MUHAMMAD YAR WALLANA, MEMBER..... Brief facts of the case as gathered from the available record are that the competent authority/Chief Secretary , Punjab vide order of inquiry bearing No, SO(C-III) 12-50/2015, dated 23.09.2015 initiated joint disciplinary proceedings under the provisions of Punjab Employees Efficiency , Discipline and Accountability Act, 2006 against the present appellant Asif Rauf, Ex-Assistant Commissioner , Depalpur , Farid Ahmad Sheikh, Additional District Collector , Okara, Malik Muhammad Afzal, Tehsildar , Depalpur , Rana Riaz Ahmad, Naib Tehsildar Depalpur , Najam Hafeez, Naib Tehsildar , DCO Office, Okara, Muhammad Akram, Kanungo, Tehsil Depalpur and Muhammad Hussain, Patwari Mauza Ram Parshad, Tehsil Depalpur and appointed Mr. Abdul Jabbar Shaheen, Secretary to Govt. of the Punjab, School Education Departme nt, Lahore as inquiry officer to conduct a regular inquiry on the following charge against the present appellant:--- "Mr. Asif Rauf Ex-Assistant Commissioner , Depalpur validated the fake mutations, under inquiry on 15.07.2015 through judicial order ."
The inquiry officer conducted inquiry proceedings and submitted his report dated 28.04.2016 to the competent authority recommending imposition of major penalty of dismissal from service to the appellant, which penalty , after issuing show-cause- cum-personal hearing notice dated 02.06.2016 to the appellant, was accordingly awarded by respondent No, 2 vide impugned order bearing No, SO(C-III) 12-50/2015, dated 19.04.2017. Said order was called in question through departmental appeal preferred to respondent No, 1 vide impug ned order bearing No, SO(C-III)
12-50/2015, dated 30.1 1.2017. Hence, this appeal is filed on 08.12.2017 on the grounds maintained thereunder .
2. Learned counsel for the appellant submitted that the order passed by the appellant dated 15.07.2015 was a judicial/quasi-judicial order , which was open to appeal and the appellant on the basis of strength of law laid down by the Hon'ble apex Court, Hon'ble High. Courts and Board of Revenue reported as Rasta Mal Khan's case 1996 SCMR 78, Waris Khan's case PLD 1994 SC 336, Nemat Ali's case 2004 SCMR 604, Maryam Bibi's case 2011 CLC 638, Mazhar Hussain's case 2014 CLC 1484 , Umar Hayat's case 2014 YLR 2493 Muhammad Naeem's case 2014 CLC 1084 , Murrayia Bang's case 1996 CLC 1690 , Chatoon's case 2013 CLC 1743 and Messrs STARCO Limited's case 2005 CLC 235 has rightly held that to determine the question of fraud the jurisdiction was vested in Civil Court and the Revenue Court was not appropriate forum to adjudge said factum, but the inquiry officer without giving due consideration to the stance taken up by the appellant and also without going through the law on the subject held the appellant guilty of the charges and also kept aside the fact that in his reply to charge-sheet the appellant contested the charges but contrary to that no incriminating material was brought on record to establish extraneous consideration of the appellant in passing the said order dated 15.07.2015. He added that the competent authority as well as the reviewing authority also failed to take into consideration these material illegalities taken place during inquiry proceedings and passed the impugned orders in arbitrary manners.
3. On the other hand the learned Distri ct Attorney negated the contentions raised by learned counsel for the appellant and submitted that in the matter a regular inquiry was got conducted by the competent authority where involvement of the appellant of providing legal cover to the fraudulent act of land grabbers stood proved without any shadow of doubt and the inquiry proceedings were conducted in accordance with law and the impugned orders based upon a regular inquiry are liable to be upheld.
4. I have heard arguments of learned counsel for the appellant and learned District Attorney and have examined the record.
5. In order to determine guilt of the accused civil servant the competent authority had resorted to the procedure of prerequisite of regular inquiry vide order of inquiry bearing No, SO(C-III)12-50/2015, dated 23.09.2015, whereby Mr. Abdul Jabbar Shaheen, Secretary to. Govt. of the Punjab, School Education Department, Lahore was appointed inquiry officer. The entire record of inquiry had been made available and its examination would reveal that in this so-called regular inquiry , the statement of the accused officials of Revenue Department were only recorded in question answer form. The statement of the persons. aggrieved by attestation of mutations have not been recorded. The inquiry officer recorded statements without affirmation on oath and did not provide right of cross examination to the appellant on the statements relied upon by the inquiry officer as supportive to charges-.
Thus, the inquiry proceedings are found to be contrary to the basic principles of regular inquiry and also these proceedings are not in conformity with the requirement of law particularly Section 10 of Punjab Employees Efficiency , Discipline and Accountability Act, 2006. The inquiry officer has mainly relied upon answers of the appellant put to him by the inquiry officer himself, which inference drawn by the inquiry officer is quite contrary to the available record particularly replies of the questions put to appellant by the inquiry officer. The inquiry officer had asked the appellant with regard to his duties as Sub-Divisional Collector and custodian of public property and he replied that since the question of title was yet to be decided by Chairman Evacuee. Trust Properties Board, hence the dispute of title had yet to be finalized. Regarding question of commission of fraud in attestation of mutation the appellant had replied that according to his understanding this was a case requiring recording of evidence and determination of the disputed question by a Court of civil jurisdiction, hence he could not review the orders of attestation of mutations. By all means, the replies of the appellant of all these questions would never make out a case of admission of guilt at his part as opined by the inquiry officer. This Tribunal finds that in inquiry proceedings no material had been collected to show that the order of the appellant was tainted with mala fide due to certain extraneous considerations. Hence, the punishment based upon such faulty and seriously flawed inquiry proceedings are not sustainable at law .
6. The inquiry officer in his inquiry report has referred to the material particularly a report of Chief Minister Inspection Team, which is always a fact finding type inquiry and not a regular inquiry entailing major punishment to a civil servant. If the report of Chief Minister Inspection Team had to be relied upon that should have been furnished to the appellant and his reply should have been sought for by referring to any incriminating substance available in such report, which course too had not been adopted in the disciplinary proceedings. Apart from above lapse it is also, found that the inquiry officer did not provide due opportunity to the appellant to lead his defence evidence as well, therefore, the inquiry report is seriously flawed and rather it is full of illegali ties which could have not been made basis of punishment but the respondents had relied upon the same and awarded the appellant major punishment of dismissal from service, which in view of established law particularly Lal Muhammad and another 1980 SCMR 850, Basharat Ali v. Director , Excise & Taxation, Lahore and another 1997 SCMR 1543 , Province of the Punjab through Additional Chief Secretary , Government of Punjab and another v. Muhammad Siddique Khan 2000 SCMR 1321 , Shakeel Ahmad v. IG Punjab Police, Lahore & others 2007 SCMR 192, Muhammad Haleem and another v. General Manager (Operation), Pakistan Railways Headquarter , Lahore and others 2009 SCMR 339 is not sustainable in the eyes of law .
7. The role of inquiry officer/inquiry committee within the purview of Sections 10 and 11 of Punjab Employees, Efficiency , Discipline and Accountability Act, 2006 is that of an independent perso nality/body who are vested with the powers of Civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908) in respect of summoning and enforcing attendance requiring discovery and production of documents, receiving evidence on affidavits and under Section 11(2) of the Punjab Employees, Efficiency , Disciplin e and Accountability Act, 2006 such proceedings are deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Pakistan Penal Code, 1860 (Act XLV of 1860). Thus, the intent of legislature behind this enactment and empowerment of the inquiry officer/inquiry committee appears to be creation of an independent office/body in respect of disciplinary proceedings where the accused civil servant is provided a fair and transparent atmosphere to defend the charges and the concept of fair trial in these disciplinary proceedings is ensured. The inquiry officer/inquiry committee while discharging these functions are under legal obligat ions to discharge their duties in an unbiased manner by remaining neutral in the proceedings as even in these proceedings the department is represented by a representative who acts like a prosecutor and can plead the case of the department/State and also can cross-examine the witnesses produced in defence. It is nevertheless the mandate of law nor an appropriate act at the part of the inquiry officer or the member of the inquiry committee to assume role of prosecutor by putting questions upon the accused civil servant, defence witnesses or even to prosecution witnesses as it would expose mind of the inquiry officer/member of the inquiry committee that by disbelieving such statement he had jumped into the arena of the prosecutor/departmental representative and had compromised his/her independence. Such an act would definitely espouse feeling of mistrust in the mind of the accused civil servant as well and the entire process of disciplinary proceedings and particularly inquiry proceedings would turn into biased proceedings and would not be considered as fair and independent proceedings. Such a course is not only detrimental towards the accused civil servant but also for the department and the State as well as such biased proceedings would never qualify the judicial test and would cause repetition of the proceedings at the cost of the exchequer as well.
8. Apart from the aforesaid grounds the defence taken up by the appellant in response to the statement of allegations contained in the order of inquiry also deserves due consideration of this Tribunal. The appellant being appellate authority against an attestation of mutation had mainly relied upon a legal ground while dismissing the appeal vide order dated 15.07.2015 that the question of title and the question of fraud could be determined by a Court of civil jurisdiction as it had involved a factual enquiry and the Civil Court had to adjudge such disputed facts at the strength of evidence made available before it. How far the view of the appell ant was correct, the law evolved on the subject would lend due guidance. I have ventured to go through some of the decisions of the Hon'ble apex Court and that of the Hon'ble High Courts and Boards of Revenue of Sindh and Punjab and at the strength of same can very conveniently observe that where entries in revenue record touching rights of the recorded owners or rival claimants involving allegations of commission of fraud etc. were to be adjudged, for correctness of such entries the appropriate forum was the Court of civil jurisdiction, which could make appropriate declarations under Section 53 of West Pakistan Land Revenue Act, 1967 or under Section 42 of Specific Relief Act and the revenue hierarchy was not the appropriate forum as it generally adopts summary procedure and secondly because the question of title falls within the domain of the Civil Courts and similarly the question of fraud would also fall in the same ambit for its determination by the Court of civil jurisdiction. In this regard I have been enlightened by the judgments of the Hon'ble apex Court reported as Rasta Mal Khan's case 1996 SCMR 78, Waris Khan's case PLD 1994 SC 336 and Nemat Ali's case 2004 SCMR 604. The same view has been taken by the Hon'ble High Courts in Maryam Bibi's case 2011 CLC 638, Mazhar Hussain's case 2014 CLC 1484 , Umar Hayat's case 2014 YLR 2493 and Muhammad Naeem's case 2014 CLC 1084 . The Boards of Revenue of Punjab and Sindh have also held same view in Murrayia Bang's case 1996 CLC 1690 , Chatoon's case 2013 CLC 1743 and Messrs STARCO Limited's case 2005 CLC 235 concerning the competence of the appellate authority in revenue hierarchy to review the mutations.
9. The acts and orders of a revenue officer are also protected under Section 181 of the West Pakistan Land Revenue Act (XVII of 1967), if those are made in good faith, in pursuance of the provisions of West Pakistan Land Revenue Act (XVII of 1967) or any other law applicable in a particular matter . Thes e provisions protect the revenue officer from prosecution or other legal proceedings as well. In present case, the order dated 15.07.2015 of the appellant finds support from consistent view of the Hon'ble apex Court and the Hon'ble High Courts with regard to a question of law that where the title is in dispute or the correction of the revenue entries involved factual controversy which cannot be resolved without recording evidence, such a matter can be appropriately adjudged and determined by a Court of civil jurisdiction and not by a revenue officer, hence the order dated 15.07.2015 of the appellant had also to be seen in the light of law while initiating disciplinary proceedings against the appellant but the departmental authorities could not advert to this legal aspect as well. The Hon'ble apex Court in Nemat Ali's case 2004 SCMR 604 has laid down the rule on the subject as under:-- "Change of longstanding entries in Revenue Record in summary manner by Collector ---Validity---Rights of parties qua disputed property required determination after giving them fair opportunity to adduce evidence---Factual controversies could only be resolved by Civil Court having plenary jurisdiction."
Similar view has been laid down by the Hon'ble apex Court in W aris Khan 's case PLD 1994 SC 336 as under:--- "Only Civil Court had jurisdiction to adjudicate upon respective titles of partie s regarding joint property and correctness or otherwise of the Revenue Record---Incorrect entries in Revenue Record being very old and question of prescriptive title being involved therein as also questions of latches and limitation, Civil Court and not the Revenue Court was the proper forum for rectification of such Revenue Record "
The Hon'ble Lahore High Court, Lahore in Umar Hayat's case 2014 YLR 2493 has also ruled as under:--- "Civil Court had jurisdiction to adjudicate upon the question of title and fraud, if any, having been perpetrated in securing the sale-deed---Rent Controller was not vested with the power to go into the question of title of property--- Rent Controller could assume jurisdiction only in cases where tenancy was admitt ed---Both the Courts below had overstepped their jurisdiction and orders passed by them were not sustainable---Impugned orders had been passed without lawful authority having no legal effect which were set aside---Constitutional petition was accepted in circumstances."
10. For the forgoing reasons the compe tent authority as well as the reviewing authority had not discharged their onerous duty of application of mind while awarding harsh punishment of dismissal from service upon the appellant and looked askance on the material while awarding the punishment and upholding the same in the review petition.
Both the orders are absolutely not sustainable under the eyes of law, which are set aside by accepting this appeal.
Resultantly , the appellant would stand reinstated in service with all back benefits.