' S. ABDUL JABBAR KHAN (CHAIRMAN). -The appellant has filed this appeal against the order dated 2nd May, 1979 of the Assistant Commissioner, Burewala, by which he was compulsorily retired from service as well as against the order dated 9th July, 1979 of the Commissioner, Multan Division who rejected his appeal.
2. By virtue of this appeal he has prayed that the impugned orders be set aside and he may be re- instated in service with all back benefits of service.
3. Brief facts of the case are as under :- ' The appellant was posted as Consolidation Patwari at Chak No, 247/EB where he took over the charge on 26th August, 1974 when the consolidation scheme of that estate had already been confirmed on 28th February, 1974. Vide resolutions Nos. 1-2 dated 19th November, 1973 it was held by the Advisory Committee unanimously that the path be created in field No, 48/4 which was owned by one Abdullah. This path also existed on the spot. The appellant in pursuance of the resolution and the factual position on the spot, showed the said path in the said field No, 48/4 in the record. However, at the time of attestation of the record on 27th and 28th of September, 1979, the tield Kanungo through Fard Badar observed that final approval of Assistant Consolidation Officer was lacking in this respect. Sometime later one Wazira son of Abdul Aziz filed an application before the A. C.
0. On 9th July, 1976 stating that the path sanctioned in the field was not incorporated in the record.
The A. C.
0. On 9th July, 1976 ordered for the incorporation of the path in the said field number in the record.
In obedience to the orders of the A. C.
0.The path which was earlier deleted from the record in pursuance of the Note Partal of the field Kanungo, was again shown in the record. Subsequently one Ismail, who and in the meanwhile purchased this field No, 48/4 on 3rd February, 1975 from Abdullah through registered sale deed gave application to the higher authorities against the creation of the path in question. A preliminary enquiry was conducted by Tehsildar, Burewala, and in consequence of which the appellant was charge-sheeted and placed under suspension. Colony Naib-Tehsildar, Gaggo, was appointed as Enquiry Officer in his case. Result of the enquiry ended in exoneration of the appellant from all charges and he was held not guilty. This enquiry was again entrusted to CNT, Gaggo, who contrary to the first report held him guilty vide his report dated 15th April, 1979. On the basis of second enquiry dated 15th April, 1979 A. C./Collector Burewala Mandi. Respondent No, 2, issued him a show-cause notice and thereafter ordered his compulsory retirement from service with immediate effect on 2nd May, 1979. However, the appellant filed an appeal against the said order before the learned Commissioner, Multan Division, Multan, who rejected the same vide order dated 9th July, 1979. A representation was made before the Member BOR against these orders which did not find favour with the said authority and was rejected. However, no intimation was conveyed to the appellant and when he enquired the fate of his representation from BOR he was informed vide memo. Dated 30th December, 1980 that his representation has since been rejected and conveyed to the Commissioner. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as the learned District Attorney assisted by the Representative of the Department and have perused the record of the case with their assistance. The main argument which has been advanced on behalf of the appellant, is that CNT, Gaggo vide his enquiry dated 30th May, 1978 clearly concluded that the appellant was not guilty of any offence and he was liable to be re-instated. According to the learned counsel the second enquiry dated 15th April, 1979 did not either controverted the argument so advanced nor was any fresh evidence recorded to show that the earlier enquiry was either collusive or against the facts on the record. Similarly, it has been submitted that Mr. Hameedullah Khan, Assistant Commissioner/Collector, Burewala, has made no reference to the first enquiry and relying on the second enquiry has passed the impugned order. Similarly judgment of the learned Commissioner according to the learned counsel is devoid of application of his independent mind and reliance has been placed only on the judgment of the A. C. Which in itself is defective and suffered from misreading of the evidence. On the other hand, the learned District Attorney assisted by the Representative of the Department has submitted that he had no comments to offer with regard to lack of reference by the A. C. In his judgment of the earlier enquiry but on merits he would support the parawise comments in the extents. It was argued that as the consolidation schemes sanctioned by the A. C.
0. Did not contain any path in the said Khasra Nos. There was no legal authority with anybody to insert the same in the Revenue Record except with prior approval of the competent authority. With regard to the second enquiry it has been submitted that this was conducted as the first enquiry was not up to the mark and by the second enquiry the appellant was found guilty of tampering with the record with ulterior motives.
5. We have given our anxious thought to the arguments so advanced by both the parties and found the situation as under :- ' The disputed Khasra No, 48/4 was owned by Abdullah which was purchased by one Ismail etc. Sons of Khair Din through registered deed dated 3rd February, 1975. During consolidation proceeding of Chak No, 247/EB a unanimous resolution was passed to the effect that the path which existed at the spot should he incorporated in the revenue record. This path was deleted at the behest of Girdawar Halqa at the time of Partal Akhar ) as the said resolution lacked the approval of A. C.
0. The Patwari obeyed the order and deleted the said path and got it signed by Girdawar. Later on Wazira son of Abdul Aziz due to deletion of this path found himself in difficulty and after procuring the relevant attested record with regard to such deletion, filed an application before the A. C.
0., Sahiwal. The A. C.
0. Forwarded the application to the field staff as under : "If anybody was aggrieved against the resolution regarding this path he was at liberty to seek remedy in the Court of Law as Fard Badar of Girdawar was not correct, therefore, the path should be revived."
' All this is born out from the record and no exception can be taken to this state of affairs. The Enquiry Officer who conducted this enquiry earlier in 1978 found that whatever was done was done under the various orders of various Officers from time to time which the appellant only complied with and did nothing of his own accord. He also found that as this controversy stood closed by the Martial Law Team who got the path deleted at the spot and made the other party to pay Rs, 1,000 as compensation, therefore, the matter stood closed and no blame could be brought again against the appellant. But it is interesting to note that in Annexure there is mention of another enquiry report which has been concluded about 11 months later on the same issue but the perusal of the record reveals that there was no order to show how this second enquiry came into being. In this enquiry the conclusion drawn by the Enquiry Officer whose name is not available on the record so as to assess whether be was the same person who conducted the earlier enquiry or was somebody else was that Bashir Ahmad the appellant has been yard and he has not been able to clear the disputed point. Therefore, he Inquiry Officer was of the view that the appellant was not authorised to make any amendment in the revenue record without the order of the superiors and thus Departmental action was desirable against him. n view of these two contradictory documents it was incumbent upon he AC that he should have fully adverted to both the enquiries and would have narrated as to how the other enquiry came into being when he first one was already in the field. Unless and until the said officer was in a position to come to a different conclusion from the one which was arrived at by CNT, Gaggo vide, his enquiry report dated 30th May, 1978 he bad no justification to rely on the second enquiry report. The reading of para. 2 of the judgment lead as to the conclusion that the competent authority was not conscious of the first enquiry and only drew his conclusion on the basis of the second enquiry. He has also referred to some other enquiry conducted by Tehsildar, Burewala, but despite our best efforts we have failed to find that document on the record made available before us by summoning an Assistant from the A. C.
Office once again to solve this riddle. The judgment of the competent authority, therefore, seems to be misconceived and is liable to be struck down for misreading of evidence. The Commissioner has also fallen into the same error, as he too without application of independent mind has just followed the verdict of the A. C. Which itself is based on misreading of evidence without contradicting the exoneration of the appellant by the first enquiry which was held earlier in this case.
6. We have ourselves taken pains to find out whether the act of the appellant or deleting the path or creating the same, was in any manner motivated or was in consequence of various orders of his superiors from time to time. We are fully satisfied from the record that the path was already created when the unanimous resolution came into existence and later on the same was deleted when the Kanungo observed the same. The fact is fully borne out by the signatures of Kanungo at the time of the said deletion. Therefore, it cannot be said that the path was created by whim and fancy of the appellant because the presence of the said resolution fully negates this allegation. The reading of the second enquiry reveals that it was conducted in a bizarre manner. If the second Enquiry Officer had to differ with the earlier verdict of his predecessor or of his own (a point which has remained unsolved due to lack of their signatures) he should have called upon the appellant to clear his position. What has been done is that certain facts have been stated in narrative form into Second enquiry without giving any cogent reasons for holding otherwise than the verdict of the first enquiry. If we had found that the two impugned judgments were based on good reasons fully taking into consideration all the pros and cons of this case vis-a-vis the two contradictory enquiry reports we would have hesitated to interfere with the conclusion so drawn. In the present case this element is manifestly absent, a fact which goes to the very root of the case.
7. In view of the above we proceed to accept his appeal and set aside the impugned orders as of no legal values. It is hereby directed that the appellant be re-instated in service from the date he was retired with all back benefits.