1. ' KH. ABDUS SAMAD (MEMBER).-Mr. Riaz-ur-Rehman Dar Ex-Assistant Collector 1st Grade and Administrator, Municipal Committee, Muzaffarabad has filed this appeal under section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975, in which he has challenged Government Order, dated 19th June, 1979 passed by the respondent. He was awarded punishment of compulsory retirement from service. By virtue of this appeal he has prayed that the impugned orders, dated 19th June, 1979 and 9th September, 1979 passed by the respondent-Government be set aside.
2. Briefly facts of the case are that while the appellant was working as Assistant Collector 1st Grade when on 11th March, 1978 he was transferred and appointed as Administrator, Municipal Committee by respondent-Government.
3. On 4th May, 1978 the appellant was suspended from service by the respondent and after that show-cause notice was served on him on 11th May, 1978, followed by another show cause notice, dated 3rd May, 1979. He submitted his explanations and replies to the above notices but was retired from Service. His review petition was also turned down by the respondent. The appellant has challenged the above orders in his appeal and the respondent has submitted written statement.
4. Both the parties have put in written arguments and no evidence was led by them in this appeal.
2. The appellant applied for summoning the record and this application was accepted and record was made available to us by the respondent-Government.
3. ' In order to trace out the history of this appeal we reproduce the order of suspension (shown as Annexure 'A') issued by the Government first show-cause notice and second show-cause notice for the sake of reference and convenience :- "No,--- ' Azad Government of the State J & K S&GAD, Muzaffarabad.
4. Date--
5. ' The President, Azad J & K has been pleased to suspend the following officers with immediate effect on account of serious charges against them .-
(1) Mr. Riaz-ur-Rehman, ' Revenue Assistant, Muzaffarabad (Now Administrator, Municipal Committee? Muzaffarabad).
(2) Mr. Aslam Akhtar, D. F.
0. Forest Department. They shall be served with show-cause notices.
6. (Sd).
7. (Khalil Ahmad Qureshi), Secretary S&GAD No, S&GAD/8187-91, dated 4th May, 1978.
8. Copy to (1). Secretary to President, Principal Secretary, Secretary Forest C. C. F. And A. G.
(2) No, S&GAD/8721/78. S&GAD, Azad Government of the State of J & K, Muzaffarabad.
9. Dated : 11th May, 1978.
10. To, Mr. Riaz-ur-Rehman Dar, the then Revenue Assistant now Administrator, Municipal Committee, Muzaffarabad (under suspension).
11. Sub : Show-cause notice.
12. ' The Competent Authority after considering the report of Inquiry Commission No, 1 as far as it pertains to you, has decided to serve show-cause notice under rule 6 (3) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, upon you Mr. Riaz-ur-Rehman, the then Revenue Assistant, Muzaffarabad now Administrator, Municipal Committee, Muzaffarabad (under suspension) on the following charges :- That you while working as Revenue Assistant Muzaffarabad prepared fictitious documents, as a result of joint inspection conducted by you and managed irregular sanction of forests in favour of Ch. Raj Muhammad and others, Tehsil Muzaffarabad for ulterior motives.
(2) In the light of the above charges you appear to be guilty of mis- conduct under rule 3 (a) (v)
(b) and (c) of Azad J & K Civil Servants (Efficiency and Discipline) Rules, 1977 and the competent authority propose to award you the penalty of dismissal from, service and as such you are directed to show-cause why you should not be dismissed from service as laid down in the aforesaid rules.
13. You are required to submit your reply to the undersigned within 10 days of the receipt of this show- cause notice. If your reply is not received within the specified period it will be presumed that you have accepted the charges levelled against you and the case will be decided accordingly. After the issue of show-cause notice you are not required to be heard in person under rules. However, to meet the ends of justice you can be heard in person for any clarification with regard to charges, if you state so clearly in your reply to this notice.
14. (Sd.)
15. (Khalil Ahmed Qureshi), Secretary S&G,AD Second Show-cause notice.
16. ' No, S&GAD/646/79. S&GAD, Azad Government of the State of & K, Muzaffarabad ' Dated : 3rd March, 1979.
17. To, ' Mr. Riaz-ur-Rehman Dar, Revenue Assistant. (Under suspension) c/o Revenue Commissioner, Muzaffarabad.
18. ' Sub : Show-cause notice.
19. ' The Competent Authority after examining the joint report prepared by the Commissioner and the C. C. F. In respect of private Forest case of Ch. Raj Muhammad, has decided to serve show-cause notice on you, Mr. Riaz-ur-Rehman Dar, Revenue Assistant (Under suspension) on the following charges :-
(1) Mauza Hariala :
(a) In Khasra No, 17 you have shown this No, 2 furlong away from the forest, whereas in fact it is located in the deep forest.
(b) Khasra Nos, 187, 197/1 and 198 were found on the spot inspection in four separate pieces. Khasra No, 187 was shown to be separate from Nos, 197, 197/1 and 198. No tree was found in these Khasras Nos, were shown together and were also reported by you and Mr. Aslam Akhtar, D. F.
0. To contain thick forest. Khasras Nos, 224 and 225 were found together whereas Khasra No, 228/1 was found two furlongs away. Khasras Nos, 224 and 225 were found together whereas Khasra No, 228/1 was found two furlongs away. Khasras Nos, 224 and 225 contain some trees, but in the number that these could be classified as private forest. In the previous map all the three Khasras Nos, have been shown together; but on the spot inspection it was revealed that these contain thick forest. The total Khasra numbers of this village which were determined on the spot and were accepted to be correct by the local Zamindars, did not contain any tree but according to the previous map, these Khasras numbers were wrongly shown to have contained thick forests consisting of thousands of trees. It is, therefore, apparent that old maps were prepared contrary to the facts and to the benefit of the owners of these Khasras numbers.
(2) Mauza Batkanala :
(a) According to the joint report, from Khasra No, 281, 45 Kanals land was purchased by Mr. Niaz Muhammad son of Raj Muhammad. On the spot inspection did not reveal any trees in this area nor in any of the area owned by Niaz Muhammad according to the previous report and map, Khasra No, 281 was shown within the forest and this is a total fabrication.
(b) Another misappropriation of facts has been noticed with relation to Khasras Nos, 265 and 266 which have been shown in Behak Piran and these have also been determined to be outside the sufaid raqba and within the forest. On the spot inspection revealed that from Khasra No, 265 and after Khasras Nos, 266 upto 279 exist in Mauza Batkanala about 15 miles away from his Behak Piran.
20. These two Khasras numbers have been wrongly shown in this Behak round about Khasra No, 281, which is contrary to the facts.
(3) Mauza Kai Manja : ' The records about this village do not exist and Khasra Gardawari has been prepared on the basis of suppositions. According to the Government Gazette, the area of this Chak is 127 Kanals and 11 Marlas. On the spot inspection revealed a total area of sufaid raqba as 179 Kanals and 9 Marlas.
21. Without going into the distinction of Khasras numbers, this can be said that if there is any area of any Khasra No, included within those dimensions these would be in the form of sufaid raqba and not forest. Similarly, Khasra No, 591 was shown in thick forest which is quite wrong. In fact, this area falls within the Chak and this was wrongly located to give benefit of hundred of trees to the private party.
(4) Ownership Certificate : ' Grave inaccuracies have been detected in various Khasras numbers, which have been found to belong to a large numbers of parties. However, the ownership certificate was issued in the names of four persons only and others were deprived of their legal rights.
22. ' In the light of the above you appear to be guilty of inefficiency, misconduct and corruption. You are, therefore, required to show-cause as to why disciplinary action should be taken against you under rules. Your reply to this show-cause notice should reach the undersigned within 15 days positively failing which it will be presumed that you have accepted the charges and necessary action will be taken against you under the rules. If you desire to be heard in person you may state so in your reply to this show-cause notice.
23. (Sd.)
24. (S. Muhammad Ibiahim), Dy. Secretary S&GAD ' Copy to Secretary Revenue. Dy. Secretary Election Cell. 3 Revenue Commissioner.
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30. ' Sub : Show-cause notice. Sir, ' The show-cause notice served under your No, 8721/78, dated 11th May, 1978 was acknowledged by me on 12th May, 1978. The itemwise replies are submitted as under today on 25th May, 1978 in continuation to my submission of dated 21st May, 1978.
(1) The joint Inspection on spot was conducted by the undersigned in collaboration with the D.F.O., J.V., Division in compliance with the D. C. Muzaffarabad's Order No, 622-23, dated 5th April, 1974 issued by him under C.O. No, 33/71. The joint Committee thus ordered to inspect. The spot was entrusted to verify the record already maintained by the Revenue Staff. The question of preparation of any fresh record as a result of the joint inspection was neither within the jurisdiction of the joint Committee nor the duty entrusted/assigned. Thus, the charge that fictitious documents were prepared as a result of joint inspection was all together without any foundation whatsoever.
31. ' The Settlement record of the villages Haryala, Kaimanja and Batkanala were destroyed during the War of Liberation. The Revenue Staff posted in these villages prepared the record on the basis of the following legal documents and evidence available, in the villages :--
(i) Parcha Bandobasti in the custody of such Khewatdar.
(ii) Khasra Girdawari of old Dogra Regime lying with the Patwaris.
(iii) On spot possession of the Khewatdars based on the authority of parcha bandobast. The Revenue authorities had prepared the record on the basis of the above documents etc. Right with effect from 1950 onwards. Thus, to presume that any fresh record was prepared by the under signed just before our joint inspection or after our inspection was against facts. The party i. e. The undersigned and the D. F.
0. J. V. Division were required to verify the possession on spot of the claimants based on Parcha Bandobasti and measurements our inspection was not the first attempt in this respect but previously Mr. A. R. Salim in his capacity as Collector of District vide his No, 1333, dated 27th November, 1968 had issued a certificate of undisputed ownership in respect of Khasras Nos, 17, 19, 197/1, 187 and 198. It is thus obvious that no fresh record was prepared after joint Inspection. The charge is, therefore absolutely, against facts our joint inspection was conducted to verify the correctness or otherwise of the already existing record. No assignment for the preparation of the so-called fresh record was entrusted to the Inspection Party.
(2) The charges framed in light of rule 5 (a), (v), (b) & (c) of A. K. Services and Efficiency Order, 1977 basing the same as a result of charge No, I above is, therefore against facts.
(3) In order to establish the correctness and legal framework basing our joint report, it is essential that the true picture of the existing documents be brought to the notice of the authorities. In this respect, I will most respectfully request the authority to afford me an opportunity for personal hearing.
32. (Sd.)
33. (Riaz-ur-Rehman Dar), Ex-Revenue Assistant, Now Administrator Municipal (Under Suspension)
34. ' Copy to Chairman Enquiry Commission No, 1 for favour of information.
35. ' The order of retirement passed by the respondent-Government on 19th June, 1979 Annexure 'D' is followed by another order (D) and is equally important for disposal of this appeal.
36. ' In his review petition the appellant had raised legal objection and shown as Annexure 'EY on the file. This did not find favour and the same was rejected by respondent-Government on 9th September, 1979.
37. ' In order to provide healthy administration to the public, the Azad J & K Government had decided to carry out through probe in certain departments. In this connection Forest Department was also referred to Commission for pointing out corruption and irregularities in this department. Enquiry Commission No, 1 headed by Brig. Muhammad Iqbal Qureshi considered the Private Forest case of Ch. Raj Muhammad and others and in their report the following note was recorded against the appellant :- "The inspection was conducted by Revenue Assistant Collector and D. F.
0. Mr. Aslam Akhtar on 28th/29th January, 1975. The Joint Inspection appears to be fictitious and this was the base on which sanction was given."
38. ' The relevant column of recommendation against the appellant's case is in the following form :- "A severe disciplinary action should be taken against M. Riaz-urRehman, Revenue Assistant and Mr. Aslam Akhtar, D. F.
0. Who conducted the joint inspection operation and prepared fictitious documents by which they managed irregular sanction of forests in favour of Ch. Raj Muhammad and others."
39. ' All these recommendations of the Enquiry Commission No, 1 regarding Forest Department were put up to the respondent-Government.
40. ' In the present appeal the recommendations and remarks of the above Commission resulted in the compulsory retirement of the appellant. The method adopted under rule 6 (3) of Azad J & K Civil Servants (Efficiency and Discipline) Rules, 1977 has been applied by the respondent- Government as is clear from 1st show-cause notice, dated 11th May, 1978 and second show-cause notice, dated 3rd March, 1979. In the above 1st show-cause notice charge No, 1 reads as under :-
(1) That you while working as Revenue Assistant, Muzaffarabad prepared fictitious documents, as a result of joint inspection conducted by you and managed irregular sanction of forest in favour of Ch. Raj Muhammad and others, Tehsil Muzaffarabad for ulterior motives.
(2) In the light of the above charges you appear to be guilty of misconduct under rule 3 (a) (v)(b) and (c) of Azad J & K Civil Servant (Efficiency and Discipline) Rules, 1977 and the competent authority proposed to award you the penalty of dismissal from service and as such you are directed to show cause why you should not be dismissed from service as laid down in the aforesaid rules.
(3) You are required to submit your reply to the undersigned within 10 days of the receipt of this show-cause notice. If your reply is not received within the specified period it will be presumed that you have accepted the charges levelled against you and the case will be decided accordingly.
41. After the issue of show cause notice you are not required to be heard in person under rules.
42. However, to meet the ends of justice you can be heard in person for any clarification with regard to charges, if you state so clearly in your reply to this notice.
43. (Sd.)
44. (Khalil Ahmed Qureshi), Secretary S&GAD ' This charge as shown was the result of report of Inquiry Commission No, 1 and the second show- cause notice, dated 3rd March, 1979 was result of joint inspection report prepared by the Revenue Commissioner and C. O. F. In respect of Private Forest Case of Ch. Raj Muhammad and others. The second notice was issued by S. Muhammad Ibrahim Khan, Dy. Secretary S&GAD.
45. ' As required under Government Notification No, 21864-924, dated 17th October, 1979 the Prime Minister/Chief Executive is the Authority and Secretary, Revenue is the Authorised Officer for dealing with inquiries involving officers from Grade-I6 to Grade-19 of Revenue Department.
46. ' As is apparent from the record the mandatory provisions of Efficiency and Discipline Rules, 1977 have not been followed and Authorised Officer has never been allowed to perform his duties under the said rules. At the time of probe conducted by the Enquiry Commission No,
1. The accused officer was not summoned to explain his position with regard to Joint Inspection note prepared about the private forests of Ch. Raj Muhammad and others. The observation of the said Commission against the appellant demanded proof of preparing fictitious documents and ulterior motive in this matter.
47. No such proof or any evidence is on record and the remark that the joint inspection note appears to be fictitious is not conclusive finding and cannot be used against appellant without affording him reasonable opportunity of explaining the same. Another joint inspection conducted by the Revenue Commissioner and C. C. F. Does not show that the appellant was ever associated with the same and their dissatisfaction with the joint inspection note shows that all the proceedings taken against the appellant were one-sided. This violation of golden principle of natural justice has been pleaded throughout by the appellant. The charge of preparing fictitious documents demanded through enquiry under rule 6 of Efficiency and Discipline Rules, 1977 and that was essential for doing justice to both the parties.
48. ' The order of suspension passed by the Authority (respondent-Government) shows that the same action has been taken against the accused officer on account of serious charges and this order is silent about the charges. The right of show-cause notice as given to appellant under Efficiency and Discipline Rules, 1977 has been denied and the same order is an example of unheard condemnation.
49. No doubt show-cause notices A, B and C were issued after suspending the appellant from service but these notices are without authority on B the ground that Secretary, Revenue being the Authorised Office was not stall associated with the matter that resulted in above impugned orders.
50. This violation of Efficiency and Discipline Rules, 1977, as adapted by the respondent-Government has prejudiced the appellant and he has been condemned without any proof.
51. The probe conducted by Commission of Enquiry No, 1 and joint inspection note conducted by C.C.F.
52. And Revenue Commissioner are self-speaking to the effect that the appellant was never summoned or examined before forming adverse opinion against him. The concerned Authorised Officer i. e. Secretary, Revenue Department was to proceed against the appellant under Efficiency and Discipline Rules, 1977 but the same has not been done and a different method against the provisions of Efficiency and Discipline Rules has been followed.
53. The remarks of the Enquiry Commission No, 1 and joint inspection of the disputed forests conducted by C. C. F. And Revenue Commissioner are not conclusive proof of misconduct against the appellant and the impugned orders being one-sided cannot be sustained.
54. We have considered the appeal as a whole and after through scrutiny of the record, we are of the opinion that a fresh enquiry regarding the charges levelled against the appellant will meet the ends of justice. For that purpose we direct that a fresh enquiry be conducted strictly according to Efficiency and Discipline Rules, 1977 as adopted in A. K. As given above we accept the appeal set aside the impugned orders, dated 19th June, 1979 and 9th September, 1979 with no order as to costs.
55. ' SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-I agree with the learned Member that the impugned order needs to be set aside and the case remanded to the competent authority with the direction that fresh disciplinary proceedings against the appellant be taken in accordance with sub-rule (2) of rule 6 of Azad J & K Civil Servants (Efficiency and Discipline) Rules, 1977 by appointing Inquiry Officer or Inquiry Committee for the purpose of holding an inquiry into the charges against the appellant. Under rule 6 (2) of the said rules, the Authorised Officer is bound to appoint inquiry officer or inquiry committee to inquire into the charges levelled against the civil servant against whom the authority to initiate disciplinary proceedings under Efficiency and Discipline Rules, if either the facts of the case or the interests of justice so demanded. It is only, when the Authorised Officer after taking into consideration the facts of the case as well as the interests of justice, comes to the conclusion that it is not necessary to have an inquiry into the charges against the civil servant conducted through an inquiry officer or inquiry committee, he is empowered to have recourse to shorter or summary procedure of show-cause notice envisaged under rule 6 (3).
56. ' In the case in hand, the charge against the appellant was that while working as Revenue Assistant, Muzaffarabad he had prepared some fictitious documents with a ulterior motive to manage irregular sanction of forest in favour of Ch. Raj Muhammad and others. The appellant had denied the charge taking the defence that no fresh document was prepared in respect of private forest land in villages Kai Manja and Hariala which had already been prepared by the then Deputy Commissioner in 1952 in the absence of field map of the villages concerned which had been destroyed during the war of Liberation and that Joint Inspection Team of which he was member only was entrusted with the task of verifying the correctness or otherwise of the same which they did on the basis of the existing revenue record, Purcha Bandobasti, possession of the land and the result of the spot inspection.
57. ' So, in view of the nature of the charge and the reply of the appellant thereto, both the facts of the case as well as interests of justice made a clear demand that the inquiry into the said charge against the appellant should be got conducted through an Inquiry Officer Inquiry Committee in terms of rule 6 (2). Therefore, the competent authority was not legally justified in not appointing Inquiry Officer or Inquiry Committee to hold inquiry into the charge against the appellant and only issuing show-cause notice to the appellant under rule 6 (3) of the said Rule. The competent authority was under legal obligation to observe procedure prescribed under rule 6 (2) of the Efficiency and Discipline Rules by appointing either the Inquiry Officer or Inquiry Committee for the purpose of holding inquiry into the charge made against the appellant.
58. ' From the impugned order of compulsory retirement of the appellant, it appears that the same has been passed merely on the report of the Commission of Inquiry No, 1 and the joint report made by the Commissioner and the Chief Conservator of Forests in respect of forest case of Ch. Raj Muhammad and others. In my opinion, it was highly impossible for the competent authority to come to any definite finding as to the truthfulness or otherwise of the allegation against the appellant merely on the basis of the above reports inasmuch as the nature of the charge against the appellant required detailed and complete inquiry into it by some Inquiry Officer or Inquiry Committee for arriving at correct conclusion thereon. Moreover, the above reports could not be legally taken notice of and made use of for basing any finding on the charge made against the appellant in a disciplinary proceeding against him. These reports could only be made the basis for initiating the disciplinary action against the appellant but could not be treated as an evidence in support of the charge against him as the proceedings before the Inquiry Commission as well as the Inspection Team were conducted before the framing of the charge and were also conducted ex pane without associating the appellant with them. The report of such one-sided proceeding conducted at the back of the appellant could not be taken into consideration while giving any finding on the charge against the appellant.
59. The orders impugned in this appeal are accordingly set aside and the appellant is re-instated in service and the case is remanded with the direction that the competent authority shall take fresh proceedings in the light of the above observations by appointing Inquiry Officer or Inquiry Committee to hold inquiry into the charges against the appellant in terms of Rule 6 (2) on the Efficiency and Discipline Rules.
60. ' There shall be no order as to costs. . Case remanded.