Mushtaq Ahmad, ex-Patwari, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Commissioner, Bahawalpur Division, Bahawalpur and the Assistant Commissioner, Sadiqabad Sub-Division, District Rahimyar Khan, as respondents.
2. By virtue of this appeal he has prayed that the impugned orders. Dated 12-12-1981 as well as 10- 3-1982, passed by the respondents, be set aside and the appellant be re-instated in service with back benefits
3. Brief facts of the case are that the appellant in the year 1981, posted as Patwari Halqa 236/P, Tehsil Sadiqabad, was served with a charge-sheet by respondent No. 2 which contained the following charges:--
(1) 'while posted as Patwari Halqa Peeran Bhutta you received Rs.2,706 on 27-3-1979 on account of fee for the Mutations Nos. 738, 739 and 740 of Mauza Peeran Bhutta from Abdul Razzaq son of Muhammad Shafi and issued a receipt.
(ii) You did not deposit the amount received by you on account of mutation fee and misappropriated the same."
The appellant submitted detailed reply to the charge-sheet. A departmental inquiry was held in the matter by Tehsildar Sadiqabad. On 28-11-1981, the appellant was served with a show-cause notice as to why penalties described in Rule 4(a) and (b) of the Punjab Government Servants (Efficiency and Discipline) Rules, 1975, should not be imposed on him. The appellant again submitted a detailed reply explaining his position by stating that the case against him was a mere concoction as the complainant Abdul Razzaq was inimical and wanted to revenge from him. However, the reply of the appellant was not found satisfactory and he was dismissed from service. Aggrieved against the said order he filed appeal before the Commissioner, Bahawalpur which was rejected vide order dated 10-3-1982. Hence this appeal.
4. I 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 with their assistance.
5. Learned counsel for the appellant has submitted that both the Courts below have omitted from consideration the fact that in the transaction made, vide Mutations Nos. 738, 739 and 740, the complainant Abdul Razzaq was neither a party to the transaction nor was he connected with the transaction in any way. According to the learned counsel for the appellant this being the factual position which was undisputed to take the complaint of Abdul Razzaq into consideration, was absolutely an action totally unjustified. It was further submitted that both the Courts below have again ignored as established fact that mutation fee amounting to Rs. 2,706 was later on deposited by Muhammad Ilyas etc. The transferee on 12-9-1981. Learned counsel however elaborated that this late deposit of fee was due to the fact that the village was transferred to the Consolidation Authorities for introducing the Consolidation Scheme coupled with the fact that the vendees had gone to Karachi, in connection with their private affairs. While arguing his case, learned counsel for the appellant pointed out that the appellant from the very inception had denied his signature on the receipt and thus after his said denial it has become incumbent upon the respondents to establish the factum of his signature on the said receipt which was being made a piece of important evidence against him leading to his dismissal. He has also made a grievance that copy of the inquiry report was not supplied to the appellant which prejudiced his case and disallowed him a fair opportunity of his defence. In the end it was argued that the respondent No.1 had passed the impugned order on extraneous considerations which were not relevant to the present case of the appellant and has taken into consideration the service record of the appellant more than the merits of the present case and thus the order passed by him was an order passed by a biased mind.
6. On other hand learned District Attorney has submitted that as the receipt purported to have been issued by the appellant in the name of Abdul Razzaq for Rs. 2,706 duly bore his signature, therefore, both the Courts below were fully justified to hold him guilty for not depositing the said money within the stipulated time, and thus they were justified to hold that he was guilty for misappropriation of the money. He has prayed that both the impugned orders be maintained.
7. I have given my anxious thought to the arguments so advanced by the parties before me and made all possible efforts to summon Abdul Razzaq who was star witness in his case in order to examine him whether the receipt so produced by him did bear the actual signatures of the appellant as well as to look into the allegation of the appellant that the said Abdul Razzaq was personally inimical towards him or it was nothing but concoction. Despite my best efforts by adjourning the case from rime to time in order to secure the presence of Abdul Razzaq through summons as well as through duress but the said Abdul Razzaq managed to varnish and thus my all efforts proved abortive. It may also be mentioned here that Abdul Razzaq was the only witness on whose statement, he has been so condemned despite the fact that the appellant from the very beginning of his case, in all his statements and explanations submitted by him from time to time, has cried hoarse that he never appended his signature on the said receipt and his claim may be so verified. Learned District Attorney has failed to satisfy me for any effort made either by respondent No. 1 or by respondent No.2 to satisfy themselves whether the claim of the appellant was based on the facts or he was just making allegation without any substance. In view of the above I cannot remain oblivious of a very strong argument of the learned counsel for the appellant that Abdul Razzaq was hardly connected with the said mutations for which he alleged that he had paid Rs.2,706 as fee of the said mutation. It is a matter of common knowledge that mutation fee is always paid by the transferee himself and not by anybody else. According to the record of this case the transferee of Mutations Nos. 738, 739 and 740 was Muhammad Ilyas etc. And Abdul Razzaq was a person who had nothing to do with the said transaction. This is further established by the fact that the said fee was deposited on 12-9-1981 by Mohammad Ilyas etc. Who were the real transferees of the said mutations. If the said mutation fee had already been paid by Muhammad Ilyas etc. Through Abdul Razzaq to the appellant the same would not have been deposited by them without any protest. I also do not find the statement of Mohammad Ilyas recorded by the Inquiry Officer to prove that the said Muhammad Ilyas etc. Had authorised or delegated Abdul Razzaq to pay the said amount on their behalf to the appellant. These being the established facts on the record. I have no hesitation to hold that both the Courts below as well as Inquiry Officer have failed in their duties to consider this most important aspect of the case which in fact was the main defence of the appellant throughout the proceedings so taken against him. In case Mohammad Ilyas etc. Were not available, it was the duty on the part of the Inquiry Officer before arriving at the conclusion that the appellant was the author of the said receipt, to set his signature verified from some handwriting experts which are always available for this purpose with the Government.
Moreover, the very fact that Abdul Razzaq made himself secure and failed to appear before me, speaks volume in favour of the appellant that he dare not to face the appellant before me in his cross-examination for the crucial issue.
8. In view of the above analysis of the entire facts of this case, I am of the considered opinion that the appellant has been wrongly held guilty of an act of issuing a receipt in favour of Abdul Razzaq, obtaining money from him and not depositing the same, as there is not an iota of evidence against him to prove the same. Resultantly I accept the appeal, set aside the impugned orders of the respondents and direct that the appellant be re-instated in service with all back benefits of service.
However, there will be no order as to costs.
A.A.