1981 PLP (C (PLC(CS))

The facts which led to the filing of present appeal briefly are that the appellant was a Patwari in the Revenue Department and was posted in Tehsil Bhimber at the relevant time when on a written complaint against him by one Massoed Ahmed resident of Village Broho, Tehsil Bhimber of tampering with the Revenue record and making false and incorrect entries in it and the preliminary report thereon by Tehsildar, Bhimber the Revenue Minister (respondent No. 1) suspended him and directed the Tehsildar concerned to submit report to him in the matter after holding formal and complete enquiry. The Tehsildar, Bhimber framed the charge‑sheet and communicated the same to the appellant who submitted his reply to it on 12‑10‑

76. The Enquiry Officer after examining same witnesses produced by the complainant party during the enquiry proceedings, going through the relevant record and taking into consideration the reply of the appellant to the charges found the appellant guilty of charges of issuing on one and the same date the mutually contradictory copies of Jamabandi pertaining to land bearing Khasra No. 2653 to two different persons and making false and factually incorrect entries with regard to the possession of the said land in Khasra Girdawari of Kharif 1974. The enquiry report was accordingly submitted by him on 16‑10‑1976 to .the respondent No. 1 who on receipt of it straightaway dismissed the appellant from service vide his order dated 18‑10‑1976. Feeling aggrieved by the order of his dismissal from service the appellant filed a departmental appeal against the same to the Prime Minister but as no decision on it was either taken or communicated to him, he has now come to this Tribunal by way of filing present appeal for the redress of his grievances arising out of the impugned order. In this memo. of appeal the appellant has challenged the impugned order on the following grounds:‑ (i) That no enquiry was at all held in terms of Article 32 of K. S. R., Volume II as neither the statements of witnesses against him were recorded in his presence by Enquiry Officer nor was he afforded an opportunity of cross‑examining them. (ii) That before passing the impugned order the respondent No. 1 neither issued a show-cause notice to the appellant nor afforded him an opportunity of being heard. (iii) That the ‑impugned order is mala fide as having been passed as a result of the mutual dealings of respondents Nos. I and 2 to the exclusion of other concerned departmental officers and the close connection of the respondent No. 1 with complainant who belongs to his Bradri (Caste). On the basis of the above allegations the appellant has prayed that by setting aside the impugned order he be re‑instated w. e. f. the date of his suspension from service i.e. 25‑11‑1975. The respondents contested the appeal by filing written objections in which it is averred that the impugned order was passed after finding the appellant guilty of serious charges of misconduct in a departmental enquiry held against him and that the appellant intentionally and deliberately avoided to present himself before the Enquiry Officer during the enquiry proceedings in spite of many notices served upon him for the purpose. We have heard the learned counsel for the parties and have gone through the relevant record of the case. In the first place it has been contended by the learned counsel for the appellant that during the depart mental inquiry into the allegations against the appellant by the respon dent No. 2 and before passing the impugned order by respondent No. 1 the mandatory procedure prescribed by Article 32 of K. S. R., Vol. II has not been followed with the result that the impugned order is not tenable in law. The above argument of the counsel for the appellant is not without any substance and we are of the view that while holding the enquiry and passing the impugned order both the Enquiry Officer as well as respondent No. 2 have respectively failed to observe the provision of relevant service rule in force at the time. Although at the time of making the inquiry and passing the impugned order the Civil Servants Act (hereinafter referred to as an Act) had come into being but under its section 23(i) the rules for carrying out its purpose had not yet been framed and thus the rules on the subject of disciplinary actions in force immediately before its commencement were applicable m the case of the appellant in view of the provisions contained in section 23(ii) of the Act. Thus the procedure prescribed in Art. 32 of K. S. R. was to be followed before making an order of dismissal of the appellant as at the 4ime of the enactment of the Act the same held the field where the penalty of dismissal, removal or reduction in rank was required to be passed on a member of a service. The aforesaid Article of the K. S. R. provides in an unambiguous terms that no order of dismissal shall be passed on a civil servant unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. It further provides that he shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person and if he so desires or if the authority concerned so directs on oral inquiry shall be held in which oral evidence shall be beard as to such of the allegations as are not admitted and the accused civil servant shall be entitled to cross‑examine the witnesses and to have such witnesses called as he may wish. From the perusal of the available record it appears that the contentions of the learned counsel for the appellant that the statement of the witnesses appearing against the appellant were not recorded in his presence; that he was not afforded an opportunity of cross‑examining them and that the respondent No. 2 passed the impugned order without giving him the notice of showing cause against it and affording him an opportunity of being heard are factually correct. It is admitted in written statement filed on behalf of the respondents that the witnesses against the appellant were examined in his absence during the enquiry proceedings by Enquiry Officer although the reason for doing so is stated to be the non‑appearance of the appellant during the enquiry proceedings in spite of the service of so many notices on him. There is nothing on the record to show that the appellant was duly served with any notice to appear before the Enquiry Officer on a date when the witnesses appearing against him were examined. From the perusal of the enquiry report which is Annexure `D' on the file it appears that the Tehsildar had first submitted his report on the complaint against the appellant to the Revenue Minister on 29‑9‑1976 who finding the same to be incomplete returned it to him with the direction that after holding the complete and full inquiry fresh report be submitted for his perusal. From the reading of the second enquiry report on which the impugned action was taken by the respondent No. 1 it is not clear that appellant was ever served with the notice to appear before Inquiry Officer on the date on which the statements of complainant and his witnesses were recorded or that he was given an opportunity to adduce evidence in his defence if he desired. On the contrary, from the inquiry report it appears that it was after the recording of the evidence produced by the complainant and examining the Revenue Record during the enquiry proceedings that the appellant appeared before the enquiry officer on 12‑2‑76 and submitted his explanation to the charge‑sheet framed against him. The right procedure as prescribed in the relevant Article of the K. S. R. was that the authority competent to pass the impugned order should have framed the charges against the appellant, communicated the same to him requiring him to put in his explanation to them and if after receiving his reply, the enquiry into the charges was deemed necessary then an Inquiry Officer was to be appointed who should have recorded the evidence against the appellant in his presence and after that given him an opportunity to adduce his defence. But instead of adopting the procedure envisaged by the relevant rule as indicated above the complaint against the appellant was sharked by the Revenue Minister for inquiry and report to the Tehsildar who himself framed the charges and after examining the evidence produced against the appellant in his absence and without giving him an opportunity of cross‑examining the witnesses appearing against him and producing his defence submitted his report to the respondent No. 1 in which the charges against the appellant were held to have been proved. Like the Enquiry Officer the respondent No. 1, also failed to comply with the provisions of law which was required to be followed before passing the impugned order as he on receipt of report of Enquiry Officer straightaway dismissed the appellant without serving any notice on him of showing cause against the action to be taken against him and without providing him an opportunity of personal hearing. Show‑cause notice to the appellant before the impugned order was not only the requirement of relevant rules but was also necessary under the principle of natural justice embodied in the maxim "Audi alteram pariem" (no one should be condemned unheard). The lapses indicated above on the part of Enquiry Officer during the inquiry proceedings and of the respondent No. I in passing the impugned order amounted to clear violation of the provisions of Article 32 K. S. R., Volume II as well as principle of natural justice which renders the impugned order bad in law and consequently un-maintainable. It has been next contended by the learned counsel for the appellant that the impugned order is mala fide and as such needs to be vacated. This contention has also much substance in it. From the bare reading of the impugned order itself there remains no manner of doubt of its being mala fide. For the facility of reference the impugned order is reproduced below:‑ From the impugned order reproduced above it becomes quite clear that even before the receipt of the enquiry report the respondent No. 1 was determined and had made up his mind to get rid of the appellant whom he believed to be corrupt and unfit to be retained in Government service. The personal observations made by the said respondent in the impugned order speak of the fact that by the woeful tales narrated by the complainant and his old father of sufferings and ruination of the com plainant's family by the misdeeds of the appellant the respondent No. 1 was influenced to the extent of his conviction that the family of the complainant had undergone untoled misery and sufferings at the hands of the appellant and that a younger brother of the complainant had become permanently disable by losing his power of speech and hearing due to the injuries sustained in a fight which ensured in consequence of the misconduct of the appellant in tampering with the revenue record and making false entries therein. The said respondent seems to be so much annoyed with the appellant that he could not avoid making remarks in the impugned order that be had personal knowledge of all the happenings in the matter. Thus in view of the remarks of respondent No. 1 against the appellant in the impugned order on the basis of his personal knowledge one cannot help coming to the conclusion that the impugned order has proceeded more on the prejudice harboured by the respondent No. 1 against the appellant than on the enquiry report submitted by the Tehsildar. The order therefore smacks of mala fide for which reason too it stands vitiated and is a nullity in the eyes of law. Apart from the above‑stated grounds the impugned order cannot be maintained and is liable to be set aside for the sole reason that the respon dent No. 1 was not legally competent to make the same. In the Rules of Business of 1975, framed under section 58 of the Azad J & K Interim Constitution Act, 1974, the administrative powers of the various Government functionaries are enumerated in its Schedule V, Part III. According to the provisions of this Schedule it is only the Head of Office that has been delegate powers to award any kind of punishment to an official of the category of Patwari. Obviously the Minister was not Head of office of the appellant and thus by passing the impugned order he has exercised powers not legally vested in him under the relevant law or rules which only empowered the Minister to award any punishment to Class I Junior Officers except Sub- Judges. In this view of the matter the impugned order having being passed without jurisdiction is ab initio void and unlawful. For the foregoing reasons by accepting the appeal the impugned order of dismissal of the appellant dated 16‑10‑1976 made by respondent No. 1 is declared to be void, unlawful and without any legal effect and the same is accordingly set aside. The appellant shall still be deemed to be in service and entitled to his pay and other emoluments from the date of his dismissal from service. This order, however, will not stand in the way of any fresh inquiry against the appellant that the competent authority may decide to hold in. accordance with relevant law and rules. The parties are left to bear their own costs. The parties shall be informed of this order. Petition dismissed.