S. ABDUL JABBAR KHAN (CHAIRMAN) -Muhammad Mazhar Ex--Patwari has filed this appeal under section 4 of the Punjab Service Tribunals Act of 1974 for setting aside the order dated 14th November, 1979 by respondent No. 1 and that of 5th January, 1980 of the respondent No. 2 whereby the appellant has been dismissed from service of Patwari. The appellant has impleaded Assistant Commissioner Sadar and Commissioner Lahore Division, Lahore, as respondents.
2. Brief facts of the case are that one Nawab Din and Abdul Aziz sons of Ghulam Ali, residents Kabna Nau, Tehsil and District Lahore made an application to Collector Sadar Sub-Division, Lahore in which they stated that they bad purchased fields No. 1755 to 1764 and 1769 situa--ted within the revenue estate of which the appellant was Patwari. It was further claimed that the land was Bunjar Qadeem under the possession of Rehmat Ali and Barkat Ali sons of Mehnga but the same was shown by the Patwari by act of forged entries under cultivating possession of Rehmat Ali and Barkat Ali in Kharif 1973. According to the complaint the Patwari by his fraudulent act had bestowed a pre-emption under the land revenue regulation on said Rehmat Ali and Barkat Ali to the detriment of Nawab Din and Abdul Aziz complainants. The appellant was suspended on 31st December, 1977 under the orders of Assistant Commissioner/Collector and was ultimately dismissed from service vide Assistant Commissioner/Collector order dated 29th January, 1978. His appeal before the Commissioner also failed vide his judgment dated 23rd May, 1978. This Tribunal vide its judgment of 12th July, 1979 accepted the appeal and remanded the case to the Assistant Commissioner, Lahore for disposal afresh after hearing the appellant.
3. On receipt of the order of the Service Tribunal the respondent No. 1 issued a notice Annexure ---L' to the Tehsildar, Lahore on 4th August, 1979 for informing the appellant to appear before him on 12th August, 1979. The appellant while appearing before respondent No. 1 requested that a full- fledged departmental enquiry be held against him. The respon--dent summoned the complainants and recorded their statements and after giving appellant a personal hearing dismissed the appellant vide order dated 14th November, 1979 Annexure `M'. A grievance against this order of dismissal filed an appeal before the learned Commissioner Lahore which was dismissed on 5th January, 1980. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as the learned D.A. And have perused the-record of the case carefully with their assistance.
5. It has been argued that the impugned orders so passed against the appellant were against the spirit of the orders of the Tribunal who accepted the appeal of the appellant. According to learned counsel the respondent just accepted the earlier orders in totality without holding an independent enquiry afresh as directed by the Tribunal. It has been further submitted that respondent No. 1 both acted as Enquiry Officer as well as authority, therefore, he assumed a jurisdiction which was not so vested in him.
6. With regard to the merits of the case it was submitted that the appellant was not holding the charge of the circle when such interposses--sions were affected. The learned counsel made a further grievance that the respondent No. I relied against the appellant on extrenuous matters which were not the part of the charge with regard to the illicit relation--ship of the appellant with some Mst. Perveen. In this way it was submitted that the respondent No. 1 has acted with bias and has failed to apply his mind to the basic facts of the case. With regard to the action of the learned Commissioner, respondent No. 2, it has been submitted that the same was based against the provision of rule 15 of the Efficiency Rules of 1975 by dismissing the appeal in limine without calling for the comments of the respondent No..
1. A further legal objection has also been raised against the act of the respondent No. 1, by submitting that the initial order of dismissal against the appellant was converted into removal from service by the learned Commissioner, therefore, the order of dismissal once again was in a way an enhancement of punish--ment which contravened the provision of rule 15 (2) of the Efficiency Rules.
7. On the other hand learned D. A. Has submitted that the case was remanded only for securing the personal hearing of the appellant which is apparent from the concluding paragraph of the Tribunal's judgment in which there is no mention as asserted by the appellant that the case should be concluded after holding an independent enquiry as envisaged under section 6 (4) of the Rules.
It was further submitted that the record of the case clearly reveals that the same has been interpolated and the appellant being custodian of the record the inference would be that he was the author of the same. With regard to the photostat copy of the application- produced by the appellant before this Tribunal to show that the entry in the Khasra Girdawari was in accordance with the actual state .Of affairs at the spot it was submitted that the same does not bear any report, entry, signatures or despatch number, therefore, it would be fair to presume that the same was an afterthought. According to learned D. A. The appellant was given full opportunity of personal hearing and all the legal formalities were duly fulfilled, therefore, the punishment imposed upon the appellant was fully justified.
8. We have given our anxious thought to all the arguments so advanced by the patties aced find that the entries which are subject of this dispute belong to the period of year 1973 much prior to the posting of the appellant in that circle which occurred in 1975. During that interval period about four officials remained posted as Patwaris of that circle. It is also established on the record that right from Kharif 1973 to Rabi 1977 the entry of the above-cited field Nos. In column No. 3 name of the cultivator was Maqbooza Malkan in consonance with the entries of Rabi 1973 and the quadrennial register haqdaran zari. There is no dispute about the fact that during the crop of Kharif 1973 originally the entry was batar badastoor meaning thereby that the owners were the occupants as usual. Both the parties agreed that subsequently "water" was erased and a fresh entry in another ink was made showing Rahmat Ali and Barkat Ali sons of Mehnga in equal shares as tenants at will undoubtedly this erasion bestow a right of pre-emption on these persons. These facts are accepted by both the parties and there is no controversy about the same. The only issue in this case is as to who did this erasion, i. e. The appellant or his predecessors who were custodians of this record prior to his posting in the year 1975. The learned Collector as well as the learned Commissioner have drawn inference for the culpability of the appellant on the ground that if he was not the author of these erasements it was his duty to report about these interpolation in the Roznamcha Waqaiti before issuing the copies of the same in the name of Rahmat Ali, etc. According to both these superiors of the appellant the failure of the appellant to mention this unusual state of affairs in the Khasra Girdawari was a clear induction towards his culpability and thus according to them he favoured Rehmat Ali, etc. Against the complainant by enabling them to file a pre--emption suit against them. So in nut-shell the correct charge against the appellant should have been as to why he failed to mention the fact of easement in the disputed things before issuing the copy of the Khasra Girdawari to Rehmat Ali, etc. The appellant has placed on the record photostat copy of the application submitted by Rehmat Ali, etc. Pertain--ing to year 1973 in which they have made a complaint against Sardar Muhammad Patwari the predecessor of the appellant. Although they were in cultivating possession of the disputed number yet the Patwari was not incorporating their names as such. There is an order of Muhammad Sarfraz Khan, the then Tehsildar directing Patwari as well as the Girdawar to proceed in accordance with the facts of this case. The appellant had brought this fact to the notice of the respondent No. 1 and had requested that this issue be first resolved before taking any action against him. It seems this important factor of this case was completely ignored by respon--dent No. 1 as well as the respondent No. 2 while deciding the case of the appellant. It has also been established on the record that later on Rehmat Ali, etc. And the complainants compromised and dispute between them about pre-emption was amicably settled.
9. We have given our careful consideration to the entire facts of the case and find that there was no direct evidence with the respondent No. 1 to hold that the appellant was the only person who had interpolated the record and it was only by inference that he was held guilty. If respondent No. 1 had taken pains to call Muhammad Sarfraz Khan, Tehsildar or Rehmat Ali, etc. Who had made a complaint against Sardar Muhammad Patwari for not showing them as tenants the matter would have become clear at a very early stage as there was possibility to find that these erasements might have been done by Sardar Muhammad in compliance with the orders of Tehsildar-a fact which is apparently clear from the photostat copy of such application. It is unfortunate that the matter lingered for number of years once by remand of the case by this Tribunal and secondly, by spending lot of time in resolving controversy by respondent No. 1, i. e. Collector. In such case where a person is likely to lose his job the matter should be expedited so that the misery of a civil servant is reduced to minimum. In the present case we do not find any evidence on the record which should show that the appellant was charged with motives by any one with regard to this happening. We also do not find that the complainant had any evidence with him to show that the entry in the name of Rehmat Ali, etc. Was with some design on the part of thj appellant or the appellant was in any way connected with the tenants or had acted by accepting some illegal gratification. It is also rule of procedure that of the Revenue Department that they are bound to issue a copy of the revenue/record when it is so demanded by a person desirous of the same. At the most the appellant could be held guilty of negligence by not mentioning the erasion in the Roznamcha Waqiati but many a time such like omission can occur due to heavy rush of work. The law of the country on this issue is very clear that unless and until the prosecution proves a man guilty beyond any shadow of doubt he would be considered innocent. We are in full accord with the learned counsel for the appellant that in a complicated matter like this an independent enquiry into the entire facts of the case was a must so that chaff can be separated from the grain. The learned Collector should have been well advised to call Muhammad Sarfraz Khan Tehsildar as well as Rehmat Ali, etc. On whose application the said officer has passed a positive order. We also cannot fully absolve the appellant for his omission to record and entry into Roznamcha Waqaiti mentioning therein before issuing a copy of the Khasra Girdawari in favour of Rehmat Ali, etc. That their, names have been entered with a different ink against the entry of Maqbooza Malkan, therefore, we hold that the appellant was liable to be punished for this negligence but not visiting upon him the extreme penalty of dismissal. We, therefore, proceed to vary the punishment of dismissal to with holding of three increments alongwith a censure which we are confident would be a positive deterrent for the appellant to future.
10. The result is, we accept the appeal in terms so indicated above with the direction that the appellant be re-instated in the service, from the date he was so removed. He will also be entitled to all back benefits.