1981 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN).‑Mr. Bashir Ahmad an ex -Patwari has filed an appeal under section 4 of the Punjab Service Tribunal Act, 1974 against the order dated 16th July, 1979, passed by the learned Commissioner, Multan Division, read with order dated 10th April, 1980, passed by the learned Member, Board of Revenue, Punjab, Lahore, by which the appellant was dismissed from service. By virtue of this appeal he has prayed that the impugned order be set aside and he be re‑instated in the post of Patwari with all the back benefits. 2. Brief facts of the case are that the appellant was charge‑sheeted for certain allegations against him and the enquiry was entrusted to the Tehsildar, Lodhran, who reported that both the charges were proved against him. Accordingly he was issued a show‑cause notice for major penalty on 30th April, 1979 and was afforded an opportunity of being heard in person. After hearing the appellant the Assistant Commis sioner, Lodhran, dismissed the appellant with immediate effect finding him guilty of misconduct and corruption: His appeal was rejected by the Commissioner, Multan Division. The representation against the order of the said Commissioner was rejected by the Board of Revenue Communication of the same was made to him vide Deputy Secretary's letter dated 10th April, 1980. 3. I have heard the learned counsel for the appellant as well as the learned District Attorney and have perused the record of this case very carefully with their assistance. It has been argued on behalf of the appellant that the two charges were of identical nature relevant to the act of the appellant by which he was said to have entered certain khasra numbers belonging to the Central Government in the name of Mst. Safia Begum and one Allah Wadaya without first getting the mutation sanc tioned. In the show‑cause notice no mention of charges of misconduct or corruption were made, therefore he could not be held guilty of misconduct or acting dishonestly with corrupt motives. It was further argued that during the enquiry conducted by the Tehsildar, Lodhran, he was not allowed to cross examine the witnesses. The learned counsel has further assailed the verdict of the Enquiry Officer on the ground that he failed to consider the evidence of D. Ws. Muhammad Ramzan and D. W. Muhammad Ali Shah, Naib‑Sadar Kanongo which had fully exonerated the appellant as the said two witnesses were the persons who could explain the legal procedure adopted by the appellant. A grievance has been made also to the fact that the Enquiry Officer failed to consider the crucial point that the making of entry in record of rights without first getting the mutation attested was not an illegality but was an irregularity and was therefore rectifiable. According to the learned counsel, no ulterior motive was proved against the appellant. It is also being contended that the Enquiry Officer did not appreciate that the entries were made by the appellant in compliance with the Robkar issued by the Assistant Commissioner and the same fact was recorded in the Roznamcha at Serial Nos. 71 and 371. Concluding his arguments it was vohemently argued that the punishing authority has erred in treating the appellant as guilty of corruption whereas no enquiry was made in this respect and therefore the punishing authority had no data before him to hold the same. Reliance has been placed on 1980 P L C (C. S.) 92(1) and number of decisions made by this Tribunal particularly in Appeal No. 407/476 of 1979 captioned as Muhammad Feroz Khan, Patwari v. Assistant Commissioner/Collector, Lodhran. Reliance has also been placed on appeal No. 268/63 of 1977, decided by this Tribunal. On the other hand the learned District Attorney appearing on behalf of the respondent has supported the judgment of the Assistant Commissioner as well as the learned Commissioner by submitting that the Patwari had acted in a most negligent manner by making entries in the Register "Haqdaran zamin" whereas he was duty bound to secure mutation to this effect and then to proceed further. According to the learned District Attorney the appellants' conduct was actuated by motives and thus the major penalty awarded to him was fully justified. I have looked into the charges and find that what the appellant did was that he made certain entries in the Register "Haq Daran" which could only be done after a mutation to this effect was sanctioned. Same is the position of the second charge. However here is no mention of any charge of corruption against the appellant. In view of the above facts of the case the impact of 1980 P L C (C. S.) 92(1) is fully attracted to the case of the appellant. The relevant portion is reproduced as under: ‑ "We have heard the parties and perused the record. The Tribunal has held in Appeal No. 268/63 of 1977, that the allegation of corruption must be based on some solid facts and the subjective opinion of the competent authorities about the adverse reputation of the subordinate should be supported by some tangible evidence and the accused official should be confronted with the same. This does not seem to be the position in this case and present case seems to be on all fours with appeal No. 268/63. In view of the reasons given in that case the appeal of the appellant is accepted and the other of removal from service set aside." It will be useful to observe at this stage that the same view has been expressed by me alongwith my Members in Muhammad Feroz Khan v. Assistant Commissioner/ Collector, Lodhran. In view of the settled law the learned Assistant Commissioner or learned Commissioner were not within their competence to give verdict of corruption against the appel lant or to punish him for the said act. In case they were of the opinion that the appellant bad acted with ulterior motives, they should have been well advised to rely on some tangible evidence and also confronting the appellant with the same before they arrived at this conclusion. With regard to the act of the appellant, i.e. making the entry with red ink without first getting the same incorporated in the mutation, the statement of Muhammad Ali Shah Naib Sadar Kanungo (Annexure 'J') would be an important factor for resolving this issue. The Enquiry Officer, the competent authority as well as the Appellate Authority have failed to advert to the legality of the procedure which has been claimed by D. Ws. According to this witness the course adopted by the appellant was in conformity with the normal practice in vogue in such cases. I also cannot ignore the established fact on the record that the entries were made in the record of Rights by the appellant in compliance with Robkar (Annexure 'E') therefore the competent authority was not justified to conclude that the act of the appellant was an act for ulterior motives rather than an irregularity which could be rectified by his speriors at any stage. By not adverting to the evidence of the P. Ws. which exonorated the appellant of the said charge, I am inclined to believe that some sort of bias in the mind of the Enquiry Officer did lurk when he decided to make a mountain out of a mole hill. I have looked into a number of documents which have beta placed on the record to show that the decision of the competent authority as well as his superiors was not made under normal circumstances and was result of background of strike of Patwaris which had disturbed the mind of the said superiors at the relevant time. Although the appellant had relied on the cuttings of the Newspapers to establish this fact but the same cannot be taken as conclusive evidence although it does create an impression that this could possibly the reason for taking extreme measures against the appellant and not looking into his case from a dispassionate angle. However the appellant cannot be absolved completely because for lack of extra caution and following the rules meticulously as laid down. Therefore I would hold that the Patwari had acted negligently without any ulterior motives in accordance with the main practice prevalent at that time with the Revenue Staff. In view of above I proceed to vary the sentence of major penalty dismissal to that of withholding two increments of the appellant, with accumulative effect. The result is I set aside the impugned order and direct that the appellant be re‑instated in service although he will not be allowed any pay during the period he has remained out of duty after the date of his retirement. There will be no orders as to costs. Appeal accepted.