Find a Lawyer

Case No. 207 183 of 1983 decided on 8th April, 1984.

----R. 6 (3)‑Civil servant dismissed from service on charges of corruption and forgery without holding regular enquiry or show cause being served‑Copy of order not supplied nor given opportu nity of being heard‑Proceeded against ex purte despite production of medical certificate of serious illness‑Held : Dispensation of enquiry, in circumstances, was absolutely unjustified and contrary to law‑Without assistance of Enquiry Officer and evidence so recorded by him brought on record it would be impossible for any body to hold a person guilty of complicated and lengthy charges- Orders of dismissal and rejecting departmental appeal held nullity in eye of law as well as arrived at without any evidence on record ‑ and civil servant re‑instated in service with back benefits.

P L D 1974 S C 151 ref.

Ch. Mushtaq Afasud for Appellant.

A. G. Humayun, District Attorney for Respondents.

Muhammad Ashraf, ex‑Patwari has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Commissioner, Lahore Division, Lahore and Assistant Commissioner (S)/Collector, Lahore, as respondents.

2. By virtue of this appeal he has prayed that the impugned orders dated 6th December, 1978 as well as dated 27th October, 1.979, and 12th March, 1983, be set aside and the appellant, be reinstated in service with all back benefits/remunerations etc.

3. Brief facts of the case are that during the inspection of the revenue record of village Bhekewal, Tehsil and District Lahore, it was found that the appellant during his posting in the said Circle had allegedly tampered with the revenue record showing one Bashir Ahmad as Qabiz Hisadar' of certain land in the said village. The appellant was not served with any show‑cause notice nor any service was effected upon him. Similarly no full‑fledged enquiry was conducted against him as required by law although the allegations were of serious in nature relating to corruption and forgery. The appellant was proceeded ex parte by the respondent and was dismissed from service. The appellant came to know of the impugned order on 15th January, 1979. He filed application for obtaining a certi fied copy which was not supplied to him till 16th April, 1979. However, the appellant filed appeal on 18th January, 1979, before the Commissioner, Lahore Division, Lahore. While this appeal was pending Commissioner, the appellant met with a serious accident in the car while on his way to Sheikhupura from Lahore. He suffered with a serious fracture in the upper part of his right leg and remained confined to bed in Mayo Hospital, Lahore, for about more than one month. In these circum stances the appellant was unable to move till 16th February, 1983. In the meantime, the learned Commissioner dismissed the appellant's appeal without waiting for the appearance of the appellant before him. On the date of passing the impugned order by the Commissioner, the appellant's nephew laved Iqbal appeared and produced a Medical Certificate issued by Dr. Ehsan Ullah of Mayo Hospital, Lahore, but the same was ignored and his appeal was dismissed. However, the appellant was provided with a copy of the impugned order after a great struggle and only received the said copy on 22nd February, 1983. After receiving the copy of the impugned order by personal efforts made by the appellant, he filed review petition before the said Commissioner against the impugned order dated 27th October, 1979, alongwith an application under section 5 of the Limi tation Act but the said review petition was rejected on 12th March, 1983. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the entire record of this case carefully with their resistance.

5. Learned counsel for the appellant has submitted that the appellant was neither served with a show‑cause notice nor the appellant received the show‑cause notice and thus ex parte proceedings were illegal. Learned counsel for the appellant has made la grievance that he was condemned unheard, which was against the principle of natural justice. It has been further contended by the learned counsel for the appellant that there was no evidence on the record about the alleged charges so levelled against the appellant and it was incumbent ‑upon the respondent/competent authority to hold a full‑fledged enquiry into the matter to see the truthfulness of the enquiry and dispensation of the said enquiry, was highly uncalled for and absence of the same was illegal. He has also assailed the order of the learned Commissioner, dated 27th October, 1979, as an ex parte order on the ground that the said Commissioner was fully apprised the illness of the appellant supported by the medical certificate of an autho rised Medical Officer. According to the learned counsel for the appel lant. it was incumbent upon the Commissioner to postpone the case to give full chance to the appellant after affording him personal hearing to defend his appeal. While referring to the review application filed by the appellant learned counsel for the appellant submitted that it was neces sitated in view of the fact that the first order being ex parte, was nullity in the eye of law and the appellant was not given a chance to pursue his case.

6. On the other hand learned District Attorney has submitted that in fact no record of this case was available with the respondents as the same was in the custody of the Anti‑Corruption Judge who would not make the same available. In view of this learned District Attorney has submitted that the respondents were not in a position to file any comments. However, he has fully supported the judgment of the learned Assistant Commissioner as well as learned Commissioner both passed on appeal as well as on review and submitted that the same may be maintained.

7. We have given our anxious thought to the arguments so advanced by the parties and would first of all reproduce the charges so levelled against the appellant in the judgment of the learned Assistant Commis sioner/Collector, Lahore:‑

(i) That he remained posted w. e. f. 5th November, 1976 to 11th May, 1979 as Patwari Circle, Bhekewal, Tehsil and District Lahore and was responsible to keep and maintain the revenue record of his Circle intact according to Land Record Manual. He tampered with the entries of Khewat No. 1053 Khatooni No. 1970 of Register Haqdaran Zameen for the year 1966‑67 and divided Khasra No. 1360 "Ghair Mumkin" graveyard into two parts. In one part this Khasra No. measuring 8 kanals 16 marlas showed "Ghair Mumkin" graveyard "Maqbuzan Ahle‑Islam" and the remaining 30 kanals were entered fictitiously as Banjar Qadeem. After changing the classification of land Khasra No. 1363 min measuring 30 kanals was shown under Khatooni No. 1971 in the name of Bashir Ahmad son of Ahmad Din as Hissadar Qabia Mal Malik" without any legal rights.

(ii) That it was in his knowledge that neither the said Bashir Ahmad was owner of the land nor was in possession of it as is evident from the Kbasra Girdawari. Moreover Khasra No. 1360 measuring 38 kanals and 16 marlas was rightly entered in the revenue record as Ghair Mumkin graveyard "Malkiat Shamlat Deh since 1935‑36". He deliberately changed the entries in the name of Bashir Ahmad as owner in possession of the land so that the land of graveyard could be sold for his own benefit.

(iii) That he also tampered with the entries of Khewat Nos. 1228/2475, 1228/2480 of Register Haqdaran Zameen for the year 1970‑71 showing Khasra No. 1360 min measuring 8 kanals 16 marlas as ghair mumkin graveyard and the remaining land measuring 30 kanals as "Nal Chahi" under the possession of Bashir Ahmad son of Ahmad Din "Hissadar" in spite of the fact that total area of Khasra No. 1360 was Shamlat Deh, Ghair Mumkin graveyard under the possession of Ahle‑Islam."

(iv) That the illegal changes in the revenue record mentioned above were made by the accused Patwari as this fact is evident from the Register Haqdaran Part Sarkar filed in the Saddar Office. (v) That the land measuring 38 kanals 16 marlas comprising Khasra No. 1360 was Ghair Mumkin graveyard under the possession of Ahle‑Islam and it was, deliberately, partly shown under the Hissa dari Qabza of Bashir Ahmad who had no concern with the said land. After changing the classification of the said land as Nal Chahi, he issued forged copies of revenue record in respect of Khasra No. 1360 min measuring 30 kanals and got it sold fraudu lently.

(vi) That he in connivance with Bashir Ahmad got the sale‑deed executed on 20th March, 1977 and 5th May, 1978 for plots measuring 18 marlas each and gained more than Rs. one lac. All this happened due to issuance of copies of forged documents by Muhammad Ashraf Patwari. Consequently he got Mutation Nos. 8932 to 8941, 8943 to 8964 sanctioned on 27th July, 1977 from the concerned Revenue Officer keeping him in dark.

(vii) That it was known to him that the land in question has fallen under the 1600 Acres Scheme of L. D. A. and for this reason he changed the entries in the revenue record and got the land sold through Bashir Ahmad showing him Hissadar Qabiz (owner) although he had no title in the said land.

(viii) In addition to the above fraud he also managed to sell fraudu lently an area of 8 kanals out of Khasra No. 1140 of village Bheke wal, Tehsil Lahore.

(ix) That according to settlement record, the total area of Khasra No. 1140 was 84 kanals 5 marlas out of which 80 kanals 4 marlas was transferred to different allottees under the Settlement scheme and 4 kanals 1 marla remained in the ownership of Central Government. He issued "Parona Malkiat" in the name of Abdul Salam and the area was sold to nine different persons in the form of plots of 18 marlas each. Mutation Nos. 9293 to 9301 were got sanctioned on 29th March, 1975 from the Revenue Officer through misrepresen tation.

(x) That he was transferred vide A. C. (S) Lahore, order dated 8th March, 1978 from Circle Bhekewal but he handed over the charge partially to M. Muzaffar Hussain Patwari on 29th March, 1978. During his transfer from the Circle he got the mutations sanctioned on 29th March, 1978. It showed that all the aforesaid forgery was made by him and after completing his unlawful job, he handed over the complete charge of the Circle.

8. In view of the nature of the charges which pertain to various acts of forgery, tampering with the record and corruption, we shall have to resolve firstly the legal issue raised by the learned counsel for the appellant that the charges itself proved that full‑fledged enquiry was a must and the same could not be dispensed with by using power under rule 6 (3) of the Punjab Civil Servants (E & D) Miles, 1975. He has relied on P L D 1974 S C 151. When confronted with this situation, learned District Attorney could not show any law to the contrary. This Tribunal has in a number of cases settled this issue once for all that where charges are very complicated and simply do not relate to documentary evidence, it would be incumbent upon the competent authority to appoint Authorised Officer and conduct a full‑fledged enquiry into the charges by giving full chance to the accused civil servant to defend himself. In view of the above analysis of this case. we are of the considered opinion that dispen sation of the enquiry, as done by the learned Assistant Commissioner by using his power under rule 6 (3) of the E and D Rules, 1975. was absolutely unjustified and contrary to the law so laid down in this behalf.

9. With regard to the observation of the learned Assistant Commis sioner that despite the fact that all the legal formalities had been observed but the appellant did not turn up to face the allegations so levelled against him therefore, he was justified to assume from the record so available in this case that he bifurcated revenue record and made interpola tion of the same. To assess the intrinsic value of this observation, we have looked into a number of documents so placed on the record by the appellant which clearly showed that he met with a serious road accident and was confined to bed in Mayo Hospital for a long time. This fact stands proved by Annexure A/3. It is further on the record that he was discharged from the hospital but he remained confined to bed as he was unable to move till 16th February, 1983. We also do not find that the learned Assistant Commissioner recorded statement of process‑server, who claimed that he had served the appellant in person with a show‑cause notice so given to him, but he deliberately refused to summon. The claim of the appellant that he has been condemned unheard is fully strengthened by the fact that when his appeal was pending before the Commissioner, the said Commissioner ignored the medical certificate of his illness produced by his nephew in his Court he dismissed the appeal ex pane. This document is also placed on the record which further strengthened the plea of the appellant as discussed above.

10. While going through the impugned order of the learned Assistant Commissioner, we do not find anything in this order which should convince us that he had carefully assessed the evidence if any, himself, while holding the appellant guilty. The only reason given in his impugned order is that as the appellant has failed to submit his explanation and to appear before him within the stipulated period, therefore, he was guilty of avoiding service and the charges stood proved against him. It is a matter of common knowledge that without the assistance of the Enquiry Officer and evidence so recorded by him brought on the record, it would be impossible for anybody to hold a person guilty of such complicated and lengthy charges.

11. We in order to satisfy ourselves, summoned the record from time to time and made all possible efforts to secure the same so that we should ourselves assess as to what sort of offence has been committed by the appellant and to what extent. To our utter dismay, no record was produced before us by the respondents although at one time a person not less than the rank of Assistant Commissioner appeared before us and expressed his inability to assist us in this case. Whosoever appeared before this Tribunal, shifted the responsibility to other's shoulders and thus wasted most valuable time of the public as well as of this Tribunal by adopting dilatory methods. In the end the respondents took a shelter through a letter so addressed to the Tribunal behind the proceeding of the Anti‑Corruption Judge that the record is available with the said Court and cannot be produced before this Tribunal.

12. In view of the chequered history of the behaviour of the respon dents in this case, we have no alternative but to conclude the case after hearing lengthy arguments on behalf of the appellant through his counsel.

13. The crux of the matter is that the appellant has been condemned without being heard as all the proceedings taken in hand both by the learned Assistant Commissioner as well as by the Appellate Authority, were conducted behind his back, whereas there was sufficient evidence on the record to show that he was incapacitated on account of unfortunate road accident which he met while going from Lahore to Sheikhupura. It is an established fact before us that nothing has been produced from the side of the respondents to show who committed forgery, whether the appellant or somebody else and as to how the allegations so levelled against him, stood substantiated from the documentary evidence.

14. The result is we accept the appeal, set aside both the impugned orders as nullity in the eye of law as well as arrived at without any evidence on record against the appellant, and direct that the appellant be reinstated in service with all back benefits. There will be no order as to costs.

M. I. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.