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Civil Revision No. 1579 of 1983, decided on 15th October, 1986.

‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑Misconduct‑‑OctroiMoharrir of Municipal Committee charge‑sheeted for charging octroi duty on "cotton yarn" at a lesser rate prescribed for "cotton" and charge having been established in inquiry against him, Administrator passing order of his dismissal from service‑‑Suit filed against such order dismissed by Civil Court holding that accused employee had been rightly punished for misconduct displayed by him‑‑Appellate Court in appeal, observing that accused employee had acted on information of peon in charging octroi duty on cotton instead of cotton yarn, holding him innocent and order of dismissal from service as illegal, void and unwarranted by law‑‑Approach of Appellate Court, held, seemed to be misconceived inasmuch. as he dealt with appeal as if acting as Appellate Authority and was sitting in judgment on order of accused employee's dismissal from service‑‑Inquiry Officer having taken all factors into consideration while formulating his finding, it could not be said that such finding was based on material which did not exist‑‑Competent authority was at liberty to impose any penalty authorised by law and civil Court had no jurisdiction to alter that penalty‑‑Order of dismissal of accused employee from service, held, was in accord with law and demanded no interference like one made by Appellate Court below.

S. M. Hamid Ali for Petitioner.

Malik Sardar Muhammad for Respondent No.l.

Nemo for Respondent No.2.

Date of hearing: 15th October, 1986.

The events and circumstances leading to the involvement of Muhammad Siddiq, respondent 1, in departmental inquiry resulting in his dismissal from service and initiation. by him of legal action which has culminated in the instant revision petition may be shortly described in the following. words. Respondent 1 was employed as Octroi Moharrir with the Municipal Committee, Lyallpur (now Municipal Corporation, Faisalabad, petitioner) and was posted at Octori Post No. 15 on the 8th February, 1975, when the incident giving rise to departmental action against him took place. It so happended that Abdul Majid, Assistant Octroi Superintendent, while on, patrol duty checked whether octroi duty had been paid in respect of 40 bales of cotton yarn weighing 200 mauds carried by Truck No. 9195. The receipt touching payment of Octroi duty issued by respondent 1 produced by Abdul Rashid, Driver of the truck, stated payment of octroi duty amounting to Rs. 160 regarding 200 mauds of cotton at the rate of 80 paisas per maund. Duty on cotton yarn was payable at the rate of Rs.2.75 per maund and Rs.550 ought to have been charged on 200 mauds of yarn which was entering the area of the Municipal Committee by truck. Muhammad Ashraf, Cleaner of the truck, told Abdul Majid that he had shown the Bilti to the octroi clerk (respondent 1) who had issued the receipt. Abdul Majid took Muhammad Ashraf to Octroi post No. 15 where he confronted him with respondent 1. As is evident from the report made by Abdul Majid the respondent told him that he had not been shown any Bilti and that the importer had asked for the issuance of receipt in respect of 200 mauds of cotton. As mentioned in the report respondent 1 could not give satisfactory answer when questioned by Abdul Majid as to why he could not get the goods checked by the octroi peons.

2. An inquiry was initiated into the whole affair by the order of the Administrator, Municipal Committee, Lyalpur. Respondent 1 was suspended from service. He was charge‑sheeted and alongwith the two peons faced inquiry. The Inquiry Officer (Mr. Abdul Hamid Durrani, Municipal Magistrate) held the charge to have been established against respondent 1 beyond any doubt though he was of the view that no charge had been proved against the peons. Respondent 1 was supplied with a copy of the report of the Inquiry Officer when he was served with a notice to show cause against the proposed imposition of penalty which included dismissal from service. The Administrator of 1he Corporation, after considering his explanation and hearing him, passed order of his dismissal from ' service on the 15th November, 1975. Respondent 1's appeal against the said order was dismissed by the Divisional Commissioner on the 20th January, 1976.

3. Respondent 1 brought suit to challenge the validity of the order of his dismissal from service. He averred that the order was void because the charge had not been established against him and he had been dismissed on the ground alien to the charge‑sheet and that the punishment of dismissal from service, which was in excess of the one prescribed for allegations levelled against him in the charge‑sheet, namely, negligence and inefficiency, could not have been awarded to, him and further that he had been meted out discriminatory treatment by the Inquiry Officer. He also complained that his appeal had been dismissed in limine without calling record and affording him opportunity produce counsel.

4. The petitioner, Municipal Corporation, Faisalabad, and the Divisional Commissioner, respondent 2, who had been arrayed as defendants in the suit by respondent 1, contested the suit. They blamed respondent 1 for charging octroi duty on 200 mauds of cotton instead of 200 mauds of cotton yarn which was loaded in the truck and which was imported into the municipal area. They maintained that the inquiry had been held and the impugned order of dismissal from service had been passed against the petitioner in conformity with the Punjab Municipal Servants Efficiency and Discipline Rules, 1963.

5. The learned Civil Judge, Faisalabad, seized with the trial of the suit, formed the view that respondent 1 had been rightly punished for misconduct displayed by him and that the imposition of penalty of dismissal from service upon him was legally in order. He dismissed his suit. However, in appeal preferred by respondent 1, the learned Additional District Judge, Faisalabad, banking heavily on a circular letter issued by the Municipal Corporation prohibiting the octroi clerks from leaving their room during night time and asking them to act upon the information supplied by the peons regarding the imported goods, took it for granted that it was on the information of the peon that respondent 1 had acted in charging octroi duty on cotton instead of cotton yarn. Therefore, he considered respondent 1 to be innocent. He held that "in view of the above‑mentioned circular, there was no negligence on the part of respondent 1 and as such all the proceedings, charge‑sheet and the impugned orders (passed by the Administrator and the Divisional Commissioner) were illegal, void and unwarranted by law". Consequently he reversed the decision of the learned trial Court and accepted the appeal. Being aggrieved the petitioner has invoked the revisional jurisdiction of this Court.

6. The approach of the learned Additional District Judge seems to be misconceived. He dealt with the appeal as if he was acting as Appellate Authority and was sitting in judgment on the order of respondent 1's dismissal from service. Muhammad Ashraf, the cleaner of the truck, appeared before the Inquiry Officer and gave evidence to the effect that he had produced the Bilti, wherein it had been set out in sufficient clarity that the goods on the truck comprised of 40 bales weighing 200 maunds of cotton yarn, and that respondent 1 had demanded and received Rs.550 and thereafter had returned the papers alongwith octroi receipt. He stated that at that moment he did not know the amount mentioned in the receipt given by respondent 1. The Inquiry Officer had taken all the factors into consideration while formulating his finding and it cannot be said that the finding is based on the material which did not exist. In the circumstances, the Civil Court was prevented from substituting its own finding for that of the Inquiry Officer. The competent authority is at liberty to impose any penalty authorised by law and the Civil Court has no jurisdiction to alter that penalty. Respondent 1's act (with whose commission he was charged) constituted misconduct and for that the penalty of dismissal from service could very well have been imposed upon him under the above referred to Rules. The order of the Administrator as also of the Divisional Commissioner in appeal was in accord with law and demanded no interference like the one made by the learned appellate Court below. The judgment and decree passed by the learned Additional District Judge are not sustainable in law and are set aside and those of the learned trial Court restored. This revision petition is accepted with costs throughout.

S . Q . Petition accepted.

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