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Petitioner: AKHTAR ALI MONGA VS Respondent: THE CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE AND 2 OTHERS
1993 P L C (C
1993 P L C (C.S.) 1443
[Service Tribunal Punjab]
Present: Akhtar Hassan, Chairman and Syed Aal‑e-Ahmed Member
AKHTAR ALI MONGA
Versus
THE CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and 2 others
Appeal No. 971 of 1993, decided on 21st August, 1993.
(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑
‑‑‑‑R. 6‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S. 172‑‑‑Civil servant‑‑‑Major penalty of reducing civil servant to the lowest stage of the time scale (BS‑18) for a period of four years‑‑‑Validity‑‑‑Charge against civil servant (Deputy Commissioner/Collector of the District) was that he failed to prefer appeal against a decree of Civil Court passed between two private parties in a proceeding to which he was not a party and thus, evaded possible escheat to the State‑‑‑Question of title being involved between two private parties, only forum competent to decide upon it was Civil Court‑‑‑Enquiry Committee while holding civil servant guilty of such charge making no reference to any provision of law which might make a Collector of a District a potential claimant through escheat by pre‑empting jurisdiction of Civil Court in regard to devolution of an owner's estate, or his power to alienate it in his lifetime‑‑‑Provision of S.172, West Pakistan Land Revenue Act, 1967, which enumerates the matters lying exclusively in the jurisdiction of Revenue Officer, does not confer authority on him to see if any decree of Civil Court is based upon fraud etc. or that such decree might have been designed to evade escheat of an heirless land owner‑‑ Charge of misconduct against civil servant was, thus, not proved in circumstances.
(b) Contract Act (IX of 1872)‑‑‑
‑‑‑‑Ss. 17 & 18‑‑‑Constitution of Pakistan (1973), Art. 24‑‑‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R. 6‑‑‑Charge of misconduct against civil servant to the effect that he failed to prefer appeal against a decree of Civil Court which had been obtained through misrepresentation and fraud and that if such decree had been set aside, property in question, might escheat to State after the death of heirless owner‑‑‑Proposition that Collector should start doubting the veracity of an agreement inter partes and his interference in private transactions; would erode sanctity of the fundamental right enshrined in Art. 24 of the Constitution, whereby every citizen was assured a right to acquire, possess or dispose of property ‑‑‑Agreements or contracts should be left entirely to individuals themselves and no organ of State should interfere with them except when those were prohibited by law ‑‑‑Factum of misrepresentation or fraud would not make contract void ab initio‑‑‑Even if, in Collector's opinion transfer of land in question, was tainted with misrepresentation or fraud, he had no power to avoid the same, nor he could substitute himself for the wronged party and any suggestion to that effect was totally unwarranted ‑‑‑Factum of inaction on the part of civil servant not to file appeal against the judgment of Civil Court (on the supposition that such land would escheat to state ultimately) did not constitute misconduct.
(c) West Pakistan Government Servants (Conduct) Rules, 1966‑‑‑
‑‑‑‑Rr. 3 & 12‑‑‑Declaration of asset, owned by Government servant or by a member of his family‑‑‑Member of a Government servant's family would include his wife who was wholly dependent upon him‑‑‑Where wife of such Government servant had inherited property from her father such property need not be declared icy the Government servant in his declaration of assets.
(d) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑
‑‑‑‑R. 4‑‑‑Civil servant‑‑‑Misconduct‑‑‑Major penalty of reducing civil servant to the lowest stage of time scale (B.S. 18) for a period of four years‑ Validity‑‑‑Civil servant was in Grade‑1g which he had obtained by move‑over, penalty imposed upon him brought him down to the lowest stage of Grad ‑18‑‑‑Such penalty took away from civil servant practically two scales viz. BS‑18 and BS‑19‑‑‑Such penalty was not warranted in terms of R.4. Punjab Civil Servants (Efficiency and Discipline) Rules, .1975‑‑‑Rule of reduction in a scale would not permit making it stagnant for any fixed period.
Muhammad Ishaq v. Member, B.O.R. 1983 PLC (C.S.) 491; Black's Law Dictionary, p. 1434; Muhammad Noman v. Dacca Improvement Trust PLD 1964 Dacca 671; Mian Muhammad Hayat v. Province of West Pakistan PLD 1974 SC 321;1988 SCMR 691 and 1991 SCMR 1148 ref.
(e) Civil service‑
‑‑‑‑ Move‑over is not an extension of the lower scale but is earned on keeping good record as a matter of right.
PLD 1992 SC 144 rel.
Syed Mansoor Ali Shah for Appellant.
Javed Cheema, DA. for Respondents.
Date of hearing: 14th June, 1993.
JUDGMENT
AKHTAR HASSAN (CHAIRMAN): ‑‑The appellant Akhtar Ali Monga was Deputy Commissioner, Gujranwala on 15‑12‑1990 when on a complaint of Mehr Muhammad Saleem, M.P.A., he was suspended under the oral orders of the Chief Minister. Later he was served with a charge -sheet dated 26‑3‑1991 containing nine charges. He refuted those in his reply (Annex. C) but the Authorised Officer constituted an Inquiry Committee under Rule 6 of the E&D Rules, 1975 and the same statedly without providing him due opportunity of, defence, found him guilty of a part of charges Nos. (iii), (iv) and (ix) whereas others were held not proved. Those charges were:
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(iii)That on 20th September, 1989 you obtained Rs.35,000 as illegal gratification from Muhammad Saleem son of Haji Muhammad Siddique resident of Khokhar Street, Gali No. 42, Gujranwala to help him in getting the land situated in Kotli Mughlan, District Gujranwala transferred in his name. The land in question belonged to Ali Ghaus son of Badar Din and it was in your knowledge that not only the question of identity and inheritance of Mr. Ali Ghaus was in dispute but there had been strong indication that he might have died issueless and his property was therefore liable to be escheated to State. You as a District Collector and a guardian of the Provincial Government's interest, instead of filing an appeal against the judgment and decree of the Civil Court dated 21‑5‑1989 exercised your official influence on the subordinate officers and got the land mutated in the name of the abovesaid Muhammad Saleem son of Muhammad Siddique and three others.
(iv) You purchased a Plot No. 935 measuring 19 Marlas and 125 sq. ft. in 1987 and Plot No. 935‑A measuring 6 Marlas and 78 sq. ft. in 1988 in Shadman Colony, Lahore in the name of your wife Mrs. Tanvir Akhtar. Houses were also built on both these plots. You did not file declaration of assets disclosing purchases of these plots.
(ix) On the 18th December, 1990 after you had already been placed under suspension and were no longer Deputy Commissioner, you ordered withdrawal of Rs.50,000 .from the Deputy Commissioner's Welfare Fund and distributed it to various persons according to your whim for which no proper account was maintained.
2. Acting up this report, the Authorised Officer served him with a notice under Rule 7‑A to which he furnished a reply (Annex F) but it appears that the same was not considered sufficient to absolve him and as a consequence a major penalty was recommended against him. The Authority (the Chief Minister) afforded him personal hearing in pursuance of which he submitted his written defence but the same was not accepted. Consequently he was awarded by order dated 27‑8‑1992 major penalty of reducing him to the lowest stage of the time scale (BS‑18) for a period of four years. He filed a Review Petition against it but the same was rejected on 13‑1‑1993 and finally the instant appeal.
3. He assailed the orders, referred to above, on the grounds that‑‑
(a) the allegations were fabricated inasmuch the Inquiry Committee was forced to record a finding that no illicit gratification was passed to him;
(b) the Inquiry Committee was substantially influenced by various statements of the Chief Minister made purposely to create an aura against him;
(c) he was allowed move‑over to Grade‑19 on 21‑9‑1987, therefore, he could not have been down‑graded to the lowest stage of Grade‑18. Accordingly to him such a penalty was not provided for in the rules;
(d) even otherwise, reduction to the lowest stage of a Grade was not contemplated by the rules; of the Punjab (Akhtar Hassan, Chairman)
(e) the penalty involved double jeopardy inasmuch as it would take away from him BS‑19 as well when he would be placed at the lowest stage of Grade‑18. Losing practically two grades was not envisaged by the rules and that in any event it was too harsh a penalty;
(f) since charge No. 3 pertaining to payment of Rs.35,000 as illegal gratification to him was found not proved, it was contradictory on the part of the Inquiry Committee to have held that he had pressurised the A.C. or the Tehsildar in grabbing a valuable piece of land. The Committee acted erroneously in holding that the decree of the Civil Court was a result of fraud or misrepresentation in that it had no jurisdiction to give decision upon validity or otherwise of such decree;
(g) it was equally wrong that he allowed transfer of State land to under-serving hands by compromising the Government interest and his own official duty;
(h) it was a transfer between two private persons under a decree of the Court and hence no Government interest was at stake;
(i) it was not correctly assumed that he should have challenged the aforesaid decree because he had nothing to do with the title of a privately owned land and that for this reason the Inquiry Committee had wrongly nullified the decree which as held in 1983 PLC (C.S.) 491 (Muhammad Ishaq v. Member, B.O.R.) the Revenue Officer was bound to implement without any demur;
(j) the sole testimony of a Section Officer being wavering, evasive and contradictory did not suffice to bring home the charge against him that he had not submitted the declaration of assets, The omission, if at all, was being treated discriminately;
(k) it was incorrectly held that he had purchased Plots Nos. 935 and 935‑A, Shadman Colony, Lahore. He stated that those were inherited by his wife from her father and that he had shown them in his assets submitted to S&GAD as also the Income Tax and Wealth Tax authorities in the returns filed by them. He doubted if inheritance of property by the civil servant's wife at all constituted acquisition as might be disclosed in his declaration of assets. In any event he maintained that such declarations of assets were not made by many other officers and that thereby singling him out was not equitable;
(l) once the finding was recorded that he had no dishonest motive in withdrawing Rs.50,000 on 18‑12‑1990 and that he had disbursed it to persons borne on a list already framed, the charge should not have been‑held against him. According to him punishing one, found not dishonest, was a contradiction in terms and not sustainable.
4. The appeal was opposed seriously by the respondents in their written objections. They denied if they refused to call his witnesses stating that they being 200 in number were cut short. They justified the penalty reducing his pay to the lowest of BS‑18 explaining that the move‑over to BS‑19 was only an extension of his substantive scale and that the penalty had always to be imposed with relation to the scale which a civil servant may be availing substantively. This was how they controverted if there was any double jeopardy suffered by him. They reiterated that the decree of a Civil Court should not have been acted upon by him as it could be the result of misrepresentation, collusion or fraud. They affirmed that he had not shown his assets excepting in the years 1971 and 1982 and referred to Rule 12 of the West Pakistan Government Servants (Conduct) Rules, 1966 which made it compulsory for a Government servant to disclose his own assets and that of members of his family including wife if their total value was more than Rs.50,000. Regarding the disbursement of the official amount Rs.50,000 on 18‑12‑1990, their contention was that it had wrongly been withdrawn by him after his suspension and that he was rightly held guilty of the charge relating thereto.
5. Counsel bitterly criticised the findings of the Inquiry Committee on these charges being essentially contradictory, mutually destructive at times, and even opposed to settled law on the point of Revenue Authorities giving effect to decrees of Civil Courts. Taking up charge No. (iii) he emphasised that its main element was of the appellant charging Rs.35,000 as illicit gratification for allowing attestation of the mutations; and added that when this part failed in the eyes of the Committee, there was left nothing substantial to proceed with the other part of the charge which unnecessarily expected a District Collector to prefer an appeal against a decree of a Civil Court passed between two, private parties in a proceeding to which he was not a party. The contention was quite formidable in that it was not the job of a Collector to intermeddle with dealings of private parties relating to inheritance or abitration awards made rule of the Court. No doubt the case of the estate of Ali Gohars was not free from doubt as there had been quite a few attempts to claim it either as his heirs or transferees and even a note of caution was recorded by a predecessor Collector, still the appellant had no authority in law to intervene on the pretext that his land would ultimately pass on to the State through escheat. Obviously a question of title was involved and the only forum competent to decide upon it was a Civil Court. The Committee made no reference to any provision of law which might make a Collector of a District as a potential claimant through escheat by pre‑empting jurisdiction of a Civil Court in regard to devolution of an owner's estate, or his powers to alienate it in his lifetime. Conversely attention may be drawn to section 172 of the Punjab Land Revenue Act which enumerates the matters lying exclusively in the jurisdiction of a Revenue Officer. It is noticeable that it does not confer authority on him to see if any decree of a Civil Court is based upon fraud etc. or that it might have been designed to evade escheat of an heirless land owner.
6. The only provisions protecting State interest in land are sections 49 and 50 of the Act relating to mines, minerals, forests, quaries and waste lands but no such right was claimable in the land in question and hence the appellant‑Collector could not ^tall entry or attestation of the mutation pertaining to it. On the other hand, section 45 of the Act binds a Revenue officer to make such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties. The Inquiry Committee conveniently overlooked these explicit statutory provisions which would ' not permit the appellant to do anything with the decree on any pretext whatsoever.
7. The Committee took the view in para. 19 of their report that it could have been "reasonably presumed that the Courts orders had been obtained by M/s. Saleem etc. through misrepresentation of facts and fraud" and that the minimum the appellant could do was to have the case further examined or referred it for legal advice. The proposition that a Collector should start doubting the veracity of an agreement intra parties, is not free from difficulty. Indeed it might create confusion in public mind, for interference in private transactions by a State functionary would erode sanctity of the fundamental right enshrined in Article 24 of the Constitution whereby every citizen is assured a right to acquire, possess or dispose of property. Agreements, or for that matter contracts arc left entirely to individuals themselves and no organ of State may interfere with them excepting of course when those are prohibited by law. Further, misrepresentation or fraud as respectively defined in sections 17 and 18 of the Contract Act do not make the contract void ab initio. At best those could be urged and that too by the party wronged, in getting the transaction declared void. In other words, if the party concerned chooses not to assail the validity of the contract on these grounds, it shall remain bound by the contract as if it was not affected in any way by misrepresentation or fraud. For this reason, even if the Collector thought that the transfer of the land in dispute was tainted with misrepresentation or fraud, he had no power to avoid it. He could not. substitute himself for the wronged party and any suggestion to that effect was totally unwarranted.
8. The third element of the charge under consideration was that the appellant had exercised official influence on his subordinate officers .to get the mutations attested. Any such assumption was negatived by the Committee in para. 20 of their report which reads:
"‑ ‑ ‑ and it does not make out that the subordinate Revenue Officers were put under any pressure rendering them helpless ‑ ‑ ‑. "
The above analysis would establish that none of the ingredients of the abovementioned charge was brought home against the appellant. It therefore fails in toto.
9. The next charge (No. iv) related to the appellant's failure to file Declaration of Assets in relation to the two houses in the Shadman Colony, Lahore. He was alleged to have had purchased these. He however denied their purchase and instead pleaded that those were inherited by his wife from her father and that she had submitted the necessary information to the Income Tax Department etc. Counsel for him drew attention to his reply furnished to the Authorised Officer in pursuance of his show‑cause notice pointing out that this very plea, supported by material documents, was raised before the Committee but for reasons known to them, they did not make even an oblique reference to it and instead quite wrongly held him to be the owner thereof.
10. The Inquiry Committee did not discuss this plea though it was specifically raised before it, nor did it attract attention of the Authorised Officer for considering its merits/demerits. It was amply corroborated by some six documents indicating that the appellant's wife had inherited the houses from her father in 1986 or so. These documents negatived the view that the appellant had purchased the houses.
11. Now comes the question of declaring them in his assets. Rule 12 of West Pakistan Government Servants (Conduct) Rules, 1966 provides that "every Government servant shall at the time of entering Government service make a declaration‑‑of all immovable and movable properties‑‑held by him or by a member of his family ‑‑‑‑‑"‑ Rule 3 defines "member of a Government servant's family". It includes "his wife ‑ ‑ wholly dependent upon him". It was claimed here that the appellant's wife owning considerable property eve$ before marriage, was not dependent upon him and that thus there was no obligation upon him to have included her property, in the declaration.
12. A perusal of the aforesaid rules seems to strengthen the plea that the assets of only a "wholly dependent" wife are to be included in the declaration and that contrarily, if she is not financially dependent upon the husband, her personal belongings were not to be included in the list. The two houses were undeniably inherited by her from her father and hence the rule did not require him to show them in his return.
13. The precise question that the appellant did not file annual returns remains at its own place. His version was that he had been regularly forwarding those and that the Section Officer concerned did not properly maintain them as he did not in case of many other officers. He wanted to summon another Section Officer to prove his defence, but he was not allowed. He took exception to his being discriminated against for the little omission as no other officer was ever indicted on that score.
14. We feel the graveness of this charge lay in the alleged acquisition of the two houses by the appellant through purchase. Almost each of the nine charges involved him for accepting various amounts as illicit gratification, and the same cast an impression that he was a brazen ‑ faced corrupt officer. Somehow all those charges failed. And even the so‑called purchase of the two houses by him miserably falls to the ground. It would have the effect of completely deflating the entire accusation comprised in this charge. Holding him guilty of failure of furnishing annual returns was indeed making a fetish of the matter, all the more when admittedly many of his colleagues were never made to face such a clumsy indictment. It smacks of discrimination which alone will suffice to strike it down. We are unable to uphold the findings on the point, especially because the houses were not his acquisition.
15. Last was the disbursement of Rs.50,000 after the appellant was suspended. The Committee absolved him of dishonesty or selfish motive in this behalf. Its remarks were:
"There is also no indication or suggestion that the disbursement of money out of this fund involved any dishonesty or selfish motive on the part of the accused officer." page 189).
If the Committee in its sagacity exonerated the appellant of any dishonesty or misappropriation of funds, the rest should have been a priori left unattended. The other element of t' charge was that he distributed the amount according to his "whim". The report did not hold so. Rather it clearly mentioned that the amount was distributed to various deserving and indigent recommendees borne on a list of 46 persons prepared carefully by the officers and that there was no instance of misapplication thereof. If the appellant kept his own linen clean and if the entire amount was paid openly in a sitting to persons carefully placed in a formal list of 46 deserving employees as compensation for their years' toilsome work, then on no known principle could the Deputy Commissioner be guilty of misconduct which expression definition‑wise would not include such bona fide dispensation of funds not provided by the public exchequer. The truth of the matter was that he had executed the cheque on 12‑12‑1990, that is much before he was suspended It was a left‑over matter which he was genuinely persuaded to dispose of in favour of the low‑paid officials at the fag‑end of the year.
16. "Misconduct" has not been defined specifically in the West Pakistan Government Servants (Conduct) Rules, 1966. It enumerates various acts constituting "conduct" of a civil servant and these acts, for instance, are restraint against receipt of gifts (Rule 5), of foreign awards (Rule 6), making public demonstration (Rule 7), raising subscription (Rule 9) etc. None of them prohibits a suspended officer from doing certain acts, or conversely makes doing such acts by a suspended officer an instance of misconduct. The only rule having the nearest application to the facts in hand may be rule 26 and it reads:
"26. Nepotism favouritism and victimisation etc.‑‑No Government servant shall indulge in provincialism, perochiatism, nepotism, favouritism, victimisation or wilful abuse of office."
The appellant in this case could at best be said to have had indulged in "wilful abuse of office". It is apparent that mere `abuse' of office would not be enough, and that it should be `wilful abuse" of office which might turn out to be misconduct. What is `wilful' has been explained in the Black's Law Dictionary, page 1434. It generally means an act done "with a bad purpose, without justifiable excuse, stubbornly, obstinately, perversely". Obviously it connotes perversity of mind, deliberateness and indeed misuse of one's official authority done with evil intent or with a bad motive. The appellant here was not shown to have had acted with any perversity of mind, or to have thought of any wrongful gain to himself or indeed to anyone else. On the other hand, he did something out of benevolence, openly and in favour of persons really needing help. It could hardly be styled something like abuse of office, much less wilful.
17. The next to consider may be implication of the definition of "misconduct" as contained in the E & D Rules, 1975. The term has been explained there to mean conduct prejudicial to good order or service discipline or contrary to the West Pakistan Government Servants (Conduct) Rules, 1966 or conduct unbecoming of an officer and a gentleman including an act committed to bring political influence on the high ups in the matters relating to his appointment, promotion and transfer etc. The term used is quite pragmatic. Doing something prejudicial to good order or service discipline on the face of it would mean doing something disorderly or in disregard of service discipline. It essentially purports to have an element of violating the orderliness or the discipline…
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