' S. ABDUL JABBAR KHAN (CHAIRMAN).- Malik Muhammad Zafar, ex-Revenue Patwari has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the order, dated 21-8-1982 of the respondent No,1 whereby the appeal of the appellant was rejected upholding the order of respondent No,2, dated 24-4-1982, through which he was compulsorily retired from service. The appellant has impleaded the Commissioner Sargodha Division, Sargodha and Assistant Commissioner/Collector, Sub-Division, Shahpur Sadar, as respondents.
2. By virtue of this appeal he has prayed that both the impugned orders be set aside and he may be reinstated in service with all back benefits.
3. Brief facts of the case are that State land measuring 400 acres was subject of dispute between the occupiers of the said land and the Government. The Government was successful in getting the decree of ejectment against the said occupants and a formal possession of the said land was taken by the Government and entry of the same was made by the appellant in his Roznamcha Waqiati. When the possession of the said State land took place, a miscellaneous application was moved by Khuda Bakhsh etc. Against the Province of Punjab seeking interim injunction for filing appeal in High Court against the judgment, dated 3-2-1982, the same stood rejected by the Additional District Judge, Sargodha vide order, dated 7-2-1982. However, a status quo order relating to the said land was issued by the said Additional District Judge, Sargodha, which was followed upto 17-2-1982. The said occupants of the land Khuda Bakhsh etc. Delivered the status quo order to the appellant. The appellant received the same and entered in Roznamcha Waqiati at serial No, 199 of 7-2-1982. Later on it was found by the appellant that the occupiers did not leave the land and still occupied the same. He also found that Khuda Bakhsh etc. Were cutting green fodder and were maintaining the said property under their control. The appellant made a complaint to the higher authorities vide Rapt Roznamcha Nos, 200, 202 and 203, dated 7-2-1982, 8- 2-1982 and 9-2-1982, respectively. The occupants of the said land was also successful in securing a status quo order from Justice Munawar Elahi Rana passed on 16-2-1982, in the following term:- "Appellants possession shall not in the meanwhile be disturbed."
' Vide Rapt No, 238, dated 3-3-1982, the appellant sought instructions from the higher authorities as to whether Girdawari for Rabi Crop 1982 concerning the disputed 400 acres of State land is to be made in favour of the Provincial Government or status quo ante is to be maintained. The said Rapt did not receive any response and the appellant made record of Girdawari of the State land in accordance with the facts on the spot.
4. The appellant was served with a show-cause notice under rule 6(3) of the E & D Rules, 1975, for imposition of a major penalty, on the ground that although he had recorded the change of possession in his Roznamcha Waqiati yet he has the audacity to show the occupants in possession of the said disputed land in Khasra Girdawari. It was also stated in the said show-cause notice that the appellant was not competent to receive the status quo directly from the said Khuda Bakhsh etc. And should have obtained the order of Revenue Officer before doing so. The appellant was heard in person and was compulsorily retired from service with immediate effect vide order of the Assistant Commissioner/Collector, dated 24-4-1982. He filed an appeal before the Commissioner, Sargodha Division, which was rejected on 21-8-1982. Hence this appeal.
5. We have heard the learned counsel for the appellant as well as learned District Attorney and have perused the record of this case carefully with their assistance.
6. Learned counsel for the appellant has submitted that the impugned orders are not sustainable under the law as well as on facts. With regard to the legal position of the case, a grievance has been made that under rule 6 authorised officer is empowered to decide whether or not an Enquiry Officer had to be appointed and if so he shall have to made such an appointment and then under rule 7(i) he himself has to frame a charge-sheet and to communicate the same to the accused official. It has been further submitted that under rule 7(7) the Enquiry Officer has to submit his report to the authorized officer and under rule 7(8) it is for the later to determine whether or not the charge has been proved and in case of major penalty, he has also to make recommendation regarding the penalty to be imposed, to the competent authority. Learned counsel has submitted that in the present case, the competent authority himself has acted as authorized Officer as well as authority.
7. With regard to the facts of the case, it has been submitted that the appellant did enter the change of possession in Roznamcha Waqiati in compliance with Tehsildar Shahpur's Robkar, dated 6-2-1982. He mentioned this event in Rapt Roznamcha Waqiati No, 197 and also became Superdar of the standing crops vide the same Rapt. According to the learned counsel that although this act was conceded by him the appellant was not at all at fault in recording the Khasra Girdawari in accordance with the facts on the subject. Learned counsel submitted that the appellant made a complaint to the higher authority vide Rapt Roznamcha, dated 7-2-1982, 8-2-1982 and 9-2-1982, vide Nos, 200, 202 and 203, respectively, that Khuda Bakhsh etc. Were cutting green fodder but no response was received on the said reports. The appellant was also aware of the fact that a stay order, dated 7-2-1982, had been issued by the Additional District Judge and the same stood confirmed by the Judge of the Lahore High Court with the direction that the possession of the occupants should not be disturbed. With these orders in the ' field to the knowledge of the appellant, the appellant again made a reference to the higher authority as to guide him whether the Girdawari be made in favour of the Provincial Government or according to the facts on the spot. This according to the learned counsel finds mention in Rapt No, 238, dated 3-3-1982, Annexure '11'. As no response was again made to this reference, the appellant had no other alternative but to record the facts according to the situation on the spot as said Girdawari had to be completed on 7-3-1982. However, in the end it has been argued that if it is considered that the appellant made some technical mistake, without any ulterior motives, the punishment so awarded to him may be varied as the same is highly excessive.
8. On the other hand learned District Attorney has adopted the comments filed by the Assistant Commissioner in this case and has submitted that the legal points raised by the learned counsel for the appellant, are of no consequences under the Delegation of Powers Rules, the authority would itself act as an Authorised Officer as well as authority. This according to the learned District Attorney was supported by rule 2(3) of the E & D Rules, 1975. It was further submitted that under rule 6(3) of the E & D Rules, 1975, competent authority was fully competent to dispense with the enquiry and thus no illegality has been committed in this respect. With regard to the merits of the case it has been submitted that the appellant did record entry in Roznamcha Waqiati with regard to the cutting of green fodder but did not forward any complaint in writing to the higher authorities.
Learned District Attorney has taken exception to the acceptance of appellant of the stay order directing so brought to his notice by Khuda Bakhsh etc. And has vehemently contested that Girdawari was bogus affair as Khuda Bakhsh etc. We're not in cultivating possession of the State land.
9. We have given our anxious thought to the arguments so advanced by the parties and have no hesitation to hold that the legal assailment of the two impugned orders has no foundation in the law as under the Delegation of Powers Rules the competent authority can act as Authorised Officer as well as the authority, therefore, we repel the legal objection A so raised by the learned counsel for the appellant as being without any merit.
10. With regard to the merits of the case, we find that in accordance with the order contained in Memo. No, 973-M/Acctt., dated 23-2-1982, from the Deputy Commissioner, Sargodha to the Assistant Commissioner, Shahpur that the ejectment of regular allottees under 5 Marlas Scheme was held in abeyance whereas the standing crops given on Superdari vide Rapt Roznamcha Waqiati No,197, dated 6-2-1982 were put to auction. However, this auction was later on postponed by Naib-Tehsildar, Shahpur from 6-3-1982 to 9-3-1982 vide Robkar, dated 6-3-1982. We have examined the Rapt Roznamcha Waqiati, in this case and do find that the appellant did record Rapt Nos, 200, 202 and 203 on 7-2-1982, 8-2-1982 and 9-2-1982, respectively that Khuda Bakhsh etc. Were yet in possession of the land and were cutting green fodder which were under his Superdari.
We have also seen the order, dated 16-2-1982 of the learned Judge of the Lahore High Court, who passed on the application so moved by Khuda Bakhsh etc. Under section 151, C.P.C., in which it has clearly been recorded that the possession of Khuda Bakhsh etc. Would not be disturbed in the meanwhile. The contents of this application under section 151, C.P.C. Accompanied by an affidavit and other documents clearly indicated that the possession was still with Khuda Bakhsh etc. And this is why the learned Judge of the High Court allowed them to continue till the final decision of the case. In these circumstances, we are of the considered opinion that the possession of the Khuda Bakhsh etc. Was not disturbed on the spot but it was only a paper affair which found mention in Rapt Roznamcha Waqiati, dated 6-2-1982. As the order of stay followed in the wake of the first Rapt, dated 6-2-1982, the same was incorporated in the same Rapt Roznamcha Waqiati on 7-2-1982. In case if on the receipt of the stay order passed by the High Court on 16-2-1982, i,e, (10 days after the so-called dispossession of Khuda Bakhsh etc.) the Government was actually in possession of the said area, there would have definitely been a reference made by the Advocate-General before the High Court that stay order had become infructuous as the possession at the spot was with the Provincial Government and not with Khuda Bakhsh etc. The very fact that there is no such evidence on the record that such a reference was ever made, makes it crystal clear that Khuda Bakhsh etc. Were actually in possession of the said land and the entry made in Rapt Roznamcha Waqiati on 6- 2-1982, was a formal one. While going through the evidence on record, we further find that the appellant did make reference to the superiors for guidance, whether he should show disputed field number in favour of the Provincial Government in accordance with first entry, dated 6-2-1982 or he should record the facts of the case as they were at the spot but no reply was received by him. As the date of Girdawari was closing, therefore, the appellant acted in accordance with the facts which he verified at the spot and recorded the Girdawari in favour of Khuda Bakhsh etc. Being in cultivating possession of the said land.
11. With regard to the second charge that as to why the appellant received the stay order directly from Khuda Bakhsh etc. It would be sufficient to say so that his refusal to do so, would not have been immaterial in view of the case-law so cited in Messrs Hakimuddin Harmasji & Sons v. Messrs Ghafoor Textile Mills PLD 1978 Kar.
158. It was held by their Lordships as under:- "The judicial consensus holds that an order of stay takes effect immediately on being passed even if it is not brought to the notice of the subordinate Court or Tribunal, whereas an injunction order becomes operative upon being served on the party against which it is directed."
' In the present case the appellant was also under obligation to accept the stay order issued by the competent Court of law otherwise the said Court on the complaint made by Khuda Bakhsh etc. Could have hauled up the appellant under contempt of Court.
12. It is a well-settled principle of law that Khasra Girdawari and other entries of such nature in the Revenue record do not have the sanctity of those of the entries made in Jamabandi because the same can be varied by the higher authorities when these are found as incorrect. In this case if it was found by the authorities that in fact Government was in possession and Khuda Bakhsh etc. Were nowhere at the scene, the Revenue Officer should himself inspect the Girdawari and changed the entry accordingly at the spot. As this was not so therefore, the superiors of the appellant did not take courage to vary the entries as Khuda Bakhsh etc. Were very much at the site and according to the evidence on the record, were ready to resist such possession of the Government, particularly when they were armed with the stay order issued by the Additional District Judge and confirmed by the Judge of the Lahore High Court.
13. In view of detailed analysis of facts as well as legal position of this case, we are of the confirmed view that the appellant acted in accordance with the judgment from time to time in this case and cannot be held guilty of the charges so levelled against him. However, he did not show intelligence by bringing the Revenue Officer at the spot at the time of Girdawari to show his helplessness in the matter instead of referring the matter to superiors in routine. If he would have like the way as suggested above, he would have easily escaped from the responsibility and would have shifted the same to the shoulders of Girdawar or Naib-Tehsildar. Similarly when it was found by him that his Superdari was being interfered with by Khuda Bakhsh etc. Who had started cutting the green fodder, he should not have been contended by mentioning the same in the Rapt Roznamcha Waqiati, but as a Superdar, should have got a case registered against the delinquents through his superiors. However, this would be an act of a very intelligent person which the appellant showed that he was not.
14. In view of the above, we have no hesitation to set aside the impugned orders as not in consonance with the lapse on the part of the appellant so mentioned above by us and vary the same by imposing the minor penalty of censure plus stoppage of two increments without cumulative effect.
15. Resultantly we accept the appeal of the appellant to the extent so indicated above and direct that he would be reinstated in service from the date he was so compulsorily retired. The period of his absence would be treated as period of leave of the kind due. However, there will be no order to costs.