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Case No. 209/277 of 1983, decided on 1st February, 1984.

‑‑‑ S. 12 (ii)‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, r. 6 ‑Civil servant compulsorily, retired by competent authority with full pension benefits‑After more than two years successor com petent authority imposed penalty of dismissal from service‑Held: Successor competent authority was not empowered either to review an order which had attained finality or pass an independent order contrary to earlier one‑Held further: Once a civil servant was retired from service and was no more a civil servant order of dismissal passed against him was void ab initio as no action could be taken against person who was no more civil servant under Rules.

Hasan Bakhsh.Khan v. Commissioner Bahawalpur Division and Member Board of Revenue (Appeal No. 52/1608 of 1982 of Punjab Service Tribunal) ref.

Hassan Ahmad Khan Kanwar for Appellant.

A. G. Humayun, District Attorney for Respondents.

‑Ch. Ghulam Nabi has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, against dismissal order passed by respondent No. 2, dated 18th May, 1983. The appellant has impleaded the State as well the Commissioner, Multan Division, Multan, as respondents.

2. By virtue of this appeal he has prayed that the impugned order be set aside and appeal be accepted.

3. Brief facts of the case are that the appellant was retired compul sorily after completion of 25 years service, while posted as Naib‑Tehsildar, Lodhran District Multan. It was stated that while posted as Colony Naib Tehsildar, Dunyapur, Tehsil Lodhran, be sanctioned Mutation No. 52, dated 14th February, 1979, in respect of Chak No. 267/ W. B. Tehsil Lodh ran; in favour of one Bashir Ahmad son of Lal Din with reference to regis tered Conveyance Deed No. 79, dated 15th January, 1975 and the exception was taken to the same on the ground that once the said registration has been cancelled by Assistant Commissioner, Lodhran, vide order dated 3rd May, 1975, the appellant was not authorised to sanction the said mutation. An enquiry was initiated against him on 14th July, 1979 and he was charge- sheeted accordingly, while the said enquiry was under process, the appel lant stood retired vide order dated 6th January, 1980, passed by the Com missioner, Multan Division, Multan in exercise of powers conferred upon him by section 12 (ii) of the Punjab Civil Servants Act, 1974. Thus, the appellant stood retired by virtue of the said order. Later on, on 18th May, 1983, Mr. H. R. Pasha, Commissioner, Multan Division, Multan, passed another order by which he has been imposed penalty of dismissal from service on the appellant. 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 record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that once the appellant stood retired and was no more a civil servant, the learned Commissioner was not competent to pass order of dismissal against him, when he was no more in service. For this purpose he has relied on our judgment in case of Hassan Bakhsh v. Commissioner, Bahawalpur Divi sion and another, Appeal No. 52/1608 of 1982, dated 21st June, 1982, in which this Tribunal has struck down the order of dismissal of Hassan Baksh Khan, when it was established that he bad completed his L. P. R and was no more in service. It was also further submitted that Assistant Commissioner was not empowered to cancel a registered deed, therefore, the charge against the appellant was otherwise also misconceived. Learned counsel for the appellant has also invited our attention to section 42 of the Punjab Land Revenue Act which enjoins upon a Revenue Officer to sanction

6. Learned District Attorney has adopted the comments or the res pondents in extenso and has submitted that according to Government instructions, enquiry against a retired Government servant could be initiated and punishment could be awarded.

7. We have given our anxious thoughts to the arguments so advanced by the parties and find that the appellant stood retired under the order of 1980 and has thus severed all connections with the Government once for all Moreover, an action has been taken against the appellant by the competent authority when he stood retired under section 12 (ii) of the Punjab Civil Servants Act, 1974, with full pension benefits. He was also allowed the benefit of L. P. R. to which he was so entitled. This order had attained finality when the appeal of the appellant against the said retirement order, was dismissed by the Punjab Service Tribunal, in this manner a successor of the competent authority is not empowered to either review the said order or to pass an independent order contrary to the earlier one. Moreover, the retirement of the appellant from service and inquiry ordered in 1979 stood automatically abated and could not be pushed to its logical end as the appellant was no more in service and was .not amenable to the rigors of the Efficiency and Discipline Rules. The stand of the learned District Attorney as well as learned Commissioner, is misconceived that even after the retirement of the civil servant, he could be made subject of enquiry and could be punished for his omission or commission. We have in great deal concluded this issue in case of Hassan Bakhsh Khan v. Commissioner Bahawalpur Division and another (Appeal No. 52/1608 of 1982) and have clearly held that once a civil servant was retired from service and was no more a civil servant, the order of dismissal passed against him, was void ab initio, as no action could be taken against a person who was not a civil servant under the Efficiency and Discipline Rules, 1975. We have further held in the said case that the prerequisite of the proceedings under the Efficiency and Discipline Rules, 1975, is that a person who is so proceeded against, must be a member of service. This judgment of the Tribunal has attained finality as no appeal was filed against it.

8. We have also looked into the charge which has paved way for the dismissal of the appellant that he had no business to attest a mutation on the strength of a Registered Deed which stood cancelled under the order of the Assistant Commissioner. It is a well‑established principle of law that Registered Deed must be given effect unless and until the same is declared void by a Court of competent jurisdiction i.e. civil Court. This settled principle of law has always been followed by the Revenue Courts of this country and we have in many judgments relied upon the same. We fail to understand how the learned Commissioner can vest the power in the Assistant Commissioner, to cancel a Registered Deed, which can only be cancelled by a civil Court and none else. In this manner the appellant had committed no lapse if he has ignored the report of Patwari that the Registered Deed has been cancelled by the Assistant Commissioner, there fore, the mutation should not be sanctioned. In this connection we will refer section 42 of the Land Revenue Act, which clearly enjoins upon a Revenue Officer to attest a mutation when the same has been entered on the strength of a Registered Deed. We are of the confirmed view that if he refused to despatch the injunction of the said section, he would be liable to section for the same. Moreover, there is a present wisdom behind this enactment as if the revenue officials are vested with the discretion to question the validity of a Registered Deed then it would open a flood gate of corruption and harassment to the citizens of the country. In this manner we do not find any fault with the action of the appellant when a mutation was entered on the strength of Registered Deed by the Patwari which was attested by the Kanungo, then, he had no alternative but to attest the same. We have referred the aspects of the case as a matter of academic discussion otherwise there was no need for the same as the impugned order is liable to be set aside for the reasons given in the earlier part of our judgment i.e. action under the Efficiency and Discipline Rules can only be taken against a person who is in civil service and has not severed his connection with the same, as well as an order of the competent authority which had attained finality and cannot be upset by a successor Commissioner in any manner.

9. The result is we accept the appeal, set aside the impugned order, dated 18th May, 1983, as being without lawful authority and maintain the earlier order of Lt.‑Col. Muhammad Nisar Ahmad Khan, Commissioner, Multan Division, dated 6th January, 1980, by which the appellant stands retired with full pension benefits. There will be no order as to costs.

M. I. Appeal accepted.

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