KABIR ALI Versus MEMBER (REVENUE), BUARD OF REVENUE, PUNJAB

S. ABDUL JABBAR KHAN (CHAIRMAN) .‑Haji Kabir Ali has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded Member (Revenue), Board of Revenue, Punjab, Lahore and Commissioner, Sargodha Division, Sargodha, as respondents.

2. By virtue of this appeal he has prayed that order dated 9th August, 1980 passed by the learned Commissioner, Sargodha Division and the order dated 5th October, 1981 passed by the learned, Member (Revenue), Board of Revenue, be set aside.

3. Brief facts of the case are that on 27th April, 1980 Malik Abdul Majid, Deputy Commissioner, Sargodha, placed the appellant under suspension for inefficiency and negligence with immediate effect, subject to the approval of Divisional Commissioner. This action was initiated when the said Deputy Commissioner, received complaints regarding piling up of references of important nature in Sadar Kanungo Branch in which the appellant was the Incharge. He deputed Head Vernacular Clerk of his office to prepare pending cases in the said branch. The perusal of the list revealed that no positive action had been taken by the appellant on various important references pending in his office for the last so many years. The Enquiry Officer was appointed by the Commissioner in the matter when the appellant was charge‑sheeted by the learned Commissioner and statement of allegations in support of the said charge‑sheet and list of witnesses were mentioned therein. The enquiry was conducted by the Enquiry Officer who after recording evidence of witnesses as well as defence witnesses so produced by the appellant concluded that charges Nos. 4, 5 and 24 were not proved while rest of the charges from 1 to 3, 6 to 23 and 25 to 26 stood proved against him beyond any reasonable doubt. The appellant appeared before the learned Commissioner, Sargodha Division on 9th August, 1980 and reiterated his defence given in his written state ment. According to the learned Commissioner, he admitted his negligence because of his dual duty and other work. Learned Commissioner was not convinced by his defence so produced on his behalf and imposed major penalty under rule 4(b) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, by demoting the appellant to the next lower post. Aggrieved against the impugned order he preferred an appeal before the learned Member (Revenue), Board of Revenue, Punjab, who vide his judgment, dated 5th October, 1981 came to the conclusion that the findings of the Enquiry Officer were well‑established. He further held that the charges against the appellant stood proved beyond any reasonable doubt and thus holding him guilty of negligence and inefficiency, he upheld the order of the learned Commissioner, Sargodha Division, dated 9th October, 1980. Hence this appeal.

4. We have heard the learned counsel for the' appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance. Learned counsel has assailed the impugned orders on legal grounds as well as on merits. With regard to his legal objections, it has been argued that Punjab Civil Servants (E & D) Rules, 1975, provides three distinct and separate authorities for proceedings there under which are "Authority", "Authorised Officer" and "Enquiry Officer". According to the learned counsel in the case of the appellant the charge‑sheet was framed by the Commissioner, Sargodha who considered it himself as Authorised Officer whereas he could not assume such authority himself and thus could not allocate the function of the Authorised Officer whose powers were specifi cally provided under rule 5 of the said rules. Learned counsel has further argued that without referring the matter to the Authorised Officer as provided under rule 5 and without adopting legal procedure contained in rules 6 and 7 of the Punjab Civil Servants (E & D) Rules, 1975, the whole of the proceedings taken against the appellant as well as the impugned orders so passed, would become void. He has also made a grievance that according to the provisions of the aforesaid rules, it was for the Authorised Officer to determine whether minor or major penalty was to be imposed and in case he determined the major penalty to be so imposed then only he had to forward the case to the authority for doing so as provided under rule 7(8) and then the Authority in that case, can impose the penalty and not otherwise. With regard to the merits of the case it has been submitted that the enquiry conducted in this matter was a slipshod manner and the Enquiry Officer did not controvert the defence so produced by the appellant as well as failed to analyse the impact of the charges so levelled against him. It has been submitted that the learned Commissioner only re lied on the result of the said enquiry which itself was sketchy and without arriving at any positive conclusion with regard to the charges he gave verdict against the appellant, therefore, the judgment of the said learned Commissioner, would not be considered a judgment taking into considera tion all pros and cons of the entire case.

5. While discussing the judgment of Member (Revenue), Board of Revenue, learned counsel has submitted that the appellate Authority while recording the entire defence of the appellant with regard to the proved charges, did not controvert the said defence by any logic but only concluded that the comments of the Commissioner were self‑explanatory arid he agreed with the same. However, it has been pointed out that the learned Member, Board of Revenue did controvert the legal objection so raised against the impugned order of the Commissioner but according to the learned counsel the conclusion was not correct. On the other hand learned District Attorney has strongly defended the judgment of the Commissioner as well as Member, Board of Revenue Punjab, and has submitted that legal objection raised by the learned counsel for the appellant was without any foundation as under the Delegation of Power Rules the Commissioner could assume the powers of Authorised Officer as well as Authority.

6. With regard to the merits of the case learned District Attorney has submitted that whatever be the nature of charges, the fact remains that all the references were marked to Sadar Kanungo (appellant), who was Incharge of the said Branch and it was for him to see that reference: for disposal were cleared and properly put up before the relevant authorities. According to the learned District Attorney the fact of remaining the appellant on leave and remaining out of station for Tehsildari training, would not in any way exonerate him from his responsibilities.

7. We have given our anxious thought to the arguments so raised by the parties and would first of all advert to the legal objection taken by the learned counsel for the appellant against the impugned order of the learned Commissioner by which he persuaded us to hold that all the proceedings were void ab initio. We are afraid we cannot accept the argument of learned counsel for the appellant in this regard as according to proviso rule 2(l) of the Punjab Civil Servants (E & D) Rules, 1975, the Authority may act as Authorised Officer. Similarly under he provision of B. O. R. Delegation of Powers Rules, 1958, the Commissioner of the Division has been authorised to act as Authority as well as Authorised Officer in respect of District Kanungo. Similarly the suspension of the appellant by the D. C. was duly approved by the Commissioner who was the Authority in the case of the appellant. We are in full accord with the learned Member, B. O. R. that this legal objection is of no value and strength and we hold that the same has been rightly repelled by the Appellate Authority (Member, B. O. R.) in this case.

8. With regard to the merits of the case we have attended to the lengthy arguments of the learned counsel for the appellant and would not reproduce the same as all the explanation in the defence of the appellant have been faithfully recorded by the learned Member, B. O. R. while disposing of these objections in his appeal vide his judgment, dated 5th October, 1981. However, we also find that the learned Member, B. O. R. after recording all these explanations so made in the defence of all the 23 charges so proved through the enquiry made by the Enquiry Officer against the appellant, the learned Member has not given his own reasons about the worth of said defence but has only agreed with the comments of the learned Commissioner, so placed before him at the time of hearing of said appeal. This method of disposing of said defence so made by the appellant may not be considered analytical but exception cannot be taken to the same as the learned Member has the advantage of perusing the de tailed comments filed by the learned Commissioner while defending his own judgment. The fact of the matter is that after perusing the entire references, enquiry report, judgment of the learned Commissioner and that of the learned Member, B. O. R., we are of the considered opinion that none of the charges smell any ulterior motives and only conclusion which can be drawn is that the appellant did not discharge his responsibility as it was desired of him keeping in view the importance of the office he was holding. If the appellant was on leave, it was his duty, while on return, to see what were the state‑of‑affair in the branch of which he was the Incharge and to pull up his subordinates to clear arrears if such were found so collected. Similarly when he had come back from his training as Tehsildar, he as a competent Sadar Kanungo, should have taken care of all such references which we find, were marked in his name and were so piled up in his absence. In this manner we are unable to hold that the appellant stood fully exonerated from the charge of inefficiency so levelled against him although these references are spread up over a period of 4 years and are not as important as claimed by the respondents.

9. However, keeping juxta position, his entire record of service which is absolutely unblemished as well as excellent in nature and the fact that he was selected as candidate Tehsildar, during the course of these years and completed his training in that respect, we are of the view that the punishment so awarded to him is unduly severe. The appellant has explained to us that at many occasions when references were marked to him, he was on leave as well as out of station for his Tehsildari training, a fact which is very well‑established from the record. It will also be useful to mention at this juncture that out of references in question which are said to have been neglected by the appellant, large number of these are of insignificient in nature, like crop statements, rain statement etc. and fell within the duties of Naib‑Sadar Kanungo according to Roster of duty so produced before us. We, therefore, cannot remain oblivious of these conditions and keeping in view the meritorious service rendered by the appellant from the day of his enrolment right upto 1978, we vary the punishment so awarded to him by imposing the penalty of censure with stoppage of two increments without cumulative effect. We proceed to accept the appeal of the appellant, set aside the impugned orders vary the punishment in the terms so indicated above. However, parties shall bear their own cost.

A. E. Appeal accepted.