1. Petitioner through this Constitutional petition has impugned the order dated 1-4-1991 whereby a suo motu show-cause notice has been given to him by the Member (Revenue), Board of Revenue, Punjab, for the enhancement of penalty.
2. Facts for the disposal of this writ petition are that one Malik Muhammad Jan appeared before Sultan Ahmad Halqa Patwari and made a report respecting the death of his father namely Naurang and his uncle Muhammad Hussain. On this statement at the instance of Sultan Ahmad Patwari the petitioner who was holding register of mutation at that time entered Mutations Nos.
3. 1842-1843 on 30-6-1985 in this regard. Aforementioned Sultan Ahmad who was also acting as Halqa Girdawar verified the same and these mutations were attested by Revenue Officer on 1-7- 1985 on the basis of identification by Abdul Aziz Lumberdar of the said estate. However, subsequently it came to light that the aforesaid two persons were not dead and the disputed mutations were recorded in a fraudulent manner on which Deputy Commissioner, Bhakkar, ordered an enquiry on 9-9-1985. The enquiry was conducted by the Assistant Commissioner, Bhakkar, who submitted his report on 14-10-1985. He categorically stated in his report that the petitioner recorded these mutations at the asking of Rana Sultan Ahmad Patwari, who was Halqa Patwari at that time.
4. He further recorded in his enquiry report that the petitioner had been negligent in the performance of his duty. Subsequent to this report D.C., Bhakkar directed for the registration of a criminal case against Sultan Ahmad Patwari, Malik Muhammad Jan, Muhammad Jamil and Abdul Aziz, Lumberdar. A criminal case was registered accordingly under section 419/420/466/471, P.P.C. At Police Station, Bhakkar against aforesaid persons, who were subsequently acquitted by Special Judge, Anti-Corruption, Sargodha, through his order dated 28-8-1985. As far as the petitioner was concerned, the Deputy Commissioner, Bhakkar in his confidential letter dated 7-10-1985 addressed to A.C. (Annexure B) warned him to be careful in future which was conveyed to him by the Assistant Commissioner, Bhakkar, on 26-10-1985.
5. Separate proceedings were initiated against Abdul Aziz, Lumberdar under Rule 18(2) of the West Pakistan Land Revenue Rules, 1968, for falsely identifying/verifying the death of Naurang and Muhammad Hussain, which led to the attestation of Mutation No.1842-1843. The A.C., Bhakkar/Collector through his order dated 30-12-1985 removed him from the office. He filed an appeal and the Commissioner, Sargodha Division, Sargodha through his order dated 6-4-1986 accepted it and remanded the case to the A.C./Collector, Bhakkar for detailed enquiry with a direction for fixation of responsibility. However, after remand the Collector, Bhakkar kept the matter pending through his interim order dated 31-1-1988 awaiting outcome of the anti--corruption proceedings. This order was challenged in revision by Abdul Aziz Lamberdar before Commissioner, who vide his order dated 6-11-1988 set aside the same and directed the District Collector to complete the enquiry without awaiting the outcome of the criminal case which was pending at that time before the Special Judge, Anti-corruption as both departmental and criminal proceedings can proceed side by side. However, while deciding this revision petition, the Commissioner, Sargodha Division, Sargodha, also made observation respecting the conduct of the petitioner. It is pertinent to mention that the petitioner was also proceeded departmentally under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, and a show-cause notice was issued to him on 28-1-1986 by the Extra-Assistant Commissioner, Bhakkar, who was appointed as an Authorised Officer. He awarded a minor penalty of `censure' through his order dated 26-2-1986.
6. The Assistant Commissioner, Bhakkar, on 3-3-1986 after the award of this minor penalty reinstated him and allowed him all the back benefits. The petitioner filed a revision petition before the Member (Revenue), Board of Revenue, Punjab, respecting the remarks made against him by the Commissioner in his order dated 6-11-1988 which according to him had been recorded in clear violation of principle of natural justice without associating him in the proceedings. Respondent- Member (Revenue), Board of Revenue, Punjab through impugned order dated 1-4-1991 issued him suo motu show-cause notice for the enhancement of his punishment from that earlier awarded to him.
7. Learned counsel for the petitioner has argued that the suo motu exercise of power is clearly- violative of second proviso to rule 18(2) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 which bars the exercise of such power after the lapse of period of three months from the date of communication of punishment. To elaborate this argument it has been stated by the learned counsel that the petitioner was initially warned to be careful in future by the Deputy Commissioner through his order dated 17-10-1985 which was conveyed to him by the Assistant Commissioner on 26-10-1985. Thereafter the petitioner was proceeded under Efficiency and Discipline Rules and a show-cause notice was issued to him by the Authorised Officer on 25-1-1986 alongwith the statement of allegations. The Authorised Officer awarded him the minor penalty of `censure" and in consequence of finalization of departmental action the petitioner who was under suspension, was reinstated in the service (Annexure K). It has also been argued that the revisional power can only be exercised by the Government and the learned Member, Board of Revenue, Punjab, though ex officio Secretary to the Government in the Revenue Department but for the purpose of Rule 18 of the Efficiency and Discipline Rules he cannot act as a Government. A further argument has been advanced that the impugned notice violates fundamental principles of law that no one should be vexed twice -for the same cause.
8. I have considered the contentions and have gone through all the orders appended with this petition. In view of the nature of the order going to be passed,
1. Am only dilating upon the availability of the suo motu revisional power in the facts of this case. Rule 18 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, provides as under:-- "18. Revision: --(1) The Government may call for and examine the record of any proceeding before any authority for the purpose of satisfying as to the correctness, legality or propriety of any finding, penalty or order recorded or passed and as to the regularity of any proceeding of such authority.
(2) On examining any record under this rule, .The Government may direct the authority to make further inquiry into the charges, of which the accused has been acquitted and discharged, and may in its discretion, exercise any of the powers conferred on an appellate authority: Provided any order under this rule made prejudicial to the accused shall not be passed unless he has been given an opportunity to show cause against the proposed action: Provided further that an order, imposing punishment shall not be revised suo motu or otherwise after the lapse of a period of three months from the date of its communication to the accused if no appeal is preferred.
(3) No proceeding by way of revision shall be entertained at the instance of the accused, who has a right of appeal under these rules and has not brought the appeal."
9. The reading of the second proviso demonstrates that the suo motu revisional power cannot be exercised if three months have elapsed from the communication of the imposition of penalty/order and no appeal is preferred against the same. Herein in this case it is reflected that the proceedings were initiated against the petitioner under the Efficiency and Discipline Rules, 1975 and a show- cause notice alongwith the statement of allegations was issued to him on 28-1-1986. The Authorised Officer in pursuance to rule 6(3) of the Efficiency and Discipline Rules inflicted the minor penalty of `censure' upon the petitioner which was communicated to, him and accordingly he was reinstated in service. When the petitioner wet in revision before the learned Member (Revenue), Board of Revenue for the expunction of remarks made against him by the Commissioner while deciding the case of Lumberdar Abdul Aziz he made certain remarks without associating him: It is evident that the order passed earlier censuring the petitioner was acted upon which cannot be revised unless it is subject to revision in accordance with the rule 18 of the Efficiency and Discipline Rules. This cannot be denied that the earlier order of `censure' has taken its effect. The matter is past and closed and no appeal was filed by any party against the order of censuring the petitioner/inflicting the penalty of censure upon the petitioner in February, 1986. It is now too late in the day to re-open the matter after the lapse of five years particularly, in the facts of this case when already the main parties who secured the alleged mutation fraudulently were acquitted in criminal proceedings as such no power is left with the learned Member (Revenue) Board of Revenue, Punjab, in the circumstances of this case to issue suo motu notice for enhancement of the sentence. Accordingly, the order dated 1-4-1991 is hereby set aside as having been passed without lawful authority and of no legal effect. There shall be no order as to costs. Notice quashed.