1981 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN).‑Chaudhry Izzat Ali Khan, Director Livestock Farms, Punjab, Lahore, has filed an appeal under sec tion 4 of the Punjab Service Tribunals Act, 1974 in which he has made Government of the Punjab (through Secretary to Government of the Punjab, Services General Administration and Information Department) as respondent. By virtue of this appeal he has made grievance that the impugned orders dated 23‑5‑1979 and 19‑9‑1979 be set aside as being illegal and ultra vires. He has prayed that in case his appeal succeeds he may be allowed costs against the respondent. Brief facts of this case are that the appellant received order dated 11‑6‑1978 whereby be was suspended from service. A copy of the said order is on the file as Annexure 'A'. Some days later the appellant received another order dated 17‑6‑1978 (Annexure 'B') by which he was informed that an Enquiry Officer had been appointed by Chairman, Enquiries/Anti‑Corruption to conduct enquiry against him. A charge‑sheet dated 22‑6‑1979 (Annexure 'C') was issued in the following terms: ‑ "That while posted as Director, Livestobk Farms, Punjab, you illegally manipulated through your subordinates employed in Kalra Livestock and Stud Farm to sell four, young stock (K‑378, K‑395, K‑498 and K‑506) of the Hissar‑Haryana Breed and one Beetal goat 3 K‑200 to your brother‑in‑law, Chaudhary Muhammad Afzal of Chak No. 363/GB, District Faisalabad. The weight shown on the bill for the these four young males was almost half of the normal weight laid down by the Director, Livestock Farms Notification No. 7714‑75/6222 C. L. V. dated 11th December, 1975." A copy of the Statement of Allegations was added as Annexure 'D' which runs as under: ‑ "Dr. Izzat Ali while posted as Director, Livestock Farms, Punjab illegally manipulated through his subordinate staff to sell four young stock Hissar‑Haryana and one Beetal goat to your brother‑in‑law Ch. Muhammad Afzal from the Kalra Livestock and Stud Farm. From the above disciplinary action under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 is called for and hence the Statement of Allegations. (Sd.) Atta Muhammad Khan Malik Brig. (Retd.)" The appellant submitted a reply on 27‑6‑1978 and denied the charges. Mr. K. G. Bornshin conducted the enquiry against the appellant. On 9‑7‑1978 (Annexure 'G') an application was submitted by the appellant for summoning of documents from Livestock Farm, Kalra and Directorate of Livestock Farms which, according to the appellant, were vital for his defence. He also requested that Mr. G. M. K. Durrani, Land Commissioner (Head quarters) Punjab Land Commission, Lahore and Mr. Muhammad Umar Driver of the Department may be summoned as defence witnesses. It was also requested that Mr. Muhammad Ayub Shah, ex‑Officer‑in‑Charge Livestock Farm Kalra and Mr. Riazul Haque, ex‑Manager, Livestock Farm Kalra may be made available for cross‑examination. On 9‑7‑1978 by another application (Annexure 'H') the appellant cited Lt: Col. Muhammad Asghar Raja, Captain Gulzar Hussain and Mr. Akram Khalid as defence witnesses. Mr. Muhammad Sharif and Mr. Muhammad Yousaf were summoned who brought the record but the statement made by Mr. Muhammad Sharif was not placed on the file as it was considered, that it would not be permissible to place that statement on the record. Mr.. Muhammad Yousaf was not allowed to be cross‑examined. The appellant on 15‑7‑1978 vide Annexure 'K' brought the above‑mentioned irregularities to the notice of Chairman Enquiries but was told vide letter dated 18‑7‑1978 (Annexure 'L') that as the enquiry had been completed it was hardly necessary for calling witnesses at that stage. However, he was allowed personal hearing on 19‑7‑1978. On that very day the appellant ventilated the grievance that his defence witnesses were not allowed to be produced and relevant record was also withheld. It was on 23‑5‑1979 (Annexure 'N') that appellant was informed that penalties of censure and recovery of Rs. 2,100 were inflicted upon the appellant by the Government. Appellant filed a review petition (Annexure 'O') in which he submitted that as the orders were passed by the Government and not by the Authorised Officer in his case, the Governor may kindly consider this point. The appellant's effort to secure a copy of the enquiry report did not bring any result and he filed a review petition before the Governor. However, his review petition was rejected as being without any force. 3. We have heard the learned counsel for the appellant, have perused the parawise comments and record of this case carefully and have benefited from the arguments of the Government Pleader assisted by the representative of the Government. It has been urged on behalf of the appellant that the initiation of the proceedings against him were mala fide at the instance of certain persons who bore malice against him. The charge against the appellant has not been proved against the appellant as the Enquiry Officer has based his findings on extraneous circumstances, unreasonable reasoning and conclusions. His conclusions drawn are contrary to the facts on the record. According to the appellant's counsel provisions of Civil Servants (E & D) Rules, 1975 have been violated both by the Enquiry Officer as well as by the competent authority. It has been submitted that service record of the appellant was absolutely clean, meritorious, unblemished and the penalty so awarded against him would be ruinous to his career and will jeopardise his further promotion. 4. While going through the parawise comments we are constrained to observe that they are hardly of any help to the Court in this case. In view of these comments this Court had to look into the record itself so as to verify the allegations levelled by the appellant with regard to the procedure as well as to the facts of this case. We will first of all take up the procedural and legal objections so raised by the appellant before us He has made grievance of the fact that his application for summoning the defence witnesses was not considered and thus he had no opportunity to produce the same. While going through the record we find that the enquiry was concluded on 19th July, 1978 whereas the application for summoning of defence witnesses was presented on 19th July, 1978. In view of above we do not find any force in this argument that appellant was not afforded opportunity to rebut the case of the prosecution through his defence evidence. With regard to the contention that appellant was not afforded a personal hearing by the respondent it is sufficient to say that in view of sub‑rule (8) of rule 7 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, as the penalty proposed was `minor' therefore the competent authority was under no obligation to afford personal hearing to the appellant more particularly when under rule 2(c) ibid the 'Authorised Officer' includes Government as well. After disposing these procedural and legal objections we will now proceed to examine the case on merits. 5. The charge in this case consists of two parts. The first relates to the manipulation of the appellant in arranging the sale in favour of his brother‑in‑law in a shady manner so as to give him the benefit of securing better animals as compared to other purchasers and secondly by selling the same on a lesser rate, showing the weight of the animals considerably low. While going through the statements of various witnesses appearing before the Enquiry Officer we find that the case of prosecution mainly hinged on the statement of Mr. Sabir Ali, Stock Assistant. In his statement he has categorically asserted that the sale of calves was made in June, 1977 but its bill and other papers were made on 20‑11‑1977 i.e. the date on which the application of Mr. Muhammad Afzal was made. He further stated that this was manipulated through Mr. Fayyaz Ahmad Lodhi with the connivance of the appellant when he visited Sargodha on 20‑11‑1977. This above statement would be incriminating if found correct. When going through the statements of Mr. Lodhi, Mr. Ayub Shah, Mr. Ghulam Mustafa and Mr. Riazul Haque, we find that assertions made by Mr. Sabir Ali, Stock's Assistant are not supported by these witnesses. Mr. Lodhi in his statement made it char that application by Mr. Muhammad Afzal was written on 20‑6‑1977 and the dated 20‑11‑1977' was nothing but addition by somebody due to some bad intention. Mr. Ayub Shah is the person who marked this application to the Livestock Officer and Mr. Riazul Haque is the person who recorded the weight and assessed the value and Mr. Ghulam Mustafa did the job of removing the animals. All these witnesses fully uphold the statement of Mr. Lodhi that the application was written in June, 1977. We also further find from the record that Muhammad Ayub Shah was in the habit of missing the year while posting the date and the month on the applications. Therefore it can be safely assumed that the mention of year 1976 alongwith the date and month would not be a logical conclusion. This deviation from the normal habit of Ayub Shah would strengthen the apprehension of Mr. Lodhi that this was done to create evidence against the appellant. The figures in this respect also seem to be mutilated. With regard to the claim of Mr. Sabir Ali, Stock Assistant, that the bill was prepared in a bogus manner on 20‑11‑1977 is controverted by the simple fact that Martial Law Authorities took the record in their custody when they raided the Farm on 23‑8‑1977 and again on 4‑10‑1977. This record remained with the Martial Law Inspection Team till 29‑12‑1977, which is evidenced from letter No. 132 dated 15‑1‑1978 from the Officer‑in‑Charge of Livestock Farm, Kalra. In this manner it can also safely be held that receipt for payment of Bill No. 957 dated 21‑6‑1977 could not be issued after the raid of Anti‑Corruption when the receipt Book No. 706 was in the custody of the raiding party. Mr. Muhammad Sharif; Livestock Officer, Sargodha, has stated that the amount of Rs. 1,900 was received against Receipt No. 65/706 dated 23‑8‑1977 which is duly recorded in Cash Book at page No. 5 and countersigned by Mr. Ghulam Mustafa. Similarly, the amount of Rs. 200 has been booked on page 44 against Sr. No. 14. We also find that there was a confusion about the sale of a dead calf i.e. No. 395/4.5. This confusion was cleared by the statement of Mr. Riazul Haq. According to this witness, it was by mistake that he wrote on the reverse side 395/4.5 instead of "398/4.5". He further deposed that calf No. 395 h id died and this fact stood fully verified from the Post‑Mortem Register where post‑mortem report is recorded on page 31. Even the skin of this calf was sold at Rs. 60 and the amount deposited against Receipt No. 14/04123 dated 23‑12‑1976. On the other hand Calf No, 393/4.5 was found present at the Livestock Farm Kalra as it had jumped from the truck. So the conclusion would be that the real calf which was sold was No. 398/4.5 and not `395/4.5' which had died. Mr. Ayub Shah and Mr. Riazul Haq without any ambiguity deposed that sale to Mr. Muhammad Afzal was made in a routine manner and on the rates normally charged from other purchaser. Mr. Muhammad Sharif also made it clear that only eight calves were sold in the month of June, 1977. Mr. Ayub Shah while referring to the Beetal Goat stated that it was not pregnant when it was taken over in February, 1976 and never conceived during the year 1977. The star witness in this case, Mr. Sabir Ali, is again 1,9 found telling a lie when he accuses the appellant of the allegation that the animals sold to Mr. Muhammad Afzal were transported in Government truck. His accusation falls to the ground when it is found that the Log Book for Truck (Dodge) No. 5980 on pages 26 and 27 clearly establishes that the truck remained out of order from 24‑5‑1977 to I1‑7‑1979 because of breakdown of piston rings.. Mr. Muhammad Ayub Shah, ex Officer‑in‑Charge while appearing in this enquiry has stated that the sale of all the calves was made on a uniform pattern in the light of Letter No. 42111/42. II. C. 9. II. C. dated 26‑2‑1977 wherein the price of Hissar‑Haryana Breed young stock had to be assessed at beef price plus 100 % surcharge. The Enquiry Officer in this case has mainly relied on the Evaluation Report dated December 1976 wherein the price of the calf was fixed as Rs. 1,050. He has to take into consideration the background of the take‑over of this Farm in 1976 from the ex Management of Mr. Qadir Hayat Khan Tiwana, an Attorney of Malik Nazar Hayat Khan Tiwana, under the orders of Punjab Land Commission. He further failed to keep in mind that the former formula was not a practicable one and a new formula was evolved on the recommendations of the Livestock Economist as well as the Secretary of the Evaluation Committee. In view of the mismanagement, unprecedented rains havoc, fodder deficiency and lack of shelter in the winter the lot sold during 1977 would be comparatively much poorer for all these set backs. 6. While looking into the charge of manipulation we find that there was no bar for any relation of any officer of Livestock Farm to purchase the animals according to the laid down procedure. Mr. Muhammad Afzal was definitely related to the appellant but lie came in his own right as a purchaser and went through all the exercises which were prescribed for purchase of such animals. Therefore, the Enquiry officer was not justified to hold that sale in favour of Mr. Muhammad Afzal was manipulated by the appellant. 7. While dealing with the second part of the charge, although missing in the Statement of Allegations, that the weights of the animals so sold to Mr. Muhammad Afzal were shown very low in order to sell him on a lesser price, we find that there were two lots of calves which were sold on 15‑6‑1977 and 21‑6‑1977 respectively. Mr. Muhammad Afzal purchased the last lot i.e. on the fag end of the season and the average weight per animal was 190 lbs. while the lot sold on 15‑6‑1977 i.e. six days earlier to the sale made to Mr. Muhammad Afzal the weight of the average animal was 205 lbs. The difference of 15 Ibs. would hardly make a profitable bargain manipulated as alleged in favour of appellant's brother‑in‑law at the instance of the appellant. The appellant has further made out a very interesting point to support our above observation. According to him, the calf No. 398 which jumped out of the truck was weighed as 528 lbs. on 29‑6‑1978. It was submitted that according to the Research Publications of the Directorate of Livestock Farms the daily gain for young stock with age varying from first to twelfth quarter of life in Sahiwal is 0.9 lbs. Making back calculations from the present weight and after substracting the weight gained during the period from 21‑6‑1977 to 29‑6‑1978 initial weight of the calf comes to 192 lbs. which is very close to the weight charged i.e. 200 Ibs. This mathematical calculation based on the research publications makes it a foolproof case in favour of the appellant while rebutting the second charge so levelled against' him. If Enquiry Officer had taken all these facts into consideration and bad allowed the appellant to produce his defence (although to which he was not legally entitled) in the larger interest of justice he would not have arrived at the conclusion by which he concluded that the appellant was guilty of manipulation. Taking into consideration the entire evidence on the record we are of the considered opinion that the animals were purchased by Mr. Muhammad Afzal from a Government controlled Farm in routine on fixed rate as a last lot sold during June 1977 for which the payment was made. The documentary evidence, statements of witnesses, and physical weighment of the sample calf which was still available at Kalra fully exonerate the appellant from the charge for which he has been punished In our considered opinion, the impugned order is liable to be set aside Therefore, we proceed to accept the appeal and set aside the impugned order However, there will be no orders with respect to costs in this case. Appeal dismissed.