1. ABDUL MAJID KHANZADA (CHAIRMAN).---This appeal is directed against the order, dated 15-11- 1995 passed by the Commissioner Hyderabad Division, Hyderabad dismissing the appellant from service with immediate effect. Against the said order the appellant filed Departmental Appeal before the Senior Member, Board of Revenue which was also dismissed vide his order, dated 7-1- 1986 against both the orders appellant has invoked the jurisdiction of this Humble Tribunal with the prayer that the both impugned orders may be set aside and he may be reinstated in service with all back benefits.
2. That the facts of the case as stated in the Memo. of appeal are that the appellant was posted as Assistant Mukhtiarkar at Shah Bunder under the order, dated 7-7-1994. He was placed under suspension vide order, dated 13-2-1995. The appellant was served with the charge sheet, dated 12- 4-1995 on 23-4-1995. Since under the letter, dated 23-4-1995 by Taluka Mukhtiarkar Shah Bunder, he was required to appear before the Enquiry Officer at Hyderabad on 26-4-1995 at 11.00 a.m. therefore he applied through application, dated 26-4-1995 before the Enquiry Officer to adjourn the matter and supply him the necessary documents which are allegedly forged and manipulated by him and form the subject-matter of charge-sheet.
3. That the appellant submitted his reply, dated 4-5-1995 against the charge-sheet and during the Enquiry-proceedings the Enquiry Officer examined Rashid Muhammad Siddiqui Mukhtiarkar Latifabad, Muhammad Anwar Shaikh, Superintendent Commissioner's Office, Hyderabad and Haji Muhammad.Juman Tapedar Kathar. After completion of the enquiry on the charges alleged against the appellant which were four (4) in number viz;
(1) That you attested the bogus entry No,9-A of V.F. VII old of Deh Ganjo Takar Taluka Latifabad in the year 1994 after lapse of three years without verifying the record as it was prepared by Munshi Lal Bux Tapedar in the year 1991.
(2) That you also verified the wrong sketches of above bogus Khata for the land already reserved for housing scheme belonging to H.D.A.
(3) That you on 30-6-1994 with mala fide intention also issued ownership certificate of aboVe holding without proper verification.
(4) That you with the collaboration of Tapedars gave undue benefit to land grabbers with ulterior motive entailing financial loss to Government.
4. The Enquiry Officer in his enquiry report, dated 31-7-1995 adverted with the case of the appellant at page 4. According to the learned Enquiry Officer out of 4 charges only charge No,3 is proved. We would like to reproduce the findings of the Enquiry Officer in his words:-- "He has been charged with issuing true copy of village Form VII old and Entry bearing No,9-A and issuing ownership certificate of 1800 acres of land in favour of Islam Khatoon and Hasan Ali. On comparing his signatures with that of extract of village Form VII Entry No,9-A, it revealed that these were not his signatures. But he has admitted signing the certificate which he claims is a holding certificate.
5. Mukhtiarkar Latifabad's office has no copy of this certificate. No, benefit has been gained by anybody but mere issuance of this certificate claimed to be forged by the accused is misconduct on his part."
6. He recommended minor penalty against the appellant under Sindh Civil Servants (Efficiency and Discipline) Rules, 1973.
7. On the basis of this report Authorized Officer issued Show-Cause Notice, dated 2-10-1995 which was replied by him vide his reply, dated 12-10-1995. The reply of the appellant could not satisfy the learned Authorised Officer and therefore, he was dismissed from service vide his order, dated 15-11- 1995.
8. We have heard the learned counsel for the appellant Mr. M.M. Aqil Awan and the learned Assistant Advocate-General Sindh for official respondents. The learned counsel for the appellant Mr. M.M. Aqil has invited our attention to the Show-Cause Notice, dated 2-10-1995 wherein according to the learned counsel, it is mentioned that the Authorized Officer has recorded a finding that the appellant was found guilty on the charges leveled against him whereas the Enquiry Officer has not found him guilty of all charges and as such the very Show-Cause Notice is defective in law being contrary to the record and this has resulted into prejudice to the case of the appellant. He has further contended that according to the Enquiry Officer only one charge is proved i,e, with regard to the certificate on which the appellant has admitted his signature. The learned counsel submits that the case of the appellant was that, in fact it was non encumbrance certificate which is normally issued by the office of Mukhtiarkar and this certificate was issued to some party by the appellant, the interested party has taken the office copy of such certificate from the office of the Mukhtiarkar with collusion of subordinate staff and the name of the parties and area was manipulated and tampered. He has invited our attention particularly to the two names" i,e, Hasan Ali and Mst. Islam Khatoon and area of 1800 acres". We have perused the certificate with the assistance of the learned counsel and the learned Assistant Advocate General. It is visible to open eye that two names and stroke of 1800 is typed by different typewriter than the typewriter under which the certificate itself was typed.
9. We have confronted the learned A.A.-G with this position who replied that such typed certificates are prepared in pro forma and that is the reason that the name of the party and area do not conform with the remaining typed words of the certificate. We regret that we are unable to accept this explanation because the certificate in question is neither a pro forma certificate nor cyclostyle document. It goes without saying that even the copy of this certificate was not available in the record which were seized by the Enquiry Officer and it is the case of the department that office copy of this certificate was not available. The Rule of law is that if a confession of the accused is to be accepted then it is to be accepted as a whole .and not in part. Similarly in Civil proceedings under law of admission if any admission is made that is to be accepted as a whole and not in part. Appellant has vividly stated that the certificate bears his signature but it has been interpolated by the interested parties by substituting the name and area in such certificate. We have asked the learned A.A.-G to show us any evidence which could prove that the manipulation in such certificate with regard to the name or area were either made by the appellant or it was on account of his connivance but the learned A.A.-G was unable to point out any such evidence. At this point of arguments the learned A.A.-G. candidly conceded to convert the major penalty into minor penalty. Here again we have asked the learned A.A.-G that gravity of the charges is such that in case it is proved, then it will not require imposition of minor penalty therefore, if the charge is held to be proved then it will not be a case of minor penalty.
10. We have been referred to the application, dated 19-3-1994 filed by the same parties mentioned in the certificate requesting for issuance of such certificate on which there is an order passed by the appellant, dated 22-3-1994 requiring the Tapedar to produce original record. The learned counsel submits that the said parties after having failed to obtain such certificate from the appellant though the favorable note was submitted by the Tapedar yet he insisted for production of original record and as such the party failed in obtaining such certificate and that was the reason that they have stolen the office copy of the certificate issued to some other parties and manipulated the same and produced in the proceedings in Civil Court wherefrom this case was detected. We have given our serious thought to the submission of the learned counsel and we are satisfied that although the certificate is issued under the signature of the appellant but there is absolutely no evidence which could prove that the name of the parties and area mentioned therein is interpolated either by the appellant or with his connivance and as such we held that the charge is not proved. The learned counsel for the appellant has relied upon few judgments of the Humble Supreme Court of Pakistan.
11. One Judgment reported in Mukhtar Ahmed Bhatti v. Director Food . Punjab 1992 SCMR page 1864.
12. Supreme Court held:-- "Enquiry Officer had conducted a fact-finding enquiry into the conditions of storage and the nature of the duties performed by the appellant in looking after the stored wheat. The report on paper appears to be objective one. It is not disputed by anybody as to the powers of the Competent Authority to form opinion different from that of enquiry officer with regard to involvement of the appellant. But that has to be done on some well-founded principle or fact mean objectively."
13. Syed Mir Muhammad v. N.-W.F.P. Government PLD 1981 SC 176. Supreme Court held in this case:-- "It is statutory requirement that if a formal inquiry is held, then the, authorised Officer should, after he has tentatively decided upon, the action he proposes to recommend to the Authority, give an opportunity to the accused officer to offer his explanation against the proposed action in the light of the findings of the enquiry officer or enquiry committee, before sending his recommendation to the authority. This would of course necessitate that a copy of the enquiry report be furnished to the accused officer at this stage and he should be apprised of the action proposed against him. The failure to do so invalidates the recommendation of the Authorised Officer and the ultimate order passed on their basis by the Authority against the accused officer."
14. That since we have reached the conclusion that there is absolutely no evidence to support the findings that the appellant had either connived with concerned parties or subordinate Revenue staff or prima facie was a party to the fabrication of the contents of the certificate in question, therefore, we do not feel call upon to advert with the submission of the learned counsel for the appellant on technical aspect of the case.
15. That the learned Assistant Advocate-General Sindh has laid much emphasis on the appellate order passed against the appellant by the Senior Member Board of Revenue. On the insistance of the learned A.A.-G we had perused the order, dated 7-1-1996 passed by the Senior Member Board of Revenue and our perusal is again resulted into the same conclusion. The operative part of the order starts from para. 8 and here again the learned Senior Member Board of Revenue has taken erroneous view of law whereby he says:-- "He admits his signature on the abovereferred document. He however pleaded that the original certificate issued by him pertains to some other person and related to some other land of Deh Gunjo Takkar. He could not adduce any evidence in support of his contention."
16. The learned Senior Member Board of Revenue appears to have taken view that if the ex tution of the document is proved then content thereof are also proved by necessary implication. We are afraid that this is not exact legal position of the matter. The prosecution was duty bound to prove its case against the accused official beyond any reasonable doubt. So far the execution of the document was concerned that was admitted by the accused himself and then it was the duty of the prosecution to bring direct evidence on the point that the contents were manipulated by the accused official himself or by his connivance, which the prosecution has miserably failed to prove.
17. Under these circumstances, this appeal is allowed and the impugned orders, dated 15-1-1995 passed by the respondent No,1 and, dated 7-1-1996 passed by the respondent No,2 are set aside with no order as to cost.
18. Given under our hands and Seal of this Tribunal this 27th day of November, 1997. (Sd.) ABDUL MAJID KHANZADA, CHAIRMAN.
19. ABDUL MAJID KHANZADA (CHAIRMAN).---The present appeal was heard by the Bench comprising of Mr. Abdul Majid Khanzada, Chairman and Member-II Mr. Bahauddin Sirhindi and was reserved for judgment. Since I had allowed the appeal for the reason recorded in the judgment and the learned Member dismissed the same for the reasons recorded in his judgment therefore, judgment was not announced and in the diary sheet of the case it was observed that because of the difference of opinion between the Bench of two members, in the light of Rule 26 of the Sindh Service Tribunal (Procedure) Rules, 1974 appeal may be reheard by the Full Bench as the Senior Member Mr. Nasim Haider has rejoined the Sindh Service Tribunal after completion of his training at Lahore, the matter was heard afresh by the Bench of three members and as such I propose to deliver the judgment in pursuance of the hearing of the case which took place on 23-4-1998.
20. That the facts of the case as stated in the Memo. of appeal are, that the appellant was posted as Assistant Mukhtiarkar at Shah Bunder under the order, dated 7-7-1994. He was placed under suspension vide order dated, 13-2-1995. The appellant was served with the charge-sheet, dated 12- 4-1995 on 23-4-1995. Since under the letter, dated 23-4-1995 by Taluka Mukhtiarkar Shah Bunder, he was required to appear before the Enquiry Officer at Hyderabad on 26-4-1995 at 11.00 a.m. therefore, he applied through application, dated 26-4-1995 before the Enquiry Officer to adjourn the matter and supply him the necessary documents which are allegedly forged and manipulated by him and form the subject-matter of charge-sheet.
21. The appellant submitted his reply, dated 4-5-1995 against the charge-sheet and during the Enquiry proceedings the Enquiry Officer examined Rashid Muhammad Siddiqui Mukhtiarkar Latifabad, Muhammad Anwar Shaikh, Superintendent Commissioner's Office, Hyderabad and Haji Muhammad Juman Tapedar Kathar. After completion of the enquiry on the charges alleged against the appellant which were four (4) in number viz:--
(1) That you attested the bogus Entry No,9-A of V.F.VII old of Deh Ganjo Takar Taluka Latifabad in the year 1994 after lapse of three years without verifying the record as it was prepared by Munshi Lal Bux in the year 1991.
(2) That you also verified the wrong sketches of above bogus Khata for the land already reserved for housing scheme belonging to H.D.A.
(3) That you on 30-4-1994 with mala fide intention also issued ownership certificate of above holding without proper verification.
(4) That you with the collaboration of Tapedars gave undue benefit to land grabbers with ulterior motive entailing financial loss to Government.
22. The Enquiry Officer in his enquiry report, dated 31-7-1995 adverted with the case of the appellant at page 4. According to the learned Enquiry Officer out of 4 charges only charge No,3 is proved. I would like to reproduce the findings of the Enquiry Officer in his words:-- "He has been charged with issuing true copy of village Form VII old and Entry bearing No,9-A and issuing ownership certificate of 1800 acres of land in favour of Islam Khatoon and Hasan Ali. On comparing his signatures with that of extract of village Form VII Entry No,9-A, it revealed that these were not his signatures. But he has admitted signing the certificate which he claims is a holding ' certificate.
23. Mukhtiarkar Latifabad office has no copy of this certificate. No benefit has been gained by anybody but mere issuance of this certificate claimed to be forged by the accused is misconduct on his part."
24. He recommended minor penalty against the appellant under Sindh Civil Servants (Efficiency and Discipline) Rules, 1973.
25. On the basis of this report Authorised Officer issued Show-Cause Notice, dated 2-10-1995 which was replied by him vide his reply, dated 12-10-1995. The reply of the appellant could not satisfy the learned Authorised Officer and therefore, he was dismissed from service vide his order, dated 15-11- 1995.
26. I have heard the learned counsel for the appellant Mr. M.M. Aqil Awan and the learned Assistant Advocate-General Sindh for official respondents. The learned counsel for the appellant Mr. M.M. Aqil Awan has invited our attention to the Show-Cause Notice, dated 2-10-1995 wherein according to the learned counsel it is mentioned that the Authorized Officer has recorded a finding that the appellant was 'found guilty on the charges leveled against him whereas the Enquiry Officer has not found him guilty of all charges and as such the very Show-Cause Notice is defective in law being contrary to the record and this has resulted into prejudice to the case of the appellant. He has further contended that according to the Enquiry Officer only one charge is proved i,e, with regard to the certificate on which the appellant has admitted his signature. The learned counsel submits that the case of the appellant is that, in fact it was non-encumbrance certificate which is normally issued by the office of Mukhtiarkar and this certificate was issued to some party by the appellant, the interested party has taken the office copy of such certificate from the office of the Mukhtiarkar with collusion of subordinate staff and the name of the parties and area was manipulated and tampered. He has invited our attention particularly to the two names" i,e, Hasan Ali and Mst. Islam Khatoon and an area of 1800 acres". I have perused the certificate with the assistance of the learned counsel and the learned Assistant Advocate General. It is visible to open eye that two names and stroke of 1800 is typed by different type-writer than the typewriter under which the certificate itself was typed.
27. I have confronted the learned A.A.-G. with this position who replied that such typed certificates are prepared in pro forma and that is the reason that the name of the party and area do not confirm with the remaining typed words of the certificate.
28. I regret, as I am unable to accept this explanation because the certificate in question is neither a pro forma certificate nor cyclo-style document. It goes without saying that even the copy of this certificate was not available in the record which were seized by the Enquiry Officer and it is the case of the department that office copy of this certificate was not available. The Rule of law is that if a confession of the accused is to be accepted then it is to be accepted as a whole and not in part. Similarly in Civil proceedings under law of admission if any admission is made that is to he accepted as a whole and not in part. Appellant has vividly stated that the certificate bears his signature but it has been interpolated by the interested parties by substituting the name and area in such certificate. I have asked the learned A.A.-G. to show any evidence which could prove that the manipulation in such certificate with regard to the name or area were either made by the appellant or it was on account of his connivance but the learned A.A.-G. was unable to point out any such evidence. At this point of arguments the learned A.A.-G. candidly conceded to convert the major penalty into minor penalty. Here again I have asked the learned A.A.-G. that gravity of the charges is such that in case it is proved, then it will not require imposition of minor penalty therefore, if the charge is held to be proved then it will not be a case of minor penalty.
29. I have been referred to the application, dated 19-3-1994 filed by the same parties mentioned in the certificate requesting for issuance of such certificate on which there is an order passed by the appellant, dated 22-3-1994 requiring the Tapedar to produce original record. The learned counsel submits that the said parties after having failed to obtain such certificate from the appellant though the favourable note was submitted by the Tapedar yet he insisted for production of original record and as such the party failed in obtaining such certificate and that was the reason that they have stolen the office copy of the certificate issued to some other parties and manipulated the same and produced in the proceedings in Civil Court wherefrom this case was detected. I have given my serious thought to the submission of the learned counsel and I am satisfied that although the certificate is issued under the signature of the appellant but there is absolutely no evidence which could prove that the name of the parties and area mentioned therein is interpolated either by the appellant or with his connivance and as such I held that the charge is not proved. The learned counsel for the appellant has relied upon few judgments of the Hon'ble Supreme Court of Pakistan.
30. One Judgment reported in 1992 SCMR page 1864 Mukhtar Ahmed Bhatti v. Director Food Punjab, Supreme Court held:-- "Enquiry Officer had conducted a fact-finding into the conditions of storage and the nature of the duties performed by the appellant in looking after the stored wheat. The report on paper appears to be objective one. It is not disputed by anybody as to the powers of the Competent Authority to form opinion different from that of enquiry officer with regard to involvement of the appellant. But that has to be done on some well-founded principle or fact mean objectively.".
31. PLD 1981 SC 176 Syed Mir Muhammad v. N.-W.F.P. Government. Supreme Court held in this case:-- "It is statutory requirement that if a formal inquiry is held, then the Authorized Officer should, after he has tentatively decided upon, the action he proposes to recommend to the Authority, give an opportunity to the accused Officer to offer his explanation against the proposed action in the light of the findings of the enquiry officer or Enquiry Committee, before sending his recommendation to tht authority. This would of course necessitate that a copy of the enquiry report be furnished to the accused officer at this stage and he should be apprised of the action proposed against him. The failure to do so invalidates the recommendation of the Authorised Officer and the ultimate order passed on their basis by the Authority against the accused officer."
32. That since I have reached the conclusion that there is absolutely no evidence to support the findings that the appellant had either connived with concerned parties or subordinate Revenue staff or prima facie was a party to the fabrication of the contents of the certificate in question, therefore, I do not feel, to advert with the submission of the learned counsel for the appellant on technical aspect of the case.
33. That the learned Assistant Advocate-General Sindh has laid much emphasis on the appellate order passed against the appellant by the Senior Member, Board of Revenue. On the insistance of the learned A.A.-G. I had perused the order, dated 7-1-1996 passed by the Senior Member, Board of Revenue and perusal is again resulted into the same conclusion. The operative part of the order starts from para. 8 and here again the learned Senior Member, Board of Revenue has taken erroneous view of law whereby he says:-- "He admits his signature on the above-referred document. He however pleaded that the original certificate issued by him pertains to some other person and related to some other land of Deh Gunjo Takkar. He could not adduce any evidence in support of his contention."
34. The learned Senior Member, Board of Revenue appears to have taken view that if the execution of the document is proved then content thereof are also proved by necessary implication. I am afraid that this is not exact legal position of the matter. The prosecution was duty bound to prove its case against the accused official beyond any reasonable doubt. So far the execution of the document was concerned that was admitted by the accused himself and then it was the duty of the prosecution to bring direct evidence on the point that the contents were manipulated by the accused official himself or by his connivance, which the prosecution has miserably failed to prove.
35. Before parting with the case it is observed that the learned counsel raised the legal point on date of hearing of 23-4-1998 and accordingly contended that Authorized Officer was not competent under the provisions of Rule 5(4)(a) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 to impose the major penalty on the appellant because if the Authorized Officer is of the view to impose the major penalty then he has to send the papers with his recommendation to the Authority as it is the powers of the Authority and not the Authorized Officer to impose major penalty.
36. On perusal of the relevant provisions of the law, the contention of the learned counsel for the appellant is upheld. Since I had the benefit to peruse the proposed judgment written by learned Senior Member Mr. Nasim Haider who had dealt with this contention at length therefore, I would not like to dilate upon the same anymore and held that the first impugned order of the Authorized Officer is without jurisdiction. As it is settled proposition of law that the confirmation of the illegal order in appeal do not improve its status therefore, the appellate order is equally unlawful and without jurisdiction.
37. The learned counsel has further placed the documents whereunder the 3 co-accused with the appellant namely Munshi Lal Bux Tapedar and Munshi Muhammad Eiden another Tapedar, who were held guilty by the Enquiry Officer in his Enquiry report and were accordingly dismissed from service. Their Departmental appeals were allowed and penalty of dismissal was converted into compulsory retirement allowing them all the benefits as per rules. The Supervising Tapedar Munshi Muhammad Aqil was equally held guilty in the enquiry report and was dismissed from service. His Departmental appeal was also allowed and he was reinstated into service. On this score the learned counsel contended that the appellant has been discriminated and such discrimination is not allowed under law. Since this aspect of the case has already been adverted by the learned Senior Member in his proposed judgment wherein he has taken pain to refer the relevant documents and has recorded his findings to which I fully agree and for the sake of brevity it is not necessary to deal with the question at any further length.
38. Under these circumstances, this appeal is allowed and the impugned orders, dated 15-1-1995 passed by the respondent No,1 and, dated 7-1-1996 passed by the respondent No,2 are set aside with no order as to costs.
39. Given under my hand and seal of this Tribunal this 12th day of May, 1998. (Sd.)
40. ABDUL MAJID KHANZADA, CHAIRMAN. (Sd.) S. NASIM HAIDER, SENIOR MEMBER S. NASIM HAIDER (SENIOR MEMBER).--This appeal was originally argued before the Divisional Bench of Sindh Service Tribunal comprising of the Hon. Chairman and Member (II) on 16-10-1997 and reserved for judgment.. Since there was a difference of opinion between the said two, in accordance with the provisions of Rule 26 of the Sindh Service Tribunals (Procedure) Rules, 1974, on 27-11-1997, it was ordered to be reheard by the Full, Bench comprising of the Hon. Chairman, Sr.
41. Member and Member (H). Accordingly it was reheard, arguments of both the sides made afresh and judgment reserved on 23-4-1998.
42. I have gone through the arguments of both the sides patiently, gone through the records produced by either side in support of their contentions carefully and the judgment of the Hon. Chairman and learned Member (II) dispassionately.
43. Before recording my own findings and views, it is deemed necessary to point out and record the exact relevant provisions of Rule 4 and Rule 5, Sub Rules 4(a) and (b) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973. Under Rule (4) of the said rules, the prescribed penalties, are classified into Minor Penalties (which include censure, withholding for a specific period promotion - or increment, stoppage for a specific period at an efficiency bar, recovering from pay of the whole or any part of any pecuniary loss caused to Government by negligence or breach of orders and Major Penalties (which include reduction to a lower post or time scale or to a lower stage in time scale; compulsory retirement, removal from service; and dismissal from service).
44. Rule 5(4) Sub rules (a) & (b) read as under: "5(4). On receipt of the report of the Inquiry Officer or Inquiry Committee, or where no such officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorized officer shall determine whether the charge has been proved; and
(a) if it is proposed to impose a minor penalty, he shall pass the order accordingly;
(b) if it is proposed to impose a major penalty, he shall forward the case to the authority along with the charge and statement of allegations served on the accused, the explanation of the accused, the findings of the inquiry officer or inquiry committee, if appointed and his own recommendations regarding the penalty to be imposed and the authority shall pass such orders as it may deem fit and proper."
45. It is, therefore, crystal clear from the above provisions of the said rules/laws that the imposition of a Major Penalty can be ordered by the Authority himself whereas Minor Penalty only can be imposed by the Authorized Officer. It is important to note that the impugned original order bearing No,71-Rev-11/95, 2751 dated 15-11- 1995, was passed by the then Commissioner Hyderabad Division and the Authorized Officer in respect of the appellant as recorded in the impugned original order itself, where under the Major penalty of dismissal from Government service was imposed upon the appellant 'in exercise of powers conferred by Rule 5(4)(a) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973.
46. The said Rule 5(4)(a) only authorizes the Authorized Officer to impose a minor penalty on his own and does not authorize him to impose a Major Penalty on his own, without observing the prescribed procedure as laid down in Rule 5(4)(b) i,e, submission of the case to the 'Authority' and obtaining the specific orders of the Authority. Thus, the impugned original order passed by the then Commissioner Hyderabad Division, Authorized Officer in my humble opinion is ipso facto illegal, ultra vires ab initio because he being the Authorized Officer had exceeded his mandatory and statutory powers, in imposing the Major Penalty of dismissal from service upon the appellant, of his own. It is nowhere stated in the original impugned order that the Commissioner Hyderabad/Authorised Officer had submitted the case to the Authority viz. the Senior Member Board of Revenue Sindh/Secretary to Government of Sindh Revenue Department and the prescribed Authority had decided to impose the Major Penalty of dismissal from service upon the appellant. Thus, the impugned original order passed by the Commissioner Hyderabad/Authorised Officer in respect of the appellant is a nullity in law, having being passed by corum non judice, more so by invoking the powers under Rule 5(4)(a) of the said rules, which authorised him only to impose a minor penalty. Hence, the impugned original order is non-sustainable under law and cannot be maintained by any stretch of imagination. Such ignorance of law in senior officers specially a Divisional Commissioner is lamentable/disgraceful and calls for disciplinary proceeding against him for inefficiency and incompetence, normally speaking.
47. It is further provided under Rule 5(5) of the said rules that the orders passed by the Authority or the authorised officer shall, along with a copy of the enquiry report, if any, be communicated to the accused within fifteen days of such orders. Since E&D Rules have been amended in accordance with the decision of the Hon. Supreme Court of Pakistan to provide for the final/2nd show-cause notice, stating therein why the specific, proposed penalty should not be imposed upon the accused, obtain his reply, furnishing simultaneously the report of the Inquiry Officer, if any and thereafter the Authority can pass the appropriate order, after providing opportunity of being heard to the accused.
48. It is significant to note that the (final) billow.--cause notice proposing the major penalty of dismissal from service upon the appellant was issued by the same Commissioner, Hyderabad/Authorised Officer, but it is nowhere stated in it that prior to its issuance, he had submitted the case to the Authority viz. Senior Member Board of Revenue/Secretary to Government of Sindh Revenue Deptt. who had passed orders to that effect. It is, therefore, crystal clear that the Commissioner, Hyderabad/Authorised Officer had illegally assumed to himself the statutory powers of the Authority illegally usurped and encroached on the statutory powers of his Superior/Senior Member (Board of Revenue)/Authority in respect of the appellant. While Rule 4- A(2) of the said rules, provides that the authority may in any case exercise all powers of authorised officer, nothing in the said rules, empowers the authorised officer to assume to himself the powers of the Authority which will defeat and nullify the entire scheme of law of the said rules, prescribed procedures to be observed and the rationale thereof. Again for the failure to observe the prescribed procedure as laid down in Rule 5(4)(b), the impugned final order passed by the Commissioner Hyderabad/Authorised Officer, it is ipso facto illegal and ultra vires ab initio and cannot be sustained. Now, I come to the final appellate order passed by the learned the then Senior Member (Board of Revenue), dated 7-1-1996 (in Service Appeal No,Nil of 1995) In the very first para it states as follows: "This appeal has been instituted against order No,71-Rev-II/1995- 2751, dated 15-11-1995, of the Commissioner, Hyderabad Division whereby he imposed major penalty of dismissal from Government service on the appellant, in exercise of powers vested in him vide Rule 5(4)(b)
49. (wrongly quoted as rule 5(4)(a) of "Sindh Civil Servants (E&D) Rules, 1973" on account of the misconduct as mentioned in a show-cause Notice bearing No,71-Rev.II/95 dated 2nd October, 1995".
50. The fact remains that the impugned final order was passed by the then Commissioner Hyderabad and the Authorized Officer, who was not legally competent to impose the Major Penalty of dismissal from service upon the appellant, on his own, without submitting the case to the Authority viz. the Senior Member B.O.R./Secretary to Government of Sindh Rev. Dep't. and without obtaining his specific orders.' It is nowhere mentioned in the final original order of the Commissioner Hyderabad/Authorized Officer or the (Final) show-cause notice dated 2-10-1995, that he complied with the provisions of Rule 5(4)(b) of the said rules. Therefore, it was not a simple typographical or clerical error as portrayed in the final Appellate Order--but a case of coram non judice which made the impugned final order ipso facto illegal and ultra vires a initio, but the learned Sr. Member (B.O.R.) failed to take due notice of such a grave illegality. Instead of recommending the case, back to the Commissioner Hyderabad/Authorised Officer for de novo proceedings, he incorrectly opted to legitimize an illegitimate and illegal order coloring it as a typographical or clerical error, not provided under law. Had the Senior Member (BOR) exercised that option, naturally the correct appellate authority would have been the Chief Secretary. Thus the learned Senior B.O.R./authority in respect of the appellant illegally and incorrectly assumed to himself the powers of prescribed appellate authority viz. Chief Secretary against the orders of Senior Member (B.O.R.)/Secretary to Government of Sindh Revenue Department as provided in Sindh Civil Servants (Appeal) Rules, 1975.
51. Thus, it is obvious that the case of the respondents suffers from 'Double fault' which is highly regrettable, that cannot be ignored or pardoned under the so-called alleged, larger public interest claimed by the respondents in their. pleadings and written statement as enunciated hereinafter. It is manifest that the then Commissioner Hyderabad and Senior Member B.O.R. Sindh were either ignorant or not well aware of the Record of Rights and ownership of lands which vest in land holders. In case of agricultural, surveyed lands, Form VII is the Record of Rights, Malkana or ownership of such lands. In case of lands which become 'Sikni' by Kharabo or otherwise become part of Municipal Authority by virtue of a notification of the Provincial Government in that respect, the ownership is recorded in Form II. The land in question 'Ganjo Taker.' undoubtedly falls within the Municipal Limits of Hyderabad Municipal Corporation, stated to have been given to Hyderabad Development Authority. Had the appellant given/issued Form II, in respect of the land in question to an unauthorised person, the only he would have been guilty of tempering with the record of rights of the land in question. It is neither the case of the respondents against the appellant, nor has he been convicted of such an offence, as evident from the charge-sheet, statement of allegations, impugned final or appellate order. The two major charges against the appellant were issuing an incorrect Form VII, an incorrect sketch, which according to the findings of the Inquiry Officer are not proved against the appellant as his signatures don't tally with the signatures on those documents.
52. If the then Commissioner/authorised officer was not satisfied with the findings of the Inquiry Officer, he was within his powers to appoint another Inquiry Officer, which was not done. When the only Inquiry Officer stated that these two major charges were not proved against the appellant, 2nd Inquiry in the matter was neither ordered nor held, the dismissal of the appellant on the basis of such charges is uncalled for being without proper foundation laid down for the same. There are sufficient reasons to doubt the authenticity and veracity of the 'certificate' dated 30-6-1994 alleged to have been issued by the appellant (3rd charge) of which only a photo copy has been presented to Sindh Service Tribunal as recorded by the Hon. Chairman that the names "Hasan Ali and Mst.
53. Islam Khatoon" are in bold and with a different type-writer as well as the area of '1800' acres than that in the rest of the certificate. It was very easy for the appellant to deny his signatures thereon to save his skin -- but the acceptance of the same by the appellant with the qualifying statement that the names/area therein are super imposed/manipulated, in my humble opinion are sufficient to show his 'bona fides' which are further substantiated by the application dated 19-3-1994 of Hasan Ali and Mst. Islam Khatoon, wherein they have requested for 'No arrears certificate' the report of 'Tapedar' dated 20-3-1994 and the orders/submissions of the appellant (Asstt. Mukhtiarkar) to the Mukhtiarkar which are as follows:-- "Submitted Tapedar may be directed to produce original record and applicant may be asked to produce fresh extract copy of V.F.VII".
54. (Sd.) 22-3-1994 A.M. Mukhtiar".
55. It is apparent from the above that the appellant had, sought the orders of Mukhtiarkar and not issued the desired certificate. Further, no Form VII is issued without the specific order in writing of Mukhtiarkar and the concerned Mukhtiarkar had not passed any specific/in writing order to issue Form VII or non-encumbrance certificate as requested in the said application. Apparently, the appellant became a victim of 'forgers' who manipulated some other certificate, changed names and areas to achieve their illegal designs/punish appellants' resistance to issue desired certificate in their favor.
56. In the hierarchy of Revenue Department, the custodian of record of rights is 'Tapedar', then comes Supervising Tapedar or (ST) and above him, the Head Munshi/Asst. Mukhtiarkar and on top is the Mukhtiarkar himself. What surprises me is that the all other accused persons (except the appellant) have been let off which shows the mala fides and bias of the respondents against the appellant.
57. Munshi Lal Bux (ex-Tapedar)'s punishment of dismissal was converted into 'compulsory retirement allowing all the benefits as per rules' by the Commissioner Hyderabad in Appeal No,4490-HVC (Service)/1997 on 20-10-1997. Munshi Muhammad Eidan another concerned Tapedar's punishment of dismissal was also converted into 'compulsory retirement, allowing all benefits as per rules' in Appeal No, 4491/HVC (Service)/1997 dated 1-11-1997 by the Commissioner, Hyderabad. Munshi Muhammad Aqil former S.T. also dismissed, was 'reinstated in service' vide orders dated 10-12=1997 of the then Sr. Member Board of Revenue in Appeal No,13-101-95-Estt.II (No action was taken against the Mukhtiarkar concerned). It is obvious from the copies of the above orders filed in this appeal that the respondents alleged hue and cry about the bona fides of their action against the appellant, allegedly based on larger public interest, is nothing but a mere eye wash and hoax and the dissenting judgment of my learned brother Member(II) without due respect, is a simple reflex action thereto, without considering/giving due weightage to legal provision of law, specially the provisions of Rule 5(4)(a) & (b) of the Sindh Civil Servants Ii (Efficiency and Discipline) Rules, 1973, orders passed by coram non judice and the fact that the impugned original as well as appellate orders (of the then Commissioner Hyderabad/Authorised Officer who could not assume the powers of the Authority viz. by the then Senior Member BOR Secretary to Government of Sindh Revenue Deptt. who being an Authority could not assume the powers of the prescribed Appellate Authority viz the Chief Secretary, Sindh) are ipso facto illegal and ultra vires ab initio and nullity in law without applying their minds judiciously, without understanding the delicacies of Form VII and Form II, the heirarchy formation of Revenue Deptt. and mandatory duties of Tapedar, S.T., A.M. and Mukhtiarkar I, therefore, agree with the Honourable Chairman Sindh Service Tribunal that the impugned original and appellate orders are set aside with no orders as to the cost. (Sd.) S. NASIM HAIDER, SENIOR MEMBER.
58. BAHAUDDIN SIRHINDI (MEMBER).--In this case undersigned had written a dissenting judgment. As a result the case was heard again on 23-4-1998 and judgment reserved.
59. I have the following to add to my previous judgment: On rehearing the counsel for the appellant, in addition to his previous arguments, added the following points:
(1) That the Show-Cause Notice was issued by the Commissioner as Authorised Officer. Hence he was not the competent authority to impose a major penalty as per Rule 5(4)(b) of Sindh Civil Servant (E&D) Rules, 1973.
(2) The cases of co-accused in the case i,e, Munshi Lal Bux Ex-Tapedar and Munshi Muhammad Eidan Ex-Tapedar, who were dismissed from Government service by Deputy Commissioner, Hyderabad vide order dated 2-6-1997, have been considered by the Commissioner, Hyderabad Division and their punishments have been reduced to compulsory retirement alongwith benefits, as per rules,' vide his order No,4491-HVC(Service)/971-1346 and 1347 dated 1-11-1997. According to him retiring the persons at the far end of their service amounts to letting them off. He also contended that in the case of another co-accused in the case i,e, Munshi Muhammad Aqil Supervising Tapedar the previous order of the Commissioner Hyderabad No,71-Rev-11/95-2752 dated 15-11-1995 inflicting major penalty of dismissal on the accused, has been set aside by the Senior Member BOR and he has been re-instated in service vide his order No,13-101-95-Estt.III, dated 10-12-1997. He produced Photostat copies of these three orders. The aforesaid points were not included in the written statement, by the appellant, already filed.
60. It is true that the then Commissioner Hyderabad Division had taken a prompt action in the matter, and the previous Senior Member, Board of Revenue Sindh, had tried to rectify it in his judgment dated 7-1-1996 in the matter, but nevertheless it remains a big flaw.
61. The conversion of dismissal into compulsory retirement in case of Tapedar and reinstatement in case of Supervising Tapedar is also very unfortunate and has confirmed my previous view that there is big mafia working in concerned offices, which has been able to grab Government lands worth Million and Millions of Rupees and unfortunately finds support at higher echelons.
62. Thus there is no option but to recommend that the enquiries in the whole case be initiated de novo against all the accused in the case and all efforts be made to recover the grabbed land by following up the cases vigilantly, in the concerned Civil Courts.
63. The case is, therefore, remanded back to the Department. (Sd.) BAHAUDDIN SIRHINDI, MEMBER