' CH. MUHAMMAD ARIF, J.---This appeal by special leave of this Court under clause (3) of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 has arisen in the background that the present appellant Muhammad Iqbal was posted as Patwari Halqa Chak No,73/RB, Tehsil Jarranwala, District Faisalabad. On 4-3-1991, he entered Mutation No,911 indicating transfer of State land measuring 30 Kanals, 14 Marlas in village/Chak No,73-RB, Tehsil Jaranwala, District Faisalabad, in favour of Muhammad Din and others on the basis of a Transfer Order, dated 20-5-1974, issued by the. Deputy Settlement Commissioner, Lyallpur (Faisalabad). The matter was brought to the notice of Assistant Commissioner, Jarranwala on his visit to Khurrianwala on 7-3-1991 and he decided to initiate departmental proceedings under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, hereinafter referred to as the E&D Rules, against the appellant as the mutation was alleged to have been entered on the basis of a bogus document, with mala fide intention 'and to fraudulently transfer valuable State land to Muhammad Din and others. The then Magistrate 1st Class, Jarranwala was appointed Authorised Officer and he issued a show-cause notice under Rule 6(3) of the E&D Rules which reads thus:-- "That while posted as Patwari Halqa Chak No,73/RB, Tehsil Jaranwala, you intentionally entered a Mutation No,911 (transferring State land Killa Nos,16, '17, 23, 25/2. Saq. No,39. Chak No,73/RB, Tehsil Jaranwala) vide T.O. No,43385, dated 20-5-1974 according to the order of D.S.C. (Lyallpur) in favour of Muhammad, Din son of Muhammad Yaqub, Muhammad Siddique son of Jan Muhammad, Muhammad Ramzan son of Imam Din and Muhammad Ramzan son of Abdul Karim in spite of the fact that you are in the knowledge that the order of the D.S.C. Is valid only for Evacuee Property whereas the area mentioned above is a State land which can never be transferred under the Settlement and Rehabilitation Act. Too, the law has been repealed and the Department of Settlement and Rehabilitation has been winded up. Furthermore, the T.O. By virtue of which, you have entered the mutation, is a forged document. You were also in the knowledge that the area mentioned above, had already been leased out to different persons under Poultry Farm Scheme etc." By entering the mutation cited above, you intentionally and malafidely tried to establish the right of the so-called transferees over the State land and in this way, you have committed this fraud deliberately.
"And whereas the undersigned had decided that it is not necessary to have an enquiry conducted in proof thereof and where, it is proposed to proceed against you under sub-rule (3) of rule 6 of the Punjab civil Servants (Efficiency and Discipline) Rules, 1975."
"Now, therefore, you are hereby called upon to show cause in writing within ten days of the receipt of this communication as to why one or more of the penalties as prescribed in rule 4 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 should not be imposed on you, as you have been found guilty for committing this fraud and misconduct."
"Your explanation (in duplicate) should reach the undersigned within the said period failing which it shall be presumed that you have no defence to Offer, and do not wish to be heard in person."
"In case you may desire to consult any record, on which the aforesaid charges are based or is relevant to the aforesaid charges, you may do so with prior arrangement with the undersigned within seven days of the receipt of this Notice."
' Appellant controverted all the allegations in the show-cause notice through his reply thereto, on 15-4-1991. In addition to pleading not guilty and providing details of the circumstances in which the entry of mutation came about, detailed inquiry to enable him to prove that he did not enter the same with mala fide intention and whether the said transfer order was a genuine or forged document, was also claimed. Appellant also submitted a supplementary reply on 24-4-1991 relying upon para. 7.16 of the Land Records Manual according to which the 'appellant was bound to enter the mutation on the basis of the order passed by the learned Deputy Settlement Commissioner.
2. The Authorised Officer submitted his recommendation vide letter, dated 15-6-1991 and the Authority addressed a notice of personal hearing to the appellant for 20-6-1991. The appellant accordingly appeared for personal hearing on the said date. Vide order, dated 30-6-1991/15-7-1991, the appellant was held guilty of misconduct, inefficiency and corrupt motive and fraud and awarded the penalty of dismissal from service. The appellant did not succeed in his departmental appeal, dated 21-7-1991, which was dismissed vide the Divisional Commissioner's order, dated 23- 9-1991 with a finding that " - - charge of extreme inefficiency and ignorance of law tantamounting to misconduct has, therefore, clearly been proved against the accused official". Appellant's Service Appeal No,580 of,1991 was resolved against him by the Punjab Service Tribunal by majority, on 3-7- 1993. Leave was granted on 18-1-1995 as below:-- "The Service Tribunal which decided this matter consisted of three Members; they dismissed the petitioner's appeal by majority. One of the questions requiring determination is a question of law namely whether this was a case in which an inquiry should have been held before imposing the penalty. Leave to appeal is granted."
3. We have heard Syed Jamshed Ali, learned counsel for the appellant and Sh. Altaf Elahi, learned Additional Advocate-General, Punjab and have also been taken through available material, with their assistance.
4. Syed Jamshaid Ali has raised two-fold contention in support of this appeal. According to him appellant had no choice under the law to but enter the mutation in dispute with a Note in red ink that vide order, dated 4-7-1989, the land stood restored in favour of Tauqeer Ahmed etc., the lessees and that "charge of extreme inefficiency and ignorance of law tantamounting to misconduct", was neither inquired into nor could be held to have been 'proved' against him. He has referred to the provisions of section 42 of the Punjab Land Revenue Act (No,XVII of) 1967 and to Chapter 7 of the Land Record Manual in support of the first limb of his argument and to A.U.
Musarrat v. Government of West Pakistan (PLD 1977 SC 24) as also M.A. Rehman v. Federation of Pakistan and others (1988 SCM R 691) to substantiate the second limb. The learned Law Officer has simply reiterated the stand of the respondent-Authorities that after the appellant had admitted the allegations against him right from the day one, he could neither claim for any other notice under the E&D Rules nor the penalty . Imposed upon him is disproportionate to the misconduct involved.
5. The relevant provisions of section 42 of the West Pakistan Lands Revenue Act (No,XVII of 1967), hereinafter referred to as the Act, are to the following effect:-- "42. Making of that part of periddical records which relates to landowners.--(1) Any person acquiring by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a landowner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate, who shall-- "(a) record such report in the Roznamcha to be maintained in the prescribed manner; (b)furnish a copy of the report so recorded, free of cost to the person making the report; and (c)------------ (2)----------------
(3) The Patwari shall enter in his register of mutations every report made to him under subsection
(1) or subsection (2), and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he had reason to believe to have taken place, and of which report should have been made to him under either of those subsections and has not been so made.
(4) The report made to the Patwari under subsection (1) or subsection (2) or recorded by him under subsection (3) shall be displayed in such manner as may be prescribed.
(5) If the Patwari fails to record or to display a report made to him under subsection (1) or subsection (2); the person making the report may make the report, in writing to the Revenue Officer concerned, and the Chairman of the Union Committee, Town Committee or Union Council in which the estate is situated, by registered post acknowledgement due and the Revenue Officer shall thereupon cause such report to be entered in the register of mutations.
(6). A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the Patwari and entries made in that register, and shall in each case make ,such order as he thinks fit with respect to any entry in the periodical record of the right acquired.
' The plea to the effect that the appellant was under a duty to enter the mutation when contacted in that behalf by the persons concerned, was not denied by. The learned Law Officer appearing on behalf of the respondent-Authorities. We find that in addition to other directions available for the following of a particular course of action by the Patwari concerned. Correction Slip No,38 LRM, dated 20-6-1991 requires a Patwari, similarly placed as the appellant, to even go ahead with making necessary entries in the remarks column of the mutation sheet on an oral report immediately and that Roznamcha Waqiati was also to contain appropriate information in that regard. Clauses (III) to (VI) of Correction Slip No,37 LRM, dated 20-6-1991, read thus:-- "(iii) In no case shall the completion of the entries in the mutation sheet remain pending with the Patwari for more than 15 days without obtaining prior approval of the Circle Revenue Officer. The reasons for the delay, if any, shall be recorded in the remarks column.
(iv) Presence of parties is not necessary for entering a mutation; hence their absence or the Patwari's pre-occupation with other work shall not be accepted as pretext for delayed entry of mutations beyond 15 days of the original report. Action shall invariably be initiated by the Halqa Revenue Officer whenever a case of delayed entry is detected. In case he fails to do so action shall be taken against the Halqa Officer himself:
(v) It should not be difficult for a Patwari (resident official) to learn in normal course of the occurrence of death of a landowner in his small circle. Mutations of inheritance in such case can, therefore, be entered by the Patwari suo motu on the basis of his personal knowledge without waiting for any formal intimation from any quarter. In future failure to enter a mutation of inheritance on the death of a resident landowner shall be construed to reflect adversely on, the vigilance and awareness of a Patwari and shall be taken due notice of.
(vi) It shall be the duty of the Patwari to bring the fact of having entered a mutation to the notice of the Halqa Officer during the Patwari's next visit to the Tehsil Headquarters if the officer has not toured his circle earlier and noted on every pending mutation. The Halqa Officer shall initial all mutations entered by the Patwari or Tapedar since his last visit and shall note the fact for planning his subsequent tour programme."
' In addition to complying with the requirements under section 42 of the Act and Correction Slip No,37 made in the Land Records Manual, the appellant made the following note in red ink on the face of the sheet/pro forma where the entry of Mutation No,91I was made:--{{URDU TEXT}} ' This note in itself was sufficient to put all concerned on guard to take further proceedings with care. If the appellant as Patwari had no discretion refuse to make the entry in dispute, the action taken by him'by making a reference to Rapt No,86, dated 10-10-1990 was tantamount to stating that those who secured entry of Mutation" No,911 in the appropriate 'Register Haqdaran Zamin' can be taken to task if--
(1) information given by them turns out to be false; or (2). The document relied upon by them for seeking the entry afore-referred from the appellant/Patwari Halqa, were to be determined as forged.
' We have been informed that the disputed mutation was in fact cancelled on 28-5-1992. What is not forthcoming on record or even from the parties, is the taking or otherwise of action by the concerned quarters against those responsible for obtaining the disputed entry i,e, Mutation No,911 in the appropriate register, from the appellant.
6. Coming to the discussion on the second limb of the plea in the case, suffice it to say that the learned Commissioner, Faisalabad did neither uphold the findings of the Authorised Officer that the appellant was "- - guilty of misconduct, inefficiency, corrupt motive and fraud - -", nor even heard the appellant in support of his plea regarding the findings in his 'Departmental Appeal' to the effect that: "The charge of extreme inefficiency and ignorance of law tantamounting to misconduct has, therefore, clearly been proved against the accused official who has been rightly dismissed from service by the Authority".
7.
7. There is yet another aspect of the matter which requires consideration in relation to the finding by the Commissioner that the appellant was found guilty of "extreme inefficiency - - - tantamounting to misconduct". This finding has been made without making a reference whatsoever to any such instance of alleged incompetence throughout his unblemished record of service. Moreover, the single instance of any incorrect behavior of individuals in any discipline whatsoever can hardly furnish a ground for holding them "guilty of extreme incompetency". The cases of M.A. Rehman and A.U. Mussarat (supra) do support the appellant in that behalf.
8. A word or two about the question of law which formed the basis of leave grant order, dated 18-8- 1995. This Court had granted leave to consider the question whether Rule 6(3) of the,E&D Rules providing blanket power of dispensing with regular inquiry to Authorised Officer does not offend against the equality clause contained-in Article 25 of the Constitution and is also hit by excessive subordinate legislation, in Alamgir and another v. Divisional Forest Officer (1991 SCM R 1523) in C.Ps.
Nos,363 and 364 of 1988. However, in Alamgir and another v. Divisional Forest Officer, Multan (1993 SCM R 603) both the appeals were allowed on 4-10-1992 and the question on which leave was granted in the former matter, was left undetermined in the latter. In view of the judgment which we propose to deliver, the said question is left undetermined in this cause as well.
9. The conduct of the appellant in the matter of entering the disputed mutation in the appropriate register with a 'Note' in red ink was not at all blameworthy. In fact the same; as discussed above, had the sanction of law behind it. The entry of Mutation No,911 on 4-3-1991 having been made by the appellant in the performance of his duties in terms of mandate contained in section 42 of the Act cannot but be held to have been made by the appellant in the performance of his official duties, bona fide. The instant appeal is allowed. Judgment of the Punjab Service Tribunal dated 3- 7-1993 and dismissal order of the appellant, dated 30-6-1991 are set aside. The appellant is reinstated in service with back benefits subject to adjustment of the amount which he might have earned during the period from his dismissal and date of resumption.. There shall be no order as to costs.
10. The above are our reasons for the short order of even date.