KHAWAJA MUHAMMAD SAEED, J:- The facts giving rise to the present writ petition shortly stated are that the petitioner was inducted as Librarian Assistant in the Library Department of Azad Jammu and Kashmir University, vide order dated January 5, 1984. Later on he was transferred to the Library of English Department of the said University on November 4, 1987. In the meantime, a case under Sections 419, 420, 467, 468 and 471, A.P.C. Was registered by police station Muzaffarabad on the written complaint lodged by one Sarfaraz Choudhary Chairman of the University. In that case, the petitioner was arrested and subsequently bailed out by the Court of competent jurisdiction. In the meantime, the Chairman of the University was appointed authorized officer under the Azad Jammu and Kashmir University Employees (Efficiency and Discipline) Rules, 1985 (hereinafter to be called as Rules), who appointed respondent No.4 as inquiry officer for conducting inquiry under the relevant Rules. On 13th of August, 1991, a charge sheet was issued under Rule 7 of the Rules to the petitioner requiring him to furnish his explanation to the said charge sheet within 14 days. After receiving the reply from the petitioner, the statements of certain witnesses were recorded by the inquiry officer. In the light of this inquiry report, ultimately on 26th of April, 1992, respondent No.5 in his capacity as Assistant Registrar of the University issued an order of dismissal of the petitioner from the University Service after obtaining sanction from respondent No.1. The impugned order was assailed through the present writ petition on the following grounds: -
(i) That enquiry was not conducted in a fair and impartial manner as the statements of the witnesses were recorded at the back of the petitioner with the result that the petitioner could not avail the right of cross examining them;
(ii) that statement of allegation was not supplied to the petitioner as was required by the law;
(iii) that the order of dismissal is based on the enquiry which was not conducted strictly in accordance with law, therefore, the impugned order passed on the basis of illegal enquiry, is also liable to be set aside;
(iv) that the order of dismissal of the petitioner is based on malice. Moreover, it is discriminatory in nature and as such against the provisions of Interim Constitution Act of 1974; and
(v) that even the charge sheet is beyond the scope of the duty which was assigned to the petitioner.
2. In written statement, as preliminary objection, it was specifically pleaded that the petitioner has the right of appeal before the Syndicate and also right of revision and review before the Vice Chancellor of the University who without availing the same has wrongly invoked the constitutional jurisdiction of this Court as such the writ petition is liable to be dismissed.
3. On facts, all the grounds were denied in the written statement and it is pleaded specifically that the petitioner has failed to avail the opportunities which were made available to him on his request for cross examining the witnesses who deposed against him during the course of inquiry. It is further alleged that in order to prolong the inquiry the petitioner used to make repeated requests through applications in order to get adjournments. He was using delaying tactics as he was fully aware of the fact that he was responsible for embezzlement which had taken place in the department.
4. In this background of the facts, the learned Counsel for the parties addressed their arguments.
5. The learned Counsel for the petitioner argued that the inquiry has not been conducted in accordance with the provisions contained in the Rules as no statement of allegation was supplied to the petitioner as required by law. He further argued that the petitioner was not provided with an opportunity to cross examine the witnesses who appeared during the course of inquiry against him. The whole proceedings were conducted by the inquiry officer at the back of the petitioner by violating the principle of 'audi alteram partem'. It was further submitted that on the basis of void inquiry, the petitioner's services were terminated in an illegal and unguided manner. As mandatory provisions contained in the Rules were not followed, the only logical conclusion which can be drawn in these circumstances is to the effect that the impugned order is the outcome of malice.
The petitioner has been condemned unheard on the basis of the allegations which have got no substance so far as the case of the petitioner is concerned.
6. The learned Counsel for the respondents on the other hand, while controverting the arguments raised by the learned Counsel for the petitioner, argued that writ petition is premature' as it was filed without availing the right of appeal, revision and review as laid down under Rules 15 to 20 of the Rules. The learned Counsel also referred to documents i.e. Annexures R/I to Rs/9 whereby adjournments were allowed to the petitioner on his own request or he was called to cross examine the witnesses and submit his explanation in respect of the statements deposed against him. But he failed to avail these chances.
7. In my view without going into the various points raised by the learned Counsel for the parties, this writ petition can be disposed of in the light of the preliminary objection raised by the learned Counsel for the respondents.
8. Rules 15 to 20 of the Rules for the convenience of reference are reproduced below: -
15. "Right of appeal and review against penalty.
An University employee on whom a penalty has been imposed under these statutes, may within 30 days from the date of the commencement of the order, appeal or apply for review of the order as provided in section 38 of the University Act: Provided that if the Syndicate or the Chancellor as the case may be is satisfied that there is sufficient ground for extending the time, it or he may entertain the appeal or the review petition at any time.
16. Petition of appeal or review.
Every appeal or review petition preferred under these statutes shall be made in the form of a petition in writing and shall set forth concisely the grounds of objection to the order appended from or sought to be reviewed and shall not contain disrespectful or improper language and shall be submitted to the Vice Chancellor and he shall forward the same alongwith his comments, within a fortnight, to the Syndicate or the Chancellor, as the case may be.
17. Determination of appeal by the Syndicate.
(i) The Syndicate shall cause notice to be given to the appellant and the competent authority or the authorized officer imposing penalty, of the time and place at which such appeal will be heard.
The Syndicate shall send for the record of the case if such record is not already with it. After perusing such record and nearing the appellant if he appears, and the representative of the punishing authority, if he appears, the Syndicate may, if it considers that there is no sufficient ground for interfering dismiss the appeal or may.
(a) reverse the finding and acquit the accused; or
(b) order and direct that further or fresh inquiry be made; or
(c) alter the finding maintaining the penalty or with of without altering the finding, reduce the penalty, or
(d) subject to the provisions of clause (2) enhance the penalty.
(ii) Where the Syndicate proposes to enhance the penalty, it shall.
(a) by order, in writing, inform the accused of the action proposed to be taken and the grounds of the action; and
(b) give him a reasonable opportunity to show cause against that action.
(iii) While taking into consideration an appeal the Syndicate may, if it thinks additional evidence to be necessary either take such evidence itself or direct it be taken by the authorized officer and when such evidence has been taken, the Syndicate shall thereupon propose to dispose of the appeal.
18. Determination of review petition by the Chancellor.
(i) The Chancellor, while determining the review petition may, in his discretion, exercise any of the powers conferred by Statute 17 on the Syndicate; Provided that it shall not be necessary for the Chancellor to cause notice to be given to the accused or punishing authority or to afford the accused an opportunity to be heard in person except where the Chancellor proposes to increase the penalty, in which case he shall, by order in writing, inform the accused of the action proposed to be taken and the grounds of action and give him a reasonable opportunity to show cause against that action.
19. No Second petition for review except in certain cases.
(i) No appeal shall lie against any order passed by the Syndicate on an appeal except where the Syndicate has enhanced the penalty by the appellate order;
(ii) In every case in which the Syndicate enhances the penalty imposed by the competent authority or the authorized officer, the accused may, within 30 days of the communication of the order, apply to the Chancellor for the review of that order; Provided that if the Chancellor is satisfied that there is sufficient ground for extending the time, he may entertain the application for review at any time.
(iii) The application for review shall be filed in the manner indicated in statute 16 and the Chancellor shall determine the review petition in the manner provided in Statute 18.
20. Revision.
(i) The Chancellor may call for and examine the record of any proceeding before any authorized officer or competent authority for the purpose of satisfying himself as to the correctness legality or propriety of any finding, penalty or order recorded or passed and as to the regularity of any proceedings of such competent authority or officer.
(ii) On examining any record under this Statute the Chancellor may direct the competent authority or the authorized officer to make further inquiry into the charges of which the accused has been acquitted and discharged and may, in his discretion, exercise any of the power conferred on the Syndicate under Statute; Provided an order prejudicial to the accused shall not be passed unless he has been given an opportunity to show cause against the proposed action: Provided further that an order imposing punishment shall not be revised suo-moto otherwise after the lapse of a period of three months from the date of its communication to the accused if no appeal is preferred.
(3) No proceeding by way of revision shall be entertained at the instance of the accused who has a right of appeal or review under these statutes and has not brought the appeal or review or where the order sought to be reviewed was made by the Chancellor.
According to these Rules. The right of appeal, review and revision is available to an aggrieved employee of the University.
5. Section 44 of the Interim Constitution Act, 1974 under which the extraordinary writ jurisdiction of this Court is invoked, lays down that remedy under this Section can be invoked by such an aggrieved person who has no other adequate and efficacious remedy available for the redress of his grievance. I am aware of the fact that apparently very wide discretion has been conferred on the High Court under this Section but at the same time, the discretion is not unguided and unbridled. The Section itself has provided well guided principles besides the vast law enunciated by the superior Courts of Azad Kashmir and the Sub- Continent. The general rule, in 'His connection is laid down to the effect that when there is an equally efficacious remedy available then in such like cases, the Court would refuse to invoke the extraordinary constitutional jurisdiction, before the petitioner is asked to exhaust other remedies available to him. Reliance in this regard can be placed on an authority of the Supreme Court of Azad Jammu and Kashmir in a case titled "Ismail Vs. Income Tax Officer and others" decided on 24th of December, 1991.
6. In the present case, after going through the Rules, 15 to 20, referred to in the judgment, I am of the view that the petitioner has got appropriate, efficacious forums available to him where he can seek the redress of his grievance by way of appeal, revision or review. If he can satisfy the concerned authorities under the Rules that he was condemned unheard or other mandatory provisions contained in the Rules were not followed while issued charge sheet or conducting the inquiry against him, then in that case, the whole proceedings would be void.
7. In the light of the above discussion, as the petitioner has got an adequate and comprehensive remedies available by way of appeal, revision and review under the relevant rules, interference under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, would be erroneous. The writ petition, in the circumstances, stands disposed of in the above stated terms.