Munshi Allah Rakha, ex-Patwari has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 against the order of the respondent Collector, Lodhran, dated 3-4-197 8 and that of the learned Commissioner, dated 2-5-1979 and the learned Member Board of Revenue, dated 14-9- 1981 whereby he was dismissed from service for temporary embezzlement.
2. By virtue of this Appeal he has prayed that all the impugned orders be set aside and he may be re-instated in service.
3. The brief facts of the case are that during the year 1975 when the appellant was posted in Halqa Nangani and prepared Dhal Bachh for the recovery of arrears of land revenue for Rabi 1975-79 for Mauza Thalli and Mauza Nangi as well, the Lumbardar of Mauza Thalli namely Gul Muhammad Khan refused to accept Dhal Bachh and Lumbardar Allah Yar of Mauza Mangi was in jail. The Appellant reported the matter to the Tehsildar and he was directed by him to collect the abovementioned revenue from the land-owners for Mauza Thalli and Nangi.
4. Tehsildar got the case registered against the Appellant under section 409, P.P.C., vide F.I.R. No. 263, dated 4-11-1977 on the ground that the appellant had temporarily embezzled the sum so collected by him from Khewat Bachh. Appellant sought interim bail which was granted to him by the Additional Sessions Judge, Multan on 5-11-1977 and the same was confirmed on 25-1-1978. The said F.I.R. Was discharged on 28-2-1978 on the ground that the arrears were due from the land owners and not from the appellant. The appellant handed over the list of arrears which was still due from the land-owners to the Tehsildar and the matter was dropped at that time. After the cancellation of the first F. I. R. Dated 4-11-1977, Assistant Collector, Lodhran (respondent) charge- sheeted the appellant on 8-11-1977 on the same allegations which were made in the earlier F.I.R.
The enquiry was held by the Tehsildar on 19-2-1978 and the show-cause notice was given on 11-3- 1978. The appellant was dismissed on 3-4-1978 on the ground that as per allegation contained in the said F.I.R. The appellant had misappropriated the revenue of the Government. Appellant filed an Appeal before the Commissioner, Multan against the order of Assistant Collector, Lodhran but the same was dismissed by him. It is also on record that after the lapse of one year of these events the new Tehsildar one Agha Rashid Ahmad got another case registered against the appellant concerning the said amount which was subject-matter of the earlier F.I.R. In this case, the appellant was challaned but the Special Judge, Anti-Corruption, Multan acquitted the appellant vide his order, dated 31-3-1979. Appellant filed Revision Petition before the Member (Revenue) Board of Revenue which was also heard on 14-9-1981 when the appellant produced the order of acquittal by the learned Special Judge Anti-Corruption; but the Member Board of Revenue dismissed the Revision Petition of the appellant despite this acquittal. In this matter, it is also on record that the appellant was not supplied the copy of the decision of Member Board of Revenue although he applied for the same. Hence this Appeal.
5. I have heard the learned counsel for the appellant as well as the learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
6. The learned counsel for the appellant, Mr. Taj Muhammad Langah has stated that when the earlier F.I.R. Had been cancelled no further action could be taken against the appellant on the same allegation either departmentally or through any other agency which was later on registered against the appellant. The learned counsel has challenged this procedure as illegal and without lawful authority. With regard to the merits of the case the learned counsel has submitted that the appellant had handed over the list of defaulters to the Revenue Staff, therefore, his liability if any was discharged. It has been further submitted that it was not even the duty of the appellant to collect the land revenue and he performed this extra work only on the behest of the Tehsildar when there was nobody in the field from amongst the Lumbardars to collect the Land revenue. The learned counsel has relied upon a case---Malik Abdul Karim v. West Pakistan PLD 1978 BJ 222. The learned counsel has also assailed the procedure of enquiry held by the Tehsildar as an ex parte affair as the appellant was not given any chance to defend himself .
7. On the other hand learned District Attorney has submitted that the plea of the appellant that he recovered the land revenue under the order of the Tehsildar is not substantiated from the record, therefore, his conduct in collecting the land revenue would be an unauthorised one and his keeping the said amount with him would amount to embezzlement. It was further argued that even if it is accepted as shown from the record that the amount so recovered was ultimately deposited by the said accused still the act falls within the mischief of temporary embezzlement and an unauthorised collection. The District Attorney has defended all the three impugned orders as justified.
8. To settle this controversy as to whether the appellant made these collections as an extra service to the Revenue Department under the orders of the Tehsildar or he indulged in this practice at his own I have gone through the record of this case and found that there were no written orders of the Tehsildar in favour of the appellant. To verify it further I summoned the Roznamcha Waqiati of 1976 and 1975 to see whether this event is anywhere mentioned in the said document which has got the presumption of truth for its entries. This action was necessitated on the statement made by the appellant before me that as no written orders were given to him but he had mentioned all the same in the Roznamcha Waqiati of the said village.
9. The perusal of the Roznamcha Waqiate proved that vide Report No. 299, dated 31-5-1976 and Report No.267, dated 14-6-1975 in Roznamcha Waqiati relating to Mauza Thalli and Mauza Mangi of the years 1976, 1975 and 1974-75 respectively, the Patwari-Appellant has fully narrated that under the orders of the Tehsildar on account of the refusal of the Lumbardar to receive the Dhal Bachh the appellant is proceeding to collect the land revenue as so directed. These two reports have settled the controversy in favour of the appellant as now it is proved beyond any shadow of doubt that he had indulged into this exercise only on the asking of his superiors in order to fill in the blank for the those two Lumbardars; one of them had refused to accept the Dhal Bachh and second was unable to receive the same being in Jail.
10. The second issue in this case would be whether the appellant did deposit the money so recovered by him or brought it into his personal use. This issue stands settled on the record that the entire sum so recovered by him was finally deposited in the Government treasury. I have also satisfied myself that the F.I.R. Was cancelled when it was found that the appellant was not at fault.
It has also been confirmed by me by going through record of this case that the second case so registered against the appellant was on the basis of the first F.I. R. Without any new material. It is also established fact that the appellant was later on acquitted from the Court of Special Judge, Anti-Corruption. With these uncontroverted facts on the record the learned Assistant Commissioner, Lodhran was not justified to hold that the appellant in any way was guilty of misconduct in realizing of land revenue and not depositing the same into the Treasury. The conclusion arrived by the learned Assistant Commissioner that the act of the appellant was unauthorised does not find any support from the record as discussed above. The case of the appellant would be a case of misreading of evidence as well as ignoring salient features of this case by the Assistant Commissioner/ Collector, Lodhran. It is also obvious from the impugned order, dated 3-4-1978 that the appellant was proceeded against ex parte. In this way the objection of the learned counsel for the appellant prevails that appellant was not given any chance to defend himself .
11. The learned Commissioner, Multan in his judgment has stated that the appellant has been condemned at his own admission which is purported to have been made by him before the Enquiry Officer on 23-8-1978 that Rs.1,400 were lying with him and he would deposit the same in the Government Treasury. In this way, the learned Commissioner has condemned the appellant on the said admission without any supporting material either in the form of evidence or otherwise. It is pertinent to note that no such admission has been referred to by the Assistant Commissioner, Lodhran in his order, dated 3-4-1978 but same has been made the sole ground for rejecting the appeal of the appellant by the learned Commissioner. I have also carefully read the judgment of Special Judge. Anti-Corruption, dated 13-3-1981 in which ha has at length discussed the entire facts of the case and the indication therein is that there were no evidence to support that the appellant had committed the act of temporary embezzlement The learned Member Board of Revenue has also rejected the Revision Petition on the sole ground that the act of retaining money after collecting the same from land owners for some period with him the appellant was guilty of the temporary embezzlement.
12. In view of above the only crucial issue in this case which remains to be settled is whether the appellant did commit any temporary embezzlement in this respect or not. In this respect the foremost point would be whether it was within the duties of the appellant as patwari to collect the land revenue or not. Answer to this would be a "Big No." It is a matter of common knowledge that the revenue is always recovered through the Lumbardars or if the defaulters refuse to pay to the Tehsildar the same is recovered through coercive methods as laid down in the Land Revenue Act i.e. Through warrants, attachment of land and ultimately the sale of the same. This is done always by theTehsildar who exercise his powers in this respect under the Land Revenue Act as Assistant Collector and no Patwari can be involved in this exercise. The initial mistake which was omitted in this regard was that the Tehsildar directed the Patwari to do the job which he could not do and should not have done in view of the procedure explained in the earlier part of my judgment. Their Lordships of the High Court in case Malik Abdul Karim v. West Pakistan Province PLD 1977 B J 222 have struck down such like procedure and have held that in such circumstances any person entrusted with this job would not be guilty of any criminal offence as the very element of misappropriation as defined in sections 406 and 409 of the P.P.C. Would not be available to the prosecution in his case.
13. Leaving aside this legal aspect of this case a pragmatic approach of the matter would also reveal that the action of the Patwari in this respect could not fall within the definition of temporary embezzlement. Those who are familiar with the procedure of recovery of land revenue in rural areas well nigh know that sums are collected from the defaulters living in the farflung areas in piecemeals and when the same take a substantive form, are deposited in the Tehsil Treasury from time to time. In this case my finding is that the appellant would not be considered to be a recipient of money as defined in section 409, P.P.C. In the light of the ruling cited above and if he had taken the exercise at the behest of the Tehsildar, his status would be that of ordinary person handling the money and deposit the same at his own convenience. This is why the earlier F.I.R. Registered against the appellant had failed and the case again brought before the Special Judge, Anti- Corruption met the same fate. It is also not worthy that the appellant had discharged his duties in a satisfactory manner during the 17 years of unblemished service.
14. In view of above I set aside all these impugned orders being based on misreading of evidence and against the laws so settled by the High Court and direct that the said Patwari will be deemed to be in service from the date he was so removed. It may also be mentioned here that the Patwari is still working and performing his duties during the period under appeal as well as even after the period of his removal by the impugned order due to order of status quo granted by this Tribunal and even under the direction of learned Collector/ Assistant Commissioner. In these circumstances, there will be no financial implications involved for the period under litigation.
However, parties will bear their own costs.
A.E Appeal accepted