MASUD HAIDER KIANI Versus AZAD GOVERNMENT OF THE STATE OF J&K

1. BASHARAT AHMAD SHAIKH, J.‑ ‑‑The appellant, who was a Patwari, associated with revenue settlement, was removed from service by Settlement Officer for District Muzaffarabad on 27th of January 1991. He filed an appeal before the Additional Settlement Commissioner which was dismissed on 3rd of July 1991. Thereafter the appellant filed appeal before the Service Tribunal on 21st of July 1991. He was granted leave to appeal by this Court.

2. The facts relevant for the disposal of this appeal are that the Settlement Officer, who was the "authority" as well as the "authorised officer" of the appellant directed the initiation of disciplinary proceedings against the appellant and charge-sheet/statement of allegations was framed. He appointed Tehsildar Settlement as inquiry officer. 1t was states in the charge- sheet/statement of allegations that the appellant was appointed at village Chakothi on 28th of November 1987 and when the concerned Girdawar conducted an inspection of the work on 10th of June 1990 he found that the appellant had carried out the measurement of 1415 survey numbers, out of which he had written the field book of 705 survey numbers but in the report submitted by him he had stated that he had measured 2546 survey numbers till the end of May. It was also stated that Tehsildar Settlement asked his explanation in this respect on the 13th of June 1990 and in his written reply the appellant admitted his fault and prayed that he may be fore-given. Another allegation was that Tehsildar went twice for inspection but on both the occasions the appellant was absent. It was also stated that progress of the appellant during the preceding six months was almost nil and that the instructions given to him from time to time by the Tehsildar had no effect on him. It was stated in the charge‑sheet that appellant appeared to be guilty of absence from duty, failure to perform official work/disobedience, unsatisfactory performance and showing fictitious progress. The appellant was required to show cause why any of major penalties mentioned in rule 4 of the AJ&K Civil Servants (Efficiency and Discipline) Rules, 1977, including the penalty of dismissal from service, may not be imposed on him. The appellant was directed to furnish his explanation within 15 days with the inquiry officer. In the explanation furnished by the appellant he admitted that he had submitted fictitious progress reports but pleaded that he had done so under the directions of the various Tehsildars who had held the relevant charge from time to time. It was also stated by him that in the previous explanation he had admitted his fault and had prayed for forgiveness due to the fact that he did not want to criticise his superiors. He explained that Tehsildar Settlement came to Chakothi Bazar twice and declared him absent while in fact he was engaged in the performance of his duty at a distance of about 2 miles from Chakothi. The Inquiry Officer in his report found the Patwari guilty and stated that after receiving the explanation of the appellant he personally checked the relevant record and also heard the appellant. The Tehsildar noted that the appellant had admitted his fault and had pleaded forgiveness on the ground that the Tehsildars had asked him to file fictitious reports. He passed certain observations about the Girdawar also and suggested that his explanation should also be called. The report of the Inquiry Officer was accepted by the Settlement Officer and the appellant's removal from service was ordered.

3. It was contended by the learned counsel for the appellant, Mr. Ashfaque Hussain Kiani, that it was mentioned in the order by which Inquiry Officer was appointed and the charge‑sheet was framed against the appellant that the order had been passed under rule 6(5) of the AJ&K Civil Servants (Efficiency and Discipline) Rules, 1977 and that it is thus clear that a detailed inquiry was intended to be held but no inquiry was held in accordance with the prescribed procedure. He drew our attention to sub‑rule (5) of rule 7 of the aforesaid rules wherein it is laid down that if the authorised officer considers that an inquiry is necessary then he shall appoint an inquiry officer or an inquiry committee. Rule 7 lays down procedure which has to be observed by the inquiry officer/inquiry committee. It refers to examination of oral and documentary evidence in support of the charge and also gives right of cross -examination. In light of these provisions, Mr. Ashfaque Hussain Kiani vehemently contended that the inquiry Officer failed to follow these mandatory provisions and the report framed by him against the appellant was thus vitiated.

4. The argument advanced by the learned counsel for the appellant fails to take note of the fact that the purpose of holding an inquiry in accordance with the procedure laid down in rule 7 mentioned above is to find out the correctness or otherwise of a question of fact but if there is no dispute about facts the examination of witnesses becomes unnecessary. It is an admitted principle of law that admitted facts need not to be proved. There are two options which are available to an authorised officer while proceeding against a civil servant. According to sub‑rule (2) of rule 6 the authorised officer has to decide whether in light of the facts of the case or in the interest of justice an inquiry is necessary. If he reaches the conclusion that an inquiry is not necessary then the procedure which has to be followed is that the accused civil servant has to be informed of the action proposed to be taken and the grounds of the action and he has to be given a reasonable opportunity of showing cause against the proposed action. If, however, the authorised officer decides that an inquiry is necessary then inquiry officer/inquiry committee has to be appointed and the procedure laid down in rule 7 has to be followed. When this decision is being taken the material before the authorised officer only consists of the allegations against the accused civil servant and the explanation of the accused civil servant is not before him. The accused civil servant is called upon to furnish his explanation after the decision to hold a detailed inquiry has already been taken. Therefore, the authorised officer is not aware whether the fact which form the basis of the charge would be admitted by the civil servant or not. It, therefore, cannot be validly argued that once an Inquiry Officer has been appointed it becomes mandatory for the Inquiry Officer to examine the witnesses in support of the allegations, even if the allegations are factually admitted to be correct. A perusal of sub‑rule (1) of rule 7 clearly points to this conclusion. It lays down:‑‑

5. "7. Procedure to be observed by the inquiry Officer or Inquiry Committee .‑‑‑(1) On receipt of the record and explanation of the accused referred to in the preceding rules, the Inquiry Officer or Inquiry Committee, as the case may be, shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused, as may be considered necessary, and where any witness is produced by one party, the other party shall, be entitled to cross‑examine that witness.

6. (2)

7. (3)

(4) ..

(5) ..

8. (6)

9. It is clearly provided in sub‑rule (1) reproduced above that Inquiry officer is supposed to examine such oral or documentary evidence as may be considered necessary to inquire into the charge. If facts have been admitted there is in our opinion, no necessity of examining oral or documentary evidence. The right of cross‑examination which is guaranteed in the above extracted provision is also dependent on the fact whether a witness is examined or not. If no witness is examined the question of cross‑examining him does not arise.

10. The learned counsel for the appellant contended that even if it may be assumed that the appellant had admitted that he submitted fictitious reports about the progress of his work even then there is no proof in support of the other allegations which have been found correct. After anxious consideration we find that this argument has also no force. A perusal of the charge‑sheet shows that it is split up in two parts. In the first part there are facts which have been alleged against the appellant while the second part consists of the conclusions which follow from these facts. In the first part apart from the allegation about filing of fictitious progress reports it was mentioned that the Tehsildar wanted to check up the record but when he visited the spot twice the appellant was not found present on the "site" and thus the record could not be produced before the Tehsildar. It is not stated that he was found absent from "duty" and it is not a charge but an incidental narration about non‑availability of record. Second part does not relate to facts but relates to the grounds of penalty. If the facts are established, wrong recital of ground of penalty does not create any legal infirmity. The charge against the appellant that he submitted fictitious reports about the progress of his work stands fully proved due to the admission of the appellant.

11. On behalf of the appellant it was also submitted that the fictitious progress reports had been submitted by the appellant under the directions of the superiors and thus the appellant was not guilty of any misconduct. It was for the appellant to prove the truth of his defence but he has not been able to do so. Even otherwise this defence is not legally tenable. No civil servant is supposed to follow the illegal orders of the superiors particularly if such orders are in the nature of fraud and interpolation.

12. It was lastly contended by the learned counsel for the appellant that the penalty imposed upon the appellant is excessive. This Court normally does not interfere in the quantum of sentence if the sentence is legal. The competent authority found that the appellant deserved the penalty of removal from service and we do not find that this penalty is in any way in contravention of law. It had been stated in the charge‑sheet that a major penalty, including the penalty of dismissal, may be imposed on the appellant. Out of the major penalties, reduction to a lower grade of post was not possible because the appellant was recruited as a Patwari and could not be reduced to any lower post. The appellant has not put in ten years' service and therefore could not be compulsorily retired. The remaining two major penalties were removal from service and dismissal from service. It was found proper not to impose the penalty of dismissal and removal from service was ordered which does not disqualify from future employment. This is a lesser punishment as compared to dismissal from service.

13. Before parting with the case we may point out that an objection was raised in the written statement filed before the Service Tribunal that the appeal was time‑barred. This objection has been overruled by the Service Tribunal. This point was also argued before us at some length. It was contended by Sardar Muhammad Sadiq Khan, the learned Additional Advocate‑General appearing for the Government, that appeal before the Service Tribunal could be filed within 120 days calculated from the date when the departmental appeal was filed on 26th of February 1991 but it was filed on 27th of July 1991. It means that 151 days were consumed in filing the appeal while the appellant should have filed it within 120 days. As laid down in Azad Government v. Sardar Muhammad Safdar Khan (Civil Appeal No.21 of 1992, decided on 27th July, 1992) the break‑up of this period is thirty days provided in the main provision of section 4 of the Service Tribunals Act and 90 days period provided in proviso of the aforesaid section. However, Mr. Ashfaque Hussain Mani vehemently contended that limitation of 120 days is applicable to the cases in which a civil servant does not wait for the decision of his appeal or representation. In case the civil servant chooses to wait for the decision of the appeal etc. he can file appeal within thirty days from such decision. He contended that the appeal filed by the appellant was rejected on 3rd of July, 1991 by the Additional Commissioner, Settlement and the appeal before the Service Tribunal was filed on 21st of July. This argument was met by Sardar Muhammad Sadiq Khan by submitting that there is no provision in section 4 of the Service Tribunals Act that a civil servant may wait for the disposal of appeal, review or representation to a departmental authority. According to the learned Additional Advocate‑General all which provision (a) of section 4 lays down is that a civil servant cannot tile an appeal before the Service Tribunal unless he has filed appeal, review or representation to a departmental authority, if provided, and a period of 90 days has elapsed. A perusal of section 4 as a whole lends, prima facie, support to this contention. Section 4 provides that a civil servant aggrieved by any final order, whether original or appellate, may prefer appeal to the Service Tribunal. It may, therefore, follow that intention of the law‑maker was that if a civil servant is aggrieved by any original order he can file an appeal against it but if the original order is not against him and appellate order is to his disadvantage he may file an appeal against the appellate order. However, it is not necessary to decide this point in the present appeal which is being dismissed on merits. Since the Tribunal has not decided this point we would like to decide this point, which is of public importance, in any other case preferably when the view of the Service Tribunal is before us.

14. The upshot of the foregoing analysis is that the appeal has no merit and we order its dismissal.

15. A.A/377/S.C.A Appeal dismissed.