P L D (Rev (PLP)

A regular departmental inquiry was conducted against the appellant on the following five charges :‑ I. That you on or about the 7th and 8th of September, 1947, visited village Mohessim in Gujrat Tahsil for the purpose of collecting the abandoned or looted property of the non‑Muslims and that you recovered a pair of gold kantas, a pair of gold chains for watches and a silken suit (ladies) from one Ramzan, but you did not deposit the same in the treasury under the charge of Ch. Muhammad Sultan, Sub‑Judge, nor did you account for these articles otherwise. II. That you on or about the 15th and 16th of September, 1947, visited village Disttwal and collected a lot of non- Muslim property. In particular, you collected a gold bar weighing approximately 2 seers and some gold ornaments from the house of one Mela Ram. You brought 6 locked safes and some trunks containing valuable clothes from the village. The trunks were unloaded a‑t your house and the rest of the property was sent to the dump. Out of the ornaments recov ered a few gold and silver ornaments were deposited in, the treasury on the 16th September, 1947. But you did not deposit either the gold bar in the treasury or otherwise account for it or for the contents of the 6 locked safes you brought from the village. III. That you on or about the 17th of September, 1947, visited village Kothala and recovered one pair of gold kantas (ear‑rings) from Muhammad Bahwal Haq, M.A., and about 16 silver utensils from the safe of one Kanshi Ram, but you did not deposit the same in the treasury nor account for the articles otherwise. IV. That you on or about the 18th September, 1947, visited village Sook‑Kalan and broke open 8 safes belonging to non‑Muslims, i.e., Narain Das, Dayal Chand, Badri Nath, son of Dune Chand, Badri Nath and Parma Nand and recovered gold ornaments weighing 52 tolas, silver ornaments weighing 11 seers and 2 chhataks and Rs. 78‑4‑0 in cash. You also recovered a box contains gold chura (complete set of bangles) weighing about 300 tolas and 63 utensils of silver from the safe belonging to Narain Das, which was broken open by one Imam Din Lohar. Out of these articles you deposited into the treasury at Gujrat only 48 tolas of gold ornaments and 191 lbs. of silver ornaments while you did not deposit the rest of the articles nor account for them otherwise. V. That some time during the month of December, 1947, you came to know that Fazal Dad, P. W. of Qaila Dar was in possession of a tonga and a mare belonging to one Bashisher Nath. You sent for the witness and got the vehicle and the animal from him without preparing any .recovery memo., or issuing any receipt to Fazal Dad. Not only this, you did not even inform any of your superior officers about this recovery. This tonga and the mare were in your dishonest possession and were recovered by the police from your house on 4th January, 1948. This tonga and mare were other than the tonga and mare belonging to Kisra and Haveli Ram and unlawfully kept by you under the unauthorised permit issued by the Revenue Assistant, Gujrat, and which were ultimately sold by public auction to Ghulam Hussain P.W. for Rs. 600 on 2nd December, 1947. After recording the statements of a number of prosecution witnesses in support of the different charges and after giving an opportunity to the appellant to produce his defence, if any, the Enquiry Officer held all the charges proved against the appellant On receipt of the report of the Inquiry Officer the opinion of the Commissioner, Rawalpindi Division, was invited on the same. The Commissioner replied that whether the charges framed against the Tahsildar had or had not been proved was a question of fact and that he saw no reason to disagree with the findings of the Inquiry Officer in that behalf. He added that if, however, Government desired him to sift the evidence and check up on the Inquiry Officer's findings, the inquiry file should also be forwarded to him. On receipt of that reply the Commissioner, Rawalpindi Division, was again addressed with the request that as Government had come to the provisional conclusion that the charges of corruption against the appellant stood proved, the Commissioner should supply the appellant with a copy of the findings of the Inquiry officer and direct him to show cause why he should not be dismissed from Government service. In reply the Commis sioner, Rawalpindi Division, wrote that as the appellant was a permanent Naib‑Tahsildar of the Lahore Division, his address was not known to his office and that the Commissioner, Lahore Division; should, therefore, be asked to take further action in the matter. The Commissioner, Lahore Division, was accord ingly addressed. by the Revenue Secretary to the Financial Commissioner and after an explanation of the appellant had been taken the Commissioner, Lahore Division, forwarded the same to the Financial Commissioner, Revenue. Thereupon the Financial Commissioner, Revenue, came to the conclusion that as the appellant was substantively a Naib‑Tahsildar of the Lahore Division, necessary action against him should be taken by the Commissioner, Lahore Division, as provided in Appendix 'A' to the Punjab Tahsildari Rules, 1932. The report of the Inquiry Officer and copy of the explanation tendered by the appellant was accordingly forwarded to him for such action as the Commissioner deemed fit. Upon that the Com missioner, Lahore Division, passed the order which is the subject matter of this appeal. The appeal was in the first instance filed before the Finan cial Commissioner, Revenue, but as he had already expressed his opinion in the matter on the administrative side he transferred the appeal to me for disposal. The first question that arises in this case is whether the present appeal is competent. It is obvious that under the Tahsildari Rules in the case of Naib‑Tahsildars the punishing authority is the Commissioner and the appellate authority is the Financial Commissioner. As such there appears to be no irregularity in the present appeal nor is there any apparent defect of jurisdiction in the Financial Commissioner to enter tain it and dispose it of. The second basic question that arises is whether the Commissioner, Lahore Division, had the juris diction to pass the order he had. It appears that the case was not at all put in its correct perspective before the officers and no attempt was made by the Financial Commissioner's office to clarify the legal position as to the authority .who was compe tent to pass orders on the report of the Inquiry Officer. Series of confusing notes in that respect led to the passing of various orders one after another and the Commissioner, Lahore Division, too passed the order appealed against appa rently acting on the instructions, incorrect though they were, received from the Revenue Secretary to the Financial Com missioner. The Tahsildari Rules make it quite clear that the Financial Commissioners are virtually the punishing authority in the case of 'Tahsildars (whether officiating or permanent) where it is intended to inflict the penalty of removal or dismis sal on a Tahsildar. In these circumstances, while the Commissioner, Lahore Division would have been perfectly right to inflict any of the penalties enumerated in Appendix "A" to the Tahsildari Rules except those of removal and dismissal, he was not competent to dismiss the appellant firstly because he had been appointed as an officiating Tahsildar by the Financial Commissioners and, secondly, because the Tahsildari Rules contemplate that the penalty of removal and dismissal in the case of Tahsildars should be imposed by the Financial Commis sioner alone. Tahsildars can also be either officiating or temporary and there is no distinction made in the rule between them and substantive holders of the post. Section 240 of the Government of India Act is also clear on the point. For these reasons the order appealed against was passed without jurisdiction and as such must be set aside. Lengthy arguments have been advanced by the counsel for the appellant to show that the inquiry was held in a hap hazard manner and that nothing substantial was proved against the appellant. Much stress was laid on the fact that none of the articles alleged to have been misappropriated by the appellant was found from his house or from the house of his son‑in‑law which were searched by the police. The counsel stressed that there had been scores of discrepancies in the statements of various prosecution witnesses which rendered the whole evidence as unreliable. Further the weight and dimen sions of certain articles alleged to have been misappropriated by the appellant as given by the prosecution witnesses was according to the counsel such that the entire story built up by the prosecution appeared to be incredible and concoted. According to the appellant all this case was engineered by the machination of one Ch. Muhammad Ali Mela from whom the appellant had to take over as Tahsildar, Gujrat. The records show that Ch. Muhammad Ali Mela first of all refused to hand over charge to the appellant and that it was only at the intervention of the Deputy Commissioner, Gujrat, that he eventually agreed to relinquish charge. It is also borne out by the records that the relations of the appellant and Ch. Muhammad Ali Mela were strained. I have carefully gone into the entire evidence produced against the appellant and find that it is not such which will have secured a conviction if produced in a Court of law and should not be considered sufficient to warrant the infliction of the extreme penalty of dismissal. No incriminating article was recovered from the possession of the appellant, except a tonga and a mare (Charge No. V) which he was keeping after obtaining the permission of his immediate superior officer. If that superior officer was acting without jurisdiction, the appel lant was not so much to blame. The other charges are largely based on the oral testimony of witnesses who state that they saw the appellant collecting articles mentioned in these charges but did not deposit them in the malkhana. Most of these witnesses are those from whose possession the appellant recov ered looted articles and cannot be held to be independent. In a few cases where the witnesses can be said to be independ ent, their testimony is vague, indefinite end based on hearsay. In the absence of proof of the actual existence of correct description of the articles alleged to have been collected by the appellant and of how these articles were disposed of, I do not think the evidence is safe enough to condemn the appellant. All that can be held is that there is strong suspicion that some articles recovered by the appellant nay not have been correctly accounted for, but I repeat again that the evidence is not sufficient to hold that the charges have been proved. I feel that in this case an invidious exception was made as regards the application of instructions contained in the Punjab Government Letter No. 4458‑48/47964, dated the 5th November, 1948, relating to departmental inquiries, in which it was ordered that the officials who have been found in pos session of looted property but cannot be proceeded against because non‑Muslim owners cannot be found, should be absolved of the charge. The applicant's case was stronger in as much as he was not actually found in possession of any looted property which he is alleged to have misappropriated. In the circumstances, I set aside the order of the Com missioner, dated 7th February 1951, and the order of sus pension dated 13th July 1949, and direct that the appellant should be re‑instated to his substantive post of Naib‑Tahsildar. He shall get full pay and allowances of a Naib‑Tahsildar for the period of suspension, and in terms of the Government letter of the 5th November, 1948, the question whether this re‑instatement amounts to honourable acquittal is left undecided. The appeal is accepted to this extent. Appellant to be informed. K. M. A. Appeal accepted.