1984 PLP (C (PLC(CS))

3. Brief facts of the case are that a departmental enquiry against the appellant, formerly Girdawar Kanungo Circle, Wahndo, Tehsil and District Gujranwala, was started on the allegations that a file regarding pre‑emption suit titled "Bashir Ahmad v. Noor Muhammad etc." of village Haiger, Tehsil and District Gujranwala was decided by the A. C. (Sadar) Gujranwala in the year 1979, that an appeal against this order was filed before the Additional Commissioner (R) Lahore Division, Lahore on 9th September, 1979, that the appellate Court summoned the record of the lower Court for more than a dozen times but the same was not supplied. On receipt of a D. O. reminder the requisite file was forwarded to the Additional Commissioner (R) and the A. C. (Sadar) Gujranwala recommended disciplinary action against the appellant who was suspen ded from service and charge‑sheeted. Sh. Iftikhar Ali. E. A. C. Gujran wala, was appointed as Enquiry Officer who held the charge proved against the appellant. A show‑cause notice was issued to the appellant. On receipt of his reply the D. C./Collector removed the appellant from service vide order, dated 20th May, 1.982. It was further ordered that he shall not be paid anything beyond what he has already drawn as subsistence allowance. He made an appeal to the Commissioner, which was rejected, vide his order, dated 17th October, 1982. Hence this appeal.

4. We have heard the parties. It has been argued by the learned counsel for the appellant that the order of the Deputy Commissioner, Gujranwala, dated 20th May, 1982 through which the appellant has been removed from service is not valid and is unlawful order. The appellant was an Ahlmad Patwari and competent authority to proceed against him and to remove him from service was the A. C./Collector concerned and not the Deputy Commissioner. Thus, the order of his removal from service by the Deputy Commissioner/Collector Gujranwala is not a valid order. On merits it was argued by the learned counsel for the appellant that it is clear from the impugned order that there was no ulterior motive on the part of the appellant. He was charged for keeping the files in his custody which he should have consigned in the record room while he was working in the Office of Assistant Commissioner (Sadar). The appellant had returned and produced the files immediately when he was asked to do so thus the appellant was not guilty of any misconduct and the appellant has been punished unnecessarily without any guilt. The case against the appellant was decided in haste by Deputy Commissioner Gujranwala and also the Commissioner, Gujranwala did not apply his mind fully when his appeal was heard and rejected by him. Concluding his arguments it was prayed by the appellant's counsel that under the circumstances the impugned orders be set aside on legal grounds as well as on merits.

5. Controverting these arguments the learned District Attorney has relied upon the parawise comments submitted on this appeal by the respon dent No.1 ; impugned orders passed by the respondent No. 1 on 20th May, 1982 and respondent No. 2 on 17th October, 1982. Relying on these documents, the learned District Attorney has submitted that the Charge against the appellant has fully been proved and thus the order of his removal from service was perfectly lawful. It was also submitted by the learned District Attorney that the appellant was working as Kanungo Circle, Wahndo, when the appellant was proceeded against, hence in case of Field Kanungo the Deputy Commissioner is the competent authority to take action and proceed against the appellant. Thus, the appellant has been removed from service by the competent authority.

6. We have given our anxious thoughts to the arguments of the parties and have also perused the record so produced by the respondents. As the appellant was working as Kanungo when he was proceeded against, we agree with the learned District Attorney that Deputy Commissioner] Collector, Gujranwala was the competent authority to proceed against the appellant. Thus, the appellant has been removed from service by the competent authority.

7. On merits, we have consulted the record and found that the charge against the appellant stood proved. It is clear that the appellant did not consign most of the files in the record room during his tenure in the office of Assistant Commissioner (Sadar) and left thirteen files including the file in dispute with him though the appellant was relieved from this post in the beginning of January, 1980. When the A. C. (Sadar) came to know that the decided file of pre‑emption suit titled "Bashir Ahmad v. Noor Muhammad etc." was not in the Vernacular Record Room, the appellant was contacted and it was then that on 21st March, 1981 the appellant brought 13 files including the file in question. A list of these tiles was prepared by him and he also signed it. Thus, even after 1 years of his transfer from the Office of the A. C. (Sadar) the appellant kept files with him and consigned these in the Vernacular Record Room, on 31st May, 1981. Though no ulterior motive has been attributed to the appellant but this cannot be ignored that the appellant has failed to discharge his duties efficiently and the negligence in his duties for the consignment of the file stands proved.

8. Keeping the fact in view that no ulterior motive has been attribu ted to the appellant, as he has been held only guilty of negligence of no consigning the files to the record room in time; in view of 22 years of long service of the appellant, we feel that the punishment so awarded is not in consonance with the guilt and sympathetic view should had been taken by the departmental authorities while deciding his case.

49. Keeping above analysis in view, the appeal of the appellant is partly accepted. The appellant is directed to be re‑instated‑in service and we order to vary the punishment as follows :‑

(i) Censure. (ii) Stoppage of increment for three years without future effect. The period of absence of the appellant from duty i.e. from the date of his removal from service (including suspension period) to that of re‑instatement shall be treated as leave of kind due. The impugned orders are directed to be modified to the above extent. There will be no order as to costs. A. E. Appeal partly accepted.