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Service Appeal No. 53 of 1987, decided on 12th November, 1987.

North-West Frontier Province Government Servants (Efficiency and Discipline Rules, Rules, 1972--

---R. 10--North-West Frontier Province, Civil Servants (Appeals) Rules, 1986, R. 3--Minor penalty of stoppage of two increments, in pay scale of civil servant-Appeal against omission caused by civil servant while attesting mutation of inheritance--Effect--Attestation of mutations being summary proceedings, such like errors/omissions were commonly committed by Revenue Officers and later on, corrections were made in revenue records when such omissions came to the notice of those officers--Minor error having been caused by civil servant, Authorised Officer had awarded him minor penalty of stoppage of two annual increments--Authority, while confirming said penalty, imposed additional penalty by ordering entry of punishment in character roll of civil servant--Imposition of such additional penalty by Authority being uncalled for, was set aside by Appellate Authority--Penalty of stoppage of two increments in pay scale of evil servant, imposed by Authorized Officer, however, was maintained.

Muhammad Nawaz v. Abdul Jabbar P L D 1983 Revenue 3 ref.

This is a Service appeal filed by Sheikh Javed Ahmad Naib-Tehsildar (at present Usher and Zakat) against the order of Commissioner, Hazara Division, dated 28-3-1987, whereby he has confirmed the minor penalty imposed by the Additional Commissioner, and in addition to that he (the Commissioner Hazara Division) has issued directive that the Naib-Tehsildar (Sheikh Javed Ahmad) should not be posted in a Revenue Circle for next two years where the work of mutations is required and this view be entered into his Character Roll.

The brief facts of the case are that on 21-3-1984, while Sheikh Javed Ahmad Naib-Tehsildar (the appellant) as Revenue Officer Circle was on tour for the work of attestation of mutations in open assembly of village Bagra, Mutation No. 1569 regarding inheritance of one Khani Zaman son of Aziz Khan resident of Bagra was presented to him for attestation. On examination it was found that this mutation was entered on 12-5-1983, and had remained pending for nearly 11 months. Accordingly an open inquiry was made from the persons present in "JALSA-E-AAM" whether the scheme of heirs mentioned on the mutation was correctly designed. The appellant was told that one Mr. Assesser and his brother Rasool Khan, at whose instance the mutation was entered by the Patwari have tried to conceal their- sister Mst. Zenat Jan born from Mst. Mirzo Jan the first wife of Khani Zaman. After confirming the fact that one Mst. Zenat Jan was the daughter of late Khani Zaman whose name was missing from the list of heirs recorded in the mutation and further that Mst. Sufaida Jan, was wrongly shown as the daughter of Khani Zaman from Mst. Piyari Jan while in fact she was from his earlier wife Mirzo Jan, the appellant corrected the entries on the mutation by adding to it the name of Mst. Zenat Jan and placing Mst. Sufaida Jan in her right place under Mirzo Jan in the inheritance table made on mutation. This was done m order to satisfy the witnesses of mutation namely Riyasat Khan, Lumberdar, and Najaf Khan Malguzar who were insisting that correction should be done in their presence because they were the persons who told the appellant about Mst. Zenat Jan who was being deliberately deprived of her Shari/Legal share by omitting her name in the inheritance mutation. These corrections were duly initialled by the appellant in order to ensure their authenticity.

The witnesses who supplied the name of Mst. Zenat Jan, however, omitted to inform the Revenue Officer (appellant) that she was dead or her children were alive who could take the inheritance of the share of their mother being heirs of pre-deceased daughter, under the Muslim Family Laws Ordinance, 1961. Had anybody told in the Mutation Assembly that Mst. Zenat Jan was not alive, there was no sense in putting her name on the mutation instead of her children.

As by this act of the appellant the aforesaid Assesser Khan got defeated in his designs to deprive a sister of the share of inheritance he re-acted sharply and submitted a complaint against the appellant for correcting the mutation against his wishes. In his campaign of vendetta he in order to make his view point convincing put forward the blame alleging that the Revenue Officer (appellant) took bribe from the husband of Mst. Zenat Jan and thereby brought Mst. Zenat Jan to light by self-correction in the mutation. His first complaint in this behalf dated 3-12-1984, submitted to Revenue EAC/Abbottabad was put to inquiry but later on it was dismissed for non-prosecution on 6-4-1985. Subsequently he made another application of the same nature to the Deputy Commissioner, Abbottabad on 7-4-1985, on which magisterial inquiry was conducted by EAC-111, Haripur who found the allegation levelled by Mr. Assesser Khan to be incorrect, baseless and unbelievable and consequently dismissed the application by his finding dated 1-4-1986.

To further promote his design this Mr. Assesser Khan instituted an appeal (No. 6 of 1985) before the Additional Commissioner, Hazara on 27-11985, against the aforesaid inheritance Mutation No. 1569. This appeal was also dismissed on 1-6-1985, as appeared from records.

Moreover, he further sought a redress by riling a second revision petition in the Court of Member, Board of Revenue, N.W.F.P. with a design to give a technical knock out to his sister Mst. Zenat Jan but the revision was dismissed in the Board of Revenue, N.W.F.P. vide order dated 6-7-1986, in Case No. 131 of 1985.

In the same campaign of harassment he approached the Anti-Corruption Establishment, Peshawar with yet another complaint against the appellant concerning the same mutation but the same was rejected and filed by the Director, Anti-Corruption Establishment, Peshawar.

Another miscellaneous application, dated 5-8-1986 was received by the Commissioner, Hazara Division in which serious allegations were levelled against the accused official upon which the learned Commissioner not knowing the fate of previous complaints instituted a 4th inquiry appointing Syed Muhammad Javed, Assistant Commissioner, Pattan as Inquiry Officer. This inquiry was conducted by the said officer. Before the Inquiry Officer "Mr. Assesser Khan complainant appeared as sole witness for himself while the appellant and one Sattar were examined in defence. He was requested time and again to summon he witnesses of the mutation in order to get an unbiased view on the facts of the ease but he declined to do so. It was essential under the law and for the interest of justice that he should have made independent inquiry by examining the Jismterested witnesses whose presence is established at the relevant time m the talsa-e-Aam, in order to reach a correct conclusion but he did not do so to ascertain the truth. Consequently his findings against the appellant in his rarer fated nil sent to Authorised Officer (Additional Commissioner).

The Authorised Officer then formulated his decision, dated 28-3-1987, imposing minor penalty of stoppage of two annual increments of the appellant in pay scale with cumulative effect with effect from 1-12-1987 onwards and sent the record to Authority (Commissioner) respondent No. 1 for approval.

The Authority after receipt of the record confirmed the punishment with the directions that the appellant should not be posted in the Revenue Circle fr the next two years where work of mutation is required and that an entry be also made in his character roll to this effect.

Mr. Ghulam Naqash Band Khan (Advocate) counsel for the appellant and Perviz Assistant of Commissioner, Office Hazara Division as representative of Commissioner/Additional Commissioner Hazara Division present.

Counsel for the appellant argued that the appellant being aggrieved by the abovementioned impugned orders of Additional Commissioner, and Commissioner Hazara Division has come to this Court with appeal under section 3 of the N.-W.F.P., Civil Servants (Appeal) Rules 1986, read with section 10 of the Government Servant E&D Rules, 1972. He further pleaded that the good faith for which the law has extended protection to all official acts spells out from the very act of the appellant through which he has saved the legal interest of a Pardanashin lady which was put at peril by the interested persons who wanted to deprive her of Shari Share in the property of her father. It is nowhere established on record that the appellant had any knowledge at the relevant time about the factum of death of Mst. Zenat Jan or that he was told so either by the members of the mutation Assembly or by Mr. Assesser Khan or his brother Mr, Rasool Khan at whose instance the mutation is shown to have been entered. That legally also in case Muhammad Nawaz v. Abdul Jabbar reported in P L D 1983 Revenue 3, it has been held that attestation of mutation in favour of such dead person but in case of inheritance of the property the transfer under section 5 ibid is an error in the inheritance mutation which is only a procedural matter but does not amount to any illegality as no miscarriage of justice is to occur. The record further shows that respondent No. 2 who himself acted as Appellate authority in the present case dismissed the appeal of Mr. Assesser Khan against the mutation in question and got a valid mutation attested in the names of heirs of Mst. Zenat Jan. Hence no miscarriage of justice has occurred in this case as well because the rightful onwers have received their lawful share. That the dismissal of 3 earlier petitions of Mr. Assesser as narrated above in lawfully instituted inquiries would also stand as an estoppel on facts and law making the present decision a nullity in the eye of law. Under Rule 5, subsection (4) of N.-W.F.P. Government Servants Efficiency and Discipline Rules, 1973, if the Authorised Officer decides to impose minor penalty he shall pass the order himself and will not transmit the record to the Authority. As in this case the order of imposition of minor penalty is passed by respondent No.2 further order of the Authority becomes an order without jurisdiction under the rules and hence not tenable. That similarly if the Authority after calling for the record decides to enhance the punishment by imposing further penalty he can do so only after giving due show-cause notice to the official concerned. Therefore, the additional punishment by ordering that the appellant be not posted in Revenue Circle for next 2 years and bringing an entry to this effect in his character roll also becomes a nullity in the eye of law in absence of due show-cause notice envisaged by the rules. That in this case the appellant was neither supplied with a copy of the Inquiry Report. Thus the appellant was condemned unheard. That in nutshell the whole case is based on misconception of fact whereby actual offenders who were trying to deprive a Pardanashin lady of her inheritance for ulterior motives have been let off while the person who has tried to frustrate their evil design is being punished on technicalities, which amounts to putting the cart before the horse.

The representative of Commissioner"s Office argued that the Authorised officer and authority have passed their orders in accordance with law and rules/regulations and no illegality or irregularities have been committed by them.

In view of the arguments advanced from both the sides, I have come to the conclusion that attestations of mutations are summary proceedings and such like errors omissions are commonly committed by the Revenue Officers and later on, corrections are made in the Revenue records when it comes to the notice of Revenue officer concerned. Sheikh Javed Ahmad the appellant has attested Mutation No. 1569 dated 21-3-1984, in good faith but the commission caused by Revenue Officer is due to confirmation of legal heirs of late Khani Zaman son of Aziz Khan of village Bagra by the Halqa Lumberdar and Malguzar. Moreover, the Additional Commissioner, Hazara Division has personally inquired in the matter and remanded the mutation to put the name of children of Mst. Zenat Jan the legal heirs of Mst. Zenat Jan) as allowed under the Muslim Family Laws Ordinance 1961. However, the minor error accrued by the Revenue Officer (the appellant) and the Authorised Officer. i.e. Additional Commissioner Hazara Division has awarded to him the minor penalty of stoppage of two annual increments with effect from 1-12-1987, and onward. The Commissioner, Hazara Division was not supposed to increase the minor penalty of the appellant in addition to the above.

In the circumstances I partially accept the appeal of the appellant, set aside the order of Commissioner Hazara Division of additional penalties and maintain the order of Additional Commissioner Hazara Division regarding stoppage of two annual increments w.e.f. 1-12-1987 and onward vide his No. E/7 (10) 77/4310-16, dated 28-3-1987. However, the Commissioner can post the officer anywhere he considers advisable, but the entry in the A.C.R. will affect the promotion chances of the officer, is therefore, not desirable.

AA/271/R

Appeal partly accepted.

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