Hassan Bakhsh Khan retired Naib-Tehsildar has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the order of Member (Revenue), Board of Revenue, Punjab, Lahore dated 26-12-1981, whereby he rejected the appeal of the appellant against the order of Commissioner, Bahawalpur Division, Bahawalpur dated 4-3-1981, by which order the appellant was dismissed from service.
2. By virtue of this appeal the appellant has prayed that the impugned orders be set aside and he be restored to the position of retired Naib--Tehsildar, with all benefits of pension and gratuity etc. Admissible under the rules.
3. Brief facts of the case are that one Makha son of Din Muhammad resident of Chak No. 102 6-R.
Tehsil Fortabbas District Bahawalnagarwas owner of 144 Kanals of land in village Panoah Tehsil and District Bahawalpur. Vide mutation No. 587 (oral sale sanctioned by the appellant on 1-12-1972, this land was mutated in favour of one Abdul Jabbar, a resident of Bahawalpur. The said Makha lodged a criminal case with the Police under sections 109, 419, 420, 466 and 468, P.P.C. And section 5 of Prevention of Corruption Act, 1947, alleging that he never appeared before the Naib--Tehsildar nor did he sell his land and that the mutation was a result of fraud. During investigation of the said case it transpired that one Allah Bakhsh had impressionated as Makha before the appellant and had also put his thumb mark on the mutation. It was also found that one Muhammad Nawaz ex B.
D. Member, who was purported to have identified Makha' and signed the mutation did not appear before the appellant and that his signatures were forged by some body else. It was also brought out in the investigation that Hassan Bakhsh Khan (appellant) had been deceived into sanctioning the mutation on the above-mentioned evidence. The appellant was cited as P.W. Witness in the said criminal case as it was found during the course of investigation that he was himself victim of fraud and not a party to the fraud. The case ultimately resulted in acquittal of all the accused. The land reverted to the original owner through the decree of a Civil Court. However a departmental inquiry was conducted against the appellant. The Enquiry Officer inter alia opined that the mutation was due to fraud and could not have been sanctioned without the connivance of Patwari and Kanungo. Learned Commissioner served a show-cause notice to which the appellant tendered his reply. Learned Commissioner after hearing the appellant in person dismissed him from service w.e.f. 4-3-1981, vide order dated 4-2-1981. He filed an appeal before the learned Member, Board of Revenue, Punjab, but the same was dismissed vide his order dated 26-12-1981.
Hence this appeal.
4. We have heard the learned counsel for the appella5t as well as ^learned District Attorney assisted by the representative of the Department and have perused the record of the case, carefully with their assistance. Learned counsel for the appellant has come forward with legal objection which according to him, would go, to the very root of the case. It has been argued that the appellant had been compulsorily retired and since then had gone on L.P.R. And such L. P. R.
Stood availed by him when the impugned order was passed. According to learned counsel the appellant was no more a civil servant on the date when ' he was dismissed from service, therefore, the order so passed against the appellant was void ab initio, as no action can be taken against a person who was not a civil servant under the E & D Rules. The prerequisite of this proceeding is that a person who is proceeded against must be a member of civil service.
5. With regard to the inquiry which the learned Commissioner as well as learned Member, Board of Revenue have referred in their respective orders as preliminary inquiry, learned counsel has submitted that it was departmental enquiry and, therefore, it was a must that an Authorised Officer should have been appointed by the competent authority but no such step was taken in this regard.
He has also further made a grievance that during the course of the said inquiry, evidence of a number of witnesses were recorded but no chance to cross-examine them was give; to the appellant. He has also pointed out that in this inquiry no charge--sheet was ever served but despite that fact a regular inquiry continued. He has also laid stress on the appointment of Authorised Officer and the ruling envisaged in the case of Muhammad Nawaz v. Secretary to Government (PLC 1981 Lah. 194). a decision of Lahore High Court. Learned council has vehemently argued that dismissal from service of the appellant when he had completed L.P.R: and was no more a civil servant, was absolutely void and the proceedings so taken against him were in contravention to the mandatory provision of rule 7 of E & D Rules of 1975.
6. On the other hand representative of the Department has fully supported the two judgments of the learned Commissioner and learned Member, Board of Revenue and has submitted that the Enquiry Officer observed all the norms which he was required to do so, therefore, the learned Commissioner was justified to take action against 141; appellant.
7. I have given my anxious thought to all the arguments so advanced before me by the parties and first of all I advert to the arguments raised by the learned counsel for the appellant with regard to the competency of the orders passed by the learned Commissioner as well as learned Member, Board of Revenue. I have perused both the impugned orders very carefully and find in the opening sentence of the learned Commissioner he has -treated the appellant a person on L. P. R. Whereas it has been found from the record of this case so produced before us that the appellant proceeded on L.P R on 7-1-1980 and completed the period of one year on 6-1-1981, whereas the impugned order is dated 4-3-1981. It seems that the learned Commissioner did not take notice of this important aspect of this case and straightaway in his order dated 4-3-1981 stated as under: "Hassan Bakhsh Khan Naib-Tehsildar on L.P.R. Was given a show---cause notice under rule 6 (3) of the Punjab Civil Servants (E & D) Rules, 1975."
If the learned Commissioner would have cared to consult the record, this would have become absolutely clear to him that on the date when he was passing the impugned order, Hassan Bakhsh Khan was not civil servant. In view of this factual position borne out from the record of this case, I have no hesitation to hold that the impugned order cannot be passed against A the appellant who had ceased to be a civil servant as defined in the Punjab Civil Servants Act, 1974, itself, and no action could be taken against him through this impugned order. Once the first impugned order is found to be without lawful authority any supra stricture passed on the same would also fall to the ground:
8. With regard to the second legal objection taken by the learned counsel for the appellant, I will refer to the E &.D Rules, 1975, lays down whether the same have been contravened in the case of the appellant or have been observed properly. Rule 7 of the E & D Rules, 1975, lays down that before recording evidence by Enquiry Officer a charge-sheet shall be framed and communicated to the appellant in the manner indicated in sub-rule (1) of Rule 7 ibid so as to enable the appellant to put in a written defence vide sub-rule (2) ibid. What I find in this case is that no charge-sheet was framed at all and inquiry was started in contravention of the fundamental requirement of rules.
Similarly while going through Rule 7, I came across sub-rule (3) of the said rule and find that the appellant had a legal right to cross-examine the witnesses appearing against him. For this purpose I have looked into the record and find that when the statement of Umar Din Patwari and Muhammad Nawaz, Member B.D. Were recorded the appellant was not allowed to cross-examine them. 1n this manner the provisions of sub-rule (3) of rule 7 ibid, have not been complied with. It is a fundamental principle of Law of Evidence that the parties must be confronted so that the truth be sifted by the process of cross-examination and if the same is not done the result would be that the person so proceeded against, would be deemed to have been denied the right of defence. It is also a well established principle of jurisprudence as well as a law that the evidence recorded in the absence of accused unless there is specific provision of law permitting to do so, under exceptional circumstances, no findings can be recorded in judicial proceedings. I have also examined the entire record of this case including the inquiry conducted and find that the contention of the learned counsel for the appellant, is fully borne out that the inquiry was conducted in contravention of the mandatory provision of rule 7 of the E & D Rules, 1975. I have also found that no Authorised Officer was appointed by the c6mpetent authority and the matter was taken into hands by the learned Commissioner himself, who got an inquiry conducted and while deciding the case relied on the same. This was also in contravention of the procedure laid down under rule 7 of the E & D Rules, 1975. Moreover according to sub-rule (2) of rule 12 of 1975 all the proceedings so taken under these rules are deemed to be the judicial proceedings for the purpose of evidence and Enquiry Officer is treated as to be officer sitting in a judicial proceedings". But in this case the Enquiry Officer proceeded to record evidence in the absence of the appellant and also without serving a charge-- sheet on him before recording such evidence, which was a prerequisite pro--cedure in this case.
Therefore, I am of the considered opinion that the inquiry so conducted does not fulfil the mandatory provisions under the E & D Rules and cannot be upheld as legal.
9. With regard to the merits of the case I will refer to annexure of this appeal which is a letter from the S.P., Bahawalpur to the Commissioner, Bahawalpur Division dated 22-5-1976. In this memo the S.P. Bahawalpur has stated that S I./S.H.O Muhammad Iqbal Police Station Kotwali has investigated the case and concluded that Hassan Bakhsh Khan, Naib--Tehsildar had only attested the mutation on the identification of Muhammad Nawaz B.D. Member and Ali Muhammad. There was no mala fides on his part. Hassan Bakhsh Khan has been cited as witness and his name has been removed from the column of the accused, and that his' sanc--tion for prosecution was not required. If this was the result of detailed in--vestigation by the Police I fail to understand -how the learned Commissioner found him guilty particularly on a report of Enquiry Officer, who failed to confirm with the norms and rules so laid down for conduct of such inquiry. I have also seen the original mutation and find as to how the things occurred. The reading of this mutation discloses that the statement of the vendor was recorded on the identification of ex-B.D. Member and one Ali Muhammad who appeared before Naib-Tehsildar at the Tehsil Office and the vendor who was so identified made a statement before him. The appellant recorded the statement of mutation duly entered by Patwari, veri--fied by Kanungo and on the strength of the evidence of two persons who claimed to identify the vendor in the said case. If the matter would have rested there only and the mutation would have been sanctioned at the Tehsil Head-quartets, I would have held the Naib-Tehsildar guilty of contravening the provision of Land Revenue Act which lays down that the mutation should be sanctioned in un open assembly in the village where the land is situated. What I further find from the record of this mutation is that Naib-Tehsildar took care to take the mutation back to the village and announced in open assembly the contents of the mutation and when nobody objected to the same he sanctioned it. This precaution on the part of the appellant would positively exonerate him.
Or But if there was a collusion fraud for this transaction then I must say it was collusion by all the villagers present on that day and nobody could escape the same. This is why the learned Commissioner himself expressed the views vide his memo. Dated 13-4-76 Annexure `B' addressed to the S.P., Bahawalpur that the appellant was not expected to know all the land owners of his circle and was deceived by Allah Bakhsh who impersonated as Makha and Muhammad Nawaz B.D.
Member and Ali Muhammad who identified Allha Bakhsh as Makha before him and they were the real culprits. These findings of the learned Commissioner go contrary to the findings made in the- impugned order. If once the competent authority was fully convinced that the appellant was victim of fraud and had fro ulterior motives in that transaction, it would not be fair to arrive at an opposite conclusion while the sitting in judgment over the same person at some later stage. I haves also referred to the result of the inves--tigation by the police in this case which fully supports the earlier findings of the learned Commissioner that the appellant was a victim and not a per--son who perpetuated the fraud himself. In these circumstances. I do not find any cogent reason for the learned Commissioner as well as learned Member, Board of Revenue to arrive at the conclusion which they have arrived at. If both these authorities had looked into the original mutation and would have read the final order passed by the appellant in the open assembly of the villagers, I am confident that they would have not arrived at the findings that the appellant was guilty of misconduct by attesting the said mutation.
10. In view of the detailed analysis of the entire case both from legal as well as factual plane, I am of the considered opinion that the impugned orders are liable to be set aside. I am convinced that no order could be passed against a person who had ceased to be a civil servant as well as the conclusion drawn by the two concurring Courts learned Commissioner, lear--ned Member, Board of Revenue with regard to the misconduct of the appellant, are not supported by the evidence on the record. In fact it is a case of misreading of evidence as well. I, therefore, proceed to accept the appeal, set aside the impugned orders and direct that the appellant would be deemed to be a retired Naib-Tehsildar, with all benefits of Pension, Gratuity admissible to him under the rules from the date he stood retired by the competent authority. However, there will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.