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Case No. 767/1106 of 1984, decided on 10th June, 1985.

‑‑‑S. 4‑‑Disciplinary action‑‑Quantum of punishment‑‑Chief Officer Municipal Committee charged for irregularities and loss to Committee in connivance with contractor in matter of revision of Octroi schedule‑ Findings of Enquiry indicating that Chairman of Municipal Committee and one Councillor and Tax Superintentent also responsible for alleged irregularity but no action taken against them‑‑Connivance with contractor and financial loss not proved‑‑Enquiry Officer observing that accused was in helpless condition and victim of his environments which were of political nature for accused was working under political control of Chairman and Members who never paid any heed to his advice‑‑Enquiry Officer making positive recommendation that because of peculiar circumstances accused though should have been vigilant and was guilty of inefficiency, deserved leniency‑‑Accused having 19 years of service with unblemished record and alleged charge being first lapse on his part‑‑Penalty of dismissal from service, in circumstance, held, not in consonance with guilt hence altered by Tribunal to that of censure and stoppage of increments for two years without cumulative effect.

‑‑Habibullah Khan Lohani, ex‑Chief Officer, Municipal Committee, Arifwala, has filed this appeal undeA section 4 of the Punjab Service Tribunal Act, 1974; against the final appellate order dated 18‑9‑1984 communicated by registered post on 22‑9‑1984, whereby decision of the respondent No. 1 regarding his dismissal from Service has been upheld by Respondent No. 2. He has also prayed that original order dated 4‑12‑1982, so impugned be also set aside and suspension of the appellant from 25‑7‑1981. to 31‑3‑1983 be declared without lawful authority and void ab initio and appellant be treated to be in service for the period. He has impleaded the Commissioner, Multan Division, Multan and Secretary to Government of the Punjab, Local Government and Rural Development Department, Lahore, as respondents.

2. By virtue of this appeal he has prayed that both the impugned orders, dated 4‑12‑1982 and 18‑9‑1984 be set aside and he be re‑instated in service with full back benefits. He has further prayed that suspension period spreading over 2 years 8 months be also declared without lawful authority and void ab initio.

3. Brief facts of the case are as under:

That the appellant while serving as Chief Officer, Municipal Committee, Arifwala, was placed under suspension vide order, dated 22‑7‑1981, w.e.f. 25‑7‑1981, by order of the Deputy Commissioner, Sahiwal, on the ground of certain irregularities committed by him in imposing new Octroi schedule w.e.f. 1‑7‑1981. He remained suspended until his dismissal from service, on 31‑3‑1983. Later on he was served with a charge‑sheet vide letter, dated 12‑4‑1982, alongwith statement of allegations and provided list of documents for the said purpose. The appellant submitted his written defence to the charge on 2‑5‑1982 and denied the accusations and requested for closing the inquiry. The Authorised Officer (Deputy Commissioner) appointed Mian Ahmed Yar Khalid, Resident Magistrate, Arifwala as an Enquiry Officer, who recorded the statement of witnesses and submitted Inquiry Report with the recommendation that appellant was guilty of irregularities but at the same time victim of environments to which he was so placed. The appellant was summoned by the Commissioner, Multan Division, Multan, after the Authorised Officer had submitted his recommendation and was dismissed from service. He filed appeal through the Director Local Government and Rural Development Department, Multan, to the Secretary, Local Government Rural Development, Punjab, Lahore, and in the meanwhile filed appeal before this Tribunal. Since the appeal before the Service Tribunal was filed without waiting the decision of the Appellate Authority, the appellant withdrew his appeal in order to obtain final reply from the Departmental Authority. After his appeal was rejected by respondent No. 2 and order was communicated to him on 22‑9‑1984, he has filed the present appeal before this Tribunal against the said final order as well.

4. We have heard the learned counsel for the appellant as well as learned District Attorney and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant has raised a number of legal objections regarding the procedure adopted by the Authorised Officer and the Authority with regard to the proceedings so initiated against him, and has submitted that all what was done, was done against the rules so laid down in this behalf. Learned counsel for the appellant has made a reference to Rules 5,6,7 and 8 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, and has submitted that the treatment accorded to the appellant was positively violation of these rules which were mandatory in nature.

6. With regard to the merits of the case it has been submitted that the findings of the Enquiry Officer was based on conjecture and surmises and there was no positive evidence before him on which he placed reliance to hold the appellant guilty. It has been further submitted that the allegations of collusion and connivance with the contractor the Enquiry Officer did not examine the Contractor and the results of Octroi auctions held for the years 1980‑81, 1981‑82, 1982‑83 and 1983‑84, would show that the auction of the impugned octroi schedule for the year 1981‑82 fetched the highest ever bid of Rs.28 lacs against Rs.21.51 lac for 1980‑81, Rs.23 lacs for 1982‑83, Rs.23.04 lacs for 1983‑84, which are placed on record as Annexures C/1 to C/3. by quoting the aforesaid figures learned counsel for the appellant has tried to show that allegation against the appellant that loss occurred to Government was unjust and unwarranted. He has made a mention that a criminal case was also registered against‑other officials of the Committee whereas the appellant was not prosecuted. It has been submitted that the appellant has been considered innocent throughout his long period of service without any omission and commission on his part. In the end‑it has been submitted that the learned Commissioner has not taken into consideration the observation of the Enquiry Officer who forcefully recommended that the appellant should be given lenient treatment and deserved mercy in view of his long service as well as the circumstances, in which he was so placed.

7. On the other hand learned District Attorney has relied on the comments of the Department and has submitted that the appellant could not prove his innocence in respect of the charge so levelled against him, therefore, he was rightly punished for the same. With regard to the legal objections, learned District Attorney has submitted that all of them were misconceived as the appellant was suspended after the oral direction of the Commissioner, which was sought by the Deputy Commissioner, Sahiwal, on telephone, therefore, no exception could be taken to the suspension order so challenged by the appellant. With regard to the objection that appellant was not provided with a copy of the inquiry report, it was submitted that appellant was allowed to read the inquiry report by the Commissioner, therefore, the purpose was fully served. Learned District Attorney has forcefully contended that appellant was given full chance of hearing and defence, therefore, all the pleas so raised by him were misconceived.

8. We have given our anxious thought to the arguments advanced by the parties and find that the first charge against him was lack of proper vigilance and control for which Government suffered financial loss and the second charge against him was that he did not forward the approved schedule of 10 increase to Government Printing Press to make it operative in the eyes of law as its publication was essential before putting the approved schedule in operation, and in this manner it has been alleged that the Contractor was in a position to get a stay order from Civil Court and this gross negligence paved the way for unnecessary litigation between the Contractor and the Committee. We have carefully perused the inquiry report on which learned Commissioner has relied for the impugned order so passed by him on 4‑12‑1984, against the appellant and find that the evidence so produced against the appellant does not disclose that he was in collusion with the Contractor for ulterior motives or that he was responsible for loss to Government. All what has been said by the P.Ws. was that the appellant should have taken due care before signing the tax schedule and before it went to the Printing Press and should have also taken note of, certain cuttings which did occur in the said document. We also further find that the Enquiry Officer has considered the Chairman, Municipal Committee as well as Octroi Superintendent and one Councillor equally responsible for signing the said schedule alongwith the appellant. It is also on record that no action was taken against the Chairman or the Councillor whereas the entire burden was put on the shoulders of the appellant, who, according to the Enquiry Officer, was an officer in helpless condition and victim of his environments which were political in nature. According to the Enquiry Officer the appellant was working under the political control of the Chairman and the Members, who never paid any heed to his advice and was in fact in the grip of those political factions, who have rendered him impotent. However, in the end he has concluded that the appellant being an educated officer, should not have signed a document, which might have proved disasterous to him in the end. The Enquiry Officer positively concluded that under the peculiar circumstances of this case the appellant deserved leniency as well as concession and his case should be decided tempered with mercy. These findings are incorporated at page 7 of the inquiry report so placed on record. We have also fully satisfied ourselves that in the entire exercise all what happened was inconvenience to the tax payers and no financial loss occurred to the Municipal Committee. In 1984 PLC (C.S.) 81 Shaukat Ali Khan v. Punjab Government, this Tribunal has fully highlighted the duties of the Chief Officer viz‑a‑viz the Chairman of the Municipal Committee and held that the Chief Officer could not be held responsible for the acts which were jointly committed by the Chairman and others. Similarly in 1980 P L C 568 Mushtaq Ahmad v. D.C. Lahore, it was held by this Tribunal that when a thing was done by a number of persons responsible in such matters could not be pinpointed by one individual. In Shah Samad Alam case reported as 1984 P L C 71, this Tribunal when found that when no financial loss occurred to Government for ulterior motives arrived and only negligence was committed, the punishment of dismissal was varied to stoppage of two increments. In 1981 P L C 526 Fasahat Hussain v. Secretary to Government Labour Department, this Tribunal took into consideration the overall conduct of the appellant and varied the quantum of punishment by placing reliance on P L D 1979 S C 24, in which their Lordships of the Supreme Court of Pakistan held that first lapse of a civil servant may not be visited with serious punishment.

9. In view of the law laid down mentioned in the earlier part of our judgment, we find that the punishment awarded to the appellant was not in consonance with his guilt, as it was his first lapse and in his 19 years long service which he rendered in the. Department, which we definitely agree with the learned Commissioner that the appellant should have been vigilant and was guilty of inefficiency but we cannot accept his verdict that such like inefficiency and lack of vigilance should be visited with ultimate penalty of dismissal from service to a civil servant who has served the Department well for a long period of 19 years.

10. In the light of the above analysis of the case, we proceed to accept the appeal, set aside the impugned orders and re‑instate the appellant in service forthwith. However, we inflict upon him minor penalty of stoppage of increments for two years without cumulative effect and censure. However, the period of absence from the date of dismissal to the date of re‑instatement will be treated as leave without pay. There will be no order as to costs. Judgment be communicated to the parties. The suspension period may be regularized by the respondents themselves.

A.E.

Appeal accepted.

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