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Case No. 345/1870 of 1982, decided on 18th October, 1983.

---R.6‑‑Dismissal from service on charge of misconduct‑‑Regular enquiry held, but witness examined in appellant's absence‑‑No opportunity to cross‑examine afforded‑‑Allegations against appellant not proved beyond doubt‑‑Tribunal held appellant guilty of negligence in performance of duties‑‑Punishment of dismissal in circumstances not in consonance with guilt‑‑Varied to censure with stoppage of two increments.

Muhammad Iqbal Sargana for Appellant.

A.G. Humayun District Attorney for Respondents.

‑‑ Muhammad Hassan has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Commissioner, Multan Division, Multan and Assistant Commissioner/ Collector, Depalpur as respondents.

2. By virtue of this appeal the appellant has prayed that the impugned order, dated 26‑4‑1982 passed by respondent No.1 and order, dated 30‑5‑1981 passed by respondent No. 2 be set aside and the appellant be re‑instated in service with all back benefits.

3. Brief facts of the case are that the appellant was posted as Patwari in Halqa Tulla Kamboh, in the year 1980. The complaint was received against him that he had tampered with Canal Khatunis for the harvest of Rabi 1978 and thereby inflated demand of Abiana against Ghulam Qadir in Dhal Bachh. Two preliminary enquiries were conducted and it was found that the appellant had inflated demand/reduced demand against some "assamis" in the canal Khatunis in connivance with the Canal Patwari. Thus, he had committed serious irregularities. The appellant was charge‑sheeted on 24‑4‑1980. He submitted the reply to charge‑sheet on 5‑5‑1980 before Tehsildar Depalpur who was appointed a regular Enquiry Officer. The Enquiry Officer completed the enquiry and submitted his report to the authority. The appellant was also heard in person by the authority i.e. respondent No.2. Consequently he was found guilty of misconduct and was dismissed from service vide order, dated 30‑5‑1981. The appellant submitted an appeal to respondent No.1 which was dismissed vide his order, dated 26‑4‑1982. Hence this appeal.

4. We have heard the parties. It has been argued by the learned counsel for the appellant that the appellant had not tampered with the canal Khatunis as alleged by the respondents. Whatever the demand of Abiana were given by the Canal Patwari on the Khutanis, he had shown this accordingly in the Dhal Bachhes. The interpolations as found in the canal Khutunis were done by the Canal Patwari and whatever the figures of demand of Abiana were received from the Canal Patwari in the Khutanis, he had accordingly prepared the Dhal Bachhes. Referring to original canal Khatunis which were produced before us by the departmental representative, the learned counsel for the appellant has vehemently submitted that all the interpolations made in these are in the hand of the Canal Patwari and the appellant cannot be made scapegoat for the same. It has also been pointed out by the learned counsel for the appellant that the respondents have not applied their mind carefully before deciding the case against the appellant. Because, in the preliminary enquiries, the enquiry officers had held the canal Patwari also responsible for the tampering of this record. Thus, it is the Canal Patwari who had done these interpolations and the appellant is innocent in the matter. It has also been pointed out by the learned counsel for the appellant that the regular enquiry officer examined the witnesses in the absence of the appellant and the appellant was not afforded an opportunity to cross‑examine the witnesses. This has made a material difference in this case and appellant has been declared guilty without proving the allegations against him. Thus, the punishment awarded to the appellant is arbitrary and unjustified.

5. On the other hand, the learned District Attorney has also relied upon the original canal Khatunis produced before us by the department representative. Referring to the interpolations made in the Khatunis, he has submitted that the tampering in these has been done by the appellant in connivance with the canal Patwari. This was done with ulterior motives to give undue benefit to some "assamis" by inflating the demand of Abiana. The learned District Attorney has also referred to the enquiry reports and has submitted that the appellant has been clearly found guilty of misconduct and has been punished correctly.

6. We have given our anxious thought to the arguments of the parties and have also consulted the record. We have also gone through the original canal Khatunis produced before us and tampering done in these Khatunis. From the examination of tampered figures, it is not possible to arrive at a definite conclusion, whether the interpolations were made by the appellant or by the Canal Patwari. The possibility cannot be ruled out that the tampering was done by the Canal Patwari. The appellant cannot also be absolved from the negligence in performance of his duties. He should have not accepted the canal Khatunis if it had interpolations/cuttings.

7. We have considered the complete aspect of this case, length of service of the appellant and find that the punishment awarded to the appellant is harsh and not in consonance with his guilt. This fact cannot also be ignored that during the regular enquiry the enquiry officer examined the prosecution witnesses in the absence of the appellant and the appellant was not afforded an opportunity to cross‑examine them. This was all the most necessary, in view of the fact that the defence witnesses produced by the appellant had stated before the Enquiry Officer that they had no complaints against the appellant; as is clear from para. 6 of the impugned order, dated 30‑5‑1981 of the respondent No.2.

8. The upshot of the above discussion is that the punishment so awarded by the Assistant Commissioner/ Collector Sub‑Division, Depalpur vide order, dated 30‑5‑1981 and upheld by respondent No. 1, vide his order, dated 26‑4‑1982 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.I. Appeal partly accepted.

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