1. BASHARAT AHMAD SHAIKH, J---This is an appeal by leave of the Court from judgment of the High Court by which a writ petition filed by the appellant Barkat Hussain to challenge an order of punishment imposed on him as a civil servant has been dismissed on the ground that it was not maintainable because the appellant could file an appeal before the Service Tribunal.
2. The appellant, who was an Accountant in the Agriculture Department was proceeded against under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 and the Azad Government imposed three penalties on him, namely, censure, stoppage of increment and recovery of the 25% of the amount of pecuniary loss caused to the Government due to the faulty construction of a building. The appellant filed a writ petition to challenge the aforesaid order.
3. Before the High Court the learned Additional Advocate-- General raised a technical objection that all the three penalties imposed by the Government were minor in nature and as such no appeal was maintainable before the Service Tribunal. The High Court found that the penalty pertaining to the recovery of the loss caused to the Government was a major penalty and an appeal was maintainable before the Service Tribunal.
4. The learned counsel for the appellant Mr. M. Tabassum Aftab AIVI, submitted that the learned Judge in the High Court fell in error in holding that penalty of recovery of pecuniary loss was a major penalty. He drew our attention to rule 4 of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 in which minor and major penalties have been enumerated under separate heads. He pointed out that recovery of pecuniary loss was included in the lift of major penalties on 17th of August 1983 through a Notification issued under S&GAD/H-6(34)/SEC- 1/83. The order of punishment against the appellant was passed on 12th of August, 1982 and the writ petition was filed in the High Court on 13th of April, 1983. He contended that the High Court was not right in holding that the penalty mentioned above was major because at the time when the order of punishment against the appellant was passed the aforesaid amendment had not been carried out and the penalty under reference was then termed as minor. The learned counsel's contention is correct but, as it would be presently seen, this fact is immaterial. It appears that the High Court as well as the learned counsel have failed to note that section 4 of the Service Tribunals Act which provides the remedy of appeal before the Service Tribunal contains no mention of major or minor penalties. Section 4 (as it stood at the relevant time) reads as follows:---
4. Appeal to Tribunals: --Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter may, within thirty days of the communication of such order to him or Within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal.
5. Provided that---- (a)--------------------------------------------------------------------------------------- -------.
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining---
(i) the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; or
(ii) the quantum of departmental punishment or penalty imposed on civil servant as a result of a departmental inquiry except where the penalty imposed is dismissal, removal, reduction in rank or compulsory retirement from service; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the first July, 1969.
6. Explanation.---In this section, `departmental authority' means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants."
7. So far as the question of maintainability of appeal before the Service Tribunal is concerned there being no mention of major or minor penalties in the provision reproduced above, it makes no difference if the penalty of recovery of loss is classified as a major or a minor penalty in the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules. The question of maintainability of an appeal before the Service Tribunal has to be resolved in light of section 4 reproduced above and not the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules. The learned counsel for the appellant submitted that it has been held in two cases by the Azad Jammu and Kashmir High Court that an order imposing a penalty other than penalty of dismissal, removal, reduction in rank or compulsory retirement is not appealable to the Service Tribunal. The judgments cited by the learned counsel are Ch. Muhammad Zaman v. Azad Government and others (PLD 1987 Azad J&K 52) Ch. Sadaqat Ali v. Azad Government (1987 PLC (C.S.) 289). In Sadaqat Ali's case this point was not raised nor was decided. However, two orders imposing the penalties of censure and recovery of pecuniary loss were declared without lawful authority and without legal effect. It appears that it was assumed that an appeal was not competent before the Service Tribunal. In Muhammad Zaman's case it was held by a learned Single Judge, who was one of the two Judges who decided Sadaqat Ali's case mentioned earlier, as follows:-- "---------Section 4 of the Service Tribunals Act postulates the scheme of appeals, including area of jurisdiction, to Service Tribunal. Clause (b) of section 4 provides that no appeal shall lie to a Tribunal against an order or decision of a departmental authority in matters listed under clauses
(i) and (ii). Under clause (iii) it is laid down that no appeal shall lie against an order determining the quantum of departmental punishment or penalty as a result of a departmental inquiry except where the penalty imposed is dismissal, removal reduction in rank or compulsory retirement from service. Under this clause, Service Tribunal is conferred jurisdiction of hearing an appeal against an order of departmental authority only to the extent of penalty of dismissal, removal, reversion or compulsory retirement from service. In case of penalties or punishment or punishments imposed by departmental authority on a civil servant other than those listed above, Service Tribunal has no jurisdiction to entertain an appeal against such orders of a departmental authority."
8. The learned Advocate-General, Mr. Sardar Khan, submitted that the view expressed by the High Court in Muhammad Zaman's case is not correct because the relevant provision of law does not debar filing of appeal seeking to challenge the legality of an order imposing a penalty of any kind and it is only quantum of such penalty which is not appealable. On the other hand Mr. Tabassum Aftab Alvi, Advocate, supported the view taken by the High Court.
9. We have already reproduced section 4 of the Service Tribunals Act as it stood before its amendment in 1987. A perusal of sub-clause (ii) of proviso (b) reproduced above shows that it excludes those appeals from the jurisdiction of the Service Tribunal in which the quantum of punishment or penalty imposed on a civil servant is challenged except where the penalty is dismissal, removal, reduction in rank or compulsory retirement from service. This provision lays down that quantum of departmental punishment or penalty, except that of penalties mentioned above, is not appealable. It only means that the Service Tribunal cannot on appeal vary or modify the quantum of punishment except in those cases, which have been mentioned above. It is nowhere laid down that an order imposing a penalty except the penalties mentioned therein cannot be set aside or vacated by the Service Tribunal. The quantum of departmental punishment is quite different and distinct from an order of punishment. Quantum, which means quantity or amount of punishment, is not the same thing as the punishment itself. The bar under examination only relates to quantity and not to punishment itself. In our view under this provision of law the Service Tribunal was clothed with the power to hear an appeal against an order imposing penalties of all kinds and could decide whether the penalty had been rightly imposed or not and could validly set aside an order after reaching the conclusion that the civil servant had been wrongly held to be guilty. The Tribunal was also vested with the authority to reduce a penalty of dismissal, removal, reduction in rank or compulsory retirement if it formed the view that the penalty imposed on the civil servant was excessive. However, in case the penalty imposed on a civil servant was other than the penalty of dismissal, removal, compulsory retirement or reduction in rank the Tribunal did not have the jurisdiction to examine whether the sentence was excessive or not. In our view the view taken in Muhammad Zaman's case did not lay down the correct law.
10. The High Court has correctly held that penalty of recovery of pecuniary loss was appealable to the Service Tribunal. Although the reason given by the High Court is not sustainable yet the conclusion is correct in light of relevant provision of law because the penalties imposed on the appellant were appealable to the Service Tribunal. We have examined the contents of the writ petition filed by appellant Barkat Hussain and find that the writ petition was filed in order to get 'a verdict from the High Court that the penalties imposed on him should be vacated and did not raise the plea that penalties were excessive. Since an appeal was maintainable before the Service Tribunal the jurisdiction of the High Court stood completely ousted in view of the bar contained in section 47 of the Azad Jammu and Kashmir Interim Constitution Act and the writ petition entailed dismissal on this ground.
11. The appeal is, therefore, dismissed. However, there would be no order as to costs.