SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN)---This is an appeal by Muhammad Shabeer Khan Driver against the order dated 3-8-1991 of the Conservator of Forest, Muzaffarabad by which he was dismissed out of service and the order dated 13-1-1992 passed by the Chief Conservator of ~ the Forests Department (respondent No. 2) by which his departmental appeal was rejected. The appellant has impleaded Mr. Ahmad Din, Conservator of Forests, Muzaffarabad Circle, the Chief Conservator of Forests Department and the Azad Government through its Chief Secretary as respondents for the redress of his grievances.
2. The facts giving rise to this appeal as are contained in the memo of his appeal are that the appellant joined the Forests Department as Driver on 4-6-1982 and has been performing his duties as such till 29-4-1991 when he was placed under suspension by respondent No.1. It is claimed by the appellant that his father was a refugee from Occupied Kashmir and was allotted a piece of evacuee land on the Jail Road comprising of Khasra No.1220 min and 1222 min measuring 3 Marlas each alongwith a shop built thereon situate in Muzaffarabad Town and that his father has been in regular possession of the same since 1964. The respondents Nos. 1 and 2 tried to dispossess his father from the said allotted land and shop without having any lawful right for that under the pretext that it was being used by them as motor garage. With a view to save his property from going in possession of the respondents Nos. 1 and 2 his father brought a written complaint against them in the Court of Sub-Judge, Muzaffarbad for restraining them from taking forcible possession of the allotted land and shop by issuing a permanent injunction against them. This complaint is still pending with that Court although a temporary injunction has been enforced to operate against the respondents Nos. 1 and 2 prohibiting them till the disposal of that complaint from interfering in the possession of the allotted land of his father. Being aggrieved by the issue of temporary injunction against them respondents Nos. 1 and 2 brought an appeal before the District Judge at Muzaffarbad but the same was also dismissed vide order dated 31-7-1991 of District Judge, Muzaffarabad.
Subsequently the respondents got the land and shop attached and this order of attachment was also withdrawn by the Court of Magistrate. The respondents then filed a revision petition before the Court of Session Judge but the same also failed. The respondents then manoeuvred and obtained proprietary rights in the disputed land and shop without firstly obtaining its allotment for that and without the knowledge of allotted, his father. On appeal by the father of appellant, the order of the learned Custodian granting proprietary rights to the respondents has been held in abeyance and by issuing a temporary injunction, the learned Custodian has directed them to keep the subject- matter unchanged till the decision of the appeal brought before him. However, the respondents Nos. 1 and 2 by their contacts and personal sources subsequently succeeded in obtaining an illegal decision in regard to the disputed land and shop from A.D.R.C., Muzaffarabad against his father but that decision has also been challenged in a revision petition before the Court of Rehabilitation Commissioner and the implementation of that order is also held in abeyance under an interim injunction issued by that Court. The respondents Nos. 1 and 2 finally tried to motivate the appellant for pressurising his father to give up the litigation against the Forests Department and hand over the possession of the disputed land and shop to them and if he would not do so, he shall have to face his dismissal from service. But his father did not agree to yield before them and the appellant was dismissed from service without any fault on his part under the impugned order. In his appeal, the appellant has submitted the following grounds on which he relies that the impugned orders of his dismissal are not maintainable in law and should, therefore, be annulled--
(i) that the impugned orders are against law and facts and are based on speculations and surmises;
(ii) that the respondents Nos. 1 and 2 are interested persons and for that reason no Inquiry Committee or Inquiry Officer was appointed by the Authorised Officer to probe into the allegations brought against the appellant;
(iii) that no charge was proved against the appellant and he was dismissed from service without any fault;
(iv) that the appellant remained present during the whole of the suspension period but in spite of regular entries of his presence in the relevant register of attendance he was declared absent without permission and without having evidence or reasonable grounds he was accused of stealing papers from the office;
(v) that baseless charge of committing affray for supporting the possession of his father over the allotted land and shop was levelled against the appellant. The land and shop in dispute were never allotted to the Forests Department by the Rehabilitation Authorities nevertheless its proprietary rights were obtained through personal contacts and sources;
(vi) that no motor garage was handed over to the appellant by Skinder Driver nor the appellant had at any time refused to return him the keys of the garage;
(vii) that no evidence was recorded in presence of the appellant nor he was afforded an opportunity of adducing evidence in defence before the Authorised Officer.
3. It is prayed by the appellant that the impugned orders be set aside and the appellant be reinstated on his post w.e.f. The date of his dismissal from service alongwith all service benefits.
4. By a short order of this Tribunal dated 2-3-1992, the appeal was admitted for regular hearing in this Tribunal and the respondents were asked for their objections, if any, as to the maintainability of the present appeal. In para. No. 1 of the written statement submitted by the respondents it is accepted that the appellant held the post of driver in the Forests Department but during the period-of his service conduct was reproachful and unsatisfactory but being a low-paid employee he was tolerated and no disciplinary action was taken against him. In para. 2 it is submitted that the disputed land under Survey No. 1222 is in possession of the Forests Department where a motor garage was built by the Forests Department for keeping its vehicles. The chit of allotment of land on the name of his father relied upon by the appellant is forged and bogus. The learned Custodian has validly granted proprietary rights of the disputed land and shop in favour of the Forests Department and now it -is well-established that the property in dispute belongs to the Forests Department. In fact, the appellant by taking advantage of his official position in the Department has been trying to blackmail the Department and has taken possession of the said motor garage for giving benefit to the claim of his father. Since the appellant has been working against the interest of the Department, so his removal from service was necessary in the interest of the Department.
5. We have given our careful consideration to the present appeal and the arguments as were addressed by the learned counsel of each party. It is argued on behalf of the appellant that the proceedings under Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977 (hereinafter to be referred as E&D Rules, 1977) have been initiated against him maliciously because of the fact that his father had not surrendered the allotment of disputed land and shop in favour of respondents Nos. 1 and 2. According to the learned counsel, the appellant has been victimised for having supported the long litigation which his father had commenced with the Forests Department for saving the possession and the allotment of the disputed land and shop in his name. It is further argued that the Authorised Officer has not followed the correct procedure of inquiry as is prescribed under Efficiency and Discipline Rules in case of the appellant and he has been condemned and removed out of service capriciously and arbitrarily. On behalf of the respondents it is submitted that after having manipulated allotment chit of the disputed land and shop in the name of his father, the appellant has been doing all the mischief and he was himself pursuing litigation in the different Courts against the Department despite of the fact that he was an employee of that Department. The learned counsel is of the view that since the appellant has been taking active part in the litigation against the interest of the Forests Department, he was guilty of gross-- misconduct and was, therefore, rightly dismissed from service.
6. The main charge brought against the appellant is that after having obtained the possession of the motor garage under the use of the Department, the appellant had manoeuvred forged allotment of the disputed land and garage in favour of his father and that with a view to benefiting him, he has been pursuing litigation pending before the different Courts at Muzaffarabad. Another charge against him is that accompanied by some of his relatives he committed the offence of affray while the employees of the Forests Department were guarding the possession of garage on behalf of the Department and that he was also responsible for removing some important papers relating to the possession of the garage from his personal file.
7. Before we deal with the charges brought against the appellant, we want to be clear whether the proceedings under Efficiency and Discipline Rules were initiated against the appellant in accordance with the relevant provisions of the Efficiency and Discipline Rules and whether the mandatory provisions of rules were duly complied with. In the instant case, the Conservator of Forests is the designated Authority to initiate the proceedings against the appellant under Efficiency and Discipline Rules and acting as such he has appointed Mr. Manzoor Illahi Awan, D.F.O.
Range Land Division, Muzaffarabad to be the Authorised Officer for submitting the result of the inquiry proceedings to him. While making the said appointment of the Authorised Officer, the Authority failed to mention anything in that order as to what was required to be done by the Authorised Officer. He simply directed the Authorised Officer to submit his report within the given time after doing the needful under the rules of procedure. It was the duty of the Authority to send the order of his appointment as Authorised Officer alongwith a charge--sheet to be supplied to the appellant for his reply. But this was not done by him. It shall be noted here that the circumstances under which a disciplinary action for misconduct should be started against a civil servant is left in the sole discretion of the disciplinary authority. A disciplinary authority should exercise such discretion in bona fide and responsible manners and must not be unduly swayed by personal liking and disliking. Contrary to the relevant provisions of Efficiency and Discipline Rules, the appellant was charge-sheeted by the Authorised Officer himself and we do not find anything on the record as to when he was directed to do so by the Authority. The procedure to be observed by the Authorised Officer is given in Rule 6, Chapter III of Efficiency and Discipline Rules and the first thing which he is required to do under sub-rule (2) of the said Rule 6 is that within three days of the receipt of the directions from the Authority under Rule 5 he must decide it whether in the light of the facts of the case or in the interest of justice an inquiry is necessary into the charges brought against the accused civil servant and if for any reason he decides so that an inquiry is not necessary then, of course, he is to proceed against the accused civil servant himself and by an order in writing under sub--rule (3) he shall inform the accused of the action proposed to be taken in regard to him and the grounds of the action and he shall also give him a reasonable opportunity of showing cause against that action within a period of 14 days from the date of receipt of the order. But in the present case, the Authorised Officer served the appellant with the charge-sheet and after receiving his reply thereto issued him a show-cause notice calling upon him as to why some disciplinary action should not be taken against him for the alleged misconduct under Efficiency and Discipline Rules, 1977 within a period of 10 days from the date of the receipt of the show-cause notice. It shall be noted here that no punishment was proposed by the Authorised Officer in compliance with clause (a) of sub-rule (3) of Rule 6 and the period of submitting explanation by the appellant was also curtailed by him from 14 days to 10 days. Here the Authorised Officer has departed from the mandatory provisions of the relevant Efficiency and Discipline Rules.
After he had received the reply of the appellant he submitted his report to the authority without showing any reason or material upon which he had based his opinion that the reply of the appellant to the charge-sheet and show-cause notice being unsatisfactory charges brought against him were proved on the file. At the same time the Authorised Officer also failed to propose any punishment to be awarded to the appellant. The Authority has, no doubt, granted an opportunity of personal hearing to the appellant but it was not the sufficient compliance of the relevant provisions of Efficiency and Discipline Rules because the appellant was never informed by the Authorised Officer or the Authority about the action proposed to be taken against him before making the impugned order of his dismissal from service by the Authority. The character of the action taken in a departmental case and the nature of judicial proceedings are akin and the purpose of observing fairness in both such cases is to maintain public confidence. It is as much necessary in a departmental inquiry as in a judicial proceeding that the mind of the officer who is ultimately responsible to draw conclusions from the record of a case should travel in the straight furrow of detached and objective thinking and there should be no apprehension of its deflection on account of personal bias or ill-will. An officer who has to decide about the culpability of a Government servant in a case of misconduct is under an obligation to give his decision in view of the facts of the case in good faith.
8. There is no denying the fact that there was long litigation over the possession of the motor garage between Muhammad Yaqoob Khan father of the appellant and the Forests Department.
But the important question which is required to be determined by this Tribunal is that whether the appellant has been himself participating in the litigation affairs against its own Department and if not whether he has been victimised purely for this reason that his father had not surrendered the allotment of garage in his name a favour .Of the Department despite the fact that his son, the appellant, was already in the service of that Department. Another important question, which may be necessary to be resolved by this Tribunal is that whether the appellant had actually misconducted during the period of his service and had thereby rendered himself liable for his dismissal from service.
9. There is not an iota of evidence on the file to show that the appellant was himself participating in the litigation affairs brought against the Forests Department by his father. It is available on the record that a driver Qalinder Khan by name had made over the charge of Government Vehicle No. AJK-A 8047 to the appellant on 9-7-1988, but the fact that the charge of disputed garage was also made over to the appellant is doubtful because the words showing that type of things are written in pencil and the rest of things contained in the charge list from serial Nos. 1 to 9 are written in typed words. Further, the charge of theft against the appellant also seems to be baseless for the reason that the file was not supposed to remain in the personal custody of the appellant. The name of the appellant does not appear in the copy of F.I.R. Placed on the record and hence the allegations against him that he was connected with the commission of offence of affray by leading his relatives to accompany him to the motor garage for taking its possession and committed the offence of affray is also unproved against him. While going through his service book and personal file 'of the appellant, we do not find anything which may be adversely affecting upon him demeanour to justify the initiation of proceedings against him under Efficiency and Discipline Rules.
His service record shows it that at the relevant time of his suspension and dismissal from service the appellant held clean slate of his career and the major penalty like dismissal from service was unwarranted and illegal. The appellant being the son of the allotted may have been helping his father directly or indirectly by pursuing the legal remedies and because of their close relations they cannot be set apart from each other. But at the same time the son cannot be blamed of misconduct because he has been helping his father for availing of a legal remedy in the proper Court. It is the basic right of every citizen to have recourse to the law Courts for the ends of justice if and when he has a problem with any one of his fellow citizen to be adjudicated Upon and decided in accordance with the laws of the country. Legally speaking, the respondents had no case to be debated upon before any Court of law and they were well-advised through an order of the learned Custodian dated 27-5-1978 in case entitled Forests Department v. Captain Mushtaq Ahmad that they should either get the land allotted in their favour or have the same purchased after following the prescribed procedure under Land Acquisition Act. But they did not care for such an advice and badly failed to legalise their challenged possession till now. Although by a separate order of the learned Custodian, the proprietary rights over the disputed evacuee land and garage have been granted to them after payment of a sum of rupees one lac yet an appeal is still pending with the Court of learned Custodian against that order and the matter is still in the melting pot to attain its finality. The respondents are the very senior officers of .The Forests Department and perhaps they have been labouring under the impression that they were competent to take in possession any piece of evacuee land at any time for their official use. We are afraid, we cannot contribute to this view of theirs and they should follow the proper course of things and avail of the legal remedies in law if so advised.
10. For the above reasons, we allow this appeal and set aside the impugned order of respondents Nos. 1 and 2. However, we leave the parties to bear their own costs. The appellant shall be reinstated on his post with all service benefits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.