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Case No. 8/13 of 1983, decided on 18th October, 1983.

‑‑ R. 2(2)‑Departmental proceedings on common charges/allega tions‑Person alongwith two co‑accused charged with common allegations, but proceedings against them ordered independently whereby one co‑accused imposed penalty of 'censure' and other let off with a simple warning but such person imposed major penalty of compulsory retirement ‑ Holding of independent action, held, against letter and spirit of r. 2(2)‑Action against such person, held further, was discriminatory and harsh ‑ Order of compulsory retirement set aside and period for which he remained out of service treated as leave of kind due.

Ch. Mushtaq Masood for Appellant.

A. G. Humayun, District Attorney for Respondents.

Date of hearing : 18th October, 1983.

Sham shad Ali Shah has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Commissioner, Sargodha Division, Sargodha and the Deputy Commissioner, Mianwali as respondents.

2. By virtue of this appeal, the appellant has prayed that the order dated 13th May, 1982 passed by Deputy Commissioner, Mianwali and order dated 11th December, 1982 passed by respondent No. 1 are without lawful authority, without jurisdiction, void ab initio and be set aside. He has also prayed that the appellant be declared to be continuous in service with all back benefits.

3. Brief facts of the case are that during the course of checking Dhal Bachh etc. of Patwar circle Ghulaman, Tebsil Bhakkar (Now Kallur Kot), by the Sadar Kanungo, Mianwali, Irrigation were found out. The matter was reported to the Commissioner Sargodha for joint action against the Revenue Officer, Kanungo and the Patwari. The Commissioner, Sargodha, vide his memo. dated 6th October, 1981 decided that joint action is not required and directed that the action against the Patwari and Kanungo be taken independently by the competent authorities. The Assistant Commissioner, being the authorized officer, was allowed to proceed against the appellant. On this the appellant was served with a show‑cause notice under rule 6(3) of the E & D Rules, 1975, by the Assistant Commissioner/Collector, Bhakkar. The appellant submitted his reply to the Assistant Commissioner, Bhakkar. He was heard in person by him on 30th March, 1982. The Assistant Commissioner, Bhakkar considered pros and cons of the case and submitted recommendations to Deputy Commissioner, Mianwali. The report of the authorized officer was considered by the authority. The appellant was also heard in person on 18th April, 1982. The appellant was found guilty and he was imposed the penalty of compulsory retirement by Deputy Commissioner, Mianwali vide his order dated 13th May, 1982. The appellant made an appeal to the Commissioner, Sargodha Division, Sargodha, which was rejected vide his order dated 11th December, 1982. Hence this appeal.

4. We have heard the parties. It has been argued by the learned counsel for the appellant that the action for imposing the punishment on the appellant as compulsory retirement, is discriminatory. He has submitted that the Patwari and the Naib‑Tehsildar were also proceeded against, with the same charges. The Patwari who was responsible for preparing of the basic record has been let off with "censure" only, whereas the appellant who had less responsibility and was required to supervise the record of the appellant has been harshly punished, by awarding major punishment of compulsory retirement. He has also pointed out that Revenue Officer (Naib‑Tehsildar) has also been let off with a warning. It has been further submitted by the learned counsel for the appellant that the appellant has been a victim of the mala fide action and dislikes of the departmental authorities, the appellant being the President of Patwaris' Association.

5. Rebutting the above arguments of the learned counsel for the appellant, the learned District Attorney has relied on the parawise comments submitted by the respondents and also the detailed impugned orders of Deputy Commissioner, Mianwali and Commissioner, Sargodha Division, Sargodha. He has submitted that the facts given in the impugned orders fully prove that the appellant is guilty of gross misconduct and has been punished correctly.

6. We have given our anxious thought to the arguments of the parties and have also perused the record of this case carefully. The files of Muhammad Hussain, Patwari and Ch. Nazir Ahmad. Naib‑Tehsildar co‑accused in this case, show that lenient view was taken while punishing them. The Patwari, main accused, was "censured" only. The Naib Tehsildar was given "warning" only. Thus, the action against the appellant was discriminatory. This has happened due to the fact that the join action against these civil servants was not taken. The decision of the Commissioner, Sargodha Division, Sargodha for ordering to take indepen dent action against these civil servants is not understood. A joint action was required to be taken against these civil servants as they were proceeded against, with the common charges/allegations. This is also against the letter and spirit of rule 2(2) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. After considering all aspects and facts of the case, we have arrived at the definite conclusion that the punishment awarded by the departmental authorities to the appellant is discriminatory and harsh.

7. The upshot of the above analysis is that the punishment awarded by Deputy Commissioner, Mianwali vide his order dated 13th May, 1982 and upheld by Commissioner, Sargodha Division, Sargodha vide his order dated 11th December, 1982 is varied as follows :‑--

(a) Censure.

(b) Stoppage of increments for two years without future effect.

The period for which the appellant remained out of service shall be treated as leave of kind due.

There will be no order as to costs.

M. Y. W Order accordingly.

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