspector ranks and ministerial staff is not included in the same and for non-uniform police officers no such position is available, is devoid of any force, for the reason that this Court earlier in the case reported as Ehsan-ul-Rehman vs. Deputy Inspector General of Police & 8 others (2020 SCR 236), held that the Police Act and Rules made thereunder regarding the Efficiency & Discipline being special law, shall prevail and Act, 2001 being general law is not applicable to the members of the Police force. In the Ehsan's case (supra) the appellant was a permanent employee of the Police Department and serving as Senior Clerk and in the instant case the appellants before the Service Tribunal are Junior Clerks, hence, the learned Service Tribunal while relying on the judgment of this Court reported as Ehsan-ul-Rehman vs. Deputy Inspector General of Police & 8 others (2020 SCR 236) has rightly held that Removal from Service (Special Powers) Act, 2001 and AJ&K Civil Servants (Efficiency & Discipline) Rules, 1977 are not applicable to the police employees. The observations made in the impugned judgments are quite in accordance with the dictum laid down by this Court, therefore, the impugned judgments passed by the learned Service Tribunal warrant no interference by this Court. The appellants in all the three appeals failed to point out any illegality or legal infirmity in the impugned judgments of the learned Service Tribunal.
In view of the above discussion, the appeals are found to have no substance and we have no reason to differ with the findings recorded by the learned Service Tribunal as such the appeals are dismissed.
No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.