1981 PLP (C (PLC(CS))

M. SALEEM CHAUDHRY (CHAIRMAN).‑The appellant was at the relevant time a Patwari in Halqa Hudiara of Tehsil and District Lahore. He is aggrieved before us of the order of DC/Collector, Lahore dated 13th November, 1972 whereby he was ordered to be compulsorily retired from service and the Commissioner, Lahore Division's order dated 22nd March, 1973 rejecting his appeal.

2. The relevant facts as stated before us are that the appellant was suspended and charged as under vide charge‑sheet dated 2nd August, 1969 issued by the DC/Collector, Lahore District : (1) He prepared a fabricated deed of attorneyship in his favour on behalf of one Faqirud Din son of Sundar Khan, resident of Gali No. 11, House No. 27, Qila Lachhman Singh, Lahore and got it attested by Sub‑Registrar, Lahore on t4th January, 1965 by producing some false person in place of Faqirud Din, when he was not present, in Lahore and actually was on duty in Rawalpindi as Traffic Assistant in the Islamabad Omni Bus Service, Rawalpindi. (2) By producing the said forged deed of attorneyship he managed to have a taqavi loan amounting to Rs. 5,000 on 27th June, 1966 from the Tehsildar Lahore on the false pretext of preparing the tube‑well, and (3) On the basis of said forged deed of attorneyship he .got the land situated at Barki, Tehsil and District Lahore owned by the said Faqirud Din transferred in the name of his real sons as a gift vide mutation No. 419, sanctioned on 27th February, 1968. Apparently he did it fraudulently and by abusing his official position. The enquiry officer Kh. Rashid Ahmad, PCS vide his enquiry report dated 12th November, 1971 held the appellant guilty. Agreeing with the report of the Enquiry Officer the DC/Collector, Lahore served him with a show‑cause notice dated 28th January, 1972 for a major penalty. After considering the appellant's reply dated 8th April, 1972 and giving him a hearing alongwith his counsel, the DC/Collector passed the impugned order. His appeal to the Commissioner was rejected by the Additional Commissioner (Revenue) on 22nd March, 1973 after giving him and his counsel a personal hearing.

3. The appellant thereafter filed a civil suit in the civil Court at Lahore which was abated on the establishment of the Punjab Service Tribunal resulting in the present appeal before us on 16th October, 1974.

4. The version of the appellant is that the complainant Fazalud Din who is his real brother, was unable to manage and develop 12 acres of land granted to him in border area as an ex‑Army Official in 1957‑

58. Fazal Din ultimately approached the appellant to help him out of his difficulty. It was agreed between the two that the appellant should acquire all the rights of the land in consideration of some money and develop the same but in order to circumvent the conditions of the allotment of land to show it as under self‑cultivation by Fazalud Din, the device adopted was that the said Fazalud Din should give the appellant a power of attorney authorising him to effect mortgage, sell, gift, raise loans etc. It is thus claimed that the power of attorney was genuinely framed by Fazalud Din and the allegation that appellant had fabricated it was altogether false and incorrect. It was under the aforesaid arrangement that the appellant obtained a taqavi loan of Rs. 5,000 on 27th June, 1966 from the Tehsildar, Lahore on the pretext of repairing a tube‑well in the land. The appellant admittedly paid two instalments of the loan amounting to Rs. 1,

860. The consideration money for relinquishing rights on the part of said Fazalud Din was decided as Rs. 8,000 and he was also to pay Rs. 4,500 to Fazalud Din towards the balance amount of loan remaining unpaid. To finalise the deal conclusively it was also agreed between the parties that the said land would be transferred by way of gift in favour of the sons of appellant and this was accordingly done and the land was mutated in favour of the sons of the appellant receipts for Rs. 8.000 and 4,500 paid to Fazalud Din as aforesaid were also obtained. According to the appellant the dispute arose when Fazalud Din demanded more money and the appellant refused to oblige him. This generated complaints by Fazalud Din and initiation of the present case against the appellant. It is stated that Fazalud Din also lodged a report with the police raising the above allegation against .the appellant but after a thorough investigation by the Police Station, New Anarkali and submission of a report to the Ilaqa Magistrate, ‑the case was dismissed as discharged. The main reliance of the appellant is on his assertion that the disputed power of attorney was framed and signed by Fazalud Din himself and in support of the same he relies upon the report of the Government Examiner of Questioned Documents, Government of Pakistan, Rawalpindi obtained by the Enquiry Officer. In the said report dated 13th February 1971 it was held that the power-of‑attorney was framed and signed in the hand of Fazalud Din. The appellant, however, contends that while paying Rs. 8,000 to the appellant, he had returned the original power of attorney to his brother Fazalud Din to put an. end to the mutual arrangement which had concluded by the transfer of rights of the land by the entry of gift mutation in favour of sons of the appellant. According to appellant this important and conclusive piece of evidence has been simply brushed aside by the Collector on the sole ground that the appellant had not produced the author of the report as z witness in his favour. It is further contended by the appellant that the entire proceedings against him are misconceived inasmuch as the dispute was of the nature of a controversy of civil rights between two persons and had no bearing upon the official duty or conduct of the appellant and the parties should have been left to persue their dispute in the relevant forum provided by law. The appellant also pleads lack of opportunity and misreading of evidence and ignoring the evidence of a number of witnesses who deposed in his favour.

5. The learned counsel for the respondents, however, in the first place points out the misconduct of the appellant which his been conceded by him inasmuch as he acquired the immovable property at a cost of Rs. 8,000 in the name of his minor sons without the permission of the Government which was necessary for all such transactions of Rs. 5,000 or above under the Government Servants Conduct Rules. The appellant, however, argues that the aforesaid allegation was not made a charge in the charge‑sheet and is thus not relevant at this stage of the case. The learned Government Pleader further submits that the entire transaction is shady and underhand. The appellant concedes that the entire arrangement of power‑of‑attorney and transfer of land as gift to the minor sons of the appellant was a facade to circumvent the conditions attending to the grant of land to Fazalud Din under the border area scheme in his capacity as an ex‑Military Personnel. The learned Government Pleader also infers mala fide on the part of the appellant on account of his assertion that he returned the original power‑of‑attorney to his brother which was a vital and important document in the hand of appellant in support of the rights his sons had acquired on the land of Fazalud Din and he could not conceivably have been parted with it in this manner. According to the Government Pleader this position has been taken obviously to avoid the production of the original power‑of attorney before the Tribunal as it would have conclusively exposed the forgery of the appellant. He further states that the conduct of the appellant became further doubtful as instead of following the proper course of having the power‑of‑attorney revoked by registering a cancellation of the same before the Sub‑Registrar as required by law, he simply returned it to the other party. As regards the charge of fraudulently obtaining a taqavi loan of Rs. 5,000 against a tube‑well which did not exist, it is submitted that the appellant has conceded in unambiguous terms that the loan was obtained by him and he has not been able to establish that the tube‑well against which the loan was obtained did actually exist at site. This charge thus stands established against the appellant. Regarding the third charge it is submitted that since the power‑of‑attorney on which the transaction was based was a forged document, the mutations were evidently got done on fraudulent basis and the same was cancelled after review by the competent authority.

6. We have heard the parties. We are of the view that the first charge of fabricating the power of attorney has not been brought home against the appellant. It was the Enquiry Officer himself who obtained the expert report of the Examiner of Questioned Documents, Government of Pakistan and the same was addressed to him. The Enquiry Officer or the competent authority should have advanced some cogent reasons to disbelieve the same, instead it has been brushed aside on the sole ground that the author of the report was not produced by the appellant; accused. Had the report been obtained by the appellant himself or it was from a non‑Government agency, perhaps there could be some weight in the grounds on which the opinion was ignored. To ignore the opinion of a Government agency and that also sought by the Enquiry Officer himself on the ground that the author of the report was not produced by the appellant is in our opinion untenable. In such a case no duty was case upon the appellant to call the author of the report. In the absence of any rebuttal of the expert opinion we do not think that this charge has been brought home against the appellant. Charge No. 3 being a consequential charge also falls with charge No.

1. We may, however, observe that our this finding will not be a bar to determination of the rights of the parties in a civil Court. Charge No. 2 in our opinion stands proved as nothing has been produced to show that the tube‑well against which the loan was obtained did physically exist at the relevant time.

7. As regards the allegation that the appellant is guilty of misconduct as he acquired immovable assets in favour of his minor son in excess of the limit of Rs. 5,000 prescribed in the Government Servants Conduct Rules, we are of the view that this was not a charge included in the charge‑sheet and cannot be pressed into service to justify an order passed on different grounds. We, however, find that in this affair the conduct of the appellant on his own admission has been cunning and devious and unbecoming of a Government servant. The charge of obtaining a taccavi loan on a false pretext of repairing a non‑existent tube‑well also stands proved against him. We are not persuaded to interfere with the impugned orders. The appeal is thus rejected with no orders as to costs. Appeal dismissed.