AJK Civil Servants Removal from Service (Special Powers) Act, 2001

Section 1 (3) —Section 1(3), postulates that it shall come into force at once— the provisions of Act are applicable from the date shown in the Act when it has been promulgated. Malick Hussain Shah v. Superintendent of Police Rangers 2014 SCR 1120 (M)
Section 2—‘Competent Authority’ and ‘person in the Govt. Service’— definition of— Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (D)
Section 2—proposition whether judicial officers are amenable to Act, 2001 or not— a bare reading of Section 2 of the Act, 2001, reveals that every person who is the member of a Civil Service of the Government or who holds a civil post in connection with the affairs of the AJ&K is included in the definition of “person in the Government service”. This definition cannot be read in isolation for the purpose of applicability of the Act, on the judicial officers—the definition of “competent authority” is of much importance where the Prime Minister is defined as the competent authority in relation to any person or class of persons and officer or authority authorized under Act, to exercise powers of authority under the Act—the competent authority in relation to the employee of a Court or Tribunal functioning under the Government is appointing authority or the Chairman or the Presiding Officer of the Court or the Tribunal— What appears from the phraseology applied and non-mentioning of competent authority in respect of judicial officers, is that the judicial officers are not amenable to the jurisdiction of the Act, 2001— Only the civil servants, the appointing authority of whom is the Government and the employees of such Courts and Tribunals working under the Government are amenable to the jurisdiction of Act, 2001. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (E)
Sections 2 & 11— constitution Act, 1974—section 46—overriding effect of Act — judicial officers—overriding effect of Section 11 is on the persons, who are amenable to the jurisdiction of Act, 2001 and the persons who are not included in the service under the Government are not amenable to the jurisdiction of Act, 2001—overriding effect of section 11 is not attracted in the case of Judicial Officers in the light of Section 2— the competent authority of Judicial Officers is the High Court—Under Section 46 of Constitution Act, the judicial officers are subordinate to the High Court and not the Government—Only a person whose competent authority is the Government or the employees of the Courts or the Tribunals constituted by the Government and functioning under the Government are amenable to the said Act. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (G)
Section 2 (A) read with Notification dated 7.5.2003—competent authority— under section 2 (A) competent authority means the Prime Minister—he Prime Minister vide notification dated 7.5.2003 authorized the appointing authority as the competent authority.Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (EE)
Section 2(A)&(D) — Interim Constitution Act, 1974—section 42-E—Applicability of Act to judicial officers— argument that under section 2(D) of Act, 2001 applies to every person acting in connection with the affairs of the AJ&K, if admitted, then the Judges of the Supreme Court and High Court are also amenable to the jurisdiction of Act. Held: A Judge of the Supreme Court and the High Court can be removed in accordance with Section 42-E of the Constitution Act. Further held: Non-mentioning of the competent authority of judicial officers, who are subordinate to the High Court, in clause (A) of Section 2 clarifies the position that the Legislature didn’t intend to proceed against the judicial officers under the Act, 2001. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (J)
Section 2 (D) — Removal from Service (Special Powers) Ordinance 2000 — section 2(D) ‘Person in Government Service’ — definitions — comparison of—applicability of Act, 2001 — A comparison of the definition of ‘Person in Government service’ in the Ordinance 2000 and in Act, 2001, conveys a material difference — In Ordinance 2000, expressly the judiciary was excluded from the definition of Government service — these legislative developments clearly convey the intention of the legislature that a person holding the civil post in connection with the affairs of AJ&K, falls within the definition of ‘Person in Government Service’ hence it was felt advised to specifically exclude the judiciary from the definition for the purpose of application of Ordinance 2000 — When the Ordinance, 2000 was repealed by Act, 2001, express exclusion has been omitted, consequently the result is obviously clear that after omission of such exclusion, such person became subject of definition— In the omitted exclusion clause, Judges of the Supreme Court, High Court, Shariat Court and the judiciary subordinate to the High Court or any employee thereof were excluded. Held: despite this omission, Act, 2001 is not applicable to the Judges of the Supreme Court and the High Court simply because, for their removal, the Constitution has prescribed a comprehensive mode and mechanism. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (W&X)
S. 3 — Any inquiry conducted by any authority cannot debar the authority under the provision of Special Powers Act from exercising its authority u/s 3 of the Act — The authority has ordered to initiate fresh inquiry against the petitioner because prima facie, it has formed the view that the petitioner has gained service in the Education Department by tendering forged and fictitious degree. Dilshad Kausar v. AJ&K Govt. & 2 others 2005 SCR 268 (A)
The Prime Minister who had delegated his authority to the Minister for Education would have been justified to exercise powers u/s section 3 of the Special Power Act because delegator does not get denude of powers which he delegated to any other person if the same had been exercised by the delegatee because in that case the powers stand exhausted. Dilshad Kausar v. AJ&K Govt. & 2 others 2005 SCR 268 (B)
Section 3— the word “Prime Minister” incorporated in the definition of the ‘competent authority’ in Act, 2001, refers to the powers of the Government exercised by the Prime Minister as Chief Executive of Azad Jammu and Kashmir—the Prime Minister under the provisions of section 3 of Act, 2001 has designated the appointing authority to be the competent authority—held: in relation to judiciary subordinate to the High Court, the High Court is competent authority. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (LL)
Section 3— the competent authority is empowered on finding guilty of misconduct, impose punishment of major penalty including removal from service, compulsory retirement, reduction to lower grade or pay scale or impose minor penalties prescribed under Rules, 1977. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (XX)
Sections 3(1) (A)(B)(C)& 8—Inquiry proceedings against persons in Govt. & Corporation Service— the purpose of the Act, 2001 has been shown speedy disposal of cases i.e dismissal, removal from service etc. —under clauses (A), (B)&(C) of subsection (1) of Section 3, where, in the opinion of the authority a person in Government or corporation service, is inefficient or has ceased to be efficient for any reason, or guilty of being habitually absent from duty without prior approval of leave or guilty of misconduct etc, the competent authority may pass order against him after issuing notice and adopting the procedure laid down in Section 3—the authority may, on the basis of the report submitted by the inquiry committee, dismiss, reduce to lower post or pay scale or impose such other more penalties as prescribed in the Azad Jammu & Kashmir Civil Servants (Efficiency & Discipline) Rules, 1977— Section 8 postulates that the findings recorded by the Inquiry Officer shall, with the recommendations provided for in that section, be submitted to the competent authority and the competent authority may pass such orders thereon as it may deem proper in accordance with the provisions of the Act. Malick Hussain Shah v. Superintendent of Police Rangers 2014 SCR 1120 (Q)
Section 3(1)(F) —the inquiry— the authority has power to dismiss, remove or may compulsorily retire from service or reduce to lower post or pay scale or impose one or more minor penalties prescribed in E&D Rules, 1977. Gulzeb v. Competent Authority & another 2015 SCR 276 (D)
Sections 3(1)(F) and 5(4)—inquiry—dispensation of—under sections 3(1)(F), the authority may pass any order after inquiry by the committee/officer constituted under section 5—under section 5(4) the competent authority may dispense with the inquiry under sub-section(1), if there is sufficient documentary evidence on record against the accused. Gulzeb v. Competent Authority & another 2015 SCR 276 (F) 2014 PLC (CS) 288 distinguished.
Sections 3 & 5 — no penalty can be imposed without adopting proper procedure of inquiry—Section 3 provided that where in the opinion of the authority a person in Govt. or corporation service is inefficient or has ceased to be efficient for any reason, or guilty of being habitually absent from duty without prior approval of leave or guilty of misconduct etc, the authority may impose any of the penalties shown in subsection (3) of Section 3—Section 5 makes it mandatory for the competent authority that before passing order under Section 3, it shall appoint an Inquiry Officer /Committee to scrutinize the conduct of a person in Government or corporation service, who is alleged to have committed any of the acts or omissions specified in section 3. Malick Hussain Shah v. Superintendent of Police Rangers 2014 SCR 1120 (T)2014 PLC (C.S.) 288 ref.
S. 5 — See AJK Interim Constitution Act, 1974. M. Yousaf Ch., Naib Qasid, Local Govt.& Rural Development Department, Muzaffarabad v. Director General, Local Govt.& Rural Development Department, Azad Govt. of the State of J&K, Muzaffarabad 2013 SCR 749
Section 5(4) — inquiry—dispensation of—a competent authority may dispense with the inquiry under sub-section (1), if it is in possession of sufficient documentary evidence against the accused, or for the reasons to be recorded in writing, it is satisfied that there is no need of holding an inquiry. Gulzeb v. Competent Authority & another 2015 SCR 276 (E)
Section 8—Rules 6, 7, 7-A & 8 of AJ&K Civil Servants (E&D) Rules, 1977—no major penalty without providing an opportunity of hearing—arguments that the authority has no power to impose penalty greater than that recommended by the Inquiry Officer/Committee — the phraseology implied in Section 8 of the Act, 2001 that the authority has power to pass orders, it deems proper—although the provisions of Act, 2001 provide different punishments including termination from service, but it is not specifically laid down that whether the authority is competent to impose penalty greater than that recommended by the Inquiry Officer or not—for the purpose, AJ&K Civil Servants (Efficiency & Discipline) Rules, 1977 may be restored—Rule 7-A provides that the authorized officer, on receipt of report of the Inquiry Officer or the committee, shall determine whether the charge has been proved— if it is proposed to impose a minor penalty, he shall after affording the accused an opportunity of showing cause against the action proposed, pass orders accordingly—If major penalty is proposed, he shall forward the case to the authority along with the charge sheet, the statement of allegations served on the accused, explanation of the accused, the finding of the Inquiry Officer or the inquiry committee and his own recommendations regarding the penalty to be imposed—In case it is proposed to drop the proceedings, the authorized officer shall submit the case with all relevant material/documents to the authority for appropriate orders—Rule 8 deals with the proceedings the record of which has been reported for orders under sub-rule (4) of rule 6 or rule 7-A to the authority—the authority may pass such orders as it deems fit but before imposing a major penalty the authority shall afford the accused an opportunity of hearing—If the authority proposes to impose the penalty greater than the one proposed by the Inquiry Officer or the authorized officer, then it shall issue a notice to the accused, providing him an opportunity of hearing before himself or through an officer so designated and thereafter may impose any penalty in the light of record of the case — Held: the authority may impose penalty greater than the one proposed by the Inquiry Officer after issuing a notice and providing an opportunity of hearing. Malick Hussain Shah v. Superintendent of Police Rangers 2014 SCR 1120 (R)2005 SCR 86 & 2007 SCR 144 ref.
Section 11—Act, 1976—overriding effect— Held: under section 11, Act, 2001 has been given overriding effect upon the provisions of Act, 1976 and the rules made thereunder. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (M) 2007 SCMR 229, ref.
Section 11 read with Act, 1976 and Civil Servants (E&D) Rules, 1977—Applicability of Act to the persons of judicial service—admittedly, Act, 1976 is applicable to the persons of judicial service whereas Civil Servants (E&D) Rules, 1977 were applicable before the enforcement of Act, 2001 to such persons—Held: after enforcement of Act, 2001, section 11 of said Act has given overriding effect to the special law, therefore, the E&D Rules are no more applicable. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (S)
Section 11— its overriding effect—Held: Provisions of S. 11 have overriding effect in the presence of other laws —if a thing is contrary provided in the Civil Servants Act or Efficiency & Discipline Rules or corporation laws, then too, the provisions of Act 2001 shall prevail. Further held: Act 2001 being specific on the subject and being later law shall apply in the presence of Civil Servants Act and other general laws including the laws governing corporation service. Malick Hussain Shah v.Superintendent of Police Rangers 2014 SCR 1120 (I)
Sections 11 & 12 —Held: A cumulative appreciation of Sections 11 & 12 of Act,2001 leads to the conclusion that in respect of the maters and person in service provided for in this Act, the proceedings can only be initiated under this Act. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (O)
Sections 11 and 12— applicability of Act—Held: Act, 2001, specifically containing the provisions of sections 11 and 12, is applicable to the persons who are subject of Act, 1976— the interpretation if made otherwise, will surely result into making redundant these provisions which will amount to destruction of statutory law.Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (PP)
Section 12—under section12— on the enforcement of Act, 2001, proceedings in respect of the matters in relation to the persons in civil service, shall only be initiated under the provisions of this Act in exclusion of other laws on the subject— Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (N)
Act, 1976 — section 23—AJ&K civil service (Judicial Branch) Rules, 1984 — Rule 4 — AJ&K civil service(Judicial Branch) Rules, 1999—Rules 4 — AJ&K Judicial Service Rules,2011 — Juxtapose appreciation of Rules — application of the provisions of Act, 2001 on the judicial officers — discussion of — AJK Civil Service (Judicial Branch) Rules, 1984 have been made under Section 23 of Act, 1976 —Under rule 4, the provisions of E&D Rules, were made applicable to the persons subject of these Rules — after enforcement of Act, 2001, in supersession of the Civil Service (Judicial Branch) Rules, 1999, Azad Jammu and Kashmir Judicial Service Rules, 2011 have been enforced — In these rules application of the E&D Rules have been omitted— the omission of the application of E&D Rules leads to two conclusions: firstly, at present there is no law to deal with the conduct of persons who are subject of Judicial Service Rules but surely, such conclusion in a constitutional state has no room; secondly, the rule making authority consciously omitted the application of E&D Rules — as in the Azad Jammu and Kashmir the law having overriding effect on all the previous laws relating to the subject of removal from Service and Efficiency & Discipline, has been enforced through Act, 2001, thus, held: it also leads to the conclusion that the rules making authority by omitting the application of E&D Rules to the persons subject of the Judicial Service has conveyed clear intention that Act, 2001, is applicable to these persons. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (CC)
Interim Constitution Act, 1974—Section 46—AJ&K judicial Service Rules, 1999—Rules 3 & 4—Applicability of Act, 2001 on the judicial officers—Under Section 46 of the Constitution Act, the competent authority of the subordinate judiciary is the High Court— under Rule 4 read with column No.5 of the Schedule made under Rule 3 of Judicial Service Rules, 1999, the High Court has power to proceed against the subordinate judiciary or employees thereof—the legislature has not included the members of subordinate judiciary in the definition of “person in Government service”. Held: Act, 2001 is not applicable on the Courts where the High Court has superintendence and control under Section 46 of Constitution Act, 1974.Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (K)
Preamble — Scope, purpose and applicability of Act — comparison with the provision of Civil Servants Act, 1976 — Perusal of preamble shows that the Act has specially been enforced for providing law for dismissal, removal, compulsory retirement from service and reduction to lower post or pay scale of certain persons from Govt. Service & corporation service — Civil Servants Act applies only to Civil Servants — the provisions of Act apply to the Civil Servants as well as the employees of the corporation service — Act has been introduced in the public interest and for good governance to provide for measures relating to the dismissal, removal etc, of certain persons from Govt. Service and corporation service — Act has been enforced for speedy disposal of such like cases and the matters connected therewith or ancillary thereto — Act has been introduced to shorten the procedure and speedy disposal of cases regarding Civil Servants and Corporation Service. Malick Hussain Shah v. Superintendent of Police Rangers 2014 SCR 1120 (A)
Nature, object, scope, purpose and applicability of Act in presence of the provisions of Civil Servant Act, 1976 and corporation service laws — Act, 2001 has been introduced for specific purposes of providing law for dismissal, removal, compulsory retirement from service and reduction to lower post or pay scale of certain persons from Govt.— Service and corporation service and speedy disposal of such cases — law has been enacted for particular purpose — Sections 10 to 12-A, 14 and 15 of Civil Servants Act, 1976, already provide for termination, reversion, retirement and removal from service of Civil Servants and laws relating to corporation service also provide for termination, reversion, retirement and removal from service — the provisions has been introduced in Act, 2001 for speedy disposal of such like cases and such provisions in a statute exclude the operation of special provisions in the general law. Malick Hussain Shah v. Superintendent of Police Rangers 2014 SCR 1120 (G) 1999 CLC 1198 rel.
Applicability of Act, 2001 on the Police force — proposition whether Act, 2001 or Police Act 1861, is applicable to Civil Servants and members of corporation service while Police Act is applicable only to the Police force, which is specially meant for Police service and it has its own E&D, Rules, 1992 — the members of the Police force, which is a disciplined force are governed by the provisions of said Rules. Malick Hussain Shah v. Superintendent of Police Rangers 2014 SCR 1120 (J)
Applicability of Act 2001 to the persons in judicial service— the persons holding the judicial office in the Courts established by the subordinate legislation which are under the superintendence and control of the High Court are undisputedly governed under Act 1976. Therefore held: following the principle of law laid down in Malick Hussain Shah’s case, Act, 2001 is applicable to such persons. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (R)
Interim Constitution Act, 1974—Section 47-A—Supreme Court Establishment (Appointment of Officers and Servants Terms & Conditions of Service) Rules, 1994— Azad Jammu & Kashmir High Court Establishment (Appointment & Conditions of Service) Rules, 2011—Applicability of Act, 2001 on employees of the High Court and the Supreme Court—for the employees of the High Court and the Supreme Court, under the provisions of section 47-A of Constitution, rule making powers have been delegated to the Supreme Court and the High Court subject to approval by the President— the special law, i.e Supreme Court Establishment (Appointment of Officers and Servants Terms & Conditions of Service) Rules, 1994 and AJ&K High Court Establishment (Appointment & Conditions of Service) Rules, 2011 are made under Section 47-A—regarding these laws, Act, 2001 has not been given overriding effect thus, held: is not applicable to the employees of the Supreme Court and High Court. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (Z)
Civil Servant Act, 1976—term ‘Government service’ and’ ‘person in service of AJ&K’—appreciation of —status of persons subject of judicial service Rules—the term “Government Service” under Act, 2001, is not confined only to the persons who are under the direct control or subordination of the Government but it also includes all the persons holding the posts in connection with the affairs of the AJ&K—no one can interpret the law that the persons holding such post in judiciary of Azad Jammu and Kashmir are not holding the office/post in connection with the affairs of the Azad Jammu and Kashmir—the juxtaposed appreciation of the provisions dealing with the term “person in service of Azad Jammu and Kashmir” under Act, 1976 and Act, 2001, leads to the conclusion that subject to the Constitutional exceptions, the persons holding the post in the judicial service in connection with the affairs of the Azad Jammu and Kashmir, fall within the definition of Government service for limited purpose of Act, 2001. Held:, the persons subject of the Judicial Service Rules falls within the definition of the persons in the Government service for limited and specific purposes without affecting the status of the independence of judiciary or interference in the judicial duties. M. Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (BB)
Application of Act, 2001—its effect on superintendence and control of High Court over subordinate Court—discussion of— all the law relating to terms and conditions of service and the persons who are the subject of the Judicial Service Rules, are made by the Government—the promulgation of these rules does not mean that in any way, the superintendence and control of the High Court on the Courts subordinate to it has been affected. As the powers of appointment, posting, transfers and all the matters relating to performance of judicial functions remains in the control of the High Court— the application of Act, 2001, Held: does not in any way adversely affect these constitutional powers, because the competent authority remains the High Court. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (DD)
Proceedings against judicial officers under Act, 2001—question of subordination—the competent authority of the judicial officers is High Court which is the appointing authority, hence, by application of Act, 2001 to the judicial officers, the question of subordination to Government or adversely affecting the superintendence and control of the High Court does not arise. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (FF)
Application of Act, 2001 on the Judicial Officers—contention that Act, is not applicable to the judicial officer— Held: Act, 2001 is applicable to the persons who are subject of the Azad Jammu and Kashmir Judicial Service, Rules, 2011 which have superseded the Civil Service (Judicial Branch) Rules, 1984. M. Yousaf Haroon v. Competent Authority 2014 SCR 1180 (QQ)
Police Act, 1861—Police Rules, 1934 & Police E&D Rules, 1992—proposition whether Act, 2001 is applicable to police force or police service laws are applicable—determination of general and special nature of Acts—prior to promulgation of Act, 2001, the members of the police force were governed by the Police Act, 1861, the Police Rules, 1934 and Police E&D Rules, 1992— Held: the provisions of a special Act cannot be implication repeal the the provisions of a special Act of general nature—police Act being special law shall be applicable to the members of police force in the presence of Act, 2001 as the members of police service have been declared Civil Servants only for the purpose of Section 4 of Service Tribunal Act, 1975— Prior to enactment of Act, 2001, the members of police service were not governed by the Civil Servants Act, 1976 or the Rules made thereunder regarding the E&D, being special law, shall prevail and Act, 2001 being general law is not applicable to the members of police force. Malick H. Shah v. Superintendent of Police Rangers 2014 SCR 1120 (L)PLD 1985 SC 159 & PLJ 2004 SC 800 rel.
Further held: without a notice or providing opportunity of hearing, the authority has no power to impose penalty greater than proposed by the Inquiry Officer. Malick Hussain Shah v. Superintendent of Police Rangers 2014 SCR 1120 (S)
Scope & purpose of— where in the opinion of competent authority a person in Government or Corporation service is inefficient, guilty of being habitually absent from duty, guilty of misconduct, corrupt or may reasonably be considered as corrupt, apart from a number of other factors may be dismissed, removed or compulsorily retired from service. Gulzeb v. Compe& other 2015 SC R 276 (C)
Limitation for written defence— manner of Inquiry—According to provisions of section 5 of the AJK Civil Servants Removal from Service (Special Powers) Act, 2001, at least 7 days’ time after communication of the charge sheet for written defence is required. Thereafter, the inquiry officer has to examine oral or documentary evidence of charge or any defence of the accused and the accused is entitled to cross examine the witnesses against him. Salam Din v. District Education Officer & others 2015 SCR 385 (A)
Inquiry report—limitation for submission—60 days time is fixed for submission of the inquiry report and this time can be further extended, if so required. Salam Din v. District Education Officer & others 2015 SCR 385 (B) Inquiry—conduct of inquiry officer—basic requirements for inquiry —akin to criminal cases—paramateria to—role of the inquiry officer is like a judge. During inquiry it is the duty of the inquiry officer to make the appellant aware of the incriminating material and to give him an opportunity to meet it. The perusal of the statutory provisions dealing with inquiry reveals that the basic requirements which must be fulfilled are: holding of proper inquiry, examination of oral or documentary evidence in support of charge, providing opportunity to the accused to produce evidence, if necessary, and for recording the findings of standard of proof is like criminal cases. Section 5 of the AJ&K Civil Servants Removal from Service (Special Powers) Act,, 2001 are almost paramateria of Rule- 6 of the AJ&K Civil Servants(Efficiency and Discipline) Rules, 1977. Salam Dinv. District Education Officer & others 2015 SCR 385 (C)1996 SC 127 ref.