' SARFRAZ HASAN (MEMBER).--This appeal has been filed by Ghulam Rasool son of Muhammad Hayat, Ex-Patwari Hasilpur under section of the Punjab Service Tribunal Act, 1974 in which he has impleaded Commissioner, Bahawalpur Division and Assistant Commissioner, Hasilpur Distrcit Bahawalpur as respondents Nos_ 1 and 2 respectively.
2. By virtue of this appeal, the appellant has prayed that impugned order dated 4-5-1985 passed by respondent No, 2 dismissing him from service and impugned order dated 4-8-1985 passed by respondent No, 1 upholding the order of dismissal may be set aside and he may be declared to be in continuous service giving him all back benefits.
3. The facts of the case are that on 23-5-1984 the appellant was placed under suspension by respondent No, 2 vide his No, AC-HSP/765-69, dated 23-5-1984 which reads as follows:-- "Muhammad Iqbal has submitted an application leveling serious allegations of corruption and tampering with record/making false revenue record against Ghulam Rasool, the then Patwari circle Chhuhan now at Khairpur. The allegations are supported by an .Affidavit of the applicant. The allegations are of serious nature. Mr. Ghulam Rasool, Patwari Circle, Khairpur is placed under suspension with immediate effect.
' He is allowed to draw suspension allowance during the suspension period at the rate of half of his pay and allowances as admissible under the rules."
' Respondent No, 2 appointed Mr. Muhammad Aslam Lakhwera, Tehsildar, Hasilpur as Authorised Officer vide his No, AC-HSP/770, dated 23-5-1984 which reads as follows:-- "Whereas I Ch. Akbar Ali Bhullar, Assistant Commissioner, Hasilpur has reason to believe that it is necessary to appoint an Authorised Officer for departmental proceedings against Ghulam Rasool, Patwari Circle, Khairpur Tamewali on charge of corruption and tampering with the Government record and therefore in virtue of powers vested in me under rules 2(i)(c) of the (E & D) Rules, 1975. I, Ch. Akbar Ali Bhuller, Assistant Commissioner, Hasilpur hereby appoint Mr. Muhammad Aslam Lakhwera, Tehsildar, Hasilpur as Authorised Officer under rule 6.7(a) of the said rules for proceeding further in the matter."
' The Authorized Officer served charge-sheet dated nil on the appellant in vernacular to the effect that while posted as Revenue Patwari Mouza Choohan, he tampered with Revenue record and transferred agricultural land owned by one Muhammad lqbal and his brother in the name of his own wife Mst. Zahoor Elahi.
' The abovementioned charge-sheet was issued by Tehsildar, Hasilpur as "Inquiry Officer" and was accompanied by a detailed statement containing five allegations.
' The evidence was however, recorded by Naib-Tehsildar, Hasilpur who submitted his enquiry report on 8-7-1984 with the finding that none of the allegations against the appellant had been proved except that his brother had purchased agricultural land in Mouza Choohan during the appellant's posting there. The Inquiry Officer concluded that the application submitted by Muhammad Iqbal against the appellant was baseless and false and was the result of some family grievance and local party faction.
' The Authorised Officer forwarded the enquiry report to respondent No, 2 with the observation that enquiry was full of loophole and that it should be conducted afresh in accordance with rules.
Accordingly on 26-7-1984 respondent No, 2 passed the following order:- "Yes. The Authorised Officer to proceed in accordance with law."
' The Inquiry Officer recorded further evidence and again submitted his enquiry report on 5-1-1985 with the finding that all the allegations against the appellant had been proved. Tehsildar Hasilpur forwarded the enquiry report to respondent No, 2 without any observation. Vide his noting dated 15-1-1985 on the file, respondent No, 2 passed the following order:-- "Tehsildar was appointed as Authorised Officer in this case. He should proceed in accordance with law."
' Vide his forwarding note dated 16-1-1985 Tehsildar Hasilpur observed that the Inquiry Officer had summoned witnesses on 18-10-1984 but the parties sought adjournment till 27-10-1984. However, the Inquiry Officer submitted his report on 5-1-1985 without hearing the parties. He, therefore, recommended that the enquiry report should be returned to the Inquiry Officer for resubmission after giving a detailed hearing to the parties.
' After hearing the parties, the Inquiry Officer again submitted his enquiry report on 23-1-1985 with the finding that allegations against the appellant had been proved.
' On 26-1-1985, Muhammad Iqbal son of Ali Muhammad submitted another application to respondent No, 1 alleging that the appellant had taken Rs,6,000 cash and two goats from him through fraud. Moreover, the appellant was an influential person and had deprived him of his agricultural land by transferring it to his wife. In addition, the appellant had shown the land under cultivation of his own brother although the applicant had been cultivating it.
' Without taking action on the enquiry report dated 23-1-1985, Ch. Muhammad Siddique, Tehsildar Hasilpur served a fresh charge-sheet dated 28-1-1985 on the appellant. Vide his noting dated 28-1- 1985 Tehsildar Hasilpur appointed Sh. Iftikhar Ahmad, Naib-Tehsildar, Hasilpur as Inquiry Officer. The Inquiry Officer recorded evidence again and submitted his enquiry report on 24-3-1985 with the finding that the application of Muhammad Iqbal was based on facts and the allegations were correct. He recommended that the appellant may be removed from service.
' While the enquiry was in progress, Muhammad Iqbal had submitted another application dated 9- 3-1985 to respondent No, 2 requesting that his statement may be recorded again in the Court of respondent No,
2. On this, vide his order dated 9-3-1985 respondent No, 2 passed the following order:-- "Muhammad Iqbal has appeared before me today and has stated that his statement has been recorded by the Naib-Tehsildar, Hasilpur under coercion. The statements of the P.Ws. Who were present were not recorded by the Naib-Tehsildar to favour the Patwari against whom th inquiry is being conducted at the instance of the applicant. The Nai Tehsildar is directed to record the statement of the applicant afres without fear or favour. The requirements of justice should be fulfilled. I should be felt by the applicant and the Patwari that the justice is bein done."
' Vide his No, 885/7-17-11, dated 9-3-1985 respondent No, 1 forwarded another application by Muhammad Iqbal against the appellant to respondent No,2 directing that respondent No, 2 should himself investigate the matter. Vide his No, AC/HSP-1469, dated 11-3-1985, respondent No, 2 wrote to the Assistant to the Commissioner (Revenue), Bahawalpur Division that Tehsildar, Hasilpur was Authorised Officer and after "preliminary enquiry" had been conducted by the Naib Tehsildar, Khairpur, a regular enquiry was being conducted by Naib Tehsildar, Hasilpur. On the basis of enquiry report dated 24-3-1985 and after issue of show-cause notice for dismissal from service, respondent No, 2 vide his impugned order dated 4-5-1985 dismissed the appellant from service for gross misconduct. Respondent No, 1 upheld the order of dismissal vide his impugned order dated 4-8-1985. Hence this appeal.
4. We have heard the learned counsel for the appellant and the learned District Attorney and have also perused the record produced before us with their assistance.
5. The learned counsel for the appellant submitted the following main points:--
(i) The impugned order dated 4-5-1985 and the appellate order dated 4-8-1985 are based on illegal disciplinary proceedings. The second charge-sheet dated 28-1-1985 was issued ignoring the enquiry report already submitted on 23-1-1985.
(ii) The first charge-sheet was issued by Mr. Muhammad Aslam Lakhwera, Tehsildar Hasilpur who was duly appointed as Authorised Officer by respondent No,
2. However, the second charge-sheet was issued by Ch. Muhammad Siddique, Tehsildar Hasilpur who had not been duly notified as Authorised Officer. Hence the charge-sheet and all subsequent proceedings were without jurisdiction and therefore illegal.
(iii) The complainant had made contradictory statements before the Inquiry Officer and had resiled from his earlier statements. Therefore his evidence was unreliable and it could not be made a basis for punishment.
(iv) The brother of the complainant (Muhammad Iqbal) had sold his land to the brother of the appellant for Rs,35,000 and to one Manzoor son of Muhammad Khan for Rs,40,000. The vendor had appeared before the Inquiry Officer and had confirmed the sale of land. The appellant had nothing to do with this sale.
(v) As the appellant had nothing to do with the sale of land, there was no question of tampering with the Revenue record or obtaining illegal gratification.
(vi) It was not correct that the appellant got two kanals of land in favour of his wife. The name of the appellant's wife is Zahoor Elahi daughter of Peer Bakhsh whereas the land had been transferred to one Mst. Zahoor Elahi daughter of Wali Muhammad. Therefore, this allegation is totally incorrect.
(vii) the appellant did not tamper with the Khasra Girdawar for Rabi 1983. Mutations Nos. 1281 and 1982 were sanctioned in December 1982 and Khasra Girdawar for Rabi 1983 was made accordingly on 13-3-1983. The entries were also duly verified by the Kanungo after on the spot enquiry.
Therefore, this allegation was also false.
(viii)Impugned orders dated 4-5-1985 and 4-8-1985 are based on conjectures and surmises. The impugned orders arc therefore void in law.
(ix) In spite of adjournments the second Inquiry Officer has failed to appear before the Tribunal to explain the evidence on which he considered Mst. Zahoor Elahi as wife of the appellant. On the other hand, the appellant had since taken an oath on the Holy Qur'an in the Court to the effect that Mst. Zahoor Elahi to whom the land was transferred was not his wife.
6. The learned District Attorney adopted the comments submitted by the respondents as written objections and submitted that there was no merit in the appeal and it may therefore be dismissed accordingly.
' In this connection, the learned District Attorney submitted the following main points:--
(i) The disciplinary proceedings against the appellant were conducted in accordance with the provisions of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. However, the second charge-sheet was served on the appellant because Muhammad Iqbal, the complainant, had submitted an application before respondent No, 2 alleging that his statement during enquiry was recorded by Naib Tchsildar, Khairpur under coercion and harassment by the appellant. Moreover, the complainant had requested for his re-examination.
(ii) The appellant was guilty of preparing fictitious record of cultivation by his brother Manzoor Ahmad and his friend Manzoor son of Muhammad Khan. He could not produce any order for recording the cultivation by his brother and friend without their physical possession of the land in question. He therefore was guilty of tampering with revenue record.
(iii) It was correct that two Kanals of land were transferred to one Mst. Zahoor Elahi daughter of Wali Muhammad but the appellant denied that the said lady was his wife. However, during enquiry neither Mst. Zahoor Elahi daughter of Wali Muhammad nor Mst. Zahoor Elahi daughter of Pir Bakhsh was produced.
(iv) It was correct that complainant Muhammad Iqbal had resiled from his earlier statement before the Inquiry Officer. However, in his written statement dated 22-4-1985 the appellant himself apologized in the following words:-- {{URDU TEXT}}
7. On careful examination of submissions made by both sides and penis of the record produced before us by the parties concerned, we have come to th conclusion that the impugned orders dated 4-5-1985 and 4.8-1985 were based o illegal proceedings and were therefore void in law. #TBS (i) #TBE In this connection attention is invited to the following main points:-- The second charge-sheet dated 28-1-1985 was served on the appellant by Ch. Muhammad Siddique, Tehsildar, Hasilpur. However, unlike the appointment of Muhammad Aslam Lakhwera, Tehsildar, Hasilpur who served the first charge-sheet on the appellant, there was no formal order appointing Ch. Muhammad Siddique as Authorised Officer in place of Muhammad Aslam Lakhwera who had previously been notified as Authorised Officer in this case.
(ii) The only order available on the file is in the form of a brief noting dated 15-1-1985 which reads as follows:-- "Tehsildar was appointed as Authorised Officer in this case. He should proceed in accordance with law."
' The above noting dated 15-1-1985 does not constitute a formal order appointing Ch. Muhammad Siddique, Tehsildar, Hasilpur as Authorised Officer for the following reasons:--
(a) The word Tehsildar in the above quotcd noting dated 15-1-1985 does not refer to any particular Tehsildar as Authorized Officer in this case. In the absence of formal order notifying Ch. Mohammad Siddique as Authorized Officer in place of Mohammad Aslam Lakhwera previously notified as such, the above "noting" does not constitute a formal order by any standard appointing Ch. Mohammad Siddique in place of Mr. Mohammad Alsam Lakhwera.
(b) In view of the above position Ch. Mohammad Siddique was not duly appointed as Authorized Officer in this case.
(iii) As there was no formal order appointing Ch. Muhammad Siddique, Tehsildar, Hasilpur as Authorized Officer in place of Muhammad Aslam Lakhwera previously appointed as such, the charge-sheet served by Ch. Muhammad Siddique was illegal and void in law. Hence, all subsequent proceedings ending in the dismissal of the appellant were without jurisdiction and therefore illegal.
(iv) The enquiry report dated 23-1-1985 was submitted by the Inquiry Officer after recording formal evidence in pursuance of charge-sheet formally served by Mohammad Aslam Lakhwera who was duly appointed as Authorized Officer. However, instead of passing final order on the formal enquiry report dated 23-1-1985 submitted by the Inquiry Officer, it was treated as "preliminary enquiry" by respondent No,2 in his letter No, AC/HSP/1469 dated 11-3-1985 addressed to the Assistant to the Commissioner (Revenue) Bahawalpur Division.
(v) Enquiry report dated 23-1-1985 was a formal enqury report submitted after a formal enquiry in pursuance of charge-sheet formally served on the appellant by a duly appointed Authorized Officer. Therefore, enquiry report dated 23-1-1985 could not be treated as "preliminary enquiry" under the rules. The statement made by respondent No, 2 in his above quoted letter dated 11-3- 1985 to the Assistant to the Commissioner (Revenue) Bahawalpur Division is not based on facts.
(vi)The second charge-sheet served by Ch. Muhammad Siddique, Tehsildar, Hasilpur was different from the first charge-sheet served by Muhammad Aslam Lakhwera. Thus, prosecution shifted its ground without passing any order on the former enquiry report dated 23-1-1985.
(vii) The first unfinished departmental proceedings and the second departmental proceedings were conducted on the basis of complaint submitted by one Mohammad Iqbal. In his parawise comments adopted by the learned District Attorney as written objections, respondent No,2 admits that Mohammad Iqbal resiled from his earlier statement before Inquiry Officer. Therefore, the evidence of Mohammad Iqbal, complainant, could not be considered as reliable.
(viii)In his written objections respondent No,2 has relied on the following written statement submitted by the appellant on day of personal hearing in response to final show cause notice issued by respondent No,2:- {{URDU TEXT}} (vii)The above quoted words of the appellant carmot be made a basis for dismissal of the appellant. It is a general statement in respect of all subordinates.
(x) The main charge against the appellant was that he obtained two kanals of land transferred in the name of his wife Mst. Zahoor Elahi as gift from one Nazir Ahmad who was not related to him.
The appellant took an oath on the Holy Qur'an before the Tribunal to the effect that Mst. Zahoor Elahi to whom the land had been transferred was not his wife. According to the record, the land was transferred to one Mst. Zahoor Elahi daughter of Wali Mohammad whereas according to the 'Oath' taken by the appellant before the Tribunal, the name of his wife is Zahoor Elahi daughter of Peer Bakhsh.
' During Court proceedings it was directed on a number of occasions that Inquiry Officer should appear before the Tribunal to explain the evidence on the basis of which he reached the conclusion that the land had actually been transferred to the wife of the appellant. However, in spite of repeated directions of the Tribunal, the Inquiry Officer failed to appear in the Court. Under the circumstances, in the absence of any evidence to the contrary produced by the respondents, the Oath taken by the appellant was accepted by the Tribunal.
8. The detailed analysis of the case given above shows that the impugned orders dated 4-5-1985 and 4-8-1985, were based on illegal proceedings and were therefore, void in law. We accordingly accept the appeal and set aside the order of dismissal dated 4-5-1985, passed by the respondent No, 2 and upheld by the respondent No, 1 vide his impugned order dated 4-8-1985. As a result, the appellant shall be treated to be in continuous service ignoring void orders dated 4-5-1985 and 4- 8-1985. Announced in the open Court on 30-9-1986.
' There are no order as to costs. Judgment be released to the parties.
' The judgment was duly signed by the learned Chairman. However, as the learned Member-II has not signed the judgment it may be issued in the larger interests of justice as a majority decision in accordance with precedents of some judgments by the learned Chairman issued under similar circumstances.