' MALIK ZAWWAR HUSSAIN (MEMBER):- Gui Muhammad Khan, Ex-Patwari, has filed this appeal under section 4 of the Punjab Service Tribunals Act of 1974 against the order, dated 5-11-1980, whereby he was removed from service by the Assistant Commissioner/Collector, Jhang as well as against the order, dated 1-6-1981 passed by the Commissioner, Sargodha Division whereby his appeal was dismissed.
2. By virtue of this appeal he has prayed that both the impugned orders be set aside and the appellant be declared to be continuously in service with all back benefits of service.
3. Brief facts of the case are that while the appellant was posted as Patwari in Halqa Malhuana, Tehsil and District Jhang, a charge-sheet alongwith statement of allegations were served on him by the Assistant Commissioner, Jhang on the following grounds:--
(1) That on 17-11-1979 at the time of visit of Circle Revenue Officer to Mauza Samundri Kalan he was found absent from the halqa despite having prior information about the visit.
(2) That on 25-11-1979 during the visit of Circle Revenue Officer to Mauza Samundri Kalan, the appellant was found absent. He was searched on in the evening but he did not produce the Roznamcha to the Revenue Officer. The Revenue Officer told him that he would get a case registered against him. The appellant produced the Roznamcha which was found blank from 6-10- 1979 to 26-11-1979 with ulterior motive.
(3) That during the Girdawari of Kharif 1979, he had done the Girdawari of Khasra Nos, 15/15, 16, 28, 12/2, 13/1 and 19, 22 and 29/2 of Mauza Samundri Kalan in the name of Muhammad Bakhsh son of Inayat and Ghulam Muhammad son of Rehana but according to spot inspection by the Circle Revenue Officer, the position on the spot was different.
' The appellant submitted reply to the charge-sheet. Malik Khaliq Dad, E.A.C., Jhang was appointed as an Enquiry Officer. He conducted an enquiry against him in accordance with the rule and after recording the statements of five witnesses for prosecution and 9 witnesses for the defence, submitted the enquiry report holding the appellant guilty of all the three charges. The Assistant Commissioner, after issuing show-cause notice and hearing the appellant in person passed the impugned order. The appellant preferred an appeal to the Commissioner, Sargodha Division but without any fruitful results. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as the learned District Attorney on the behalf of the respondents. It has been argued on behalf of the appellant that the Enquiry Officer as well as the authority has not appreciated the evidence on record and has totally ignored the statements of witnesses recorded in the defence of the appellant. He has also submitted that the complaint made by Ch. Abdul Razzaq was mala fide because the appellant refused change of the Khasra Girdawari according to his wishes. On this account the said Naib-Tehsildar was annoyed and he concocted the false story. He has also submitted that Ch. Abdul Razzaq was an interested witness and no reliance could have been placed on his evidence. On the other hand the learned District Attorney has submitted that the statement of Ch. Abdul Razzaq, Naib-Tehsildar is reliable and his evidence is very crucial and important. On merits, he has submitted that Enquiry Officer as well as the authority has properly weighed the pros and cons of the evidence and has arrived at proper conclusion by holding the accused guilty of all the charges, as such he has concluded that there is no force in the appeal on merits, which is liable to be dismissed.
5. We have given our anxious thoughts to the arguments addressed by the learned counsel for the parties and have also perused the record of the case. In order to arrive at the just decision of the case, we would analyse the evidence charge-wise in seriatum as under:- ' Charge No,1: ' Regarding the absence of the appellant from Village Sumandri KaIan.
Regarding absence at the time of visit of Ch. Abdul Razzaq P.W.2 on 17-11-1980, the authority has relied on the statement of P.W.2, Ch. Abdul Razzaq, Naib-Tehsildar, Ch. Rehmat Ullah, Girdawar P.W.1, while the appellant has produced Mr. Noor Hussain Shah, Ch. Faqir Muhammad and Charagh Shah in his defence. Ch. Abdul Razzaq has stated that he had verbally directed the appellant to be present in village Sumandari Kalan on 17-11-1979 and that he did not issue him any written order. In the absence of any written order it cannot be held that any such direction was given to the appellant to be present in village Sumandari Kalan on 17-11-1979. Thus we hold that charge No,1 is not proved against the appellant because the official acts are to be performed by Written orders.
' Charge No,2: ' The prosecution case hinges on the evidence of Ch. Rehmat Ullah Girdawar P.W.1, Abdul Razzaq P.W.2, Ghulam Qasim, Peon P.W.3, Ch. Rehmat Ullah and Ch. Abdul Razzaq has stated that according to the approved tour programme, the appellant was informed before the tour of the Revenue Officer to village Sumandari Kalan and when the Revenue Officer and Girdawar reached there they did not find him present. Ghulam Qasim has stated that on the instructions of Ch. Abdul Razzaq, Naib-Tehsildar, he searched for the appellant on 25-11-1979 and after locating him, produced him before the Revenue Officer. Their evidence is corroborated by the statements of Ch. Rehmat Ullah, Girdawar P.W. And Ch. Abdul Razzaq P.W.2. It is also in the evidence that first the appellant had declined to produce the Roznamcha but on threat being extended by the Revenue Officer for the registration of the case against him, he produced the same in the morning of 26-11- 1979 which was found blank from 6-10-1979 to 26-11-1979. To controvert their statements, the appellant has relied on the statement of D.W.1, D.W. 2 and D.W.3 to prove that the appellant remained present in the office of the Union Council in the village but the Revenue Officer did not reach there till evening. It is worthwhile to point out here that the defence witnesses were not cross-examined by the Enquiry Officer or by the representative of the authority. Since the statements of defence witnesses Noor Hussain Shah, Ch. Faqir Muhammad and Charagh Shah have remained unrebutted on record so these cannot easily be brushed aside. However, the evidence of Ch. Abdul Razzaq on this issue is also worth consideration wherein he has stated that when he reached the village on 25-11-1979 the appellant was not present but was later on searched out in the evening. While reading the statements of the prosecution as well as the defence between the lines, it can easily be inferred that there was some confusion about the time of arrival of the Revenue Officer in the village but the fact remains that the appellant met the Revenue Officer on the said date although in the evening. Thus we hold that the charge No,2 so far as it relates to the absence of the appellant is not proved.
' So far as the second limb of this charge regarding Roznamcha Wakiati is concerned, it is a common case of the parties that it was blank. On the one hand the prosecution witnesses have stated that it was produced on 26-11-1979 and it was found to be blank while the case of the appellant is that the Girdawar had seized the Roznamcha and Girdawari Register etc., on 5-10-1979 for the verification of Girdawari and while the Girdawar returned the register and other papers to him after their verification but he did not return the Roznamcha Wakiati on the pretext that it was lying with the Revenue Officer. The appellant has also produced Rana Abdul Rashid and Ch. Muhammad Ahmad Patwaris, the President and General Secretary of Patwarian Union in his defences to prove his contention that the said Roznamcha Wakiati was in the custody of Ch. Abdul Razzaq P.W.2 who wanted him to change the Khasara Girdawari. We have minutely read the statement of these witnesses. It is crystal clear that Ch. Rehmat Ullah Girdawar was examined as a witness but the appellant had not put him any question to the effect that the Roznamcha Wakiati was seized by him and that he did not return the same to the appellant. Thus we cannot accept the plea of the appellant that it was in the possession of the Girdawar during the relevant period.
We also cannot ignore the statement of Ch. Abdul Razzaq, on this issue when he has categorically stated that it was produced before him by the appellant on 26-11-1979 and it was found blank. The appellant has not been able to elicit anything in his favour during the cross-examination nor he has suggested him any question that the Roznamcha was in his possession. We cannot believe the statements of Rana Abdul Rashid and Ch. Muhammad Aslam P.W. As they are interested witnesses being the office-bearer of the Union to which the appellant belonged. Had the Roznamcha Wakiati been in the possession of the Revenue Officer and if he had refused to return the same to the appellant, the appellant should have reported the matter to the Assistant Commissioner instead of rushing to the un-authorised persons i,e,, his own colleagues. In these circumstances we hold that the Roznamcha Wakiati was in the possession of the appellant who produced the same on 26-11- 1979 and it was blank from 6-10-1979 to 26-11-1979.
' Charge No,3: ' The allegation against the appellant is that during Girdawari of Kharif 1979 he did the girdawari of Khasra Nos, 15/15, 16,28/11,12/2,13/1 and 19, 22 and 29/2 of village Samundri Kalan in the name of Muhammad Bakhsh son of Inayat and Ghulam Muhammad son of Rehana although other persons were also in cultivating possession of the land in question. In the charge-sheet it is stated that according to the report of the Revenue Officer, Girdawari conducted by the appellant was found to be erroneous. We have examined the entire file but we have not seen any such report on the record. Conversely Dost Muhammad P.W.5 has stated that the appellant has rightly done the girdawari in his name while Mr. Allah Ditta has stated that the case for correction of the girdawari is pending in the Court of Assistant Commissioner. Since the dispute of the correction of girdawari is pending an adjudication in the Court of Collector/A .C., so it is not possible for us to hold that the appellant had wrongly done the girdawari. As such the findings of the Enquiry Officer as well as the authority are hasty and not supported by any evidence. So we hold that the Charge No,3 is also not proved.
Since we have held the Charges Nos,1 and 3 and part of Charge No,2 as not proved, so we propose to vary the punishment imposed upon the appellant. The only charge proved against the appellant is that when he produced Roznamcha Wakiati before the Revenue Officer it was found blank from 6-10-1979 to 26-11-1979. We have taken all the pros and cons into consideration and we consider that in the circumstances of the present case, the punishments of withholding of the increments for three years without cumulative effect and censure would be sufficient to meet the ends of justice and we order accordingly. We have taken lenient view considering the facts that no loss was caused to any body by this lapse on the part of the appellant and other mitigating circumstances.
In view of the above analysis, we accept the appeal and set aside the impugned order by varying the punishment imposed upon the appellant as indicated above. The appellant shall be re- instated into service but will not be paid anything over and above what he has already received.
' There will be no order as to costs.