1984 PLP (C (PLC(CS))

3. Brief facts of the case are that on a joint application dated 28th January, 1980 filed by Muhammad Hussain son of Karim Bakhsh and Muhammad Bashir son of Rehmat Ali, residents Adda Chabeel, action was initiated against one Muhammad Hussain Patwari and the appellant. The complainant Muhammad Bashir was summoned and his statement was recorded on 13th June, 1981 in which he stated that he has effected compromise with Muhammad Hussain Patwari and with the appellant. After recording statement on the same day, it was recorded by the competent authority that the compromise has been effected with Muhammad Ramzan by the complainant Muhammad Bashir, but he wants some time to compromise with Muhammad Hussain also. It was also observed that in view of the said situation, there was no necessity of, further enquiry. However, the case was adjourned to 27th June, 1981 for affecting a compromise with Muhammad Hussain. In this manner the case was adjourned from time to time and ultimately on 19th July, 1981 it was again recorded that Muhammad Bashir, the complainant, is absent and Muhammad Hussain Patwari is present and he has been directed to bring the complainant with him to certify that the compromise has been effected. On the same day it was also recorded that the statement of Bashir has been recorded and grievance has been redressed, but the witness may be summoned for 27th July, 1981. However, it seems that statement recorded on 23rd December, 1980 on behalf of Muhammad Bashir, the case against the appellant was initiated once again and show‑cause notice was issued to him. As he did not appear in response lto show‑cause notice which was served on him by proxy through Mst. Shaukat Begum her relation, he was dismissed from service through ex parte proceedings vide order, dated 29th November, 1981. His appeal was rejected by the order of the Commissioner, Lahore Division, Lahore, dated 11th April, 1982 as mentioned in the earlier part of this judgment. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the entire record of this case carefully with their assistance.

5. Learned counsel for the appellant has assailed the impugned orders on the following grounds :‑ (a) that the appellant has been condemned without being heard in person, as he was never served with a show‑cause notice and was not allowed any personal hearing. (b) that the case suffers from misreading of evidence. (c) that the so‑called service of show‑cause notice through Msr., Shaukat Begum was not a valid service in the eye of law.

6. On the other hand learned District Attorney has submitted that the impugned order reveals that the appellant has confessed in implied manner, his guilt, by making submission, when he appeared before the Assistant Commissioner, for the first time that he was instrumental in getting the money returned to Muhammad Bashir the complainant through Muhammad Hussain Patwari. In view of the above, learned District Attorney has vehemently argued that order of dismissal passed by the Assistant Commissioner was fully justified and the impugned order of the Commissioner, Lahore Division, was unexceptionable.

7. We have taken into consideration all the arguments so advanced by the parties and first of all we will attend the objections Nos. (a) and (c) as they are co‑related and then we will advert to the evidence on record, whether the same supports the impugned orders or the allegation made by the learned counsel for the appellant.

8. The record of this case reveals that the allegation against the appellant was that he alongwith one Muhammad Hussain Patwari prepared a fraudulent Fard in collusion with Akbar Ali son of Allah Ditta and Muhammad Bashir son of Karim Bakhsh of 456 kanals of village Sahanake in the name of Akbar Ali and Muhammad Bashir. It was further alleged that thereafter the appellant and Muhammad Hussain Patwari got an agreement to sell arranged for Rs. 80,000 and consequent thereof Rs. 33,000 were paid by the applicants as an earnest money to Akbar Ali and Muhammad Bashir. The agreement to sell was registered before Registrar, Lahore on 4th February, 1979. It was further alleged that Rs. 2,500 were received by Muhammad Hussain Patwari in person, for preparation of Jamabandi in that regard. The said Muhammad Hussain Patwari had returned Rs. 1,000 to the applicants, but the remaining Rs. 1,500 had not been repaid by Muhammad Hussain Patwari. The applicants prayed that the remaining sum of Rs. 1,500 be recovered from Muhammad Hussain Patwari and paid to them. The respondent No. 1 decided to hold enquiry himself against the appellant and Muhammad Hussain Patwari. The appellant appeared before respondent No. 1 on 13th June, 1981 when Muhammad Bashir made a statement alongwith the statement of the appellant, that the appellant got the money and returned to him and, therefore, the complainant had no grievance against the appellant. After recording the said statement, the matter was dropped but on 13th June, 1981 the appellant was not directed to appear in future before respondent No. 1 therefore; he thought that the matter was over. Muhammad Bashir the complainant, neither in his statement nor in his application had stated that the appellant had received any money from the complainant and had never stated that the appellant in person had paid any money to the complainant. The words used were: (Us nay mujay Matlooba raqum wapis ker di hai.)" However, the action was again initiated against the appellant on the statement of Muhammad Bashir, which was recorded in the absence of the appellant, by which a new case was set up with different allegations, which were absolutely contrary to the first allegation made by the complainant in their earlier complaint. It is also on the record that a number of adjournments were given to effect the presence of the appellant, but as he did not appear, a registered letter was issued in his name, as well as a show‑cause notice was served upon him through one Shaukat Begum, an alleged relation, living in his house. However, a fact cannot be controverted by the learned District Attorney that the appellant was never served in person and it was not proved on the record that Mst. Shaukat Begum had informed the appellant about the show‑cause notice, so served upon him. It is also on the record vide order, dated 15th November, 1981 in which it has been observed that the appellant Muhammad Ramzan, under suspension, has never appeared nor a notice has been received after its service. It was directed that Naib‑Qasid himself should appear to apprise the situation. After this order, there is impugned order passed on 29th November, 1981 by which the appellant has been dismissed, without recording the statement of Naib‑Qasid as it was directed in the earlier order, dated 15th November, 1981 i.e. 14 days earlier to the impugned order. In view of this complete history of the case, it is crystal clear that the Assistant Commissioner although a law knowing person, holding a high status of Collector, did not confirm with the procedure laid down tinder the Efficiency and Discipline Rules or that in the C. P. C., to affect service of the notice on the appellant, before taking final action against him. The orders dated 29th November, 1981 and 13th June, 1981 are absolutely self‑contradictory as in the order dated 13th June, 1981 it has been observed that as the parties have compromised, there is no need for further enquiry against Muhammad Ramzan, the appellant, whereas time was given to Muhammad Bashir and Muhammad Hussain Patwari to settle the matter among themselves. In view of this order, the order, dated 29th November, 1981 would be clearly contradictory in nature. As mentioned in the earlier part of our judgment, when on 15th November, 1981 it was directed by the said officer to summon Naib‑Qasid, in order to verify whether the service was effected upon the appellant or not, the impugned order, dated 29th November, 1981 would suffer from fatal defect that without summoning the Naib‑Qasid, it was considered sufficient that the appellant was intentionally avoiding service and was liable to be dismissed on this account also alongwith the merits of the case. We have no hesitation to hold that the alleged service of notice through registered letter as well as through Naib‑Qasid cannot be considered a service on the appellant, as the statement of Naib‑Qasid was never recorded and it is written on the back of the letter, that the appellant was not available at his house, when the same letter was taken to him for delivery/service. We are of the considered opinion that such like service, cannot be considered service in the eye of law.

9. With regard to the merits of the case, we cannot under stand how the learned Assistant Commissioner has reported in his judgment that the appellant has himself conferred that he has returned the money, there fore, by implication he has confessed the guilt. We have read the statement made by the appellant before the learned Assistant Commis sioner and find that he has absolutely denied the involvement in the matter and the statement of Muhammad Bashir, the complainant also clearly indicates that the appellant was instrumental only in getting the money returned from Muhammad Hussain Patwari. It has nowhere been alleged either in the statement of Muhammad Bashir or in his previous application that the appellant had returned the money which be has taken as illegal gratification. With this state of affairs on the record we can say with certitude that the judgment suffers from misreading of evi dence and thus cannot be sustained.

10. In view of the above analysis as given by us about the legal as well as factual position of this case, we hereby set aside the impugned orders as contrary to the fundamental principle of justice audi altera partem as well as suffering from misreading of evidence. We hereby remand this case for holding fresh enquiry by the competent authority himself or through some Authorised Officer to prove the guilt of the appellant and give him full chance to defend himself. However, the appellant is reinstated in service in order to clothe him with a status of a civil servant for such enquiry. The period of his absence from the date of dismissal to the date of his reinstatement, will be treated as leave of the kind due. There will be no order as to costs. A. E. Order accordingly.