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Service Appeal No. 10 of 1970‑71, decided on 14th July 1971, District Sialkot.
, rr. 6‑A & 8‑Divmissal‑No specific finding in impugned order that accused Officer was guilty of inefficiency and/or misconduct for which penalty could have been imposed‑Order of dismissal set aside.
Ch. Mohammad Anwar Butter for Petitioner.
Mohammad Ahmad Shah, Tehsildar/Reader to Additional Commissioner (Cons.), Lahore, Mahmood Ali Khan, Head Clerk to Additional Commissioner (Cons.), Lahore and Amjad Hassain, Naib Sadar Kanungo, Sialkot, for Respondent.
This is an appeal against the order of Commissioner, Lahore Division, dated 25‑5‑1970 dismissing the appellant from service with effect from 25‑5‑1970.
2. The facts of the case are as follows :‑‑‑
3. Consolidation of Manje Tor, Tehsil Sahakargarh, District Sialkot, was taken upon the application of 77 applicants dated 20‑11‑1966. After necessary enquiries the order of taking up consolidation was passed on 7‑12‑1966. The Scheme Consolidation of Mauza was confirmed on 31‑12‑1966. According to schedule, it should have taken 9 months to com plete the work hilt the work was finalized in 1 month and 11 days. On the Complaint Sana Ullah, one of the land owners, the appellant, hereinafter referred to as the A. C. O. was charge-sheeted by the Commissioner, Lahore Division, Lahore, on the following charges for negligence, farzkari (inefficiency) and misconduct.
(a) That according to section 10(4) of the West Pakistan Consolidation of Holdings Ordinance, 1960, the Consolidation scheme of village Manje Tor, Tehsil Shakargarh finalized by the Addl. Deputy Commissioner/Collector of Consolidation, Sialkot but instead of obtaining his approval the scheme was, confirmed by you on 31‑12‑1966. In this way you acted beyond your powers to harm one Sana Ullah land‑owner of this village with a mala fide intention.
(b) That you had not appointed any representative of Sana Ullah, right‑holder in "Misal Ishtimal" therefore, you were not justified in obtaining the consent of Umer Din as the representative of Sana Ullah while proposing land in favour of Sana Ullah.
(c) that you sanctioned the consolidation scheme of village Manje Tor on 31‑12‑1966 and also attested the mutation of partition on the same date. It appears that you recorded fictitious date of attestation of the mutation. This shows your farzkari.
(d) That you consolidated Sana Ullah's land in 5 plots in utter disregard of the principles of Consolidation."
4. The A. C. O. pleaded not guilty. An enquiry was held by Ch. Mohammad Shafi, P. C. S. Magistrate Ist Class, Sialkot, who found all the charges proved against him. The A. C. O. was then asked to show cause against dismissal and alongwith his counsel, was heard by the Commissioner. The Commissioner found that allegations Nos. 1 to 3 stood proved against the A. C. O. but he did not find allegation No. 4 as very serious as appeals by certain affected persons against the order of the Addl. Deputy Commissioner (Cons.), Sialkot were also reported to be pending. The Commissioner decided that for the actions, which were extremely serious, no punishment less than dismissal would be able to meet the ends of justice. Accordingly, he dismissed the A. C. O. from service as already mentioned.
5. Counsel for the A. C. O. has argued that at the time the A. C. O. was dismissed or even asked to show cause against dismissal he had ceased to be a Government servant. In support of this he has referred to rules 2.5, 3.28 and 8.22 of the Punjab Civil Service Rules, Volume I. I am unable to accept this argu ment. Rule 8.22 relates to leave after retirement, which is restricted to 6 months. It does not refer to leave preparatory to retirement. The A. C. O. was on L. P. R. on 25‑5‑1970, and as such was in service on that date, and was subject to West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960.
6. Counsel for the A. C. O. next argued that A. D. C. (Consolidation) had certified the correctness of the proceedings. He took me through the relevant record to establish that there is no basis for holding that the A. C. O misled the A. D. C. (Cons.) into believing that confirmation of the scheme was within the powers of the A. C. O. It further appears that the Con solidation Officer made inspection on two days, namely 27‑12‑1966 and 28‑12‑1966 and pointed out in his inspection note that Sana Ullah and Sardar Ahmed had not accepted their "Chaks" and that, if they do not accept them, then proceedings will have to be taken up under section 10(4) of the West Pakis tan Consolidation of Holdings Ordinance, 1960. The A. D. C. (Cons.) gave a reference of the inspection note of the Consolida tion Officer in his order dated 28‑12‑1966 and therefpre, he must have known that Sana Ullah and Sardar Ahmad had not accepted the Scheme. In spite of this he certified on 28‑12‑1966 that except for Lt: Col. Sher Zaman, in whose case he suggested the matter being settled amicably, other land‑owners were satisfied with the Consolidation scheme, and held it proved from this that the acceptance of the land owners to the scheme had been legally and actually obtained. The A. D. C. (Cons.) accordingly instructed the A. C. O. to confirm the scheme.
7. Counsel for the A. C. O. further argued that the order of the A. D. C. (Cons.) dated 28‑12‑1966 is fn the nature of an order confirming the consolidation scheme under section 10(4) of the said Ordinance because the objection of Lt.‑Col. Sher Zaman was dealt with by him. This argument is plausible in that it can be said that what the A. D. C. (Cons.) did was to deal with one objection and ignore two objections, and it is the A. D. C. (C) who is answerable for not following the proper procedure in dealing with the objections, and in getting the pen of the A. C. O. The argument is, however, rejected on the ground that the statutory power actually exercised was by the A. C. O. on 31‑12‑1966 and the direction of A. D. C. (C) was an executive and not a statutory order.
8. Counsel for the A. C. O. next argued that the appellant had not been guilty of misconduct because he did not harm Sana Ullah by giving him 5 plots. It appears from the relevant record that previously Sana Ullah held 47 plots which were reduced to 5 during consolidation. Further, as against 10‑K: 4‑M. of land in three places near the village, the A. C. O. gave Sana Ullah one plot of land of 18‑K.‑10‑M. near the village. The quality of land which Sana Ullah got after consolidation was also superior to the quality of land previously held by him, as mentioned below, Sailab land being the best land in the area:
| Quality of land | Previous K. M | After Consolidation K. M |
| Sailab | 34 18 | 66-- 5 |
| Barani I | 68 15 | 57-- 13 |
| Barani II | 96 1 | 76- 15 |
| Banjar Qadeem | 0-- 16 | -Nil- |
Counsel for the A. C. O. further argued that both for Sana Ullah and Sardar Ahmed, who remained absent, Umer Din was made the representative. This Umer Din is Lambardar of the Village and had no axe to grind as his Khata, alongwith his brother, comprised 7‑K.‑8‑M. of land and he was given 7‑K.‑14‑M., most of which was his previous land (A kami or beshi of less than 10 marlas is negligible and is liable to be ignored). Sardar Ahmed died on 16‑2‑1967. An appeal was filed by his widow and daughter on 21‑2‑1967. They, however, withdrew the appeal on 12‑4‑1967, stating that they had filed the appeal on a misunderstanding and that they were satisfied with the land given to them. The appeal was accordingly dismissed as withdrawn. Sana Ullah was given a share of Sardar Ahmad's estate, vide mutation No. 1070 dated 18‑8‑1967 as one of0he reversioners. But none moved against the dismissal of the appeal, although both in the case of Sana Ullah and that of Sardar Ahmad, the appointment of Umer Din as representative stood on the same footing. In the absence of any personal malice of the A. C. O. or Umer Din against Sana Ullah, which has not been proved, a mala fide intention in the appointment of Umer Din as representative of Sana Ullah cannot be inferred.
10. Counsel for the A. C. O. next argued that A. D. C. (C) was apparently keen that the village should be confirmed within the month of December 1966, presumably to show completion of the work during the quarter/half year. The A. C. O. under executive pressure, appears to have acted over‑zealously in trying to show that the scheme was fully confirmed but he had no mala fide intention and in any case, no intention to harm Sana Ullah. The most that may be said is that he wanted to show how quick and efficient he was, as he was nearing the age of retirement, and his case for extension would soon be due for consideration. As A. D. C. (C) was obviously reluctant to take the trouble of coming to the village again, hear objections, and pass orders confirming the scheme himself, the A. C. O. could neither have refused to confirm the scheme nor could have left what might otherwise have been considered to be defects in the scheme, without exposing himself to disciplinary action on that account.
11. Counsel for the A. C. O. further argued that the appointment of the Inquiry Officer was not properly made. According to him there are instructions of S & GAD that when an authority has expressed an opinion that the allegations, if established, would call for a major penalty then an officer senior to such authority should be appointed Inquiry Officer. I am unable to accept this argument and hold that rule 8(1) of the West Pakistan Government Servants (Efficiency and Dis cipline) Rules, 1960 is clear that the Inquiry Officer should be senior in rank to the person to be proceeded against. In this case the inquiry officer was a P. C. S. Officer who is senior in rank to A. C. O./Naib‑Tehsildar, and as such the statutory rule was complied with.
12. Lastly, the counsel for the A. C. O. argued that the previous record of the appellant had not been taken into consideration while taking the final decision regarding the penalty to be imposed. The appellant was appointed Patwari candidate in 1935 and confirmed as Patwari in 1937, promoted to the post of Girdawar in 1945 confirmed as Girdawar to 1953, and promoted as Naib‑Tehsildar Demarcation in 1961. He was working as Assistant Consolidation officer from 10‑9‑1963 and worked so well that the same Commissioner, who later dismissed him, bad given him an extension of service beyond the age of 55 years, which he attained on 1‑12‑1968 up to 30‑9‑1969. The appellant had about 34 years service to his credit, and except for the only lapse for which he had been dismissed, he had throughout a record of service which was such that he not only received two successive promotions, but also an extension of service for 9 months, A. D. C. (C) had actually commended the A. C. O's good work in regard to this Mauza. It is also note worthy that in a Mauza where there were 117 land‑owners only two appeals were filed, out of which one appeal was withdrawn. This contrasts favourably with many Mauzas consolidated by other A. C.O. where proportion of successful appeals/revisions is much greater. Further the Girdawar and Patwari had been proceeded against for corruption in regard to this consolidation scheme. It was held by the Inquiry Officer in that case, namely Resident Magistrate, Shakargarh, that the charge of corruption against them was not proved and that Sana Ullah was actually benefited in the Consolidation scheme as he was given reduced number of plots and better quality of land. The fact that the A. D. C. (C) benefited Sana Ullah further on his appeal does not lend any support to the allegation that the A. C. O. intended to harm Sana Ullah.
13. After careful consideration of the facts and materials on record, I have come to the conclusion that the A. D. C. (C) failed to guide his staff properly, as his instruction to the A. C. O. to confirm the scheme under section 10(3) of the said Ordinance was contrary to the facts clearly pointed out in the inspection note of the Consolidation Officer which was before him when he passed the order. When a superior gives written instructions which the subordinate carries out, an inquiry arising from the carrying out of those instructions cannot be said to be complete without examining him, if his attendance can be secured. In this case no attempt appears to have been made to examine the A. D. C. (C). He should have been questioned as to why he ordered confirmation under section 10(3) of the said Ordinance in the face of the inspection note of the Consolidation Officer. I am told that he had been Section 30 Magistrate, who had been promoted as A. D. C. (C) and who retired from service in May 1967. If so, it is quite possible that he was not as active or experienced, in revenue work as an A. D. C. (Cons.) is expected to be. It is also possible that he gave his instructions in the interest of the larger body of land‑owners who would benefit by extraordinarily expeditious confirmation of the scheme, while the two objectors could get relief by filing appeals before him. I can not, in any case, help contrasting the speed with which work was done by the A. C. O. in this Mauza with the inordinate delay in disposal of the proceedings against him, which started in December 1968 and were completed on 25‑5‑1970.
14. Apart from the fact, as stated above, that the inquiry cannot be held to be complete, there is another aspect of the case which is touched upon in the Memo. of Appeal, and in which the A. C. O. has stated that tampering with the record is a separate charge which he was not given an opportunity to meet.
15. According to rule 6‑A(1) of the West Pakistan Govern ment Servants (Efficiency and Discipline) Rules, 1960, the authority shall frame a charge and communicate it to the Government servant together with a statement of the allegations on which it is based and of any other circumstances which the authority proposes to take into consideration when passing orders on the case. The concluding part of the impugned order is as follows :
"It is clearly established that the respondent the A. C. O. abused his powers. He secured the orders of the Collector for confirmation of the scheme keeping him in the dark about the dispute. He was so much irresponsible that he did not hesitate to tamper with the records to bring the case within his competency. He appointed Umer Din as a representative of a person who was present in the village without his know ledge. He got the thumb‑impressions of Umer Din as a token of his consent on behalf of Sana Ullah through fraud with out disclosing to him anything about it. These are the actions which are extremely serious and adequately render a public officer unfit for service. I think no punishment less than dismissal will be able to meet the ends of justice. Under these circumstances, M. Mohd. Aslam, A. C. O is hereby dismissed with immediate effect."
16. Most of the above allegations find no place in the charge‑sheet nor was any separate statement of allegations appended to the charge‑sheet. In charge No. 1 the appellant was alleged to have acted beyond his power to harm one Sana Ullah land‑owner of village with a mala fide intention. If proved, this would not amount to abuse of powers. This point will be dealt with subsequently.
17. The second finding in the concluding part of the impugned order is that the A. C. O. secured the orders of the Collector for confirmation of the scheme keeping him in the dark about the dispute. The relevant part of the charge framed against him in this connection was that instead of obtaining approval of A. D. C. (C) Collector, the scheme was confirmed.
18. The third finding in the concluding part of the impugn ed order is that the A. C. O. was so irresponsible that he did not hesitate to tamper with the records to bring the case within his competency. There is no such allegation in the charge‑sheet.
19. The fourth set of findings in the concluding part of the impugned order contains the following ingredients
(1) The appellant appointed Umer Din as a representative of a person.
(2) That person was present in the village.
(3) The appointment was made without the knowledge of that person.
(4) He got the thumb‑impressions of Umer Din as a token of his consent on behalf of Sana Ullah.
(5) This was done through fraud without disclosing to Umar Din anything about it.
20. The relevant charge framed against the A. C. O. in this connection had only the following ingredients:‑
(i) The A. C O. had not appointed any representative of Sana Ullah right‑holder in Misal Ishtimal.
(ii) He was thus not justified in obtaining the consent of Umer Din as representative of Sana Ullah while proposing land in favour of Sana Ullah.
21. From the above discussion it is clear that in the proceedings leading to the impugned order the statutory rule 6‑A (1) referred to above has been violated. I am surprised that while a statutory rule is violated in the proceedings ; the impugned order should contain an observation that, in the case of charge No. 3, the charge is proved at least to this extent that either the attestation of mutation was ante‑dated and if not, it was sanctioned quite contrary to the instructions of the Board of Revenue. Counsel for the A. C. O. pointed out that a violation, of an instruction does not by itself amount to inefficiency or misconduct. He also urged that the relevant instruction was impracticable. I am of the opinion that violation of an instruction given by a superior authority in public interest is to be viewed with serious concern and it is no defence, long after it is discovered, to say that it was impracticable. The conduct and efficiency of an officer cannot be judged by such isolated instances unless dishonest intention can be inferred therefrom.
22. The above‑mentioned rule 6‑A(1) is, however, pro cedural, and the omission to observe it is an irregularity which would vitiate the proceedings, so far as non‑observance of the rule is concerned, only if it can be shown that it has prejudiced the case of accused Government servant. Appeal is a continua tion of the proceedings, and the A. C. O. cannot say that he has not been given a full hearing by me or that I have not given him adequate opportunity of meeting the allegations. The only griev ance he can have on this account is that fresh evidence should have been allowed to be led on the allegations made against him subsequent to the framing of the charge. Had he been continu ing in service, this grievance could have been met by setting aside the impugned order and remanding the case for fresh decision. But if the order is set aside he will have retired on the expiry of his leave preparatory to retirement and would be no longer in service. The case therefore, cannot be remand ed. Besides, the relevant record has been seen by me in his presence and it is possible to arrive at appropriate findings without remanding the case.
23. I will first deal with the allegations which were not included In the charge‑sheet, as follows :‑
(1) It is clearly established that the A. C. O. abused his powers.
Abuse of powers means that a person had the powers but used them wrongly. In this case the A. C. O. did not have the power to confirm the scheme or to appoint Umer Din as representative of Sana Ullah.
(2) The A. C .O. secured the orders of the Collector for con firmation of the scheme by keeping the Collector in the dark about the dispute.
There is nothing to support this allegation. On the other hand, there is evidence that the immediate superior of the A. C. O. namely, the Consolidation Officer, knew about the dispute, vide his inspection note, and that this inspection note came to the notice of the Collector.
(3) The A. C. O. tampered with the records to bring the case within his competency.
I have examined the record. There are the following additions/interpolations :‑
(1) The names of four land‑owners, including Sardar Ahmad and Sana Ullah, were added in the list of absentees.
(2) The notices under section 10(4) of the said Ordinance, issued to Sardar Ahmad and Sana Ullah, had interpolation to the following effect :‑
"or the scheme will be confirmed by appointing a represen tative."
24. None of the above additions/interpolations could bring the case within the competency of the A. C. O. and his action in making the additions/interpolations was most foolish. Had it caused any harm to anyone I would not have hesitated to hold that he was deserving of severe punishment, and in spite of his long service and unblemished past record, I would have held him to be unfit for further retention in service. But the action of the A. C. O. has rather established that the scheme was sanctioned behind the back of Sana Ullah and without his appointing a representative. Had the A. C. O. any mala fide intentions he would not have done so but instead would have left the door open for a claim, by the A. C. O. or by other land‑owners whose land Sana Ullah aimed to get by his objections, that Sana Ullah verbally agreed to his "Chak" after the Consolidation Officer had recorded his note and before the Collector certified that there was no other objection besides that of Lt: Col. Sher Zaman. It is likely that Sardar Ahmed and Sana Ullah were absent when the Collector visited the village. The Collector, in spite of the inspection note of the Consolidation Officer, ordered the A. C. O. to confirm the scheme. This must have placed the A. C. O. in a dilemma, and as a loyal subordinate, he must have carried out order of his superior at the same time trying, in his own way, to remove the defect in the scheme flaking a realistic view. I cannot think that A. C. O. would have defied the A. D. C.'s order. The fact that he did not got the notices, referred to above, fictitiously served on Sardar Ahmad and Sana Ullah with the words, 'inkari hai' goes to indicate that he did not go out of his way to show that a representative of Sana Ullah and Sardar Ahmad was appointed with the notice to them.
25. As regards the allegations relating to Umer Din's appointment as representative of Sana Ullah, the appointment was in no way binding on the latter and could have caused him no harm. The same officer, viz., A. D. C., could have given Sana Ullah relief by way of hearing objections/appeal, and Sana Ullah was not deprived by the A. C. O.'s action of his right to seek relief from the A. D. C. However, I am not inclined to believe that Umer Din, a Lambardar, put his thumb‑impression without knowing what he was doing.
26. Coming now to the allegations contained in the charge‑sheet, my comments are as follows
(a) The scheme should have been confirmed by the A. D. C. It is, however, not a fact that the A. C. O. did not obtain his approval. The A. C. O. acted beyond his powers but not beyond the powers of the A. D. C. who authorised him to confirm the scheme under the latter's powers. The A. C. O. had no intention to harm Sana Ullah nor, as a matter of fact, did he cause him any harm, and he did not have a mala fide intention.
(b) Umer Din could not have acted as representative of Sana Ullah and the A. C. O. was not justified in taking his thumb‑impression on behalf of Sana Ullah.
(c) The A. C. O. could have kept papers ready and com pleted them on 31‑12‑1966. No positive evidence of farz kari is available.
(d) There was no "utter disregard" of the principle of consolidation. As against 47 plots which Sana Ullah had before consolidation, the number of plots was reduced to 5.
27. I may note in conclusion that there is no specific finding in the impugned order that the A. C. O. Is guilty of inefficiency and/or misconduct for which a penalty could have been imposed.
28. In view of the detailed foregoing discussion of the case, I am of the opinion that the extreme penalty of dismissal was not justified, and that, taking into consideration all the facts and circumstances of the case the A. C. O. should have been allowed to complete his L. P. R. and to retire on the expiry of his leave.
29. The impugned order Is, therefore, set aside and the appeal is allowed subject to the observation that the A. C. O. shall be deemed to have retired on the date on which he would have retired according to normal rules had the order of dismissal not been passed against him.
Appeal allowed.
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