S. ABDUL JABBAR KHAN (CHAIRMAN).-Mr. Muhammad FetOZ Khan has flied an appeal under section 4 of the Punjab Services Tribunal Act, 1974 against the order of his dismissal by Assistant Commissioner/Collector Lodhran dated 21st February, 1979 and that of Commissioner, Multan Division, dated 10th October, 1979. He has prayed by virtue of this appeal that the impugned order be set aside and he may be re-instated in service with all back benefits,
2. Brief facts of the case are that the appellant while working as Patwarl in Chak No, 281-83.WB, Tehsil Lodhran, District Multan, prepared Khasra Gardawari where he initially reproduced the names of tenants given in the previous Register Hagdaran Zamin but later on struck these names and entered some other names in order to help certain persons for getting lease on State land. This mistake came to the notice of the Checking Officer I. e. Assistant Commissioner/Collector on 22nd November, 1978 who charge-sheeted the appellant on 25th November, 1978 and all the revenue papers including Khasra Giradwari were taken into possession by the Assistant Commissioner/Collector. The appellant furnished his reply to the said charge-sheet. However, his reply was not found to be satisfactory and the Assistant Commissioner/Collector served him with a 'Ford Juram'. An Enquiry Officer was appointed who came to the conclusion that no inala fide intention of the Patwart has been proved as no one had been deprived of any right and none was given undue benefit. However, the Enquiry Officer held that the entries in the Khasra Gardawari were made without any justification and without any authority therefore to this extent the appellant was guilty of misconduct. The learned Assistant Commissioner/Collector proceeded against the appellant under the Government Servants (Efficiency and Discipline) Rules, 1975 and ordered his dismissal from service on 21st February, 1979. An appeal was filed by the appellant before the learned Commissioner Multan Division, Lt. Col. Nisar Ahmed Khan, who confirmed the order of dismissal as he found no justification to interfere with the order of Assistant Commissioner/Collector dated 21st February, 1979 hence this appeal.
3. We have heard the learned counsel for the appellant as well as the learned District Attorney and have perused the entire record of this case with their assistance, It has been urged on behalf of the appellant :-
(1) that the omission on part of the appellant was a bona fide mistake of copying out names without any ulterior motive and the same mistake was liable to be rectified under provisions of rule 9.9 of the Land Records Manual and did not fall in the category of serious offences ;
(II) that the charge sheet and 'Fard Juram' contained only one allegation I.e. Copying out wrong names of cultivators in order to grant benefit to certain persons whereas he has been punished for tampering with Jamabandl which allegation did not form part of the charge-sheet and thus the appellant had no notice according to law of this allegation ; (III)that the only witness cited in the charge-sheet as well as in the 'Fard harem' was Patwari Halqa No, 281-83 W. B. But the same was never produced by the prosecution or examined by the Enquiry Officer sue motm whereas the witnesses so examined, by the Enquiry Officer was neither mentioned in the charge sheet nor in the 'Fard Juram' and therefore the appellant was not in a position to cross-examine them as he would not know at the proper time as to what their evidence would be ;
(iv) that in the charge-sheet Square Nos. 87, 88, 91, 92, 96, 89, 99, 100, 101, 105, 106, 107, 108, 109, 119 and 120 were mentioned as having been interpolated but during the enquiry it was found that champs were carried out in only 66 ktllas against 385 Milos mentioned in the charge sheet it would prove that the entire proceedings were misconceived ;
(v) that at the most the appellant would be found negligent therefore the severe penalty of dismissal was uncalled for.
4. The learned counsel for the appellant has also made grievance that the appellant was not given an opportunity to cross-examine the witnesses or to produce his defence therefore the appellant was condemned unheard and the action of the Enquiry Officer was against the principles of natural justice. He has also complained that the appellant was not allowed to engage a counsel to appear before the Enquiry Officer or the Commissioner, Multan Division in spite of the fact that he made a request in writing for this privilege. On the other hand it has been contended that the action of the Patwari was highly arbitrary as he was not permitted tp Make such unwarranted entries therefore his action could not be considered a bona fide mistake. It has also been vehemently denied that the Pat war! Was not given a chance to defend himself and according to the record he was first directed to produce his defence on 13th January, 1979 whereupon the Palwari submitted an application for the adjournment of the case. The enquiry was adjourned for two consecutive days but the appellant failed to attend on these dates of hearing. According to the learned District Attorney the Departmental Proceedings are always conducted on day-to-day basis therefore the fault on the part of the Patwari was of his own making and he should not be allowed to make grievance of the same. It was further argued that the learned Assistant Commissioner/Collector has observed in his judgment that all the evidence against Patwari was of documentary nature which was a conclusive proof of misconduct and corruption.
5. We have given or anxious thought to the contentions raised by both the parties and find that the charge-sheet (Annex. Al given by Sardar Alam Khan, Assistant Commissioner/Collector, Lodhran only contained one allegation i. e. "on 22nd November, 1978 at the time of checking of Khasra Gardawari it was found that you had made wrong entry in column No, 3 of Khasra Girdawari and as well as you have tampered with the entries in Square Nos. 87, 88, 91, 92, 96, 89, 99, 100, 101. 105, 106, 107, 108, 109 119 and 120 and have entered the names of different persons in order to benefit them for obtaining land". There is no other charge or allegation mentioned in this charge-sheet which should become the subject-matter of this case i. e. Tampering with the Fard Patwari of Jamabandi.
It was also proved from the Enquiry Report that the allegation mentioned in the charge sheet could not be proved against the appellant and no ulterior motive was established for these unauthorised entries in the Khasra Girdawari. The relevant portion of the verdict of the Enquiry Officer is reproduced below in vernacular as the Enquiry Report is in this language :- {{URDU TEXT}}
6. In view of the matter we have no hesitation to conclude that the Enquiry Officer could not embark upon the matter which were extraneous to the charge and came to light during the enquiry as he was legally bound to deal only with the charge-sheet served upon the appellant.
Such like procedure adopted in cases of Civil Servants under enquiry has been struck down /by the Superior Courts of this country. Our Lordships of the Supreme Court in Islamabad Club v.
Muhammad Aslam, etc. held as under :- "The High Court seems to us to be right in observing that the employee was given notice of only one misconduct, namely, that of holding meetings during working hours in the Club premises without obtaining previous permission, yet the findings of the Inquiry Officer covered other matters also which disclosed far more serious acts of misconduct on the part of the respondent, which could not be said to be included in the original charge framed against him. We think that it is clear that the findings recovered by the Inquiry Officer on matters which were not included in the original charge, must have influenced the mind of the Administrator in awarding the punishment of dismissal to the respondent. In the circumstances, it could not be said that the respondent had a reasonable opportunity of defending himself against the charges, which have formed the basis of disciplinary action against him, as no copy of the inquiry report was furnished to him and he was, therefore, not in position to rebut the findings recorded against him on these matters. On this view of the matter, it could certainly be held as the High Court has done, that the requirements of reasonable opportunity, as embodied in clause (4) of Standing Order No, 15, were not fulfilled in this case.
' The contention that at least one item bf misconduct found against the respondent by the Inquiry Officer was included in the charge-sheet and this could have sufficed for the respondent's dismissal, is fallacious, as it is possible that the Administrator may not have dismissed the respondent if the only charge proved against him was that he held Union meetings during working hours without proper permission. From the order of dismissal recorded by the Administrator, it is manifest that he was influenced by the seriousness of the other matters relating to the conduct of the respondent. To this extent, therefore, the order of dismissal clearly stood vitiated, as it proceeded on matters extraneous to the charge framed against the respondent, who did not have a reasonable opportunity to defend himself in that behalf."
7. This authoritative pronouncement of the highest Court in the realm is not only fully attracted to the case of the present appellant but makes his case much more stronger for the reason that in Islamabad Club v. Muhammad Aslam etc. The case cited above, it was found that the charge mentioned in the charge-sheet could have been sufficient for his dismissal but the other matters not mentioned in charge had become responsible for influencing the mind of the competent authority to take a stronger action against said Muhammad Aslam. Here in this case is mentioned in the earlier part of the judgment that the Enquiry Officer had practically absolved the appellant of the charge's mentioned in the charge-sheet but held him guilty on certain irregularities which were not mentioned in the charge sheet. This irregularity by itself is sufficient to vitiate both the impugned orders passed against the appellant. However, we have looked into the merits of the irregularities so mentioned by the Enquiry Officer although not forming part of the charge-sheet1 and find that the first for columns of Jamabandi and Khasra Gardawari are always the same and he is authorized to transfer the entries from one document to another. Even with regard to the tampering of Jamabandi by the appellant we fail to understand how it could be done when it is on the record that the Assistant Commissioner/Collector had taken Khasra aradawari into his possession therefore the appellant would not be in a position to incorporate those entries in the Jamabandi when he was not in possession of the documents containing the same. The plea of the respondent in this regard that somebody was there to hurt him and these entries were later on interpolated cannot be thrown out as being without any force.
8. In view of the law laid down as said above, we find that the appellant had no opportunity to meet the allegations not mentioned in the charge-sheet and thus he cannot be allowed to be condemned for that matter. Even if we accept the report of the Enquiry Officer that he actecj negligently as per his admission the sentence of dismissal in his case would not be justified in any manner whatsoever. We are of the con sidered opinion that the stoppage of two increments without cumulative effect would serve the ends of justice as it would be sufficient punishment to pull him up. The result is we accept the appeal and set aside the impugned orders. PLJ 1981 SC 1