' SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).---T instant appeal is directed against the Order No, 2073-76/DA/88 dated 02-07-19 made by Director of Agriculture Department Azad Government of the State Jammu and Kashmir by which the order of Deputy Director (Agriculture) issue under No, 711549/87, dated 2-7-1987 was set aside without assigning any reason
2. The relevant facts of the case are that the appellant was employed in Agriculture Department as Chaukidar in the year 1980 and he continued as s till 13-9-1986 when all of a sudden his child fell ill and he was forced to take him to the Doctor for his medical check up. The appellant applied for leave absence for 13th day of September, 1986 which according to him was fir granted to him, but subsequently, he was shown to have absented himself from duty without permission and was ultimately removed from service w,e,f, the s date. He brought an appeal before the Minister Incharge of the Agricola Department and was reinstated on 18-6-1987 vide Order No, 7115-19/87, date 2-7-1987 issued by the Office of Deputy Director Agriculture (HO). On 2-7-19 the appellant presented himself to the Deputy Director (Procurement) for du but he was not permitted to join his duties and was marked absent from that date. He made an application to the Prime Minister for the implementation of his reinstatement order but in the meantime, the order of his reinstatement was cancelled suo motu by the Director of Agriculture Department without assigning any reason for that. The appellant filed an appeal with Secretary of Agriculture Department, but no decision was taken on that within the prescribed period and he was forced to invoke the jurisdiction of this Tribunal under section 4 of Service Tribunal Act, 1975.
3. The appellant seeks reversal of the impugned order on the grounds that t is against the principles of natural justice. He was granted leave of absence for 3-9-1986 but was proceeded against maliciously showing him to have absented himself on that date without permission. He has been given major punishment which is ordinarily not awarded to a civil servant for one day's absence from duty. He Director of Agriculture Department (respondent No, 2) was not competent o cancel the order of reinstatement of the appellant which was made by the inister Incharge of the Agriculture Department. The appellant has been condemned unheard and the ex parte proceedings taken against him are mala de.
4. We have heard the arguments as were addressed by the learned counsel f each party. It is submitted on behalf of the respondents that the present appeal time-barred and is not maintainable in its present form. The appellant having been found absent from duty was declared indisciplined and removed from service.
5. We have carefully examined the service record of the appellant and the plunged order placed on the file. It may be noted here that the proceedings against the appellant were not conducted in accordance with the provisions of zad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 ereinafter to be referred as Efficiency and Discipline Rules, 1977). Through a pay of Notification No, S&GAD/R-80/S:O-I/82, dated 4-1-1982 issued by the rvice Department, the Deputy Director of the Agriculture Department is the signated authority within the. Agriculture Department. For any disciplinary tion to be taken against a civil servant whose pay scale is between Grades 1 to 4 d the authorised officer is the District Agriculture Officer. But here under the ders of Director of Agriculture Department, the charge-sheet was supplied to appellant by the Deputy Director (HQ) himself and after obtaining his reply recommended to the Director Agriculture for a stern action to be taken against the appellant. It was on the report of Deputy Director (HQ) that the appellant was discharged from service by the Director of the Agriculture.
Under Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1982, the appellate hoity means, the officer or authority next above the authority. In case of the appellant, the Deputy Director (Agriculture) was himself the authority but he to exercise his powers and the Director made the order of discharge of the appellant. Since in the Appeal Rules, 1982 an appeal is provided to an officer next above the authority making the order, the appellant should have brought his appeal before the Secretary of the Department. But instead of making an appeal before that forum the appellant brought his appeal before the Minister for the Agriculture Department and under his order he was reinstated on his post. Bu the unfortunate aspect of the case is that, the appellant was not permitted to join his duties till the date on which the order of his reinstatement was cancelled b the Director of Agriculture Department under the impugned order. There is n denying the fact that the Minister Incharge of the Department admitted than appeal of the appellant in utter disregard of the aforesaid Civil Servants (Appeal Rules and the order passed by him on that appeal was without jurisdiction. Bu this would not mean that the order of Minister Incharge of the Department case be brushed aside by a subordinate office holder. Under Rule 6 of Azad Jamm and Kashmir Rules of Business, 1985 a Minister. Is the Incharge of the Department and he is held responsible for all policy matters and for the conduce of the business of his Department. The Director of Agriculture Department holding an office subordinate to him and under no rule of law he held the power to make the impugned order and rather he has transgressed the limits and power as are vested in him for conducting his departmental business. The impugned order is definitely not capable of sustaining judicial scrutiny and the same hereby vacated.
6. Before parting with the present judgment, we would like to place it o the record that if a Minister Incharge of a Department is found to have deviate from following the correct rule of procedure, then the matter is to be referred back to him by the Secretary of the Department inviting his attention to the fact involving the departure of rules and if for any reason the Minister does not agree to the views of the Department, then the Minister would bring the matter to t notice of the Prime Minister for final decision. In the instant case, the appellant does not seem to have earned good record of service and presumably for the reason in the opinion of his officers he might have rendered himself unfit for further service. In that case the Department can be well-advised to resubmit case to the Minister Incharge for withdrawing the order of renistatement of appellant in accordance with the provisions of sub-rule (g) of Rule 8 of A Jammu and Kashmir Rules of Business, 1985 but under no circumstances t appellant can be penalized for any dereliction of his duty without following t relevant rules of procedure.
7. For the foregoing reasons the impunged order dated 2-7-1988 is set am and appeal is accepted with cost.