S. ABDUL JABBAR KHAN (CHAIRMAN).-Muhammad Saleem, ex-Patwari bas filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Assistant Commissioner (Syed Shaukat Ali Shah), Nankana Sahib and the Commissioner (Mr. Muhammad Afzal Kahut), Lahore Division, Lahore, as respondents.
2. By virtue of this appeal he has prayed that the impugned order dated 17-1-1979, passed by the Assistant Commissioner, Nankana Sahib and order dated 1-9-1979, passed by the Commissioner, Lahore Division, Lahore, be set aside and he may be re-instated in service with all back benefits.
3. Brief facts of the case are that the appellant while working as Patwari was suspended on 6-6- 1978, and was served with a notice under sub-rule (3) of rule 6 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. He refused to collect the notice and the copy of the same was posted at his door. Despite this service, he failed to appear and a notice through Press was given in daily Wafaq' on 28-12-1978, in which he was required to appear within 14 days in the office of the Assistant Commissioner/Collector. He failed to appear as required and ex parte proceedings were taken against him. Learned Assistant Commissioner Formulated eight charges against him and dismissed him from service vide his order dated 17-1-1979. He filed an appeal before the Commissioner, Lahore Division, Lahore and appeared in person before the said Court. Learned Commissioner, after hearing the appellant and perusing the file, maintained the order of the Assistant Commissioner and dismissed his appeal vide his order dated 1-9-1979. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the entire record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that the appel--lant has been a victim of mala fide of the Assistant Commissioner who first lodged a criminal case registered against him and then without giving him an opportunity of being heard in person, dismissed him from service. It has been argued that the appellant was arrested on 16-9-1978 and in his absence, charge was forcefully taken from him in utter disregard of the stay granted by the civil Court. It has been submitted that even in this matter, the High Court was approached through writ jurisdiction, With regard to the failure of the appellant to appear before the Assistant Commissioner although a proclamation appeared in the daily `Wafaq', it has been stated that, as it was provided in the proclamation that appellant should approach the Assistant Commissioner either directly or through the counsel, he did send Ch. Muhammad 1drees, Advocate, Lahore, to receive the charge- sheet but the Assistant Commissioner refused to provide the same to the counsel. In this matter a reliance has been placed on the affidavit of the counsel which is placed on the record. As the appellant was bed-ridden due to illness, he could not appear before the Assistant Commissioner thus the ex parte proceedings, so taken against him were in violation of the mandatory provisions of the Efficiency and Discipline Rules and the appellant was condemned without being heard in person. However, with regard to the appearance of the appellant before the learned Commissioner, Lahore Division, Lahore, it has been submitted that be did appear before the said Court but the learned Commissioner refused to take into consideration the plea so advanced by him in support of his defence and dismissed his appeal- with a short judgment without discussing each and every charge so levelled against him. Learned counsel has vehemently argued that the case of the appellant entails a regular enquiry into the charges through an Enquiry Officer and his summary dismissal under rule 6 (3) of the Punjab Civil Servants (E & D) Rules, 1975 in an ex parte manner by the Assistant Commissioner and dismissal of his appeal without discussing the defence against the charges so levelled against him, was highly unjustified.
6. With regard to the merits of the case it has been submitted that Charge No. 1 which relates to temporary embezzlement of Rs 586.51, was not substantive in nature as the fee so recovered by the appellant was duly. Deposited and the rules did not provide that the same should be: deposited immediately after its recovery. According to the learned counsel, all the recoveries and the fees were duly verified by the Field Kanungo every month. With regard to Charge No. 2, it has been submitted that the appellant did not commit any illegal act by entering the mutation of sale in the name of his brother, as the said vendee had obtained the permission of the Deputy Commissioner for the purchase of the said property although it was situated in the Patwar Circle of the appellant.
In view of the said sanction by the Deputy Commissioner the act of the appellant was neither illegal nor criminal. Regarding Charge No. 3, learned counsel has submitted that this matter of illicit cultivation had nothing to do with him as the Collector Nankana, in an open auction, leased out the land to one Muhammad Hassan son of Muhammad Mansha. In this manner false entries were made by Mohammad Shah, Girdawar and Abbas Khan, Patwari, a the behest of the Assistant Commissioner. Similarly Charges Nos. 4 and 5, it has been submitted that these charges are interlinked as they relate to one mutation bearing No. 117, dated 5-1-1972, in respect of the land purchased by the brother of the appellant, therefore, the charge of making, cuttings, interpolation of the said document would be inconceivable as the appellant would not like to destroy the record which pertains to the ownership of his brother. With regard to Charge No. 6, it has been submitted that all the corrections made in the register Ujrat Fardat are just clerical in nature and no substantial damage has been made in the record and the act of the appellant, could at the most, be considered as act of inefficiency. He has also expressed his apprehension that as the cuttings are not in the handwriting of the appellant and might have been done by his enemies. With regard to Charges Nos. 7 (i), (ii), (i.e) it has been submitted that all these charges do not pertain to any significant matter, the same may be ignored. However, with regard to Nos. (iv), (v) and (vi) of the charge learned counsel for the appellant could not give any cogent reasons and only submitted that the erasement by ink-remover was only made because the appellant was required to incorporate the stay order and the act was not due to any mala fide. While dealing with No. (vi) of Charge No. 7 which pertains to entering of mutation of inheritance of Nizam Din, the learned counsel has submitted that as soon as the appellant realised mistake, he corrected the error by getting the said mutation entered in the Register.
7. We have given our anxious thought to the arguments so advanced by the learned counsel for the appellant and have also attended to the arguments given by the learned District Attorney and in order to satisfy ourselves with regard to the entire charges, we have taken pains to peruse the entire record ourselves and in this matter we examined the Roz--namcha Waqiati for the years 1974, 1975 and 1976 Patwar Circle No. 52/2, Tehsil Nankana, District Sheikhupura, duly signed by the appellant, Register Dakhil Kharaj Mauza Chandpur, Tehsil Nankana Sahib, Had Bast 1962 and Register Ujrat Facdat maintained by the appellant at the relevant time.
8. With regard to the legal aspects of the case that the appellant was not heard by the Assistant Commissioner and the ex parte proceedings so taken against him, were not justified, we have satisfied ourselves from the record that the show-cause notice was sent to his house for service and when he was not available, the same was pasted at his door. There is also evidence on the record that proclamation was made through Press in which appellant was called upon to appear either himself or through his counsel. There is also an affidavit of the counsel on the record that he did approach Assistant Commissioner but no charge-sheet was delivered to him by the said officer. We also find that appellant ultimately appeared before the Commissioner and was heard in person by the said Court during the course of his appeal and the record of the case was also perused by the said Court. In this manner we are satisfied that the appellant was given full opportunity to defend himself who chose to stay away from the proceedings before the Assistant Commis--sioner as he apprehended that he would be arrested for the criminal case which had already been registered against him. The appellant has alleged -lot of malice against the Assistant Commissioner but nothing has been brought on the record to show as to why the Assistant Commissioner became staunch enemy of the appellant and what was the evidence towards this eventuality. The mere allegation of animus against a person/ authority, cannot be accepted by simple allegation to that effect. The appellant had full chance to defend himself before the Commissioner and while going through the judgment of the said Court, we do find that the learned Commissioner had applied his mind by perusing the record of this case as well as hearing the appellant. In view of this we are fully convinced that the appellant has not been condemned without being heard in person.
9. With regard to the arguments of the learned counsel for the appellant that the charges against the appellant required full-fledged inquiry through an Enquiry Officer, we are afraid, this argument is without any substance. We have ourselves seen the entire record of the case and find that the allegations and charges relate to the document which speak by itself either to accept or reject the same. There was neither charge of corruption nor any such charge, which would need an elaborate inquiry through an Enquiry Officer.
10. With regard to the merits of the case we have carefully seen all the entries, both in Roznamcha Waqiati, Ujrat Fardat as well as in the mutations registers and find that except items Nos. 5 and 6 of Charge No. 7, all the 'remaining charges are not grave in nature but definitely reflect on the efficiency of the appellant and he chose to play with the entries and reports at his own whim and fancy which he was not permitted to do so. Whatever maybe the nature of the entries so tampered, with, the fact remains that a Patwari is -not allowed to score out entries without giving cogent reasons and when he does so, he is required to mention the samein the' Roznamcha Waqiati so as to ensure that the same was done for the reasons given in that document. What we find in this case is that the appellant was highly careless Patwari who played with the record in the way he liked which was highly unwarranted on his part. We have examined all the cuttings and do find that these cuttings were only due to careless attitude of the appellant although none of these cuttings were grave in nature or in any manner fiddled with the rights of the parties, we would not like to deal with each and every entries, as it will be of no use to burden the record of this appeal, in view of our analysis in the earlier part of out judgment.
11. We will only refer to the matters as given in clauses No. (v) and (vi) of Charge 7. We have seen report No. 212 and do find that its earlier contents were removed by ink-remover and a mention of the stay order was incorporated in its place. Such like act can be for ulterior motives and we will not permit a Patwari to temper with the record in the Roznamcha Waqiati which is a valuable record and presumption of truth is attached towards the same. If this act of the Patwari is not severely dealt with, this will lead to destroy the sanctity of this document which always plays a very important role with regard to the rights and other claims of the land owner in a village. Similarly when we take into consideration clause (vi) of Charge No. 7 we find that the appellant first of all did mention the name of the girl in one mutation and had the audacity of excluding the same by virtue of another mutation. The appellant in no circumstances, was permitted to enter the second mutation unless and until, he had referred the matters to his superiors and had got permission for review and by no other means the mutation would be entered relating to the same matter.
Although the learned counsel has not discussed these two serious charges yet we can presume that as he perused the record of this case, the significance of these events must be present in his mind while dealing with the case of the appellant. The learned Commissioner has however, gone into the previous service record of the appellant and find that the same was very unhappy. The appellant was warned in March, 1961 and March, 1962 and was suspended for 5 months and 12 days during the year 1964. During May, 1968 to April, 1971, he again remained suspended for 2 years and 11 months. This chequered career of the appellant also influenced the learned Commissioner to take note of these serious matters and thus, he observed that a person of the appellant's character, would be an unfit person to remain in service.
12. In view of the above analysis of the entire case both on legal as well as factual points so raised before us by the parties, we are of the considered opinion that the impugned orders so passed against the appellant are not liable to be interfered with as the case of the appellant particularly relating to Charges Nos. 7 (v) and (vi) are grave in nature that the same cannot be condoned.
13. The result is we proceed to dismiss the appeal as being without any merits. Parties will bear their own costs.