1998 PLP 1999 (SCMR)

WAJIHUDDIN AHMED, .J.

These two civil appeals are directed against the order of the N.-W.F.P. Service Tribunal dated 21-9-1994, whereby the major penalty of removal from service of appellant--Hidyatullah was recalled and substituted by the punishment of withholding of four increments with effect from the date of the commencement of the departmental proceedings but with corresponding reinstatement in service, with all back benefits. Both Hidayatullah, aforesaid, and the Province of N.W.F.P. preferred Leave Petitions Nos. 383-P and 403-P of 1994 and leave was granted to either side per leave granting order dated 23-5-1995- The facts of the case as also the questions of law arising therefrom are succinctly stated in the common leave-granting order, which is reproduced in extenso hereunder:-- "FAZAL KARIM., J.

This will dispose of Civil Petitions Nos.383-P by Hidayatullah and 403-P of 1994 by the . Chief Minister, N.-W.F.P. and two others.

2. The facts relevant to these petitions can be shortly stated as follows.-- The petitioner Mr. Hidayatullah was posted as Revenue Extra Commissioner, Mansehra during the period from August, 1988 to January, 1990. The Health Department of the Government of N.-W.F.P. wanted to acquire land measuring 23 Kanals, 10 Marlas for the construction of a hospital. A notice under section 4 of the Land Acquisition Act was issued. But then the department decided to purchase the land through private negotiations. As a result of private negotiations between the department and the owners, an agreement of sale was executed and registered; physical possession of the acquired land was also given to the department. It appears that the department had deposited the sale price in the name of the Collector. A copy of the sale-deed was officially sent to Hidayatullah for the payment of the sale price to the sellers according to their shares.

3. It appears that the acquired land was Shamilat deh and some of the co sharers in Shamilat were not paid any part of the sale consideration. On this ground the sale price paid to the sellers was later recovered from them.

4. Hidayatullah was served with a charge-sheet; it included as many as charges. He was tried under the Efficiency and Discipline Rules and was by an order of the-competent Authority dated 13-3-1993 removed from service. He appealed to the Service Tribunal and that Tribunal found under charge No. 3 which was that Hidayatullah ' in contravention of such paras. 1 -arid 2 of para. 54 and Article 23 of Stamp Act, 1899 did not insist on the vendors to hand over all title deeds relating to the acquired land and instead obtained registered Agreement deed of sale on stamp paper worth Rs.5 without taking into account the stay order and the merits of applications of Munawar Ahmad Khan', The Tribunal found that it was well within the knowledge of the appellant that the land was being acquired through proceedings under the Acquisition Act and the proceedings were complete, therefore, it was his duty as a responsible officer to point out to the acquiring department the defective title of the vendors and by not doing so, he has failed to discharge his official duties'. Although the Tribunal observed that 'that the appellant has not been so charged', yet it went on to say that ' had he been so charged then there would have a case of the respondents against the appellant'. The Tribunal then took note of the fact that ' as a responsible officer of the Revenue Department, he was all along associated with the acquisition proceedings and he was required to bring this fact to the notice of the acquiring department, and was 'of the view that the appellant is guilty of a minor degree of negligence and inefficiency as regards charge No.3'. Accordingly, the Tribunal thought that 'the punishment of 'removal from service awarded to him is very harsh', reinstated him in service 'with all back benefits' and converted the order of removal from service 'into punishment of withholding of 4 increments with cumulative effect from the date of commencing of the departmental proceedings against the appellant."

5. Learned counsel for Hidayatullah argued that as the land was purchased by private negotiations between the department and the sellers and with those private negotiations, Hidayatullah was not associated at all, the Tribunal was wrong to hold him guilty even to this 'minor extent'.

6. Leave to appeal is granted in Civil Petition No. 383-P of 1994 inter alia to consider this contention.

7. As Civil Petition No. 403-P of 1994 also arises from the same order of the Tribunal, leave to appeal is granted in that petition also. We may note here that according to the learned counsel for Hidayatullah Civil Petition No. 403-P of 1994 is barred by time. Learned counsel for the petitioner, however, think that the petitioner is well within time. We leave the question of limitation open; it will be decided on its-merits." As to the question of limitation involved in the appeal of the Provincial Government, reliance has been placed on M.N. Sharma v. State AIR 1960 Patna 212, and Member, Board of Revenue v, Muhammad Iqbal Rathore, 1986 SCMR

905. The last mentioned case. having ultimately been converted into Civil Appeal No. 229 of 1986, however. stands dismissed for non-prosecution on 12-12-1987. In view of the order proposed to be passed in these appeals, we would 'prefer to leave the question of limitation at that, without saying or adding anything on the subject. Coming to the controversy itself, it is not disputed that questions of title were involved in the transaction and what is more appellant-Hidayatullah having 8 been directly concerned with the acquisition proceedings and possessed of funds to be paid to the vendors could not be ignorant of the infirmities involved. In such cases of doubt, paragraph 52 of the Revenue Circulars, specific to acquisition by private negotiations, which is recast hereunder, was relevant:- "

52. Officers acquiring land by private negotiation should bear in mind the necessity of thoroughly examining the vendor's title during the period of limitation, i.e. twelve years. Documents supporting the title should be examined in original In all cases where the title is in any way open to doubt' the land should be acquired under the Act.' Even so, the fact remains that appellant--Hidayatullah was entitled to equal treatment with others, who may have been involved, though in varying degrees and in such category were included the officer or officers who entered into the sale contract with the vendors and who, while similarly placed, were lightly let off by, reportedly, according lesser punishments. The reduced punishment was, therefore, justified in the overall circumstances of the case. Besides, there is some case-law from our own jurisdiction. laying down that the scope of an appeal from a Service Tribunal is, ordinarily, a limited one in matters where, in exercise of its discretionary jurisdiction, the Tribunal converts a major penalty into a minor one. Reference on the point may be made to WAPDA v. Zulfiqar Ali PLD 1988 SC 693; Postmaster-General, AJK v. Muhammad Zorab 1996 SCMR 280 and Pakistan Railways v. Ghulam Rasul 1997 SCMR 1581. In view of the foregoing, we have found no merit in either of these appeals and dismissed the same, leaving the parties to bear their own costs. M.B.A./H-15/S Appeal dismissed.