' The appellant Sardar Muhammad Saeed Jaffar Pathan was an Extra-Assistant Commissioner till 4-1-1993 when he was dismissed from service by the order (Annex. F) of even date on the charges of certain " Irregularities". Later, however, his Review Petition was accepted and the penalty was converted into one of compulsory retirement vide the order dated 24-4-1993 (Annex. H). Aggrieved by it he preferred the instant appeal.
' The precise charges (Annex. A) set up against him were that during sting as EACO, Leiah, he committed the following irregularities, namely:
(1) that you unauthorisedly adjusted and confirmed land to the original land-owners in Ghair Dehat without prior permission of BOR as was required, vide decision taken in para. 2 of the minuets of meeting held on 18-1-1987 which was also conveyed to EACO, Layyah vide BOR No,2190-86/397/Th- IV, dated 17-1-1987 and thus acted beyond your jurisdiction with mala fide intention and ulterior motive in the 15 cases mentioned at Annex. 'A'.
(2) that you unauthorisedly adjusted land within prohibited zone in the year 1990 to the land- owners in violation of decision taken in the meeting held on 4-12-1985 and 18-1-1987, the minutes of which were conveyed to EACO, Layyah vide BOR Memos. No,2778-85/2341/ThV, dated 8-12-1985 and 17-2-1987 respectively, and thus acted beyond your competency with ulterior motive in the five cases mentioned at Annex. 'A'.
(3) that you first got determined the right of return in the following cases of land-owners on the basis of their rights/shares in 'bila notified area' falling within the area controlled by the TDA and then adjusted TDA land in lieu of their rights in 'bila notified area' without prior permission/approval of the competent authority to adjust the TDA land and as such acted beyond your jurisdiction with corrupt motive and deprived the Government/TDA of its valuable lands shown against the nine cases mentioned at Annex. 'A' (P/10).
(4) that you deliberately adjusted/allotted land in excess to the entitlement of land-owners in the four cases mentioned at Annex 'A' with corrupt motive and thus caused heavy loss to the Government/TDA.
(5) that you adjusted TDA land in favour of refugees claimants in violation of ban imposed by BOR vide Letter No,1806-89/38/ThIV, dated 9-1-1990 on the adjustment of land allotted on evacuee claims, furthermore you adjusted lands without proper scrutiny of the relevant record and obtaining duly issued certified copies of RL-II and orders of various Courts and other relevant record from the landowners. You thus acted negligently and deliberately ignored Government instructions with ulterior motive by making the adjustments in the four cases mentioned at Annex.
'A' (page 18)."
' He denied all these but the Inquiry Officer in his report dated 29-6-1992 (Annex. C) found all of these excepting No,4 against him. The Authorised Officer equally did not accept his defence plea and likewise the Authority too agreeing with them imposed upon him initially the penalty of dismissal but subsequently converted it into compulsory retirement.
3. The case had a long history of 36 years. Lands of private owners situate in the Thal areas were either acquired in violation of the powers under the Thal Development Act, 1949 as amended by the Thal Development (Amendment) Act, 1955 or were forcibly taken over without acquisition. The action was challenged in writ petitions brought in the years 1962, 1965, 1970 and 1976 by the aggrieved owners. Some were accepted while others were dismissed but the Supreme Court allowed even those as reported in PLD 1986 SC 96 (Annexs. J, K and L). In order to give effect to these judgements and of course to rectify other apparent mistakes, the appellant obtained reports of the field staff and then accorded approval to the return or adjustment of those lands in favour of the wronged land-owners. He a'Verred that those orders were passed by him in good faith in acceptance of genuine claims satisfying himself that there was no legal bar, stay orders, litigation or disputes over possession of the respective owners.
4. Later, on noticing that the above orders were passed without obtaining prior approval of the Board of Revenue as envisaged by their instructions dated 4-12-1985 and dated 17-1-1987 (pages 125, 126 and 127), the Commissioner allowed review thereof of his order dated 22-5-1991 directing fresh determination of claims of the rightful owners. It ensued yet another round of litigation in which the owners assailed the Commissioner's order in writ petitions which were allowed as per judgments Annexs. M to M/7 (including some by myself as a sitting Judge) setting aside the Commissioner's order being without jurisdiction under the T.D. Act 1949 and conversely restoring the order dated 21-4-1990 passed by the appellant as "well considered".
5. It is apparent that despite affirmation of the appellant's order by the High Court after quashing that of the Commissioner, he was punished for the so-called irregularity that he did not obtain prior approval of the Board of Revenue. He seriously challenged it in the instant appeal reiterating that the T.D. Act, 1949 as amended upto date, had its own regime and that the BOR had no powers to control functioning of the Thal Development Authority as to bind it to seek their prior approval in the matter; secondly that the judgments of the superior Courts overruled the said objection meaning thereby that the so-called approval of the B.O.R. Was not required; thirdly that no such objection was raised by the field staff nor had they brought the instruction of the BOR to his notice; fourthly that approval of the BOR was only a formality which could be accorded post facto all the more in favour of rightful owners whose claims were upheld even upto the Supreme Court; fifthly that an order after being upheld or approved by the Supreme Court, could not be construed to be "misconduct" as any such construction would be tantamount to contempt; and lastly that the so- called misconduct was of the type first ever committed by him in his long service least calling for the extreme penalty of dismissal/retirement especially when no ulterior motive was even alleged much less proved. Reliance in this behalf was placed, among others, on 1993 SCM R 956. Further, he asserted that he was fully empowered to pass orders on the files under the Notification issued under Endorsement No, Thal/HVC/XX/ 111-35/5990-60006, dated 28-7-1970 (Annex. 0/22) and that charges Nos. 1 and 2 were not sustainable. Similarly he maintained that charge No,3 as well was untenable because restoration of possession of lands illegally taken (termed as bila notified areas) was his bounden duty inasmuch as rectifying a wrong could not be objected to on any premises, nor did the instructions of BOR issued in 1985 or 1987 visualise their permission for removing an abuse of power. As for charge No, 5, he pleaded that his orders were nothing but executory of the judgment of the BOR itself dated 9-10-1980 (Annex. P) whereby adjustment of the evacuee land was allowed to the various claimants. Last but not the least, his submission was that the field staff, the District Collector and the Commissioner who all wrongly arrogated powers of review in these cases, should as well have been punished for misconduct, but he alone was picked up for that severe a penalty rather quite discriminately literally for an act upheld by the Supreme Court.
6. The appeal was opposed stating again that the appellant disregarded the instructions of the BOR nor did he ask for verification of reports of the Patwaris by the Halqa Girdawars as well as the Tehsildars. It was averred that in all the judgments of the High Court, the appellant was directed to obtain orders of the competent authority/BOR and that for this reason his orders were really not upheld. Further, section 28-A of the T.D. Act, 1949, was relied upon as conferring powers on the BOR to issue instructions relating to lands claiming that the appellant had to follow these in any event.
7. Considerable arguments were addressed on both sides. Admittedly the problem in question awaited settlement for more than 36 years and was by and large settled by judgments of the High Court and Supreme Court. It was preeminently correct that the appellant simply implemented those judgments. The Commissioner's attempt to review the appellant's orders was set at naught by the High Court as also the Supreme Court. However, the Inquiry Officer observed in his report (page 44) that the High Court held the appellant to be not competent to pass the order without the approval of the BOR". I have examined those judgments (Annexs. M to M/7) carefully. I have hesitation to accept the version that those held the appellant to be incompetent to pass the order in making adjustments. Conversely it was noted that approval of the BOR, if really needed, was only a formality which might be supplied even post facto by taking steps in that behalf. Otherwise those judgments were held to have been "well-considered". At least in two of those judgments at pages 100 and 120 no such direction was made meaning clearly that the BOR's approval was not needed.
It may be recalled that precisely this very matter was, taken to the Supreme Court in PLD 1986 SC 96 (Hakim Abdur Rahim Khan and others v. Secretary, Resettlement and Claims) which made no mention of the fact that the BOR's approval was needed for making adjustments of the land vis-a- vis the owners. Thus, even if the High Court tended to hold the BOR's approval necessary, the Supreme Court did not adhere to it relieving altogether of the need to seek it.
8. The legal aspect heavily speaks against the proposition because the T.D. Act 1949 under which the appellant was exercising powers, did not make any such reservation. By its very dispensation, the Act makes the Authority created thereunder to be an exclusive Authority parallel to the B.O.R.
Rather than its subordinate. It was indicated in written objections that section 28-A of the said Act bound the functionaries working thereunder to obtain the B.O.R.'s approval. No such section was found in the Act. The learned DA. Accepts this fact. Contrarily, by the Notification issued under the Endorsement No,Thal/HVC/XX/III-35/5990-60006, dated 28-7-1970 (Annex. 0/2 at page 136-A) the appellant was fully competent to pass these orders by virtue of delegation of the powers made in his favour as EACO Leiah. This delegation was absolute in nature made under section 81 of the Act without subjecting it to the approval of the BOR or so. In fact this Notification (or order as it was so captioned) furnishes a complete answer to the objection raised to validity of the appellant's orders.
With respect, this notification escaped notice of the High Court though it took the view in its judgment at page 122 that there was no provision in the T.D. Act, 1949 authorising the BOR to impose any such restriction. In any event, statutory delegation of powers cannot be affected by mere sundry instructions even if those had the semblance of application to the orders under discussion.
9. The record reveals that some lands, at least comprised in charge No, 3, were taken away from the owners without acquisition and were therefore shown to be "bila notified areas". If the appellant ordered return of those areas to rightful owners, what can possibly prevent him from setting right such high-handedness? Any law, rule or instruction placing restraint on the title of the owner would be outright hit by Article 23 of the Constitution which protects rights to one's property except when deprived through process of law.
10. It was not demonstrated if in final analysis, the appellant's order upheld by the High Court, were disapproved by the BOR. The corollary was that those were approved presumably because those were "well-considered". Why then punish him? It was indeed ironical to visit him with horrible penalties in spite of the finding that he had exhibited no ulterior motive. Correspondingly he settled what was left unsettled for 36 years. Charge No, 4 was dropped as the orders of the appellant were upheld by the High Court (page 51). I should say all his orders were upheld in judgments Annexures M to M/7 which found either literal or purposive approval of the Supreme Court in PLD 1986 SC 96. I too dealt with the matter as a sitting Judge of the High Court and should have ordinarily avoided dealing with this appeal but merger of the High Court view in the judgment of the Supreme Court reduces significance of expression of opinion on my part at that earlier occasion. I would therefore restate the opinion of the High Court as at page 122 that the appellant needed no approval of the BOR in so far as he acted under the T.D. Act, 1949.
11. Next, reference was made to 1988 SCM R 691 in support of the contention that the so-called "irregularity' attributed to the appellant was the first ever instance of misconduct/inefficiency. .On his part during the whole of his career and that it should have better been ignored. The learned DA did not claim if the appellant's record was in any way infested so as to belie his version of this irregularity being the first ever committed by him during his entire service. The assumption therefore shall be that he maintained himself to be a clean officer all along. To punish him for such a maiden mistake or slip was undeniably uncalled for, all the more by awarding him the major penalty of dismissal or compulsory retirement. It was highly unfortunate especially for the reason that no ulterior motive on his part was established.
11-A. As a result of the above discussion, the appeal is allowed. The impugned orders are set aside and the appellant is reinstated with back benefits.
' No orders as to costs.