FA. TAHIR Versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR

SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN):--‑ This is an appeal by FA. Tahir, Ex‑Audit and Accounts Officer, Board of Intermediate and Secondary Education, Mirpur Azad Kashmir (hereinafter to be referred as Board). The appellant has impleaded Azad Government of the State of Jammu and Kashmir through its Chief Secretary as respondent for the redress of his grievances. Through this appeal, the appellant has impugned the Government Order No. S&GAD/3899‑3906/78, dated 30th October, 1978 by which he was compulsorily retired from service and was ordered to pay the amount of house rent allowance alleged to have been paid by him illegally to the employees of the Board in addition.

2. It is submitted by the appellant that he was the permanent employee of the Accounts Department of the Azad Government and prior to his posting in the Board, he held the post of Divisional Accountant in BPS No. 14 in the Office of Accountant‑General, Azad Kashmir Government. On 19‑2‑1976, his‑ services were placed at the disposal of the Board as Audit and Accounts Officer in BPS No. 17. In the meantime, Mr. Justice Raja Muhammad Khursheed Khan, Judge of High Court was appointed as Commission of inquiry to examine the affairs of the Board and while conducting his business, the learned Chairman of the Commission summoned the appellant to furnish him the information regarding the financial affairs of the Board. Subsequently,, the appellant received an order in writing to the effect that the amount of house rent paid to the Officers and Officials of the Board should be intimated to the Commission. The required information was supplied to the Commission by the appellant. On 26‑6‑1978, the appellant was served with a show‑cause notice by the Deputy Secretary, Services and General Administration Department to the effect that after considering the report of Commission of inquiry, the competent authority has decided to serve him with that show‑cause notice under Rule 6(b) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter to be referred as E&D Rules, 1977). The appellant submitted his reply to the show‑cause notice and denied the charge of corruption levelled against him. Later on, tinder the order impugned, the appellant was compulsorily retired from service and the amount paid by him as house rent to the employees of the Board and its Chairman was ordered to be recovered from him. Feeling himself aggrieved, the appellant filed a review petition before the Chief Executive of Azad Government of the State of Jammu and Kashmir but it was not successful and the appellant brought the present appeal at this forum for the redress of his grievances.

3. In the first instance the appeal was admitted for regular hearing by this tribunal but by another order dated 19‑3‑1986, it was dismissed for the reasons that it was not brought at this forum against the final order of Departmental Authority passed on review petition filed by the appellant. The appellant preferred an appeal against that order of this Tribunal before the Hon'ble Supreme Court of Azad Jammu and Kashmir. The Hon'ble Supreme Court by its judgment dated 8‑i1‑1988 set aside the order dated 19‑3‑1986 of this Tribunal and remanded the appeal back to this Tribunal for fresh decision according to law. The appeal has unfortunately remained pending with this Tribunal for a number of years for one reason or the other and on several occasions it was adjourned because of the absence of the learned counsel for the appellant. In the memo of his appeal, the appellant has submitted the following grounds to be relied upon for setting aside the impugned order of the respondent‑Government:‑‑

(i) The Commission of inquiry held no authority to deal with a civil servant in respect of his terms and conditions of service particularly disciplinary matters and order under appeal could not be based on the report of the Commission. The proceedings of the Commission of inquiry were ex parte, secret and whimsical. The appellant was not afforded any opportunity to hear and cross‑examine witness who might have deposed against him. He was not even shown the adverse material, if any, which came to its notice, the report being in violation of natural justice has, in any case, no legal value. While passing order under appeal, the Government was mostly influenced by the report and the order under appeal is not the result of an independent application of mind by the Chief Executive. Thus the order under appeal is vitiated.

(ii) That under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, a Commission of Inquiry cannot be set up by the Government and action against a civil servant can only be taken in accordance with the procedure laid down in these Rules. This violation of procedure has vitiated the order under appeal.

(iii) That the order under appeal shows that action against the appellant has been taken on the basis of the following:‑‑

(a) Report of Commission of Inquiry.

(b) Show‑cause notice served on the appellant and

(c) Reply submitted by the appellant.

This clearly establishes the fact that the Government itself did not peruse the original record relating to the charge in question. Thus the penalty imposed on the appellant is without any legal basis.

(iv) That charge as worded in show‑cause notice was vague and lacking in essential particulars. Even the material or evidence on which it was based was kept secret from the appellant. In these circumstances it was not possible for the appellant to meet the charge. Thus the appellant was not afforded a reasonable opportunity of showing cause in violation of sub‑rule (3) of Rule 6 and the rules of natural justice. Under the rules, the appellant was entitled to two such opportunities which were not afforded to him. Thus the proceedings were not only illegal but also mala fide.

(v) That the appellant was substantively serving in Grade‑14 at the time when the proceedings against the appellant were taken and according to Rules of Business read with sub‑rule (4) or Rule 2 of Civil. Servants (Efficiency and Discipline) Rules, 1977, the Accountant‑General was "Authorised Officer" of the appellant. The "Authorised Officer" did not exercise the powers and functions entrusted to him under the Rules. This illegality has vitiated the order under appeal.

(vi) That under the Rules, normally a civil servant has to be proceeded against under rules 7 and 8 which provide for holding a proper inquiry through an Inquiry Commission or Inquiry Officer. During the inquiry the accused civil servant is afforded the opportunity of cross -examining the witness and the Government has to prove the charges against him in the manner indicated therein. This right can, however, be taken away if the "Authorised Officer" decides that in light of facts of the case or the interest of justice it is not necessary to have an inquiry conducted through an Inquiry Committee or Inquiry Officer. If he so decides then the less beneficial and arbitrary procedure laid down in sub‑rules (3) and (4) of Rules 6 can be applied. No such decision could be taken without hearing the appellant. In fact, facts of the case and interests of justice demanded that procedure laid down in rules 7 and 8 should have been adopted.

(vii) That the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 provide for the procedure out of which one can be chosen to proceed against a civil servant. The procedure laid down in Rules 7 and 8 is just and fair while the procedure laid down in Rule 6 is arbitrary, capricious whimsical, unjust and capable of misuse according to the likes and dislikes of the concerned authorities. The power to pick and choose vested in "Authorised Officer" is similarly arbitrary and is not controlled by any guidance. Sub‑rule (2) empowers the "Authorised Officer" to decide that a civil servant shall be proceeded against. Sub‑rules (3) and (4) of Rule 6 are ultra vires and void on account of inconsistency with fundamental right No. 15 (equality before law) and the proceedings taken under them are consequently void ab initio. This position of law has been recognised by the Azad Jammu and Kashmir High Court.

(viii) That the report of the Commission of inquiry was withheld from the appellant and the appellant did not come to know the contents of the report. The appellant was required to show cause against the proposed action without disclosing to him the material and evidence on which the Commission had based its report. In fact the, appellant was not made aware of the items about which the Commission had reported against him. A written request was made on 14‑11‑1978 to the Secretary, Services and General Administration for supply of a copy of report of the Commission but the request was turned down.

(ix) That the order under appeal does not indicate the charges which in the opinion of the Government stand proved.

(x) That the penalty of recovery of amount paid in compliance to the orders of the Chairman of the Board (Principal Executive of the Board) No. Board/169‑70, dated 10‑1‑1976 (Annexure `L') is, in any case, without any basis whatsoever. No attention has been paid to clause 66 of Audit Code as requested in review petition.

(xi) That all the charges against the appellant were untrue and devoid of any substance. The Hon'ble Tribunal maybe pleased to peruse the contents of the reply (Annexure `F) to the show‑cause notice and review petition (Annexure `H') filed by the appellant.

(xii) That the penalty of compulsory retirement from service is in any case excessive.

(xiii) That the appellant could only be proceeded against by following the procedure laid down in Rule 10 of the Civil Servants (Efficiency and Discipline) Rules, 1977 as the appellant at the relevant time was working, on deputation, in the Board of Intermediate and Secondary Education, Mirpur which is an authority within the meanings of Rule 10 mentioned above. Since the procedure laid down in Rule 10 has not been followed the order under appeal is void ab initio.

(xiv) That the expression "corruption" and "inefficiency" does not appear in clauses (a) and (c) of Rude 3 of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977. These grounds of penalty were not available to the Government, as these are distinct from grounds of penalty mentioned in clauses (a) and (c) mentioned above. The charge against the appellant is also not covered by the expression "misconduct".

4. We have considered the arguments as were addressed by the learned counsel of each party. We have gone through the‑contents of the appeal and its enclosures, the impugned order, show‑cause‑notice issued to the appellant and reply to show‑cause notice by the appellant. We have consulted the relevant provisions of Efficiency and Discipline Rules, 1977 and the Azad Jammu and Kashmir Intermediate and Secondary Education Board Ordinance, (hereinafter to be referred as Board Ordinance). The learned counsel for the appellant has assailed the impugned order almost on the same grounds as are taken by the appellant in the memo of appeal. However, the points which he has pressed much before us are as follows:‑‑

(i) That the services of the appellant after having been borrowed by the Chairman of the Board, he was directly placed under the administrative control of the Board and its Chairman. The payment of house rent to the employees of the Board was previously allowed by the Board itself and then by the Chairman of the Board. The learned counsel of the appellant has invited our attention to the Board's Order No. 9768‑69/75, dated 27th August, 1978 and the Order No. 169‑170/76, dated 10‑1‑1976 issued by the Secretary of the Board with the prior sanction of Chairman of the Board (copies of which are placed on the file) and has submitted that the appellant being a subordinate officer under the administrative control of the Board its Chairman had no option but to comply with the orders of the Board and the charge of corruption and misconduct brought against him had no substance for imposing major penalty upon him.

(ii) That at the relevant time of his posting the appellant held the post of Audit and Accounts Officer in BPS No. 17 on deputation and the proceedings initiated against him at the instance of the respondent Government under rules 6 of E&D Rules, 1977 were not warranted by any rule of procedure because in his case, Rule 10 of E&D Rules was applicable and his designated authority under the said rule was the Chairman of the Board for taking disciplinary action against him.

5. On behalf of the respondent, it is argued that at the relevant time of his posting the appellant held the post of a gazetted officer in BPS No. 17 and therefore, in his case the respondent‑Government was alone competent to take disciplinary action against him under E&D Rules, 1977. According to the learned counsel, the impugned order made by the respondent/Government was quite in accordance with the rules of procedure and no departure was committed in following the law and procedure. Before we deal with the case of the appellant on the grounds submitted by him, we find it necessary to make a reference to the relevant rule of procedure which is prescribed in E&D Rules, 1977 for initiating proceedings and taking disciplinary action against the appellant. There is no denying the fact that previous to his appointment as Accounts Officer in the Board, the appellant held the post of Divisional Accountant in the Office of Accountant‑General of the Azad Government of the State of Jammu and Kashmir and his services were lent to the Board after granting him the promotion to the post of Accounts Officer in BPS No. 17 and a right of reversion to his original post in his parent Department. It seems essential that the order of posting by which the services of the appellant were transferred to the Board must find its place below for guidance and better understanding of the problem;

6. The above order of appointment makes it abundantly clear that the services of the appellant were borrowed by the Chairman of the Board and the appellant was appointed was Accounts Officer in BPS No. 17 in that institution while his right of reversion was kept intact in his parent Department. It follows that by transferring the services of the appellant to the Board, he was directly placed under the administrative control of the Chairman of the Board and he was on deputation at the relevant time when he was proceeded against under E&D Rules, 1977. In the given circumstances Rule 10 of E&D Rules, 1977 was relevant to be applicable in the case of the appellant and not Rule 6 as quoted in the show‑cause notice. It will be appropriate to reproduce below the relevant Rule 10 for adjudging its application and also the consequences arising there from its non application:‑

10. "Procedure of inquiry against Officers lent to other Government etc.

(1) Where the services of a civil servants to whom these rules apply are lent to the Azad Jammu and Kashmir Council or any other Authority, the borrowing authority shall have the powers of authority for the purpose of placing him under suspension or requiring him to proceed on leave and of initiating proceedings against him under these rules. Provided that the borrowing authority shall forthwith inform the authority which has lent his services, hereinafter in these rules referred as the lending authority, of the circumstances leading to the order of his suspension or the commencement of the proceedings as the case may be:

Provided further that the borrowing authority shall obtain prior approval of the Azad Government of the State of Jammu and Kashmir before taking any action under, these rules against a civil servant holding a post in Grade‑17 or above.

(2) If, in the fight of the findings in the proceedings Oaken against a civil servant in terms of sub‑rule (1) above the borrowing authority is of the opinion that any penalty should be imposed on him, it shall transmit to the lending authority the record of the proceedings and thereupon the lending authority shall take action as prescribed in these rules.

(3) Notwithstanding anything to the contrary contained in sub‑rule (1) and (2) Government may, in respect of certain civil servants or categories of civil servants, authorise the borrowing authority to exercise all, the powers of authority and authorised officer under these rules."

7. It is precisely postulated in the above rule of law that the authority in the case of the appellant for taking disciplinary action against him under E&D Rules then vested in the Chairman of the Board and not the respondent Government although the overall administrative control was resting with that Government. Now the grounds of appeal are discussed below in the light of the written statement submitted by the respondent Government and the provisions of Rule 10 of E&D Rules, 1977.

8. It is submitted by the appellant that the Commission of inquiry held no authority to deal with the case of the appellant in respect of terms and conditions of his service particularly disciplinary matters and for that reason the order under appeal was not maintainable on the basis of the report of Commission of Inquiry. We do not find any fault with the constitution of Commission of inquiry by the respondent Government for probing into the allegations in the Office of the Board although its constitution was deviated from following the relevant rules of procedure prescribed in E&D Rules, 1977. Under Rule 10 of E&D Rules, 1977, the Chairman of the Board was the designated authority to initiate inquiry proceedings against the appellant and not the respondent Government. In the instant case the respondent Government has himself assumed the role of the Authority and has made the impugned order of compulsory retirement of the appellant on the basis of the report of its own nominated Authorised Officer. In case of the powers of the Authority, being exercised by the Chairman of the Board some staff officer of the Board would have been appointed under the orders of the chairman to act as an Authorised Officer for the purposes of initiating inquiry proceedings against the appellant. It appears well‑established from the record on the file that in case of the appellant, the Authority of the Chairman was bypassed and the inquiry proceedings were initiated against him at the instance of the respondent Government violating the prescribed rule of procedure given in the E&D Rules, 1977. It has to be accepted that the appellant was prejudiced by adopting a different course of action under a different rule of procedure. The report of Commission has provided a base of inquiry for the Authority and it cannot be termed to be a part of inquiry proceedings under E&D Rules against the appellant.

9. It is correct that the impugned order of compulsory retirement was made on the basis of the report of Commission although the proceedings before that Commission were of fact‑finding nature. The report of Commission duly incorporated in the show‑cause notice was put to the appellant for his explanation and we find no substance in this argument that any other person connected with the Commission report must have been made available for cross‑examination by the appellant. Hence the objection that by accepting the report of the Commission to be a base of inquiry by the respondent/Government, the principles of natural justice were violated is devoid of force and it is repelled. We agree with this contention that the respondent/Government must have consulted Commission report, show‑cause notice and the reply of the appellant to the said show‑cause notice before making the impugned order but it does not help the appellant that he was deprived of his right of cross‑examining the witnesses producing the original record relating to the charge put to the appellant. It shall suffice to say that the report of Commission was prepared by the Commission after examining the record of the Board and the explanation of the appellant. This report was put to the appellant in the shape of a show‑cause notice served upon him by the Authorised Officer appointed by the respondent/Government and the impugned order cannot be rendered illegal or ineffective for this simple reason that the appellant had not availed of an opportunity of cross‑examining the witnesses producing record before Commission of inquiry especially when the appellant had himself accepted the payment of 10% of the pay as house rent to the employees of 'the Board as unauthorised for having been made in contravention of the provisions of calendar of Board and the financial Rules laid down therein. The question how much the appellant was involved in corruption and to what extent the charge of corruption and misconduct was proved against him is a‑matter different to be determined separately.

10. The appellant has not produced any copy of the order that in his case, the Accountant‑General was the designated Authorised Officer. It may be noted here that the officers of the Accounts Department had nothing to do with the appellant so long as he was posted out of that Department. While submitting his reply to show‑cause notice, the appellant has not challenged the Authority of Deputy Secretary although in paras. Nos. 6 and 7 of his appeal, he has bitterly complained of the exercise of the powers of the Authorised Officer under rule 6 of E&D Rules, 1977 by the Deputy Secretary (Authorised Officer). The appellant feels himself much aggrieved by the application of rule 6 in his case. According to him that rule does not lay down just and fair procedure for seeking the ends of justice and the proceedings taken against him under that rule were arbitrary, capricious, whimsical, unjust and capable of being issued by the likes and dislikes of the concerned authorities. It is further submitted by him that the aforesaid rule of procedure is ultra vire and void for being inconsistent with the fundamental rights of citizens. We have already held it that in case of the appellant rule 10 of E&D Rules, 1977 was relevant to be applicable and hence the objection of the appellant as to the application of rule 6 in his case need not be discussed any more. However, it shall be noted here that we follow the rule of law as it is and we cannot be led to believe any of its different interpretations which may be legally or literally not possible.

11. While dealing with the case of the appellant we find it essential to place on the record as to what are the powers and functions of the Board and its Chairman for incurring the expenditure and meeting with the normal expenses of the Board. Chapter 5 of the Board Ordinance provides that accounts of the Board shall be kept by the Secretary or by any other officer of the Board under the orders of the Secretary. Under section 11 of this Chapter it is provided that all bills for payment shall be checked in the office of the Board and signed as correct by the Secretary of the Board or by any other officer to be nominated by the Bard and if the sanction of the Board will be required to make payment of any bill, the Secretary of the Board shall obtain such sanction and shall endorse on the bill a reference to the order of sanction. The Board operates its own budget which is passed by the Board itself and under section 13 of Chapter 5 all expenditure is to be incurred under the budget provision and the rules regulating the powers of the Board to sanction the expenditure. Under section 14, subsection (3), Chapter 1, the Chairman of the Board is the principal executive and academic officer of the Board and under subsection (4) of that section it is the bounden duty of the Chairman to ensure the provisions of the Ordinance and regulations to be faithfully observed and carried oft. Chapter 6 of the Ordinance pertains to the terms and conditions of service of the employees of the Board and under section 8 of that Chapter it is provided that the Board shall be competent to make appointment, suspension and the removal of its employees in BPS‑16 and above and their conditions of service shall be regulated by the Board Ordinance, 1973. After having close study of the relevant provisions of the Board Ordinance, Rule 10 of E & D Rules, 1977, order of the Board and its Chairman by which the employees of the Board were allowed 10% house rent we find ourselves in agreement with this argument of the learned counsel for the appellant that the Board being an autonomous body was itself competent to take any disciplinary action against the appellant and the proceedings initiated against him at the instance of respondent/Government under rule 6, E&D Rules, 1977 were unwarranted. We, therefore, feel ourselves inclined to set aside the impugned order for the following reasons:‑‑

(i) That the concession of payment of 10% of the pay as house rent to the employees of the Board was allowed by the Board long before the appellant had joined the service of the Board and he was not himself the signatory of that order. He carried out the order because in practice it was followed by the officers of the Board and it was somewhat difficult for him to challenge the authority of the Board and its Chairman especially when he was required to perform his duties under their administrative control. The report of Commission is not on the file and presently we are not in a position to benefit ourselves from that report for determining how much the appellant is involved in corruption and misconduct.

(ii) The payment of 10% house rent was made to the employees of the Board by the appellant under the orders of the Board and its Chairman.

(iii) That appellant was on deputation and at the relevant time of his posting, the authority of taking disciplinary action against him vested in the Chairman of the Board and not the respondent/Government.

(iv) That the inquiry was not initiated against the appellant according to the correct rule of procedure provided by E & D Rules, 1977.

12. For the above reasons, we allow this appeal and set aside the impugned order parsed against the appellant. The appellant shall be reinstated on his post with all service benefits.

A.A./175/Sr.A Appeal allowed.