MUHAMMAD YAQOOB Versus SECRTARY,JAILS AND 3 OTHERS

ORDER

SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN):--‑ This is an appeal by Muhammad Yaqoob ex‑Jail Warder of District Jail, Mirpur against the order of his dismissal No: 1674, dated 29‑10‑1990 which was made by the Inspector‑General of Jails Azad Jammu and Kashmir (respondent No. 3). The appellant has impleaded Secretary,. Jail, Inspector‑General of Police, Inspector‑General of Jails and Superintendent District Jail, Mirpur Azad Jammu and Kashmir Government as respondents for the redress of his grievances.

2. The facts giving rise to this appeal are that at the relevant time of incident, the appellant was posted as Jail Warder in District Jail, Mirpur. On the night falling in between 30th and 31st July, 1990, he was posted at beat No. 2 of Jail premises from 3 a.m. to 6 a.m. On this night 8 detenues who were involved in serious offences like murder etc. made their escape good from the jail premises after having broken open its walls and windows and prepared a wooden staircase inside the jail. Among others, the appellant was also charge- sheeted for the neglect of his duties and was subsequently dismissed from service by the respondents Nos. 3 and 4. It is submitted by the appellant that being aggrieved by the order of his dismissal, he had filed an appeal before the next higher Authority but no decision was taken by that Authority within the stipulated period of ninty days and hence he has filed the present appeal at this forum for invoking the jurisdiction of this Tribunal under section 4 of the Service Tribunal Act, 1975.

3. In his appeal, it is prayed by the appellant that the order of his dismissal of service dated 29‑10‑1990 made by respondent No. 3 may be set aide for being illegal and he may be reinstated on his post from the date of his suspension with full service benefits.

4. By a short order of this Tribunal dated 23‑4‑1991 the appeal was admitted for regular hearing and the respondents were asked to file their objections, if any. The objections filed on behalf of the respondents are as follows:‑‑

(i) The appeal is time‑barred.

(ii) Para. No. 2 of the appeal was denied and it was submitted that the appellant failed to perform his duties when the prisoners managed themselves to escape from the jail. In fact the appellant had provided them an opportunity of escaping from the legal custody.

(iii) Paras. Nos. 3, 4 and 5 were denied and stated to be incorrect.

5. We have considered the arguments as were addressed by the learned counsel of each party. The inquiry file was sent for from the office of Inspector‑General of Prisons Azad Kashmir Government and a file containing 314 leaves with 77 paragraphs on noting side was received in the office of this Tribunal. In this file, the relevant charge‑sheet at page 284, reply to the charge- sheet by the appellant at pages 282 and 283, opinion of Authorised Officer (Superintendent Jail, Mirpur) at pages 385 and 386 and the order of dismissal of the appellant at page 288 were referred by the Inspector‑General Prisons to be the inquiry papers pertaining to the appellant. We have carefully gone through the impugned order of dismissal of the appellant alongwith other papers of inquiry referred to above. By an order dated 22nd August, 1990 placed on the file at page 271, Superintendent Jail, Mirpur was appointed as Authorised Officer by the Authority (Inspector‑General of Prisons) for conducting an inquiry against the Head Warders and the Warders who had failed to perform their duties for guarding the prisoners in legal custody. Through another Order No. 3802/IGP/90, dated 31‑7‑1990 placed on the file at page 270 Raja Muhammad Razzaq Khan, Superintendent, District Jail, Koth was appointed as Inquiry Officer for an inquiry and report of the incident within a period of two days while the copies of charge‑sheets were issued to the accused Warders through Superintendent, District. Jail, Mirpur as he was held to be the Authorised Officer then. 6n receipt of reply from the accused Warders and Head Warders it appears that no inquiry was actually conducted by the Inquiry Officer under Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977 and the Authorised Officer after considering the replies of the accused Warders and Head Warders had himself proposed and recommended to the authority various kinds of punishment to be awarded to them. In case of Naseer Ahmad, Head Warder and Muhammad Razzaq, Warder, the punishment of censure was recommended while the second Head Warder Fazal Kareem was recommended to be reverted to his original post of Warder, Muhammad Yaqoob the appellant, Muhammad Din, Muhammad Yousaf, Inamullah, Azher lqbal. Pervaiz Akhtar and Shabeer Hussain Warders were recommended to be dismissed from service for neglecting their duties. Muhammad Rashid Warder was ordered to be retired compulsorily whereas Zulfqar Ahmad, Muhammad Siddique, Abdul Hameed, Arshad Mahmood, Abdul Rehman, Bin Yameen and Muhammad Azam were awarded the punishment of stoppage of one annual increment. In case of the appellant, it is mentioned in the impugned order of his dismissal that he has not availed of an opportunity of personal hearing by the Authority respondent No.3. The appellant is the only person among the Head Warder and the. Warders who has invoked the jurisdiction of this Tribunal for the redress of his grievance. We have gone through his reply which he had earlier submitted to the Authorised officer in reference to the charge‑sheet supplied to him. In his reply, the appellant has accused the Jail Authorities including the Superintendent Jail (A.O.) to be responsible for the mismanagement and maladministration inside the jail. After receiving this type of reply from the appellant, the Authorised Officer must have ceased his hands from recommending or proposing any punishment for the appellant. But he did not care for the reply of the appellant and submitted his recommendation for dismissing him out from service. The procedure to be followed by Authorised Officer is given in Rule 6 of Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977 (hereinafter to be referred as E&D Rules, 1977). If for any reason the Authorised Officer in the instant case had decided it to assume the role of an Inquiry Officer himself even then he must have exercised his judgment in the matter and must have proposed the punishment against the appellant after considering the evidence brought on the file. But he has submitted his opinion to the Authority which is based on the record of past service of the appellant before the incident. We do not find anything adduced on the file for proving the charge of neglecting his official duty by the appellant and thereby abetting the commission of the offence of escaping from the legal custody by the prisoners. The Authorised Officer has declared the reply of the appellant in response to charge‑sheet to be unsatisfactory but he has not recorded any reason for that nor there is any thing on the file to substantiate that view. The case in which major penalty like dismissal is to be imposed requires cogent evidence to justify the punishment which is definitely the severest punishment provided under Rule 4 of Efficiency and Discipline Rules, 1977. While going through the file we find that almost all the Jail Warders and Head Warders accused of the charge of neglecting their duties of watching and guarding the prisoners in jail were examined by somebody as witnesses and their statements were placed on the file. We are afraid, the examination of the accused civil servants cannot be used as evidence for imposing major penalty against their co‑accused civil servant. It is very unfortunate that the Inspector‑General of Prisons made the dismissal order of the appellant without looking into the relevant provisions of the Efficiency and Discipline Rules, 1977. Both .the Superintendent of Jail, as well as the Inspector‑General of Prisons have completely failed to comply with the mandatory provisions of Efficiency and Discipline Rules referred to Therefore we hold that the impugned order being violative of the prescribed procedure of Efficiency and Discipline Rules was bad in law.

6. It is next argued that the appellant was required to avail of his departmental remedy before invoking the jurisdiction of this Tribunal under section 4 of the Service Tribunal Act. The appellant has placed postal receipts on the file by which he claims to have submitted his appeal to the Secretary, Prisons of the Azad Government for his reinstatement. We have gone through the record placed before this Tribunal by the Office of Secretary, Prisons and we find it well‑established from the record that the appellant had sent an appeal to the Secretary, Prisons by post quite within time after he was removed from the service of the Jail Department under the impugned order. But no decision was taken on his appeal by the Secretary, Prisons within the stipulated period of 90 days prescribed under section 4 of the Service Tribunal Act, 1975. There is yet another objection by the respondent Government that the present appeal is barred by limitation. Under the provisions of section 4 of Service Tribunal Act, 1975 it is postulated that an appeal at this forum shall be competent by an aggrieved civil servant if the Departmental Authority of that civil servant has failed to decide his appeal pending before that Authority within the‑stipulated period of 90 days from the date of filing such an appeal. The appellant fled his appeal before his Appellate Authority viz. Secretary, Prisons on 13‑12‑1990 and in his case the period of 90 days provided for making decision thereof had expired on 12‑3‑1991. The appellant had 30 days more to bring his appeal but he brought his appeal immediately after the right of appeal had accrued to him on 13‑3‑1991. His appeal is quite within time and the objection that his appeal is time‑barred is without force which is hereby repelled.

7. For the above reasons, we allow this appeal that the appellant shall be reinstated on his post with all the service benefits. However, the Inspector General of Prisons (Authority) shall be competent to proceed against the appellant afresh in accordance with the provisions of Efficiency and Discipline Rules, 1977, if so advised. No order as to the costs.

A.A./ 183/Sr.A Appeal accepted.