2006 PLP (C (PLC(CS))

MUHAMMAD AFZAL (MEMBER).

It is intended, through this judgment, to dispose of Appeal No. 1638/2005, since identical facts and common questions of law are involved in these appeals.

2. As per facts relevant to these service appeals, appellant Nazir Ahmad Abbasi (Appeal No. 1400/2005) was posted as Patwari Halqa Daulatpur Tehsil Minchinabad, District Bahawalnagar and the appellant Irshad Ahmad (Appeal No.1638/2005) was posted as Girdawar in the same Halga when a complaint was received against Nisar Shahid Bhatti, Naib Tehsildar, Minchinabad (co-accused) and the appellants from one Asad Khan Khakwani, r/o village Daulatpur to the effect that the appellants and the co-accused Nisar Shahid Ehatti, Naib Tehsildar had illegally and with ulterior motives transferred 1438 Kanals and 13 Marlas agricultural land in the name of his step brothers. Appellants were placed under suspension along with co-accused Nisar Shahid Bhatti., Naib Tehsildar and an inquiry was ordered against them "under. E&D Rules" through orders dated 12-10-2002. Appellants were confronted with the allegations that in collusion with each other, appellants entered/ attested/ sanctioned Mutation No.293 of land measuring 1438 Kanals and 13 Marlas situated in Mauza Daulatpur on 14-2-2001 on the basis of irrelevant decree dated 28-11-1995 of the Court of Civil Judge, Multan. The decree related to the house situated in Multan and had no connection with the land in Minchinabad. It was also alleged that owners of land were not party in the case decree was passed and implemented by them and that operation of the same decree had also been suspended through orders dated 10-12-1995 by the Hon'ble High Court and during the suspension of the operation of the decree, land was transferred by the appellants through Mutation No.293 with mala fide intentions and in order to deprive the complainant Asad Khan s/o Abdur Razzaq Khan of his valuable land. Main allegation against the appellant Irshad Ahmad that he had illegally and fraudulently verified the mutation. Charge-Sheet was issued under Punjab Civil Servants (E&D) Rules, 1999. Appellants submitted their reply to the charge-sheet maintaining that they were not guilty and they had entered/attested the mutation in compliance with the orders of Deputy Commissioner, Bahawalnagar and decree of the Civil Judge, Bahawalnagar. Inquiry was conducted by the Deputy District Officer (Revenue) Vehari, who concluded that whatever was done by the appellants, it was done in exercise of their quasi-judicial powers and such exercise of powers could not be construed as misconduct. It was further concluded by the inquiry officer that decree-holder was entitled to get entries in the revenue record mutated on the basis of the decree and that no violation of any law or order was committed by the appellants. The authority/Respondent No.1 after having gone through the disciplinary proceedings and the inquiry report found that the appellants had not been proceeded against under the law that was in force. Consequently, the authority decided to treat the inquiry under E&D B Rules 1999 as preliminary inquiry and ordered regular inquiry under the relevant law i.e. Punjab Removal from Service (Special Powers) Ordinance 2000 (PRSO) through orders dated 20-2-2004. Deputy District Officer (Revenue) Bahawalnagar was appointed inquiry officer under PRSO. Charges were accordingly conveyed to the appellants afresh. Appellants again maintained that they were not aware about any stay orders from the High Court against the operation of the decree dated 28-11-1995 and that they had entered/attested Mutation No.293 in valid exercise of their official powers and in order to avoid any contempt of Court in the presence of decree from the Court. An inquiry was held at length. Relevant record of earlier mutation/dispute of land between the parties, one party from one marriage of Abdul Razzaq Khan and the other party from the other marriage of Abdur Razzaq Khan was examined. Inquiry officer concluded that in the first place decree dated 28-11-1995 had become ineffective since operation of the same had been suspended by the learned High Court and secondly, the suit leading to the decree was for possession of a house in Multan city and not for the Agricultural land. The inquiry officer found the appellants including the co-accused Naib Tehsildar (who has apparently not filed any service appeal so far) guilty of misuse of official powers and tampering of record and deserving of severe punishment. Inquiry report dated 28-6-2004 was considered by the authority. Appellants were given opportunity of personal hearing. Their defence was considered. Detailed and speaking orders were passed dismissing the appellants and the co-accused Naib Tehsildar Nisar Shahid Bhatti from service under section 3 of the PRSO 2000 through impugned orders dated 14-3-2005. Appellants filed departmental appeals before respondent No.2 and as the same had not been decided within mandatory period, appellants have filed present service appeals in this Tribunal.

3. Learned counsel for the appellants have addressed their arguments at length. It is maintained on behalf of the appellants that the appellants had committed no illegality in entering and attesting Mutation No.293 in the light of' decree from the Civil Court dated 28-1 1-1995 vide which the earlier transfer of land in the light of an arbitration award, was declared void. It is maintained that when the arbitration award was declared void through Court decree, the transfer of land taking plea earlier, also became void and illegal and, therefore, the appellants were within their rights to exercise their official powers in entering and attesting Mutation No.

293. It is further stated that the case of disputed land had remained in litigation for a long time, Mutation No.293 sanctioned on 14-9-2001 was cancelled on appeal from one of the parties by the then A.C. Minchinabad through his orders dated 24-5-2001. The other party filed appeal against those orders passed by A.C. and the Mutation No.293 was restored under orders dated 17-1-2003 by EDO (R) Bahawalnagar. However, the orders of EDO (R) Bahawalnagar restoring Mutation No.293 were thereafter set aside by Board of Revenue on 31-8-2004. It is also pointed out that inquiry was properly held under Punjab Civil Servants (E&D) Rules, 1999 and, since the findings of the inquiry officer were not to the personal liking of the concerned authority, out of mala fide, those proceedings were cancelled and fresh regular inquiry was ordered under PRSO for which the said authority was not competent once proceedings had been initiated under one set of rules. It is next averred that there was no evidence that the appellant had exercised their official powers with mala fide intentions or with ulterior motives. Appellants had acted on the orders of their superiors and if the decree from the Civil Court had been suspended under any orders of learned High Court, the appellants were unaware and they, in good faith, acted upon that decree of the Civil Court vide which the arbitration award was declared void and possession of house in Multan, was declared in favour of the then plaintiff Abdur Razaq Khan, father of both parties. It is also pointed out that copy of inquiry report was not provided to the appellant. They were not given ample opportunity to defend themselves and that the appellant had been awarded punishment, for the sake of punishment.

4. Appeals are opposed by the respondents. It is maintained on behalf of the respondents that the appellants had acted out of mala fide and with ulterior motives by entering and attesting Mutation No.293, whereas there were absolutely no orders from the District Collector on application for fresh transfer of land, once the land stood transferred under an arbitration award. It is also pointed out that the decree of the Civil Court related to possession of house in Multan and had nothing to do with agricultural land in mauza Daulatpur. Moreover, that decree had also been suspended through orders of learned High Court as the same had been challenged by one of the parties. Appellants, while entering and attesting mutation did not bother to summon the parties and cancelled 16 mutations without getting permission from the District Collector through extreme misuse of their official powers. It is also maintained that the authority, who had earlier passed the orders to hold inquiry was competent to modify the same orders of the inquiry officer under PRSO or the relevant law. It is finally maintained that the appellants were never disallowed to receive copy of inquiry report and they were given full opportunity to defend themselves, but they failed to do so and were awarded the penalty as the charges of corruption and misuse of powers stood fully proved against them.

5. I have considered arguments and averments from both sides and also scanned the relevant record as made available by both parties. I have also carefully gone through the decree/judgment of the Civil Court dated 28-11-1995. A plain reading of this judgment/order makes it crystal clear that it was for the possession of house situated in Multan city. Subsequently, the operation of this decree was also suspended by learned High Court where appeal had been filed, through orders dated 10-12-1995, as per following: "Subject to notice for an earlier date operation of the judgment and decree under appeal is suspended". The fact is not denied by any of the parties that this order of learned High Court was in the field when the appellant had entered and attested Mutation No.293 on 14-2-2001. The plea that they were unaware of the orders of learned High Court, cannot be accepted as valid excuse and cannot help to absolve them. Appellants contended in their reply to the charge-sheet that they had acted on the orders of the then D.C. Bahawalnagar. I have seen the copy of the application submitted to the D.C. The fact is that District Collector just marked an application from Maqbool Ahmad Khan to the A.C. Minchinabad for "necessary action as per law" on 15-12-2000. There were no directions from the Deputy Commissioner/District Collector for any specific action. Therefore, the appellant were not supposed to cancel the Mutation No.293 or any other mutation entered long ago. Appellants, therefore, as per findings of the inquiry report, acted dishonestly and proceeded to enter/attest Mutation No.293, apparently, in connivance with the applicant Maqbool Ahmad Khan. I also do not subscribe to the view of .learned counsel for the appellants that mace proceedings had been ordered under E&D Rules, the authority ceased to be competent to order fresh inquiry under the relevant law which was in force in 2001-2002. The law in force at that time was PRSO 2000 not E&D Rules 1999. As per law, an authority is fully competent to change, modify or cancel any orders passed by it. The authority subsequently realized its error in ordering inquiry/proceedings under E&D Rules which had been rendered obsolete after introduction of PRSO 2000. I also find that every opportunity was given to the appellants to defend themselves. They were heard in person and they were given the chance to lead their defence at every forum. Therefore, considering the facts of the case, I do not find any cogent reasons to interfere with the impugned orders. Appeals are accordingly dismissed, leaving the parties to bear their own costs. H.B.T./22/PST Appeals dismissed.