' SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).---The instant appeal is directed against the order dated 24-4-1988 by which an amount of Rs,7,680 for the period 1-11-1981 to 30-6-1982 on account of rent of the building hired for office-cum-residence of Assistant Horticulture Officer Mirpur was ordered to be recovered from the appellant, Hussain Ahmad Islahi who was then posted as such at Mirpur.
2. The relevant facts of the case are that the appellant was employed as an Agriculture Assistant in the Agriculture Department in the year 1967. He continued as such till the year 1978 when he was transferred and posted as Assistant Horticulture Officer, Mirpur in scheme of Fruit Development Programme and on reaching Mirpur he occupied the building of Col. Nisar Ahmad Shah which then stood requisitioned by the Department for being used as office-cum-residence by the Assistant Horticulture Officer. Meanwhile, the respondent-Government got possession of Kalyal Building and the respondent-Government ordered that all the offices located in rented buildings at Mirpur should shift in that building. The appellant was also allotted two rooms in that building for his office but he declined to move in that building for the reasons that he was authorised rent free building for his office and residence and the accommodation provided in Kalyal building was insufficient for his office and residence. So, the appellant instead of shifting his office to that building tried manoeuvring for seeking exemption from the operation of the order of the Government regarding shifting of his office to the newly-allotted rooms in Kalyal building. He moved an application to the then President of the Azad Kashmir Government and subsequently met him personally also for being exempted from the operation of shifting order of his office. In the meantime, the date for shifting Government offices in Kalyal building expired and by another order it was extended upto 1st November, 1981 but the appellant continued his office in the previously rented building till 30-6- 1982. Subsequently the appellant shifted his office in the Government building but by that time the rent of the previous building had accumulated in arrear and the Department was asked to pay a sum of Rs,7,680 being arrear of the rent due to be paid w,e,f, 1st November, 1981 to 30th June, 1982 at the rate of Rs,960 per mensem. By order dated 17-3-1983 the respondent-Government decided to recover the amount of rent out of the pay of the appellant at the rate of Rs,600 p.m. For payment to the owner of the building for the reasons that the appellant deliberately defied the orders of the Government and kept his office in private building for over 8 months. This order was however vacated by the Hon'able High Court after it was challenged before that Court through a writ petition by the appellant. In the meantime, the appellant was proceeded against under Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977 (hereinafter to be referred as Efficiency and Discipline Rules) for his misconduct and non-compliance of the Government order. Mr. Muhammad Ibrahim Bajwa, Principal, Agricultural Training Centre, Gharri Dopatta was appointed as Inquiry Officer and after a report was submitted by him to the then Secretary, Agriculture Department, Mr. Tariq Masood, who abstained from acting as authorised officer in case of the appellant because the latter had impleaded malice against the former. The case of the appellant was then transferred to Sardar Aftab Ahmad Khan 'Secretary Amoor-a-Deenia' who was specially appointed as authorised Officer in the case brought against the appellant and the inquiry report was sent to him for further proceedings. He found the appellant guilty of misconduct and indisciplined for having defied the Government orders. He recommended that the amount of Rs,7,680 being an arrear of rent of the building which remained in possession of the appellant w,e,f, 1-11-1981 to 30-6-1982 without any legal justification should be recovered from the pay of the appellant. Accordingly, the impugned order was made by the Government. Feeling dissatisfied with that order, the appellant brought a review petition before the Government to have that order set aside, but despite lapse of 90 days his petition was not attended to by the respondent- Government and ultimately the appellant, had to invoke the jurisdiction of this Tribunal for seeking his remedy.
3. The instant appeal was admitted for regular hearing by a short order of this Tribunal dated 12-9- 1989. The objections brought by the respondent-Government are that the appellant was guilty of gross negligence and misconduct. He did not shift his office in the Government premises despite the fact that he was repeatedly asked to shift his office in the newly-allotted rooms of the Kalyal building. He deliberately defied the Government orders knowing it fully well that the respondent Government would thereby suffer extra expenses of rent for being paid to the owner of the building.
The appellant was rather misdirected to approach the President of the respondent Government for being exempted from the operation of general order of shifting which he could only do through his Department. The appellant has not filed his review petition well in time before the departmental authority and as such his appeal at this forum is time-barred and merits dismissal. The appellant has not impleaded Secretary of Department who was a necessary party in his case and his appeal is liable to be dismissed on that account also.
4. It is prayed by the appellant that the impugned order of recovery of amount of Rs,7,680 out of the pay of appellant may be set aside and he may be awarded cost of the appeal alongwith any other relief that he may be found entitled to get.
5. We have carefully examined the record and have also considered the arguments as were submitted by the appellant himself and the learned counsel for the respondent. The appellant seeks reversal of the order on the following grounds:-
(a) That the impugned order is unlawful and is not maintainable because no inquiry was made against the appellant under the provisions of Efficiency and Discipline Rules.
(b) That the impugned order is unlawful for having been passed arbitrarily and in violation of the principles of natural justice.
(c) That the impugned order is mala fide and unjust. The appellant has committed no mistake and he has been illegally penalised. According to the appellant the then President had verbally decided to exempt the office of the appellant from being shifted to the newly-allotted building and the appellant in fact kept his Office in the rented building waiting exemption orders from the President.
As soon as the final order of shifting of the office was conveyed to him, the appellant complied the order without any delay.
(d) That the original order of shifting of offices was not applicable to the appellant who was allowed to enjoy rented building for his office as well as residence. In form P.C.1 which was approved for the implementation of the scheme of Fruit Development Programme the appellant was authorised to get rent free building for his office and residence and since his office actually remained functioning in the rented building from 1-11-1981 to 30-6-1982 it would be against all fairness to have the amount of rent paid by the appellant out of his own pocket. The order of the respondent Government is arbitrary and has been without affording appellant a reasonable opportunity of being heard.
6. We have very carefully examined the record as was placed before us by the respondent- Government. It is not correct that the appellant was not associated with an inquiry under Efficiency and Discipline Rules as were applicable to him. In fact, under the orders of competent Authority, the proceedings were initiated against the appellant under Efficiency and Discipline Rules. Mr. Muhammad Ibrahim Bajwa was appointed as Inquiry Officer and the impugned order was passed on the basis of his report after giving reasonable opportunity of hearing to the appellant. The appellant has failed to prove any malice against the Inquiry Officer or the authorised officer. It shall be noted here that under the standing orders of the Government Secretary of each Department is the authorised Officer for the Officers of that Department enjoying B.P.S. 17 and 18 but in the instant case, the Secretary of the Department Mr. Tariq Chaudhary abstained from acting as authorised Officer in the case of appellant perhaps for the reason that the appellant had pleaded plea of malice against him. The order of shifting of offices was a general order applicable to all the offices as were located in the rented buildings at Mirpur and there being no exemption for the office of the appellant, the appellant was undoubtedly guilty of defying the Government order extending over a long period of 8 months. This argument of the appellant that since he had the entitlement of office-cum-residence accommodation and the accommodation provided for his office in the Kalyal buiding had no scope for his residence, he was justified to keep his office in the private building in his possession and delay the process of shifting is devoid of force and cannot be accepted to be a good ground for holding the appellant to be innocent. The form PC.1 is not the proof of the fact that the appellant had the entitlement of a rent free quarter. However, if there was no Government quarter available to be used as his official residence, the appellant had the facility of house rent like all other Government servants and he could get some other house on rent for housing his family. The appellant has deliberately avoided the execution of Government order and the punishment awarded to him seems to be quite proportionate to his wilful attitude of persistent disobedience and non-compliance of the Government order. The appellant had no business to approach the President for the impugned order being kept in abeyance or to ask the President for exempting his office from the operation of that order without firstly having taken up the matter with his own Department and we find him guilty of insubordination also on that account.
7. The upshot of the above discussion is that we find no force in this appeal Iant and the same is hereby dismissed. No order as to costs.