Mr. Justice (Retired) Akhtar Hassan, Chairman.- The appellant alter joining service as a direct Kanungo on the 24th of July, 1965, was promoted to the post of Naib Tehsildar on regular basis in June, 1984. He attested on the 15th of October, 1984, mutations Nos.732, 733 and 734 transferring 200 Kanals 4 Marlas situate in Chak No.76/5-R, Tehsil Sahiwal, belonging to Abdul Ghafoor to his wife and two brothers. Incidentally the transferor was away to the United States of America on that day and the transaction was also violative of M.L.R. 115.
2. On his return Abdul Ghafoor sought review of the mutations whereupon the Collector, Sahiwal, set them aside and moved the Commissioner, Multan, for taking disciplinary action against the appellant. He was accordingly charged. He took up the plea that the transferor and the transferees had themselves appeared before the Patwari reported the transaction to him on the lst of October, 1984, as per Rapats Nos.50 and 51 of the Roznamcha Waqiati of even date, admitted delivery of possession as also payment of the consideration amount and that the transferor had even signed the mutation entry along with the Lambardar Aftab Ahmad and a Khewatdar Fateh Mohammad.
He added that since the transferor had disposed of his entire holding in the estate, there was no occasion of violating M.L.R. 115.
3. The charges, however, were held proved in the Enquiry Officer's report. The Commissioner accepted the same and removed the appellant from service vide his order dated the 16th of April, 1987. His appeal brought before the Board of Revenue was dismissed on the 6th of December, 1987.
He got information about it on the 3rd of January, 1988, and preferred the present appeal before this Tribunal on the 22nd of January, 1988.
4. The respondent-commissioner in his para-wise comments opposed the appeal maintaining that the appellant had committed gross misconduct for ulterior motive in having (i) attested the mutations about the transfer of a citizen's land when the latter was out of Pakistan, (ii) marked him present on the day of attestation, and (iii) falsely slated that he had personally appeared before him on the 2nd of October, 1984, to signify his consent to the transaction.
5. Considerable arguments were addressed on behalf of the appellant. Particular emphasis was laid on the fact that there was some difference in the language used in the charge sheet on the one side and the statement of allegations on the other and that the same seriously prejudiced the appellant in his defence. The precise charge was that the appellant was guilty of an "irregularity" but in the statement of allegations, he was indicted for an "ulterior motive" which the counsel claimed was entirely an extraneous matter. He argued that even the complainant in his Review Petition did not level the charge of "ulterior motive" or receiving illicit gratification on the part of the appellant and that any findings to the effect were really wide of the mark. He contended next that the transaction of transfer was nothing but an arrangement practically between the transferor and his wife as also real brothers who were receiving the land in a gift with a view to save it from his extravagance of squandering it away and lastly that he had, in fact, appeared personally before the Paiwari when the latter recorded the Rapats in the Roznamcha Waqiati and obtained his signatures on the mutation entry showing that he was all too willing to pass off the land to his wife and brothers in pursuance of some arrangement. Next he emphasised that the Authorised Officer did not comply with rule 7-A of the E&D Rules, 1975-in that he failed to determine in his report whether the charge against the appellant was proved or that he would propose a major penalty therefor, nor did he afford him an opportunity of hearing against such recommendation. Lastly he drew attention to the fact that while the Authorised Officer found the charge under MLR 115 proved, the Authority on the other hand held even the other charge established causing thereby prejudice to the appellants case.
6. In reply the learned District Attorney impugned upon the fact that attesting the mutations in the absence of the transferor and that too in violation of MLR 115, was not controverted and that the same being the pith of the charges, the punishment awarded was amply justified. He added that the appellant's whole effort conversely was to rely upon some technical flaws in the inquiry proceedings and that in any case the same did not suffice to go to the root thereof.
7. It seems true that the mutations were attested in the appellant's absence, but he did not deny having got them entered earlier by personally appearing not only before the Patwari but also the appellant. The report Rozenamcha Waqiati Nos 50/51 Ex D1 & D2 corroborate this much part of the proceedings. The complainants own statement recorded during enquiry was really revealing. He deposed: {{URDU TEXT MISSING}} These excerpts would leave little behind to take an extreme view because the complainant admitted all essential ingredients required to be observed before a Revenue Officer in relation to a sale. Further, the transfer did not appear to be Usual one taking place between uh-connected persons to raise an inference that the vendees being outsiders were trying to take arty unconscionable advantage by colluding with the appellant, to the contrary, the transaction Was admittedly settled between the transferor on one side and his wife or brothers on the other. At no stage did the transferor assert that his Wife had attempted to cheat him, or that his brothers too had arty sinister design in depriving him of his property. He himself reported the event to the Patwari, accepted its correctness before the appellant, affixed his signatures in token thereof and even confessed having received the consideration amount. Technically, the appellant should have passed the order of attestation on 29.9.84, itself all the above mentioned proceedings had taken place in his presence. There was no indication that the attestation was deferred because of nonpayment of the consideration amount. Probably payment of the District Council fee could not be made on that day and the same was the reason for deferment. Obviously when the vendor accepted the sale before the appellant on 29.9.1984, he may not be must stingy against attesting the mutation a few days later. The other reason for showing indulgence may have been that the transaction was after all between husband and wife living as spouses amicably. These were the elements eliminating altogether the chances of any dishonesty on the part of the appellant.
8. The plea that the inquiry was not free front certain flaws, did not inspire belief that the appellant was really prejudiced. It could have been a supporting circumstance if the basic charge of attesting the mutation in the vendor's absence would have not been conceded. Once the factual aspect of the charge was admitted, any technical irregularity With the process of inquiry would be immaterial. The same consideration obtained even in regard to the so called violation of MLR 115.
The Patwari reported as usual in the mutation that since the entire holding was being transferred by the alienor, there was no infringement of the MLR ibid. The Girdawar agreed with it and why should not have the appellant accepted it correct? Further, a deal between spouses may not arouse any deeper suspicion so as to apply mind acutely. A degree of complacency or oversight might naturally Creep in imperceptibly without the element of deliberateness necessary for misconduct. Here too. The appellant could be held guilty at best of negligence and nothing more.
9. Nonetheless, the fact' remains that the vendor was not present on 15.10.1984 when the mutations were attested. The appellant can be squarely held guilty of negligence in having falsely recorded the vendor's presence. I think equities of the case call for some indulgence in his favour.
Punishment he must suffer but let it not be too extreme for what looked to be merely a negligent act.
10. I allow the appeal, set aside the impugned order of removal of the appellant from service and instead order his reversion to his substantive post of the Girdawar. It is left for the Department of treat his intervening period as they deem fit.