1980 PLP (C (PLC(CS))

M. SALEEM CHAUDHRY (CHAIRMAN).‑

In this case the appellant, an ex‑Forest, Ranger, was dismissed from service by the order of Conservator of Forests dated 21‑3‑1965. It was further directed that the appellant has been responsible for causing substantial loss, to the Government in connivance with the contractor and therefore he should be proceeded against in the competent Court of criminal jurisdiction. On 27‑7‑1965 a criminal case was registered against him. On departmental side the appellant filed an appeal before the Chief Conservator of Forests which was rejected vide order dated 3‑4‑1971. Even a further appeal to the Government of Punjab in the Agriculture Department was also rejected vide order dated 13‑10‑1971. The appellant was duly informed of the same. The appellant appears to have served a notice under section 80, C. P, C. on the Government which too was ignored. The criminal case was eventually withdrawn against the appellant on 28‑4‑1976 where after the appellant again moved the Chief Secretary to the Government Punjab on 6‑5‑1976 for his re‑instatement, which request was rejected by the Government on 22‑2‑1979. Hence this appeal was filed before this Tribunal on 21‑3 1979.

2. The learned Government Pleader raised the objection that the appeal was barred by time. The learned counsel for appellant endeavoured to meet the objection by contending that originally on 12‑3‑1965 the competent authority had passed two orders; firstly dismissing the appellant from service, and secondly, ordering registration of a criminal case against him and both these orders had described as punishments. Thus the second part of the punishment ended in his favour when the proceedings before the criminal Court were withdrawn on 28‑4‑1976 whereafter he became entitled to re‑instatement. He also argued that under para. 16.1 of the Forest Manual, 64th edition, the C. C. F. has been prescribed as the competent authority and therefore the order passed by the C. F. against appel lant was a nullity. In this context the plea of limitation could not be allowed to prevail against him inasmuch as the order dated 21‑3‑1965 was void ab initio and merited to be ignored.

3. After hearing the learned counsel for the appellant we do not find any force in the contention raised above. In the first instance we cannot accept the contention that the direction as to the initiation of criminal proceedings against the appellant could be termed as punishment. In fact the punishment has been defined in rule 4 of the West Pakistan Govern ment Servants (E&D) Rules, 1960, and institution of criminal proceedings is none of the punishments specified therein. Thus it may be a case of unhappy expression on the part of the competent authority but it is certainly not a punishment. Thus the only order of punishment in terms of departmental proceeding under the 1960 (E&D) Rules was the order passed on 21st March 1965 The departmental proceedings finally terminated somewhere in 1972 and thus the appeal filed in 1979 was grossly barred by time. In fact as laid down by the Lahore High Court in P L D 1968 Lah. 786 the object and scope of the criminal proceeding and the departmental proceeding was fundamentally different. Therefore, the criminal proceeding could not be said to have any relevance in the context of the disciplinary action under the E & D Rules except that in case of conviction the civil servant concerned was liable to be dismissed without complying with the procedure regarding charge‑sheet, enquiry and a show cause notice prescribed under the E&D Rules. Thus we find little force in the contention of the learned counsel for the appellant that he was entitled to wait for the withdrawal of the criminal proceeding or it gave him afresh cause of action for claiming his re‑instatement.

4. Even on merits we find that the case against the appellant was withdrawn and nothing was disproved before the criminal Court. Thus the appellant had no ground to contend that any fact was disproved against him. In fact the order of withdrawal of the criminal proceeding did not place him in any advantageous position. As regards the contention of the appellant about the vires of the order dated 21st March, 1965 we invited the attention of the learned counsel to the relevant provision contained in the Forest Department Delegation of Power Rules, 1962. Vide item No. 5 in the schedule appended to the said Rules the competent authority for the Forest Ranger specified in column 3 is the Conservator of Forests, Rule 2 of the said Rules framed under Article 178 of the Constitution of 1962 which is valid as existing law provided that "notwith standing any provision to the contrary contained in any service rules for the time being in force in the Province or any part thereof, the authority for the purpose of appointment, appeal, punishment, transfer and controlling, traveling allowance in respect of each personnel holding a post in the West Pakistan Forest Department mentioned in column 2 of the Schedule annexed thereto, shall be such as are specified against the post of such persons in column 3 to column 9 of the said Schedule".

5. In view of the above, we cannot give effect to the provisions contained in para. 16.1 of the Forest Manual which are in the nature of domestic instructions issued by the department and have no statutory basis. We are rather surprised to find that even after the publication of the Delegation of Power Rules, 1962, 64th Edition of Manual Forest had not been corrected to bring the same in accord with the relevant provisions contained in the Delegation of Power Rules. We hardly meet to emphasise the necessity of rectifying the position above. Thus the contentions of the appellant have no force in view of the above. Consequently the appeal filed in 1979 against the order passed by the Department in 1972 is barred by time by as many as 7 years and the same is accordingly dismissed in limine. Appeal dismissed.