' MUHAMMAD NAWAZ ABBASI, J.--- These three connected appeals arise out of separate judgments of Punjab Service Tribunal, Lahore, involving common questions of law and facts. Leave was granted in these appeals vide orders dated 28-4-2004 and 25-6-2004, as under:-- "By this common order we propose to dispose of Civil Petitions Nos.4100/L of 2001 and 23/L of 2002 as they have arisen out of common factual background and involve identical questions of law and facts.
(2) The petitioner in C.P. 4100/L of 2001 was placed under suspension by the Additional Deputy Commissioner (General), Lahore vide his order, dated 14-11-1993 on the ground that he on 8-8-1993 while posted as Patwari Halqa Ichhra, Tehsil and District Lahore, entered Mutation No,27824 on the basis of a decree of a Civil Court without prior approval of District Collector, Lahore. He was served with show-cause notice dated 15-1-1994 on the above allegations which were denied vide his reply dated 20-1-1994. The reply was found to be unsatisfactory by the Additional Deputy Commissioner (General), Lahore who as competent Authority awarded him punishment of "withholding of two increments for the year 1993 and 1994" and reinstated him in service w,e,f, the date of his suspension vide his order, dated 8-2-1994, which order was not challenged.
(3) Thereafter, both the petitioners were served with charge-sheets dated 4-4-1994 on almost the same allegations by the Deputy Commissioner, Lahore as Authorized Officer for entering and sanctioning Mutation No,27824 of village Ichhra on the basis of a decree without permission of the District Collector which were duly replied by them. A joint inquiry against both the petitioners and Sharafat All Qanungo was held by the Additional Deputy Commissioner (General), City Lahore/Enquiry Officer, who vide his report dated 17-7-1995 opined that charges against Sameen Jan, Naib Tehsildar have not been proved and with regard to Abdul Hameed, Patwari, he observed that since he has already been punished, therefore, he cannot be punished again and recommended that inquiry be dropped against all the three officials. The Deputy Commissioner/Authorized Officer agreed with the inquiry report and sent it to the Commissioner to file the inquiry. The Commissioner did not approve the inquiry report and sent it back to the Deputy Commissioner for reconsideration in the light of his observations and submission of the reconsidered report within a week.
(4) The Inquiry Officer after re-consideration maintained his earlier opinion vide his report, dated 6-11-1996 recommending exoneration of Sameen Jan, Naib Tehsildar to which the Authorized Officer agreed and sent the same to Commissioner vide his letter, dated 13-3-1997, who again did not approve the report of the Inquiry Officer and directed de novo inquiry appointed Deputy Commissioner as Authorized Officer, directing him to frame fresh charge and to submit report vide order, dated 5-6-1997.
(5) The Deputy Commissioner/Authorized Officer/respondent No,3 issued fresh charge-sheets dated 18-6-1997 to the petitioners and appointed Mr. Babar Hayat Tarar, A.D.C.(G), Headquarters, Lahore as Inquiry Officer. The petitioners submitted their replies to the charge-sheets. On completion of the inquiry, the Inquiry Officer vide his report, dated 11-11-1997 reported that charges against the petitioners stand proved. The Authorized Officer after hearing the petitioners recommended major penalty of dismissal from service to the petitioners in both the petitions i,e, Abdul Hamid Patwari and Samin Jan, Naib Tehsildar, respectively and Sharafat Ali, Kanungo vide his order, dated 15-1-2000. They filed departmental appeals against the said order before the Member, Board of Revenue, Punjab, Lahore which were rejected vide order, dated 27-7-2000. The petitioners then filed Appeals Nos.2657 and 2600 of 2000, respectively before the Punjab Service Tribunal, Lahore who vide its judgments dated 1-11-2001 dismissed the same. Hence these petitions.
(6) After hearing the learned counsel for the parties at length and going through the record of the case, we grant leave, inter alia, to consider the following questions:-- "(1) Whether the petitioners who were subjected to two inquiry proceedings wherein they were exonerated of the charges, could be subjected to de novo inquiry for the third time without recording valid reasons?
(2) Whether Abdul Hameed, Patwari petitioner in C.P. 4100/L of 2001, who, after show-cause notice was awarded minor punishment of withholding of two increments which was not challenged by him, could be proceeded against on the same allegations again and awarded major penalty in violation of Article 13(a) of the Constitution of the Islamic Republic of Pakistan?
(3) Whether the petitioners were not bound under section 42 of the West Pakistan Land Revenue Act to enter and sanction the mutation in accordance with the judgment and decree of the Court which was not ex parte, and whether any executive instructions regarding the entry and sanctioning of mutation could override statutory provisions?
(4) Whether the petitioners against whom allegation of corruption or mala fide act has been proved at all and admittedly no loss has been caused to the Government, they could be imposed maximum major penalty of dismissal from service or ends of justice would have met by imposing minor penalty as alleged misconduct was entry and sanction of the mutation on the basis of a Court decree without proper approval of the Collector?
(5) Whether the exoneration of the petitioner in C.P. 23/I of 2002 twice in the findings of the inquiries from the allegations of sanctioning the mutation in Part Patwar which was corrected in the Part Sarkar which was rejected immediately which was endorsed by the Deputy Commissioner/Collector, was not sufficient to exonerate him from the, allegations that such entry in Part Patwar was inadvertent and in routine, thus, would fall within the scope of section 166 of the Land Revenue Act, 1967?
(6) Whether the endorsement of the two inquiry reports by the Deputy Commissioner/Collector would not amount to waiver of the approval far entry and sanctioning of the mutation which was not even the legal requirement?
(7) Whether non-compliance of the provisions of Rule 7-A of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 by the Authorized Officer would not vitiate the order of dismissal of the petitioners from service?"
2. The charge against the appellants in nutshell was that they on the basis of an ex parte decree passed by a learned Civil Judge at Lahore, without the permission of District Collector, Lahore, proceeded to sanction the mutation of the land in possession of P.W.D., Irrigation and Police Departments of Government of Punjab, in favor of decree-holder and thereby with ulterior motives and mala fide intention, caused loss to the Government.
3. Learned counsel for the appellants in addition to the points noted in the leave granting order, has raised further contentions in supports of these appeals in the following manner:-
(a) The Revenue staff is under legal obligation to complete the process for the implementation of a decree of the Civil Court in terms of section 42 of the Land Revenue Act, 1967 and for sanction of mutation on the basis of decree of the Court prior approval of District Collector, was not required;
(b) The mutation was entered and sanctioned in proper manner in accordance with law and the mere fact that the decree pertained to the land which was in possession of Government Departments; was not a valid ground to proceed against the appellants and hold them guilty of misconduct;
(c) According to the procedure of mutation proceedings provided in the Land Revenue Act, 1967 read with Land Record Manual, the sanctioning officer on the basis of report made by the Patwari on the Part Patwar and verified by the Girdawar, records his notes on the Part Sarkar and in the present case, the sanctioning officer certainly at the first instance recorded short order of sanction of mutation in the relevant column in Part Patwar but latter realizing the doubtful nature of the transaction, rejected the mutation on the same day vide detail order written by him on Part Sarkar and thus, the finding of the Tribunal that the order pertaining to the rejection of mutation was subsequently written by the Revenue Officer on coming to know about the initiation of departmental inquiry in the matter, was the result of misreading and non-reading of evidence as no inquiry was in progress at the relevant time;
(d) ' There was no specific allegation of undue favor of decree-holder or the consideration of any financial gain for sanction of mutation, instead the appellants were proceeded against on the basis of general allegation of misuse of powers and sanction of mutation without prior approval of the District Collector despite the fact that earlier they were exonerated from this charge in the successive inquiries conducted in the matter and their bona fide was established beyond doubt.
Learned counsel added that Abdul Hameed, petitioner, having been earlier proceeded was awarded the penalty of stoppage of two increments by his competent Authority/A.D.C.(G), therefore, the fresh proceedings against him for the same charge and award of major penalty of dismissal from service by the Commissioner in his capacity as Appellate Authority was in conflict to the principle of law that no one should be vexed twice for one and the same cause.
' In nutshell, learned counsel argued that the Inquiry Officer as well as Authorized Officer, without proper appreciation of the facts and law on the subject, held the appellants guilty of the charges and further the competent Authority without independent application of mind and considering of the circumstances under which mutation was sanctioned, awarded them the, major penalty of dismissal from service.
4. Learned counsel representing the respondents, on the other hand, has argued that the appellants knowingly that the property was in possession of Government Departments initiated the proceedings for sanction of mutation without bringing the matter to the notice of the District Collector for his approval and this deliberate act of concealment of an important fact from the concerned Authorities would indicate that they were in league with the decree-holder, and notwithstanding the fact that no actual loss was caused to the Government, the sanction of mutation by the appellants in violation of instructions relating the prior approval of District Collector, would squarely bring the matter within the mischief of misconduct and thus, their exoneration in the earlier inquiries would be of no significance. The learned counsel added that Abdul Hameed, Patwari (appellant) was awarded minor penalty by A.D.C.(G), only for one charge whereas in the subsequent proceedings, he was jointly charged with the Gordawar and Naib Tehsildar on additional grounds and was rightly awarded the major penalty. Learned counsel with reference to the functions of Revenue officials, submitted that after the mutation is entered by the Patwari, it is the duty of Girdawar to verify the contents of mutation and similarly the Revenue Officer before sanctioning the mutation, must ascertain the correctness of the report made by his subordinates, therefore, rejection of mutation by the Naib Tehsildar, after its sanctioning, would not be an evidence of his bona fide.
5. We having heard the learned counsel for the parties at length and perused the record with their assistance, find that the pivotal question requiring determination would be as to whether before sanction of mutation in implementation of the decree of Civil Court, the prior approval of District Collector is the requirement of law or not and the various contentions raised by the learned counsel for the appellants C directly or indirectly being connected with this basic question, we would prefer to concentrate on the issue relating, to the consequence of nonobservance of the instructions, if any, of the District Collector. The mutation as per requirement of law, is sanctioned by the Revenue Officer of either grade, without the intervention of the District Collector except in a case in which he is directly concerned and in the present case, the District Collector was party in the suit, therefore, the matter was supposed to be brought to his notice. The decree was admittedly challenged by way of filing an appeal with the approval of District Collector and consequently, the District Collector would be deemed to have knowledge of decree and since nothing was brought on record about the result of appeal, therefore, a legitimate presumption would be raised that a valid decree was in existence requiring implementation and the Revenue officials being bound to give effect to the decree of Court proceeded to sanction the mutation in terms of section 42 of Land Revenue Act, 1967. The provisions of subsections (6) and (7) of the (ibid) section, envisages the duty of Revenue officials as under:-- "(6) A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to Patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.
(7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order of decree of a Court, the Revenue Officer shall make the order under subsection
(6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardar or members of "Zila Council, Tehsil Council or Town Council" or Union Council concerned, whose signatures or thumb- impressions shall be obtained by the Revenue Officer, on the register of mutations."
6. The careful examination of the above subsections would show that it is essential for the Revenue Officer to inquire into the correctness of all entries in the register of mutation except in case of decree of Court. The Revenue staff cannot go beyond the decree and is bound to give effect to it unless it is set aside or varied by competent Court and in case of failure, the concerned officials can be held guilty of contempt of Court which is gross misconduct. However, notwithstanding the requirement of law to give effect to the decree or order of the Court, the Revenue .Staff while dealing with the valuable rights of people in the property and discharging their duty must be vigilant and must not be ignorant of the degree of care required to be taken in making entries in the Revenue Record, therefore, the omission on the part of Revenue official for not bringing the important and sensitive matters to the notice of senior officer and concerned Authorities before giving effect to an order or a decree of Court, if is not as such misconduct, it is definitely an act of negligence. The procedural omission may sometimes result in serious consequence, therefore, the Revenue staff is required to discharge their duty with proper vigilance and care, in strict compliance of procedure provided in law, according to which on the report of change of ownership, the Patwari must enter it in the register of mutation and Girdawar is bound to attest by personal examination of the correctness of the entries made by the Patwari with his note in brief under his signatures and date. Similarly the Revenue Officer is required to carefully compare the entries and write a detailed order in the foil and a brief order in the counterfoil regarding the rejection or sanction of mutation. The order on the mutation can be passed by any Revenue Officer but in practice this work is done by the Tehsildar and Naib Tehsildar whereas in exceptional circumstances, Assistant Collector Grade-I, can also exercise this power. However, the law does not require that Revenue Officer must exercise such power with the approval of District Collector, therefore, the omission of the appellants of not seeking the permission of District Collector for initiation of mutation proceedings and its sanction being not violation of law or transgression of definite rule, may be an act of carelessness but cannot be termed as misconduct which implies some degree of mens rea on the part of the person concerned or the grave negligence.
Misconduct and negligence are different notions and sometime negligence may also amount to misconduct but every act of negligence cannot be treated as misconduct. It may be seen that misconduct, is the conduct which is inconsistent with the normal rules required to be observed whereas the absence of required care and diligence in respect of the performance of duty is negligence. The omission to do an act or not to do an act which a reasonable person and a prudent man would do or would not do, is negligence. The appellants in the present case, although proceeded in accordance with the law to give effect to the decree of Court but lack of proper care and Vigilance on their part to bring the matter to the notice of concerned Authorities, was an omission as a result of which loss could be caused to the Government, thus, it was an act of negligence which would not constitute 'misconduct'
7. We having examined the record carefully find that both the orders of sanction of mutation and a detailed order of its rejection written in foil and counterfoil were passed on the same date and the conclusion drawn by the Tribunal that these orders pertained to different dates was factually incorrect. In view thereof, no adverse inference of mala fide or extraneous consideration for sanction of mutation could be drawn in the given circumstances. Be that as it may, it is clear on the record that the appellants namely, Abdul Hameed, Patwari, and Sharafat Ali, Kanongo, having not taken care to bring the matter to the notice of the concerned Authorities before making the entries in register of mutation, acted negligently and similarly, Sameen Jan, Naib Tehsildar, in his capacity as Sanctioning Authority proceeded to sanction the mutation without taking pain of making an inquiry into the matter, acted in an irresponsible manner. Consequently, we hold that the appellants being careless in performance of their duties were certainly negligent but there was nothing on record to hold them guilty of misconduct.
8. In the light of foregoing discussion, we are of the view that it was not a case of major penalty and we consider that minor penalty of stoppage of two increments for a period of two years to all the appellants, would sufficiently meet the ends of justice and consequently, we while converting the major penalty of dismissal from service awarded to the appellants into minor penalty of stoppage of two increments for two years each modify the judgment of the Tribunal, accordingly and partly allow these appeals with no order as to costs.