1981 PLP (S (PLC(CS))

KHAWAJA GHULAM QADIR (MEMBER).‑Appellant Bashir Ahmad Ex -Forest Guard has taken exception by this appeal under section 4 of the Service Tribunals Act, 1975 to the impugned orders dated 26‑10‑1978 and 18‑2‑1979 whereby the service of the appellant were terminated by respondent No. 2 and his departmental appeal was dismissed by respondent No. 1 respectively. The facts which culminated in this appeal are concisely laid down as tinder :‑ The appellant was a Forest Guard incharge at Ghumote Beat in Sharda Forest Division, District Muzaffarabad. There were some complaints of illicit damage in the beat of appellant upon which the Conservator of Forest deputed one Abdul Latif, Deputy Ranger to enquire into the matter and report the facts. The said Inquiry Officer held the enquiry and ultimately submitted his report to the Conservator, Forests. Meanwhile the appellant was got transferred and attached to Sharda Range Office vide D. F. O., Sharda Division order dated 3‑6‑1978. The charge of Ghumote Beat was handed over to Ghulam Jilani, Forest Guard on 11‑6‑1978 who made an entry in the charge report to the effect that no damage was found in compartments Nos. 16 and 19 except that which was already reported in the Guard Book. Mr. Muhammad Afzal, D. F. O. Sharda Division charge‑sheeted the appellant on 3‑6‑1978 in the light of the report made by Muhammad Latif, Deputy Ranger and after taking reply of appellant and inspecting, Compartments Nos. 16 and 19 in which illicit damages were allegedly reported against the appellant and enquired into by Deputy Ranger Mohammad Latif came to the conclusion that no more damage was caused than one already reported by the concerned Forest Guard and that the allegations were baseless. Later on Mr. Mohammad Afzal, D. F. O., Sharda Division was succeeded by Mr. Muhammad Muneer, D. F. O. who on the direction of Conservator Forests, Muzaffarabad charge -sheeted the appellant on 28‑9‑1978 on nine charges to which the appellant submitted his reply denying all the allegations levelled against him. The D. F. O. was not satisfied with the explanations of appellant and consequently issued a show‑cause notice as to why a drastic disciplinary action be not taken against him. The appellant put up his reply and also requested for his personal hearing. By this time another D. F. O. namely. Sultan Sikander took over the charge of the Division and also continued the proceedings against the appellant and straightaway terminated the services of the appellant vide the impugned order dated 20‑10‑1978 without himself inquiring into the matter or affording any opportunity to the appellant of being heard in person or putting up any defence. The appellant filed a departmental appeal before the Conservator Forests which was rejected on 18‑2‑1979. It was in this background that the appellant has now called into question the impugned orders before the Service Tribunal on the grounds‑ (1) that the entire case against appellant was cooked up by Mohammad Latif, Deputy Ranger on the ground of personal malice. (2) That having once been acquitted of the allegations by Mohammad Afzal, D. F. O. the appellant could not be proceeded against second time by another D. F. O. on the same grounds. (3) That having proceeded against by Mohammad Munir, D. F. O. who bad issued charge‑sheet, received the reply and also issued show‑cause notice his successor, namely, Mr. Sultan Sikander could not punish the appellant without himself making a fresh inquiry. (4) That no regular inquiry under rules was held in the presence of appellant and no opportunity to cross‑examine the witnesses was afforded to him. (5) That Mr. Sultan Sikander D. F. O. condemned the appellant unheard. On the basis of aforementioned objections the appellant prayed that the impugned orders be set aside as illegal and he be re‑instated w. e. f. the date of termination of his service. Respondents Nos. 1 and 2 appeared and submitted written objections supporting correctness of the impugned order. They further averred that the appellant fraudulently got it entered in the charge report that no damage was found except the one already reported in the Guard‑Book because such entries are generally never made in the Guard Book at the time of handing over the charge. Moreover, the appellant refused to sign the inspection notes which were prepared by Mohammad Latif, Deputy Ranger and the D. F. O. Mohammad Munir respectively in his presence. D. F. O. Mohammad Munir had rightly, charge‑sheeted the appellant according to rules and also issued show‑cause notice to him. The reply submitted by the appellant was not considered satisfactory and ultimately Mr. Sultan Sikander, D. F. O. who had succeeded Mr. Mohammad Munir. D. F. O. continued the proceedings and terminated the services of appellant correctly for it was not necessary for him to re‑open the case and hold a fresh inquiry. The Tribunal examined two witnesses, namely. Mohammad Yaqoob Forest‑Guard and Gulab, who were produced by the appellant as his witnesses. The appellant also caused some relevant record to be placed on the file. We have heard the arguments advanced by the learned counsel for the appellant and the Representative of Forest Department for the respondents, and have also gone through the record. The main contentions of the learned counsel for the appellant are, firstly, that after the report of Mr. Mohammad Latif, Deputy Ranger Forests about the illicit forest‑damage, Mr. Mohammad Afzal, D. F. O. Sharda Division in whose jurisdiction the illicit damage was alleged to have been done, held a formal inquiry about the damage and gave the finding that no damage was found except the reported one and thus exhonerated the appellant from liability for the forest‑damage. After this inquiry of the concerned D. F. O. no second inquiry could be ordered or held on the basis of the general principle that no one should be vexed twice on the same cause or ground. Secondly, that the appellant on transfer from the Ghomote Beat had handed over his charge to Ghulam Gilani, Forest Guard on 11‑6‑1978 who, by the entry of the words that "no damage was found except that which was already reported" in the charge report clearly admitted that no illicit damage was found at the time of taking over the charge of Beat Nos. 16 and 19 in which the illicit damage was alleged to have been done. As such, this charge‑report coupled with the findings of D. F. O. Mohammad Afzal go a long way to rebut and refute the accusation of illicit damage levelled against the appellant and rather establish his innocence in the matter and that all the proceedings against the appellant were the result of malice and ill‑will harboured by Mohammad Latif, Deputy Ranger who, as alleged by the appellant, had demanded illegal gratification from him. Thirdly, that the inquiry against the appellant was not conducted accord ing to the rules in force. First of all, we would like to deal with the last mentioned contention of the learned counsel as regards the legality of the procedure upon which the whole structure of the inquiry and the consequent result is based. The departmental inquiry against the appellant on the charges of illicit forest‑damage and negligence from duty etc. as levelled in the domestic inquiry launched by Mohammad Latif, Deputy Ranger, was held in June 1978 by Mr. Mohammad Munir, D. F. O. Now, it is to be examined and adjudged as to which rules were applicable at the relevant time for holding depart mental inquiries and whether correct procedure was followed by the Enquiry Officer. It is evident that at the time when inquiry against the appellant was held in June, 1978, the Civil Servants Act, 1976 was in force and in exercise of the powers, conferred under section 23 of this Act the Azad Government of the State of Jammu & Kashmir was pleased to frame the Azad Jammu& Kashmir Civil Servant (Efficiency and Discipline Rules, 1977 (hereinafter to be referred to as the Rules, 1977) which came into force at once and were to apply to all civil servants except members of such services and holders of such posts, as may be specified by the Government. The appellant was a civil servant and an such the "Efficiency and Discipline" Rules, 1977 that were in force were clearly applicable to him and the inquiry against him was to be conducted in accordance with the aforementioned Rules. Chapter III of the Rules, 1977 relates to inquiry and imposition of penalties. Under rule 5 of the said Rules it is provided that if in the opinion of the authority there are sufficient grounds for proceeding against a civil servant it shall direct the authorised officer to proceed against the said civil servant. Under sub‑rule (2) of rule 6 the procedure to be followed by the authorised officer is prescribed. According to the procedure laid down in sub‑rule (2) the Authorised Officer shall decide whether in the light of the facts of the case or in the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides he shall appoint an Inquiry Officer or Inquiry Committee and the inquiry shall be followed in accordance with the rules 7 and 8 of the said Rules. If the authorised Officer decides otherwise, then he shall himself etc. Under sub‑rule (3) of rule 6 and conclude the inquiry either himself imposing any of the minor penalties or, if proposed to impose a major penalty; then he shall forward the case to the authority under sub‑rule (4) of rule 6 mentioned above for his proper order. As stated above the legal position as regards an inquiry against a civil servant is that under the rules on the direction of authority an authorised officer is competent to initiate departmental proceedings against a civil servant and that an Authority cannot directly proceed against a civil servant unless he himself is an authorised officer in the matter. Adjudged from the above‑stated legal position it is to be seen as to who were 'Authority' and 'Authorised Officer' of the appellant at the time when it was proposed to proceed against him in June, 1978. Under clauses (b) and (c) of rule 2 of the Rules, 1977 the authority and the authorised Officer for such civil servant were to be appointed by the Government. This legal requirement was fulfilled by the Government in 1979 vide its Notification No. 21964‑74 dated 17‑10‑1979 according to which the D. F. O. was appointed as authority and the Range Officer appointed as authorised officer for a Forest‑Guard. Consequently under the Rules 1977 read with Notification No. 21964‑74 dated 17‑10‑1979 the correct position vis‑a‑vis the procedure that emerges is that in case of a civil servant of the status of Forest‑Guard the authority competent to initiate proceedings as authorised officer is Ranger Officer and he only legally could initiate the inquiry proceedings against the appellant Forest‑Guard. Now what happened in the instant case is that on the direction of Conservator of Forests the D. F. O. initiated the proceedings against the appellant issued show‑cause notice and finally imposed the major penalty of dismissal. Good luck to the appellant that the Efficiency and‑Discipline Rules, 1977 were not final in their application at the relevant time as no Authority or officer was appointee by the Government as envisaged by rule 2 of the said Rules with the consequence that no action could legally be taken against the appellant under, the said Rules. Prior to the promulgation of the Rules, 1977, the Efficiency and Discipline Rules, 1974 were in force but the same were repealed under rule 19 of the Rules, 1977 subject to a saving clause that their scope and application was limited to only such cases as were pending inquiry immediately before the coming into force of the Rules 1977. As such the Efficiency and Discipline Rules, 1974 also could not be applied to the case of appellant which cropped up in 1978 and was never pending immediately before the enforcement of the Rules, 1977. The result of all what has been discussed above is that inquiry against the appellant, in fact, was not held under any rules, not to speak of valid rules, with the consequence that the proceedings and action taken against the appellant by the D. F. O. had no legal sanction behind them and the ultimate impugned order was passed without jurisdiction. Our this view finds full support from a decision of Sind Service Tribunal in the case S. M. Tehreeni Taqvi v. Census Commissioner, Karachi (1980 P L C (C. S.) 499). The off shot of the afore-going discussion is that the impugned order was passed without jurisdiction and the same is quashed and set aside as illegal. The appellant shall be re‑instated w. e. f. the date he was dismissed from service with full back benefits under rules. However the Department shah be at liberty to initiate fresh proceedings under rules against the appellant it so advised. SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).‑I agree.