1. KH. GHULAM QADIR (MEMBER).-The appellant, Iftikhar Hussain Abbasi, an ex-Deputy Secretary Services and General Administration Department has by way of an appeal before the Service Tribunal, called into question Government Order No. S&GAD/Auqaf/589-649/78 dated 18-7-78 whereby on the charge of misconduct he was found guilty by the Government-Respondent and punished with removal from service under rule 4 (1) (i.e) of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977.
2. The facts which led to the passing of the impugned order, are concisely stated as under :- The appellant was serving as Deputy Secretary Services and General Administration Department under the Azad Jammu and Kashmir Government who, in exercise of powers conferred under section 3 of the Commission of Inquiry Act, 1956 as applicable in Azad Kashmir, appointed a Commission of Inquiry headed by Brig. Muhammad Arif Khan to probe into the persistent public allegations of gross misuse, misappropriation and embezzlement of certain grants and funds.
3. The terms of reference for the Commission of Inquiry were-
(a) to examine thoroughly relevant record with a view to finding out whether the funds were utilized in genuine public interest and in accordance with the rules governing them ;
(b) in case of any incident of corruption and misuse etc. The respon--sibility of the authority directing such irregular action or of the Government functionary acting under such orders or at his own, shall be located and pin-pointed making suitable recommendations for disciplinary or criminal actions in each such case.
4. The Commission was to submit a precise and documented report of its findings and recommendations on the above-mentioned terms of reference to the Chief Executive Azad Government of the State of J & K. Accordingly, the Commission made a probe into the general allegations against certain Departments including the department of Service and General Administration. During the inquiry the Commission summoned the appellant on the basis of certain charges but, as alleged by the appellant, no witness was examined by the Commission in his presence nor he was allowed to examine the relevant record on the basis of which charges were framed against him. On 29-4-1978 Secretary Service and General Administration Department issued a show-cause notice to the appellant under rule 6 (b) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter referred to as Efficiiency and Discipline Rules) wherein it was stated that after considering the report submitted by the Commission of Inquiry the competent authority decided to serve show-cause notice on the charge of misconduct for the following reasons :-
(1) that the appellant issued Government Order No. 538-40/76 dated 8-1-1976 sanctioning payment of Rs. 15,000 out of Auqaf Fund to Mr. Nasib-ul-Hasan Newspaper reporter M'abad.
(2) That again the appellant signed and issued another order No. Admin/11054-54/76 dated 17-4- 76 sanctioning payment of Rs. 40,000 out of Auqaf Fund to the said gentleman.
(3) That the relevant file neither contained the application of the person to whom the amount was sanctioned on the ground that he was suffering from Blood-Cancer and -Cancer of Throat nor the concur--occurrence of Finance Department and the approval of the Prime Minister was obtained before the issuance of three orders resulting in financial loss to the Government.
5. On the above charges, the appellant was asked to show cause within 7 days as to why he should not be dismissed from service for being guilty of misconduct.
6. The appellant submitted a detailed reply stating therein that some interested persons appear to have tampered with the relevant file to rope him in as the file does not contain the complete record of the case and the same has also been defaced with the pad-ink at page (6). Moreover page Nos.
7. Have also been changed and the following documents are missing :-
(1) subsequent ratification of the orders by the Prime .Minister as is evident from Director Auqaf's letter dated 7:10-1976 at page 4 of the concerned incomplete file which reads.:
(2) Documents concerning opinions of Medical experts including Pakistani surgeon, General Shqukat, forwarding letter by D. H. S Azad Kashmir, the detailed assessment of proposed medical expendi--ture, application of Mr. Nasib-ul-Hasan requesting the authority financial help for operation and treatment of the fatal disease as is evident from the Health Minister's letter No. 509 dated 30-3-76 at page 7 of the said file. It was prayed in the written reply that before testing any action against him, the missing papers as indicated above be got traced out. It was further added in the written reply that the two orders sanctioning the amounts in question were signed and issued in compliance with the immediate orders of the then Chief Secretary M. Ijlal Hussain who had ordered so on the recommendations of (i) Sardar Muhammad Ibrahim Khan the then President of Azad Kashmir, (ii) the Speaker Legislative Assembly.
8. (i.e) The Health Minister, (iv) The Finance Minister,- -and (v) the Auqaf Minister of the Azad Kashmir Government. The relevant order of the then Chief Secretary reads as under in the vernacular.
9. Besides, the Chief Secretary called the appellant in his office on 17-3-76 and ordered that Mr. Nasib-ul-Hasan`s operation was very essential which is to take place on 19-4-76 i. e. After 2 days and that the appellant should issue the order forthwith. Accordingly, the appellant issued the orders subject to post facto sanction of the Prime Minister who was on tour. Defiance of the orders of the then Chief Secretary M. Ijlal Hussain who was all powerful in those days was impossible as Mr. Ijlal Hussain was in fact the real ruler and sovereign of the Azad Jammu and Kashmir State. To explain the height of the power wielded by the then Chief Secretary a reference to the extract of the Speaker's letter addressed to the then Chief Secretary in the following words would be relevant and useful".
10. As regards concurrence of the Finance Department the appellant stated that under section 13 of Azad Jammu and Kashmir Waqaf Properties Act, 1960, the Administrator Auqaf was the sole authority to determine the charitable nature of the expenses and under rule 6 of Azad Jammu and Kashmir Waqaf Properties Account Rules, 1961 the payment out of Auqaf Fund could be ordered by the Auqat Administrator alone and as such no concurrence of Finance Department was required under the prevalent law and rules. As pointed out by the Administrator Auqaf himself in his letter No. 1539/Auqafi76 dated 11-12-1976 (copy annexure `C') payments out of Auqaf Fund were made by the Administrator on the recommenda--tions of the President, Prime Minister. Ministers and M. L. As.
11. As there was no definite rules on the subject. No loss was caused to the Government on account of these impugned payments as the same were paid under the orders of competent authority, namely, the Administrator Auqaf, for a purpose considered by him to be charitable. In the end the appellant submitted that he was victimised for being the son-in-law of ex-Prime Minister Khan Abdul Iamid Khan and was thrown out of service notwithstanding the facts that he possessed a very good academic career being a graduate from the University of Punjab and having served for 10 years in the U. K. . In a firm of highest repute called "British Leyland Motor Corporation Limited". He was appointed as Deputy Secretary Services and General Administration on the recommendations of Public Service Commission whereafter the appellant underwent a training at the Administrative Training Academy Lahore and passed the examination with credit.
12. This detailed written reply of the appellant found no favour with the competent authority who ultimately passed the impugned order of punishment removing the appellant from service. The appellant availed of the departmental remedy of Review before the competent authority but to no avail as the same was rejected. Under the circumstances the appellant sought the remedy of his grievance before the Service Tribunal by this appeal in which the grounds already submitted before the competent authority in his written reply are reiterated besides the following legal grounds :-
(1) That the proceedings conducted by the Commission of Inquiry were ex parte and whimsical.
(2) That the competent authority while making the impugned order was mostly influenced by the report and recommendations of the Commission of Inquiry and did not apply its own mind indepen--dently to the facts of the case and this fact by itself is sufficient to render the impugned order void and ineffective.
(3) That under Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 the powers of `Authorised Officer' and `Authority' are to be exercised distinctly and separately but the `Authority' who was `Authorised Officer' also in the case of the appellant committed error in not following the rules strictly.
(4) That under the Efficiency and Discipline Rules two different procedures for inquiries against the civil servants are provided and the less beneficial procedure can be adopted only if the Authorised Officer so decides in the interest of justice but no such decision by the authorised officer was ever taken on record.
(5) That the less beneficial and arbitrary procedure prescribed under rule 6 (3) (4) of f he said rules is contrary to the fundamental right of equality before law guaranteed under section 15 of the Interim Constitution Act, 1974.
(6) That post facto sanctions of the impugned-orders in question were obtained subsequently but the same are missing from the concerned file as the record appears to have been tampered with under some conspiracy. In the alternative, the payments had subsequently come to the knowledge of the Prime Minister as is evident from Director Auqaf's letter on page 4 of the said incomplete file.
13. The Prime Minister appears to have refused to make any more payment to the concerned sick person which means that he had impliedly consented to and approved the two payments already made from the Auqaf Fund.
(7) That the penalty of removal from service is extremely excessive one and unwarranted in the light of the facts and circumstances of the case.
14. The respondent filed written objections raising a preliminary legal objection that the appeal is time barred. On facts, it was contended that the charge of misconduct was proved beyond an iota of doubt.
15. The appellant was given ample opportunity of personal hearing by the competent authority. The action against the appellant was taken after due consideration of the report of the Commission of Inquiry and all the original relevant record. The requirements of the relevant rules were duly complied with. The appellant was rightly punished for misconduct and his appeal needs to be dismissed with costs.
16. We have heard the arguments of the learned counsel for the parties addressed at length and have also gone through the relevant record with their assistance.
17. The respondent, in his written objections, raised a preliminary objec--tion to the effect that the appeal is time barred but the learned Counsel for the respondent did not argue this point at the time of arguments with the result that this objection could be deemed to have been waived or with--drawn. But since it is legal point and can be looked into by the Tribunal itself in the interest of justice so we would like to scrutinise this point of limitation ourselves.
18. From the perusal of record it is clear that the impugned order of removal was passed on 18-7-78 and a Review Petition was filed on 25-7-78 which was rejected on 25-7-79. The present appeal before Service Tribunal was filed on 3-9-79. Thus there remains no doubt that the appeal was filed well within the prescribed period of limitation of 30 days and the appeal in no way suffers from any defect of limitation. Hence the objection, if any, is repelled as without any force.
19. The learned counsel for the appellant during the course of his argu--ments raised the following points to establish that no misconduct on the part of appellant was proved and the punishment awarded to him was absolutely unwarranted and uncalled for :-
1. That the two amounts in question were paid out of Auqaf fund which was never Government money and as such under the Rules of Business 1975 as framed under Azad Jammu and Kashmir Interim Constitution Act, 1974, concurrence of the Finance Department was not a condition precedent for any expense out of Auqaf Fund which did not include in the Finance of the Government as envisaged by rule 15 of the Rules of Business,
2. That the two Government orders involving payments of Rs. 15,000 and Rs. 40,000 respectively issued under the; signatures of the appellant as Deputy Secretary Services and General Administration Department did not require previous approval of the Prime Minister before issuance as alleged by the respondent for the reason that the nature of these orders did not fall under the kinds of orders mentioned in Part `A' of Schedule VII to the Rules of Business as required under rule 5 of the said rules.
3. That if at all by any stretch of interpretation it be held that approval of the Prime Minister was essential under the said rules, then as maintained by the appellant in his memo. Of appeal the necessary approval was obtained subsequently but the same is missing from the relevant file as same interested persons had conspired to see the appellant out of service and with this motive had taken of the file the document bearing the approval of the Prime Minister as the relevant file is incomplete as well as defaced.
4. That the Authority before making the impugned order of penalty did not examine the relevant record himself and apply its independent mind to form opinion as regards the guilt of misconduct but rather mechanically passed the order of punishment being solely guided and influenced by the report-and recommendation of the Commission of Inquiry as is clearly borne out by the opening woods of the impugned order "that after considering the report of Commission of Inquiry, show-cause notice and reply".
20. Thus the impugned order itself abundantly reflects and makes it clear that it was mainly the outcome of the influence created by and opinion formed on the report of Commission which report could not legally be read into evidence against the appellant. This legal defect by itself is sufficient to render the impugned order illegal and ineffective.
21. The appellant raised a number of other objections in his memo. Of appeal but his learned counsel did not argue and press any of them at the Bar and rather confined his arguments to only the above-mentioned points and as such we too need not advert to the points which were not agitated before us.
22. We have considered the contentions of the learned counsel for the appellant with serious meditation and have examined the same in the light of relevant provisions of the Rules of Business and Auqaf Act. 1960 and Auqaf Rules made thereunder. After a careful study of the record of the case and the relevant rules we are of the opinion that the contentions raised by the learned counsel for the appellant bear a considerable force and wright and need serious determination.
23. The charge as framed against the appellant consists of two elements, namely, that before issuance of the Government Orders forming the subject of charge (1) concurrence of Finance Department and (2) Approval of the Prime Minister were not obtained. As regards the first element the contention of the Counsel for the appellant is that concurrence of Finance Department was never called for in the instant matter under the rules of Business as the amount intended to be spent under the orders was not out of the Govern--ment Finance but it was Auqaf Fund. This plea of the learned counsel appears to be correct because under rule 15 of the Rules of Business, 1975 the concurrence of Finance Department is a pre-requirement only in matters involving Government Finance and not in case of any other fund not included in the Government Finance.
24. The Auqaf Fund is created under the Auqaf Act 1960 and its expenditure is regulated by the said Act. The relevant sections 13 and 14 of Auqaf Act 1960 are reproduced below for the sake of reference and comprehension; Section 13. Use of Waqaf property and application of income there--from.-Subject to the provisions of this Act a Waqaf property shall be used for the purpose for which it was dedicated or had used or for any purpose recognised by Islam as religious, pious, charitable as the Administrator may deem fit.
25. Section 14. Administrator to maintain accounts,-(I) The Administrator shall maintain a complete record of all properties under the control and management and shall keep accounts of income and expenditure of such properties including expenditure on the Administrator and his establishment in such, manner as may be prescribed.
(2) All money received or realized by the Administrator in respect of properties under his control and management shall form and be created to a fund to be called Auqaf Fund, which shall be under the control of and operated upon by the Administrator subject to general supervision of Government and shall be kept in such custody as may be prescribed. (3) At the end of each financial year the accounts maintained by the Administrator shall be audited by such authority as may be prescribed and the Audit report with comments of the Administrator shall be laid before Government.
26. The perusal of the above provisions makes it abundantly dear that the Administrator Auqaf is the sole authority to determine the charitable nature of the expense and to authorise the same. This authority of the Administrator is, however, subject to the general supervision of the Government.
27. Thus the income from the Auqaf sources can never be considered to be Government Revenue and cannot be spent on general purposes like Government money being an income from a religious chari--table institution to be incurred only on matters recognized by the Auqaf Act to be religious and as such the Finance Department has no control over this Fund and no reference to F. D. Is under any law or rule envisaged for purposes of concurrence before actual expenditure. However, the Govern--ment in exercise of general supervision vested in it under the Auqaf Act itself can look into the income and expenditure accounts by audit to ensure valid and correct expenditure on the matters authorised by the Act or the rules and to check any misappropriation or, embezzlement.
28. The second contention of the learned Counsel for the appellant is that even approval of the Prime Minister before the issuance of the two orders in question was not necessary as condition precedent under the rules of Business 1975. In support of his contention the learned counsel relied on rule 5 of the Rules of Business read with Part A to Schedule VII to these rules. Accordingly he argued that matter embracing the two orders authoris--ing payments of Rs. 15,000 and 40.000 respectively does not fall under the categories of cases mentioned in Part `A` to Schedule VII of the rules and as such ference to the Prime-Minister for approval was not essential as envisaged by rule 5 of the Rules of Business. We have gone through the provisions of Rules and Schedule VII to the Rules of Business and are in agreement with the contention of learned Counsel for the appellant that actually under the provisions of Rules of Business and the Wakaf Properties Act, 1960 and rules made thereunder no Government Order was necessary for the payment out of Auqaf Fund and as such approval of the Prime Minister was not necessary for any such payment. But since the appellant in his capacity as Deputy Secretary of Service and General Administration Department has issued the Government orders for payment of alleged amounts to Mr. Nasib-ul-Hasan, it required behind it the sanction of the Government. In this view of the matter the approval of the Prime Minister to the said payment before issuance of Government order was necessary. It hardly needs any mention that the order of the Chief Secretary does not amount to an order of the Government and thus the appellant in issuing the impugned order under the order of the Chief Secretary has committed illegality which amounts to misconduct under the Efficiency and Discipline Rules. The appellant was all the time conscious of the necessity of the prior approval of the Prime Minister before the issuance of the impugned orders which is obvious from the fact that the appellant made a note on the concerned file that post facto approval of the Prime Minister will -be obtained.
29. The contention of the appellant that post facto approval of Prime Minister was obtained is not borne out from the record and it is also not proved that the same has been removed from record by some one interested in damaging the appellant. Even if it be assumed for the sake of argument that the same was removed it does not help the appellant in any way so as to exonerate him of the charge levelled against him because the fact remains that he issued the impugned orders without approval of the Prime Minister which was necessary before issuance.
30. As discussed above, it is fully established by the admission of the appellant himself and the relevant record that charge of misconduct as defined under clause `D' to rule 2 of Civil Servants Efficiency and Discipline Rules, 1977 is proved against the appellant inasmuch as he issued the impugned orders in the name of the President Azad Kashmir Government without obtaining previous approval of the Prime Minister under the rules of Business. Hut we feel that punishment of removal from service awarded by the Government/competent authority is certainly excessive in nature and not commensurate with the kind of misconduct committed by the appellant and a lenient view could reasonably be taken in the matter of punishment, in view of the special circumstances attending the case in hand. Our reasons for taking a lighter view in the matter of quantum of punish--ment are as under ;---
(1) As discussed earlier strictly speaking no concurrence of Finance Department was pre-requisite for the expenditure and even the approval of the Prime Minister was only a technical matter in the circumstances of the case.
(2) The case for the payment of impugned amounts for the treatment of Mr. Nasib-ul-Hasan was recommended by the then President of the Government, Senior Minister of Finance, Minister of Health and Minister for Auqaf and on the recommendations of this high hierarchy of the Government. The Chief Secretary Mr. Ijlal Hussain, who according to the appellant was all powerful and few could ha, the face to say no or float his orders, had ordered the payment the following words :-
(3) The need for which the payment was required was urgent and the payment could not be delayed till the return of the Prime Minister who was said to be away on tour.
(4) The appellant possesses good academic qualifications and at the time of issuing impugned orders had short experience of secretariat service.
31. There shall be no order as to costs.