1991 PLP (C (PLC(CS))

(d) The appellant taking undue advantage of his official position deliberately concealed the fact and in collusion with the interested party and for ulterior motives falsely reported that the land was `Banjer Qadeem' on the basis of record and `Mauqa'.

5. The Authority i.e. the Assistant Commissioner, Gujranwala issued a show-cause notice to the appellant under rule 6.3 of the Punjab Civil Servants (E&D) Rules, 1975 wherein he held the appellant guilty of mis-conduct and required him to explain his position. The written and verbal explanations submitted by the appellant were however, not considered satisfactory and the Authority ordered his compulsory retirement from service vide order dated 24-1-1988. The appeal filed by him before Respondent No.2 i.e. the Commissioner, Gujranwala Division was also rejected vide order dated 7-8-1988.

6. The learned counsel for the appellant and the learned DA. have been heard and the original record of the inquiry and other connected papers consulted. The learned counsel for the appellant challenged the aforesaid two impugned orders on the following grounds:-- (i) The Authority had first ordered the initiation of a regular inquiry, served the accused Patwari with a Charge Sheet, appointed an Enquiry Officer but on receipt of the enquiry report he abruptly changed his mind and switched over to the short procedure and served a show-cause notice on the appellant under rule 6.3 of the E&D Rules. This, according to the learned counsel for the appellant was illegal. (ii) A copy of the enquiry report was not supplied to the appellant which is contrary to law as laid down in various judgments of the superior courts, (iii) It was a case of sheer mistake as the appellant had submitted his report on the basis of the Revenue Record as prepared by the appellant's predecessor according to which the land was continuously being shown as `Banjer Qadeem' for the last thirty years. (iv) The single act of negligence without a taint of dishonesty did not amount to misconduct. The punishment awarded to the appellant was, therefore, not justified. (v) The other functionaries of the Revenue Department such as the Girdawar and the Tehsildar etc. were equally responsible for this mistake and yet they were not proceeded against. (vi) Since eventually the land was not transferred to the applicants, no loss to Government had occurred.

7. The learned D.A. did not have much to say against the legal objections raised by the learned counsel for the appellant relating to the switching over from regular enquiry to summary proceedings and the non-supply of a copy of the enquiry report to the appellant. He however, emphasised the point that the appellant himself had admitted his mistake that he had made false report that the land was `Banjer Qadeem' on the basis of record and `Mauqa' although it is evident that he had actually not visited the spot. According to him it was a clear proof that the wrong information was supplied by the appellant deliberately in collusion with the interested party due to ulterior motives and, therefore, he was rightly held guilty of the charge. The learned D.A. submitted that the appeal did not deserve to be accepted.

8. The departmental proceedings can be quashed and the instant appeal accepted on the short ground alone that the Authority had switched over from one procedure to another during the course of proceedings, which was illegal. This view gets support from the case of Zarar Khan v. The Government of Sindh and others reported as PLD 1980 SC 310 wherein the honourable Court had held as under:-- It is evident from reading of the aforementioned provisions (of rule 5 of the E&D Rules) that the procedures provided by sub-rule (2) and sub-rule. (3) are in the alternate i.e. if the `Authorised Officer' chooses to adopt one procedure, he cannot adopt the other and vice versa. In the present case, 12 departmental inquiries, under rule 5(2), on the same allegations had already been initiated against the petitioner and even the Inquiry Officers had been appointed. According to sub-rule (2) therefore, further 'proceedings could only be taken according to the procedure provided by rule 6, and it was not open to the `Authorised Officer' to simultaneously adopt the alternate course and proceed against the petitioner under sub rule (3). Moreover, while purporting to take action under sub-rule and (4), even then provisions were not followed strictly and hardly any ~'ct was done by the `Authorised Officer except issuing the Notification "dated 11-4-1975. For the above-noted reasons the culminating in the petitioner's compulsory retirement were in contravention of the rules on the subject and as such were without lawful authority ..........

9. In the context of this switch over, tile objection relating to the non-supply of the enquiry report has lost its significance.

10. Having discussed the legal objections raised by the learned counsel for the appellant, it is now proposed to consider this appeal on merits as well. The Enquiry Officer .has concluded that the appellant had deliberately concealed the facts and made a false report for undue favour to the petitioner due to ulterior motives. While the fact remains that the appellant had submitted a false report which has not been denied by the appellant but nowhere in the enquiry report it I has been established that the misreporting was deliberately done due to ulterior motives. The Enquiry Officer has only raised a presumption or in other words he has simply converted the charge as proven guilt without actually establishing u. The allegation of collusion of the appellant with the applicants has likewise not been established by Enquiry Officer. In fact, not a single witness even alluded to any ulterior motive on the part of the appellant or collusion with the applicants for making this false report. Even the Authority in its impugned order dated 24-1-1988 has not taken it as an established fact that the appellant submitted the false report in connivance with the interested party due to any ulterior motive because this statement is prefaced by the word 'apparently' which only shows lack of conviction and proof on the part of the Authority. As held in the case reported as PLD 1989 SC 158 PIA Corp. and another v. Manzoor Ahmad Khan, this is a case of suspicion wherein the guilt of the appellant has not been established beyond all reasonable doubt. There are mitigating circumstances also inasmuch as eventually no loss to Government has occurred because the applicants withdrew their application and the land was not allotted to them.

11. Since it has not been established that the appellant submitted the false report in collusion with the interested party nor it has been proved that this was done due to any ulterior motive, I, therefore, find myself in agreement with the learned counsel for the appellant that this was only an act of negligence on the part of the appellant. In A.U. Mussarrat v. Government or West Pakistan PLD 1977 SC 24 in which a civil servant was charged with inefficiency in delaying the disposal of a case, which case was cited in M.A. Rehman v. Federation of Pakistan and others reported as 1988 S C M R 691, the honourable Court observed as under:-- "Although there may be some rare cases of gross negligence which if found to be established would leave one in no manner of doubt as to the inefficiency of the official concerned yet a single slip or lapse, if any on the part of a Government servant with a consistently good record would not invariably justify such an inference .."

12. As no motive has been established, the benefit of doubt should, therefore, go in favour of the appellant and it is to be presumed that he submitted the false report carelessly but without any ulterior motive.

13. Viewed in the context of the foregoing discussion, the punishment awarded to the appellant is not in due proportion to the act of negligence committed by him. I have gone through the appellant's Character Roll and find that during his 21 years of service he has not received any adverse remarks and that his work has generally been considered satisfactory. Thus this being a single act of negligence without any motive having been proved and also keeping in view the mitigating circumstances of the case the appeal is accepted, the impugned orders of compulsory retirement are set aside, the appellant is reinstated in service and the penalty of compulsory retirement is converted into stoppage of two increments without cumulative effect which should meet the ends of justice. The intervening period between the appellant's dismissal and reinstatement shall be treated as leave extraordinary without pay. There are no orders as to costs. M.Y.H./313/Sr.P Appeal allowed.