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Petitioner: SIKANDAR ALI VS Respondent: COMMISSIONER, HYDERABAD DIVISION, HYDERABAD
1999 P L C (C
1999 P L C (C.S.) 912
[Service Tribunal Sindh]
Present: Abdul Majid Khanzada, Chairman, S. Nasim Haider, Senior Member and Bahauddin Sirhindi, Member
SIKANDAR ALI
Versus
THE COMMISSIONER, HYDERABAD DIVISION, HYDERABAD and another
Appeal No.73 of 1996, heard on 16th October, 1997.
(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Arts. 30 & 31‑‑‑Confession‑‑‑Acceptance of‑‑‑If a confession of accused was to be accepted then it was to be accepted as a whole and not in part‑‑ ‑In civil proceedings under law of admission if any admission was made that was to be accepted as a whole and not in part.
(b) Civil service‑‑‑
‑‑‑‑ Dismissal from service‑‑‑Civil servant was dismissed from service after charge‑sheeting him and holding enquiry against him on charge that he being Assistant Mukhtiarkar had issued ownership certificate of holding in dispute without proper verification with mala fide intention‑‑‑Civil servant admitted his signature on certificate in question, but had contended that original certificate issued by him pertained to some other person and related to some other land and not to disputed holding‑‑‑Execution of certificate having been admitted by civil servant, it, was duty of prosecution/Authority to bring direct evidence on the point that contents of same were manipulated by civil servant himself or by his connivance, but prosecution/Authority had miserable failed, to prove same‑‑‑Prosecution/Authority was duty bound to prove its case against civil servant beyond any reasonable doubt‑‑‑Authority having failed to prove allegation on basis of which civil servant was dismissed from service, order dismissing service of civil servant was set aside.
Mukhtar Ahmed Bhatti v. Director, Food, Punjab 1992 SCMR 1864 and Syed Mir Muhammad v. N.‑W.F.P. Government PLD 1981 SC 176 ref.
(c) Confession‑‑‑
‑‑‑‑ If confession of accused was to be accepted, then same was to be accepted as a whole and not in part‑‑‑If any admission in civil proceedings was made, that was to be accepted as a whole and not in part ‑‑‑Qanun‑e -Shahadat (10 of 1984) Art. 31.
(d) Criminal trial‑‑‑
‑‑‑‑ Prosecution was duty bound to prove its case against accused beyond any reasonable doubt.
(e) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑
‑‑‑‑Rr. 4 & 5(4)(a)(b)‑‑‑Imposition of major penalty‑‑‑Authorised Officer who under R. 5(4)(a) of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 was empowered to impose only minor penalty on his own on civil servant, had imposed major penalty of dismissal from service‑‑‑If Authorised Officer was of the view to impose major penalty, he had to send papers with his recommendations to Competent Authority as it was the powers of the competent Authority and not Authorised Officer to impose major penalty‑‑‑Order imposing major penalty of dismissal" from service passed by Authorised Officer, was not competent and was liable to be set aside.
Mukhtar Ahmed Bhatti v. Director, Food, Punjab 1992 SCMR 1864 and Syed Mir Muhammad v. N.‑W.F.P. Government PLD 1981 SC 176 ref.
(f) Administration of justice‑‑
‑‑‑‑ Confirmation of the illegal order in appeal, would not improve its status.
Per S. Nasim Haider, Senior Member agreeing with Abdul Majid Khanzada, Chairman, Bahauddin Sirhindi, Member, Contra‑‑‑
(g) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑
‑‑‑‑Rr. 4 & 5(4)(a), (b)‑‑‑Imposition of major penalty‑‑‑Divisional Commissioner who was Authorised Officer had imposed major penalty of dismissal from service on civil servant in exercise of powers conferred by R.5(4)(a) of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 whereas said Rule had only authorised Divisional Commissioner as Authorised Officer to impose a minor penalty on his own and had not authorised him to impose a major penalty without observing prescribed procedure as laid down in R.5(4)(b) of the Rules‑‑‑Original order passed by Divisional Commissioner as Authorised Officer, was ipso facto, illegal, ultra vires ab initio because he being Authorised Officer had exceeded his mandatory or statutory powers in imposing major penalty of dismissal from service upon civil servant, on his own‑‑‑Original order did not state that Divisional Commissioner/Authorised Officer had submitted case to Authority which was Senior Member, Board of Revenue and that such Authority had decided to impose major penalty of dismissal from service on civil servant‑‑ Original order passed by Divisional Commissioner, against civil servant, was a nullity in law, coram non judice and such order could not be sustained‑‑ Not only Divisional Commissioner who was Authorised Officer had assumed powers of Authority, but Authority had also assumed powers of Appellate Authority in defending order unauthorisedly passed by Divisional Commissioner who was Authorised Officer‑‑‑Both original and appellate orders were set aside by Service Tribunal in circumstances.
(h) Civil service‑‑‑
----Conversion of dismissal into compulsory retirement‑‑‑Deputy Commissioner after taking into consideration allegations against civil servants, dismissed them from service but Commissioner reduced punishment of dismissal and converted same into compulsory retirement‑‑‑Persons working in the concerned offices had grabbed Government lands worth trillions of rupees‑‑‑Service Tribunal, recommended that enquiries in whole case be initiated de novo against all persons accused in the case and efforts should be made to recover grabbed land by pursuing case vigilantly in the Civil Courts‑‑‑Case was remanded back to Department.
M.M. Aqil Awan for Appellant.
Syed Muhammad Sayedain Zaidi, A.A‑G. for the Official Respondent.
Date of hearing: 16th October, 1997.
JUDGMENT
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 Hon'ble Tribunal with the prayer that the both impugned orders may be set aside and he may be reinstated in service with all back benefits 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.
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 Lai 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.
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.
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. "
He recommended minor penalty against the appellant under Sindh Civil Servants (Efficiency and Discipline) Rules, 1973.
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.
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 Authorised Officer has recorded a finding that the appellant was found guilty on the charges levelled 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 contract to the record and this has resulted into prejudice to the case of the appellant He has further VW, 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 tinder, which the certificate itself was typed.
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 (Abdul Majid Khanzada, Chairman) 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 i 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.
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 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. 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 Hon'ble Supreme Court of Pakistan.
One Judgment reported in Mukhtar Ahmed Bhatti v. Director Food Punjab 1992 SCMR page 1864. 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."
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. "
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.
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 insistence 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 lie 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.
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. 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.
Under these circumstances, this appeal is allowed and the impugned orders, dated 15‑1‑1995 passed by the respondent No. l and, dated 7‑1‑1996 passed by the respondent No.2 are set aside with no order as to cost.
Given under our hands and Seal of this Tribunal this 27th day of November, 1997.
(Sd.) ABDUL MAJID KHANZADA, CHAIRMAN.
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.
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.
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. '
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.
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. "
He recommended minor penalty against the appellant under Sindh Civil Servants (Efficiency and Discipline) Rules, 1973.
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.
I have heard the learned counsel for the appellant Mr. M.M. Aqil Awan and the learned Assistant Advocate‑General Sindh for official (Abdul Majid Khanzada, Chairman) 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 Authorised Officer has recorded a finding that the appellant was 'found guilty on the charges levelled 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‑write than the typewriter under which the certificate itself was typed.
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.
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 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. 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…
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