' MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave of the Court has been directed against the judgment dated 12-3-2002 passed by the Punjab Service Tribunal, Lahore in Service Appeal No,2299 of 2001 preferred by the present appellant against the major penalty of dismissal from service imposed upon him by the competent authority.
2. Leave was granted in this case vide order dated 15-4-2002 to consider the following points:-- "(i) Whether there is evidence on record to connect the petitioner for the allegations levelled against him? And
(ii) Whether there is evidence on record that in fact it is antedation of mutation" ?
3. The appellant was dismissed from service vide order dated 14-6-2001 passed by Chief Secretary, Government of Punjab, Lahore. The Appellate Authority did not decide the appeal of the appellant within the statutory period of 90 days, therefore, he filed an appeal before the Punjab Service Tribunal but remained unsuccessful.
4. The allegation against the appellant was that he while posted as Tehsildar, Pindi Bhattian, sanctioned Mutation No,172 on 8-1-1996 in village Delleki Tehsil Pindi Bhattian in violation of the rules at the instance of Shaukat Javed Farooqi, former Assistant Commissioner, Pindi Bhattian for his benefit. The charge-sheet contained the following charge:-- "Vide Mutation No,172, dated 29-8-1984 land measuring 177 Kanals, 7 marlas was jointly alotted to Rafi son of Fazal and Mukhtar son of Jan Muhammad in equal shares in village Dileki, Tehsil Pindi Bhattian by Assistant Commissioner, Land Commission, Hafizabad on 22-6-1983, after the same land had been surrendered under the Law Reforms Act, 1972. The jamabandi 93/97 bears evidence of this fact. Further the record clearly shows that both the allottees (Refi and Mukhtar) jointly cultivated the same land as joint owners and land had not been partitioned. Mutation No,172 transferred specific Khasra Nos. In favour of Mr. Shaukat Javed Farooqi, former Assistant Commissioner, Pindi Bhattian, which was glaring illegality, as this land could not be alienated till the expiry of 20 years from the date of allotment order. This mutation was entered on 30-12-1995 and confirmed by you antedating the same on 8-1-1996, as is evident from the fact that mutation fee was deposited on 6-2-1996. According to the statement of Mukhtar the purchaser did not pay him Rs,8 lacs, as mentioned in mutation record but only a small amount of Rs,50,000 was put in his pocket."
5. Learned counsel for the appellant has contended that the appellant remained posted at Pindi Bhattian only for a period of three months and that mutation in question was sanctioned by him on the basis of existing record without any favour or dis favour to any person or for any reason beyond the record and that non deposit of mutation fee before that date of its sanctioned was not a vailed ground for raising the presumption of his being guilty of misconduct. Learned counsel added that the bifurcation of the relevant khasra in the joint Khata without partition of land, was made by the Gurdawar of the concerned Halqa but he was exonerated from the charge.
6. The Tribunal in the light of the evidence available on record, formed an opinion that appellant was negligent in discharging of his duties as a Revenue Officer and observed that the mutation was sanctioned by the appellant in departure to the prescribed procedure to oblige the former Assistant Commissioner, Pindi Bhattian, who was the beneficiary of the mutation and thereby caused loss to the landowners.
7. Learned counsel appearing on behalf of respondents has contended that the appellant being a responsible Revenue Officer, was not supposed to sanction the mutation without satisfying himself about the correct position of the record but he proceeded on the basis of assumption that there was no defect in the mutation and sanctioned the same in violation of the relevant rules and thereby caused loss to the land-owner and also to the exchequer by under valuing the land at the instance of the vendee of the land.
8. The charge of misconduct against the appellant precisely based on the allegation that he by extending undue favour to the vendee of the land sanctioned the mutation which in the ordinary circumstances could not be sanctioned. This is a settled principle of law that the mutation as such neither creates nor extinguishes the title but ostensibly it is an evidence of title, therefore, the sanctioning officer is under the legal obligation to verify the correct legal and factual position to his satisfaction. The concerned officer must be careful and vigilant in such matter and should not act and proceed in a manner which may effect the rights of concerned persons. The sanction of mutation on the basis of proposal made by the subordinate staff without taking notice of the defect in the transaction contained in the mutation is a serious matter which may fall within the ambit of misconduct. The negligent act is an act which is done without taking care of the result of tine action and a willful and deliberate negligence is misconduct. In the present case there was no charge of corruption against the appellant or that he, for some financial consideration, committed the procedural irregularities in sanctioning the mutation rather the Allegation against him was that he at the instance of a senior officer proceeded to sanction the mutation in An irregular manner.
Thus the question for determination would be whether irregularity committed by him was of such a nature which could constitute gross misconduct entailing the penalty of dismissal from service.
'Misconduct' has been defined in Punjab Civil Servants (Efficiency and Discipline) Rules 1975 as under:-- "1 ..................................................
(d) "misconduct" means conduct prejudicial to good order or service discipline or contrary to the West Pakistan Government Servants (Conduct) Rules, 1966, as applicable to the Province of the Punjab or conduct unbecoming of an officer and a gentleman and includes any act on the part of a civil servant to bring or attempt to bring political or other outside influence directly or indirectly bear on the Governor, the Chief Minister, a Minister or any. Government Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a civil servant; and"
9. The appellant was definitely negligent in performing his duty but there was no evidence on the record to suggest element of bad faith in the negligence or that it was intentional and the appellant had some personal interest in the transaction. There is different between the 'negligence and 'willful negligence'. Negligence is the failure to exercise, the degree of care demanded by the circumstances and the want of the care which the law prescribes under the particular circumstances existing at the time of the act or omission which is involved. It is an omission to do something which a reasonable man, guided by those considerations which ordinarily regulate human affairs, would do, or doing something which a prudent, and reasonable man would not do.
Willful negligence is a negligent act which is done intentionally and knowingly with some motive and is deliberate but a willful act may not necessarily have an evil purpose behind it. The appellant while depending on subordinate staff undoubtedly acted negligently but the procedural irregularity in the sanction of mutation without any consideration of personal interest or involving an element of bad faith with the intention to extend favour to his senior colleague at the cost of causing loss to any other person or to the public exchequer, would not be deliberate act and Consequently the negligence of the appellant may not be willful. We are, therefore, of the view that the quantum of punishment of dismissal from service in the given circumstances, would not commensurate with an act of misconduct due to such negligence. The appellant is in service for the last about fourteen years with clean record and has fair chance of success in his career, therefore, we in the light of nature of charge and the degree of negligence, find that the punishment awarded to the appellant was harsh and instead of dismissal from service, the punishment of reduction to lower rank would be sufficient to meet the ends of justice.
Consequently, we convert the punishment of dismissal from service awarded to the appellant into reduction to the lower rank of Tehsildar BPS-I6 from the rank of Extra Assistant Commissioner, BPS- l7 and with this modification in the quantum of punishment, partly allow this appeal. There will be with no order as to costs.