AJK Civil Servants (Efficiency and Discipline) Rules, 1977

Rule 2 — Bias — Bias being present in the mid of “Authorised Officer” — Could not be excluded — He was deemed to be interested in the result of proceeding. Khawaja Ahmad Din v. Mohammad Shabir Khan 1994 SCR 142 (D)
—Rule 2— major penalty of compulsory retirement awarded by the officiating Director whereas competent authority to award any penalty against Senior Clerk is Director Sericulture—held: officiating Director was not competent to impose the major penalty of compulsory retirement. Muhammad Javiad v. Director Sericulture & others 2022 SCR 293 (A) 2004 SCR 151 rel.
Rule 2(1) (B) — “authority” read with definition of competent Authority incorporated in removal from service (Special Powers) Act, 2001 — comparison of — Under rules 2.(1) (B) authority means the Government or an officer or authority designated by it to exercise the powers of the authority — According to the spirit except some variation of orders of the words, there is no major difference between these provisions— Under Act, 2001, the competent authority is Prime Minister or a person authorized by him whereas, under E&D Rules, the authority is Government or officer or authority designated by it — mere exclusion of the application of Act, 2001 and making applicable the E&D Rules, does not make any material difference in relation to the independence of judiciary as both the provisions are identical, and the Govt. or the Prime Minister has to designate the authority or competent authority for initiation of proceedings. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (MM)
S. 3(A) (V) — penalty cannot be imposed without adhering to the provisions of the said Rules — Remarks — Impugned order clearly adverse amounting to a stigma on the conduct of the civil servant which may hamper his promotion in future, could not be made without inquiry. Hence made without lawful authority and declared of no legal effect. Mahmood-ul-Hassan v. AKLASC and others 1993 SCR 120 (A) (PLD 1987 AJK 52 Ref)
R. 4 — See AJK Interim Constitution Act, 1974. M. Yousaf Ch., Naib Qasid, Local Government & Rural Development Department, Muzaffarabad v. Director General, Local Govt. & Rural Development Department, Azad Govt. of the State of J&K., Muzaffarabad 2013 SCR 749
Rules 5(1) — If the Authorised Officer proceeded to initiate proceedings against any of the accused without approval of Authority, the proceedings initiated would be vitiated as being unlawful. Azad Govt. & 2 others v. Muhammad Bashir Khan and 2 others 2002 SCR 259 (E)
R. 5 (2) — Recovery of whole or part of any pecuniary amount from a civil servant is a major penalty — Any order passed against a civil servant for recovery is a penalty within the meaning of above rule which cannot be imposed save in accordance with the procedure prescribed by Chap.III — No such procedure or process was followed by the Department against appellant — Appeal accepted — Order of Service Tribunal set aside. Khalil-ur-Rehman Shah v. Azad Jammu & Kashmir Government & others 2007 SCR 387 (B)
R — 5 & 6 — procedure — the authority may direct the Authorized officer to proceed against a civil servant under rule 6(2) the authorised Officer decides whether an inquiry is necessary, if so he appoints an inquiry Officer or inquiring Committee under sub rule 5 – after having appointed inquiry officer committee the Authorised Officer has to draw up a charge sheet as well as a statement of allegations which must be communicated to the civil servant, who is referred to in the rules as “the accused” requiring him to put in his written defence before the inquiry Officer/Committee. Shamas Din Shah v. Azad Government & others 1993 SCR 216 (A)
—Rules 5 and 6 (as adopted by AJ&K Council)— inquiryprocedure to be observed by inquiry officer/inquiry committee— denovo inquiry conducted without following due procedure—According to statutory provisions the role of the authorized officer is very important and without his involvement neither the inquiry proceedings can be conducted nor any punishment can validlybe imposed–de novo inquiry conducted indisregard while bypassing the designated authorized officer—held:when a particular method of performance of an act is prescribed under an Act or Rule then such act must be performed according to the prescribed method alone or not at all—The sole ground is sufficient to declare the whole de novo inquiry as without lawful authority and draw the inference that someone in the AJ&K Council Secretariat has dealt with the matter in a quite vindictive manner deeming himself to be above law, which amounts to misconduct. Muhammad Munir Raja vs Chairman AJ&K Council& others 2018 SCR 48 (B & C)
Ss. 5, 6 & 7(A)-Disciplinary proceedings against the appellant conducted in disregard of mandatory provisions of rules — Order imposing major penalty on the appellant — illegal and invalid. Hussain Ahmad Islahi v. Azad Govt. and others 1992 SCR 370 (A)
Rules 5 to 8 — If an Inquiry Officer violated rules 5 to 8 — The whole inquiry vitiated. Secretary Works & another v. Sardar Muhammad Ashraf Khan and another 2006 SCR 107 (C)
—Rules 5 to 8—inquiry proceedings—no penalty can be imposed without a proper inquiry—appellant was removed from service without conducting proper inquiry—appellant reinstated in service with all back benefits. Javed Iqbal v. D.G Local Govt. & others 2022 SCR 699 (C)
Rule 6 — Four basic requirements for inquiry — When a regular inquiry is being held against a civil servant sub-rule (3) provides that the inquiry officer shall inquire into the charge and may examine such oral documentary evidence as may be considered necessary — It also provides that the accused shall be entitled to cross examine the witnesses against him — Under sub-rule(3) four basic requirements which have to be fulfilled are; (i) that the inquiry officer has to inquire into the charge which means that she is to hold an inquiry; (ii) that oral or documentary evidence has to be examined in support of the charge; (iii) the accused has to be given an opportunity to produce necessary evidence in his defence (iv) while referring to civil servant who is being proceeded against the word “accused” has been used which indicates that the proceedings conducted by the inquiry officer are akin to a criminal trial. M. Shafique Mughal v. Accountant-General 1996 SCR 127 (A)
Rule 6 — Inquiry officer is like a Judge — Inquiry officer is like a Judge and he cannot play the role of a prosecutor — It is not permissible for him to fish out a case against the accused civil servant — This job should be left to the departmental representative — If the inquiry officer thought that any document incriminated the appellant it was his bounden duty to make the appellant aware of the incriminating material and to give him an opportunity to meet it — Penalty based on the finding of the inquiry officer cannot be sustained. M. Shafique Mughal v. Accountant-General 1996 SCR 127 (C)
Rule 6(3) — This inquiry officer is required to examine oral or documentary evidence in support of the charge. He is also authorised to examine oral or documentary evidence in defence of the accused but it does not authorise the inquiry officer to examine the accused and then decide the case — Held further: that the accused can only be examined if he wishes to get his statement recorded in his defence and this can only be done when prosecution evidence has been recorded. In the instant case the inquiry officer was under the wrong impression that it is the appellant who has to prove his innocence. M. Shafique Mughal v. Accountant-General 1996 SCR 127 (B)
Rule 6 & 7 — Inquiry— There cannot be hard and fast rule as to when fresh inquiry should be ordered — It depends on facts of each case – If the facts are complicated a detailed inquiry should be held — Allegation of malice. Khawaja Ahmad Din v. M. Shabir Khan 1994 SCR 142 (B)
R. 7 — procedure to be observed by the inquiry officer/committee — (1) under sub-rule (1) after having received the record from the Authorised Officer and explanation of the accused the inquiry Officer or inquiry Committee shall inquire into the charge and examine the evidence in support of the charge or the defence under sub-rule (2) if the accused fails to furnish his explanation the inquiry shall proceed. Sub-rule (6) provides that inquiry proceedings shall be submitted to the Authorised Officer — There is only one explanation and the effect of failure to file the explanation is provided for No question — That there are more then one explanations. Shamas Din Shah v. Azad Government & others 1993 SCR 216 (B)
R. 7 — The material which has to be considered by the Authorised officer, if it is propose to impose a major penalty is, (i) charge sheet; (ii) statement of allegations served on the accused; (iii) explanation of the accused — and (iv) finding of the inquiry Officer — Charge sheet and statement of allegations are served on the accused under sub-rule (6) of rule 6, while the explanation of the accused has a cross reference in the said rule. Finding of the inquiry Officer clearly refers to sub-rule (6) of rule 7-in view of the fact that other matters to which reference is made in rule 7-A are those about which provision is made in preceding rules it does not seem possible to hold that the explanation of the accused referred to in this rule is not the one which was filed earlier but is a fresh explanation — Rule 7-A speaks of “explanation” of the accused and not “explanations” — If the explanation mentioned in rule 7-A is another explanation then what about the explanation already filed by the accused in sub-rule (6) of rule 6. It cannot be the intention that previous explanation will be removed from the record and the second explanation will be considered — Held: Keeping all these factors in view explanation of the accused mentioned in rule 7-A is not a new or fresh explanation distinct from the explanation referred to in sub- rule (6) of rule 6. Shamas Din Shah v. Azad Government & others 1993 SCR 216 (C)
Rule 7 — Direction issued that if so advised inquiry may be held in accordance with the procedure laid down in rule 7. Khawaja Ahmad Din v. Mohammad Shabir Khan 1994 SCR 142 (G)
R. 7 — Appellant was charge-sheeted on allegations of loss of wheat and defalcation of funds on 17.8.1984 — Inquiry Officer exonerated the appellant from all charges — These were dropped on 22.8.1984 — On 12.9.1993, appellant was again charge-sheeted on same allegations — Inquiry proceedings in the matter were concluded on 11.3.1996 under which he was held guilty and dismissed from service and an amount of Rs.14, 02, 971.56 was ordered to be recovered from him — Contention that second charge-sheet on same grounds was without lawful authority, allegation of charges were not served upon the appellant, neither the appellant was afforded any opportunity of being heard nor his statement was recorded under rule 7, the inquiry was to be completed within 90 days but it took more than 2 years and 6 months to complete the inquiry — Held: There remains no iota of doubt that rule 7-C (2) was flagrantly violated — Held further: the rules which culminate into punishment of civil servant and deprive him of his civic, civil and service rights have to be strictly followed — Held further: Proceedings under AJ&K Civil Servants (Efficiency and Discipline) Rules, concluded beyond the stipulated period are without lawful authority — Order impugned before High Court including the impugned order of High Court set aside — Appellant reinstated to his position from the date of dismissal and shall be entitled to all the benefits which he would have been entitled to during the service — Appeal accepted. Ittefaq Hussain Khan v. Secretary Food and another 2010 SCR 70 (A)
R. 7-A — Postulates that on receipt of report of the Inquiry Officer the Authorised Officer shall determine whether the charges have been proved — If he is of opinion that charges have been proved and he proposes minor penality then he shall seek explanation from accused and decide the matter — If he proposes majorr penality then case shall be referred to the Authority. Muhammad Naseem Khanth v. Azad Government & 6 others 2009 SCR 613 (A)
R. 7 (2) — If ex-parte proceedings against accused-respondents are held justified the Inquiry Officer was bound to record evidence against the accused-respondents. Azad Govt. & 2 others v. Muhammad Bashir Khan and 2 others 2002 SCR 259 (C)
S. 8 Audi alteram partem — Appellant was not given opportunity of personal hearing which was a mandatory requirement — Order of major penalty — illegal and invalid — (Maxim) Hussain Ahmad Islahi v. Azad Govt. and others 1992 SCR 370 (B,C)
R. 8 — If a major penalty has to be imposed upon a civil servant, the issuance of show cause notice to the accused is a mandatory rule of law. Azad Govt. and 3 others v. Muhammad Manzoor Tahir 2002 SCR 465 (A)
Rule 8 — Right of hearing — While awarding major punishment. Authority is bound to provide an opportunity of hearing to accused civil servant. Secretary Works & another v. Sardar Muhammad Ashraf Khan and another 2006 SCR 107 (B)
R. 8 — Contains that the authority shall afford the accused an opportunity of hearing in person either before himself or before an officer senior in rank to accused designated for the purpose after taking into consideration the record of such personal hearing prepared by officer so designated. Muhammad Majeed v. Azad Govt. & 4 others 2007 SCR 144 (A)
Under section 8 of the Efficiency and Discipline Rules it was mandatory for the authority to issue a notice and provide an opportunity of hearing before imposing major penalty — District and Sessions Judge was not aware of the procedure — He did not apply his mind and has not taken trouble of going through the provisions of Efficiency and Discipline Rules — It is most unfortunate that a District and Session Judge has failed to follow the prescribed procedure. District & Sessions Judge Rawalakot v. Kh. Abdul Razzaq and another 2009 SCR 1 (B)
R. 8 — If Authority proposes to impose major penalty the accused shall be afforded an opportunity of being heard in person — The accused can explain his position if copies of inquiry report and other documents are supplied to him — But when explanation is sought without record, he cannot explain his case — It is the requirement of rule that copy of inquiry report has to be supplied to the accused. Muhammad Naseem Khanth v. Azad Government & 6 others 2009 SCR 613 (B) PLD 1981 SC 176, 2006 SCR 107 and 1982 PLC (CS) 76 & 270 rel.
Superintendent Engineer Electricity is the authority for grades 5 to 7 while X.E.N. is authorised officer. Khalid Ashraf v. Azad Govt. & 2 others 1999 SCR 463 (A)
Fresh proceedings — If E&D Rules are not strictly followed and decision is not given on merits by Tribunal — Held: Fresh proceedings can be initiated. Secretary Works & another v. Sardar Muhammad Ashraf Khan and another 2006 SCR 107 (A)
Under the provisions of Efficiency & Discipline Rules before awarding major penalty of removal from service and passing an order for recovery of amount of alleged loss to the department, the authority was bound to providing hearing to respondent. Chairman, AKLASC & 2 others v. Abdul Hameed Siddique and another 2001 SCR 334 (D)
Proceedings against the respondent have been conducted under the Efficiency & Discipline Rules in flagrant disregard of mandatory procedure prescribed in the relevant rules which illegality has vitiated the whole proceedings. Chairman, AKLASC & 2 others v. Abdul Hameed Siddique and another 2001 SCR 334 (E)
From the scheme of the E&D Rules it is clear that the authority and the authorised officer have to exercise their powers in respect of disciplinary action against the accused civil servant. Initially it is for the authority to decide as to whether any disciplinary action against a civil servant is to be taken under the provisions of these rules or not. If in the opinion of the authority the proceedings in respect of any complaint are necessary against any civil servant, it shall appoint an authorised officer and direct him to proceed against such civil servant under the provisions of these Rules. The authorised officer has to decide as to whether an inquiry against the civil servant should be conducted or not. He thereafter on the basis of inquiry report shall be legally competent to determine as to whether the charge against the civil servant has been established or not. He shall also be competent to decide the nature of penalty to be imposed to such civil servant. However, if in his wisdom the accused civil servant deserves major penalty in that case under these Rules he is required to send the whole record of proceedings along with the recommendations to the Authority. After the recommendations are made to the authority. If the major penalty is deemed appropriate punishment, as in the instant case, the matter is to be submitted to the Authority for appropriate action. On receiving the recommendations, the Authority shall again afford an opportunity to the accused person, as already stated, and thereafter taking into consideration the defence, if any taken by the accused, shall pass appropriate order. Chairman, AKLASC & 2 others v. Abdul Hameed Siddique and another 2001 SCR 334 (F)
A comprehensive procedure has been prescribed which is to be strictly followed by Inquiry Officer, Authorised Officer and the Authority while proceedings against a civil servant — Generally the inquiry is to be completed within 60 days or at the most within 90 days with the permission of the Authority. Azad Govt. & 2 others v. Muhammad Bashir Khan and 2 others 2002 SCR 259 (A)
Delay in finalising inquiry against a civil servant has not been envisaged in the said rules according to which the same is to be completed at the most within 90 days. Azad Govt. & 2 others v. Muhammad Bashir Khan and 2 others 2002 SCR 259 (B)
When regular inquiry is being held against a civil servant sub-rule(3) provides that the inquiry officer shall inquire into the charge and may examine such oral or documentary evidence — The accused shall be entitled to cross-examine with witness — In sub-rule 3 there are four basic requirements which have to be fulfilled, firstly the Inquiry Officer has to inquire into the charge, second requirement is that oral or documentary evidence has to be examined in support of charge, third requirement is that the accused has to be given an opportunity to produce evidence — A civil servant who is being proceeded against under Efficiency & Discipline Rules — The word ‘‘accused’’ has been used which indicates that proceedings conducted by Inquiry Officer are akin to a criminal trial. Azad Govt. & 2 others v. M. Bashir Khan and 2 others 2002 SCR 259 (D)
Audi alteram partem — Termination of service is a major penalty — Before termination of service issuance of show cause notice and providing the right of hearing is mandatory — The principle of audi alteram partem shall be presumed to be part of every enactment until and unless its application has been specifically excluded in the relevant statute. Asif Mehmood Raza v. Abdul Khadim & 7 others 2004 SCR 298 (A)
Show cause notice — Allegations in instalments — Effect of — Rightly or wrongly the D.I.G. Police, being next higher authority set aside the order through which he was awarded stoppage of one annual increment—No further action was taken against the decision of the D.I.G. — The said order has attained finality which cannot be disturbed in colourful exercise of jurisdiction — The departmental authorities on account of the previous order of the D.I.G. were estopped to re-open the matter once again — If such practice is encouraged then there will be no end — The authorities whenever they decide to initiate any proceedings under rules they should carefully study the material against the accused civil servant and then furnish him a detailed charge for his reply — Show cause notice containing allegation in respect of same incident in instalments is not recognised by law. IGP AJK Mzd. And other v. Muhammad Ashraf Khan 2004 SCR 91 (A)
E & D Rules — are to be followed strictly, as they have the effect of penalising a civil servant, if he is found guilty — Every provision has to be applied in accordance with the spirit of the rules and any violation thereof renders the proceedings void. Accountant General and another v. M. Shafique Mughal 2005 SCR 86 (A) 2001 SCR 334, 2004 SCR 298,1993 SCR 120 rel.
Inquiry — Report — non-supply — effect of — The respondent was not supplied with the copy of inquiry report which under law, should have been supplied to him. Held: the order passed by the departmental authority to the extent of recovery of landed costs being ill-founded rightly set aside by the Service Tribunal. Secretary Food & 2 others v. Laique Ayyub 2005 SCR 264 (A)
The inquiry report has not been placed on record nor the same supplied to the respondent, whereas the case of the appellant-department is based on the inquiry report — No favour-able inference on account of this reason can be drawn in favour of the department-appellant. Secretary Food & 2 others v. Laique Ayyub 2005 SCR 264 (B)
Loss caused to Government — Inquiry proceedings — Respondent was not provided an opportunity of hearing and evidence in rebuttal — Copy of inquiry report was not provided — Inquiry effect of —Whenever a Government employee is made answerable for any misconduct, then the proceedings must be conducted strictly in accordance with E&D Rules. Deputy Forest Officer and 5 others v. Raja Shujahat Hussain 2006 SCR 113 (A)
Inquiry — Once the inquiry is ordered, it has to meet the rules of natural justice, i.e., the charges have to be levelled substantially against the delinquent civil servant, evidence has to be recorded in his presence, he has to be given a chance to cross-examine the witnesses and then he is also allowed an opportunity of rebutting the evidence led against him — Inquiry Officer, after commencing inquiry under Discipline Rules, not recorded any evidence, hence question of cross-examining the witnesses did not arise — No witness worth the name is pointed out, having said to have produced any record against the accused-respondent substantiating the charge of false recovery against him — Held: In absence of inquiry being conducted in accordance with the rules, action against respondent was not sustainable — Service Tribunal rightly set aside the order. Superintendent of Police and 2 others v. Muhammad Sagheer 2006 SCR 192 (A)
Removal from service — Respondent was permanently promoted as XEN — He was removed from service as S.D.O. after his promotion — At the relevant time he was not S.D.O. but was XEN — If at all he would have to be removed from service then he would have been removed from the service of XEN. Azad Govt. & 2 others v. Sardar Muhammad Iqbal Khan 2006 SCR 353 (A)
No show cause notice was issued nor any inquiry was conducted against the respondent — Order of his termination from service is declared void and can be ignored. Azad Government & 2 others v. Sardar Muhammad Iqbal Khan 2006 SCR 353 (B)
It is well settled principle of law that it is the mandatory requirement of R.8 that before imposing a major penalty the authority has to issue a notice to the accused for providing an opportunity of personal hearing. Muhammad Majeed v. Azad Govt. & 4 others 2007 SCR 144 (B) 2006 SCR 107 and 2001 SCR 334 rel.
Award of major penalty — No charge sheet and statement of allegations was furnished — Effect of — On an application that forgery was committed by respondent (Junior Clerk) statement of respondent was recorded by the Civil Judge Rawalakot — When statement was recorded at that time the learned Civil Judge was not an authorized officer but he was subsequently appointed as authorized officer by the authority — No charge sheet was furnished, even the statement of allegations was not provided to him — The authorized officer also did not decide whether in the instant case inquiry was necessary or not and he without deciding as such suggested for major penalty to respondent — District Judge, who was authority, also did not consider that no chance for evidence was provided to respondent — Even respondent was not allowed to cross-examine the witness. District & Sessions Judge Rawalakot v. Kh. Abdul Razzaq 2009 SCR 1 (A)
The Authorised Officer and Authority failed to provide the accused opportunity to explain in respect of proposed action on the basis of inquiry report — Also failed to supply copy of inquiry report to him — Order set aside. M. Naseem Khanth v. Azad Govt. & others 2009 SCR 613 (C)
Appellant was appointed on 11.2.2002 — He was appointed on the recommendations of Selection Committee — His appointment was temporary for the period of one year — Held: After the completion of one year, appointment would not remain temporary rather the period of one year was probationary period — Held further: He could not be removed from service without following the procedure prescribed under AJ&K Civil Servants (Efficiency & Discipline) Rules. Tanveer Hussain v. Azad Govt. & 4 others 2010 SCR 13 (A)
It was enjoined upon the respondents to provide an opportunity of hearing to the appellant before removing him from service — When appellant was appointed on the recommendations of Selection Committee and he has completed the probationary period of one year; Held: a legitimate right of hearing has accrued to him — He could not be removed from service without providing an opportunity of hearing. Tanveer Hussain v. Azad Govt. & 4 others 2010 SCR 13 (B)
No one can be condemned unheard. Tanveer Hussain v. Azad Govt. & others 2010 SCR 13 (C)
Civil Servants — mal-practice — running of private business — Held: the Courts cannot shut their eyes and allow any person to make mockery of service laws by his conduct — a civil servant be allowed to run his own private business and on the other hand he be prized with the service benefits. Such like acts will encourage corruption, mal-practices, thus, the same be discouraged by strict application of the penal clauses of law — Further held: conduct of the appellant does not deserve for any leniency. The departmental order of removal from service appears to be in accordance with law. Dr. Ashiq Hussain Bhatti v. Azad Govt, & 5 others 2016 SCR 365 (B)
—Judicial officer—proceeded against—under AJ&K Civil Servants (Efficiency & Discipline) Rules, 1977—inquiry officer imposed minor penalty—whereas, the authority imposed major penalty without giving show cause notice—authority differed with recommendations of the inquiry officer, while enhancing punishment imposed withholding of promotion for five years— fresh show cause not required to be issued—held: if at all the competent authority was of a different opinion then the requirement under law was to issue fresh show-cause but this was not done. The appellant is also an officer of good reputation. Furthermore, nothing comes on the record that the alleged embezzlement was done by him rather the only allegation against him is that of negligence. Even otherwise, in our opinion, keeping in view the nature of allegation against the appellant, the punishment proposed by the inquiry officer was appropriate and reasonable. Appeal accepted. Rashid Iftikhar Hashmi v. Competent Authority & others 2022 SCR 1346