1983 PLP (C (PLC(CS))

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975- --Rr. 4 & 8-Penalty--Quantum of-Appellant alongwith another accused charged jointly for inefficiency and causing damage to property under their control and supervision-Charges established against both-Penalty of dismissal inflicted upon appellant while compulsory retirement from service imposed upon co-accused for reason that he had rendered a long service of over 29 years-Charges being identical and substantially same, infliction of harsher punish ment-upon appellant, in circumstances, held, not justified-Punjab Service Tribunals Act (IX of 1974), S.

4. Ghulam Muhammad Khan for Appellant. Haroon-ur-Rashid Cheema Districts Attorney for Respondents. MALIK NAZAWAZ HUSSAIN (MEMBER). Muhammad Shafi, Ex-Forest Guard has filed this appeal, under section 4 of the Punjab Service Tribunals Act of 1974 against the order, dated 10-2-1980 passed by the Conservator of Forests Multan Circle whereby his appeal against the order of Divisional Forest Officer dated 10-7-1977 was rejected.

2. By virtue of this appeal he has prayed that the order of this dismissal from service passed by the Divisional Forest Officer and the appellate order be set aside and he be re-instated in service with full back, benefit's. In this appeal he has impleaded the Divisional Forest Officer, Nelibar Forest Division, Sahiwal, the Conservator of Forests, Multan Circle Multan, and Government of the Punjab, Forestry and Wild life Department, Lahore as respondents. Brief facts of the case are that one Mr. Meraj Din of Bhai Phero complained to the Chief Conservator of Forests, Punjab, Lahore that some unknown persons claiming to be contractors of the Irrigation Department are indulging in illicit cutting Kikar trees near Sulemanki. Consequently, the Divisional Forest Officer was directed to inspect the site and seize the material. He was further directed to take legal action against the culprits arid official at fault: The Divisional Forest Officer went to Bhai Phero on 24-5-1977 and contacted Mr. Meraj Din son of Ranja the complainant. He later on informed him that the forest produce illicit cut by the` culprits has been seized by the Divisional Forest Officer, Changa Manga which was inspected by the Divisional Forest Officer, Nelibar Forest Division. Thereafter he accompanied by the complainants went to Sulemanki alongwith the Range Officer, Khanwah. The raiding party was constituted which also included the appellant and the Range Officer Mr. Muhammad Zaki Damage list Annexure II with the written statement was prepared which was signed by the appellant and other members of The raiding party. It was also noticed that the appellant had manipulated with the enumeration register on its pages 8-10 and 38 to 41 and as such had changed the volume of the trees which was visible with naked eyes. It was also noticed that. Trees of the changed numbers were missing from the site which was done. By the appellant with male fide intention for misappropriation of forest produce From the nature and extent of damage, it was clear that this heavy damage have been caused with the active connivance of the appellant Mr. Muhammad Zaki, Forester who had not, issued the damaged reports of the entire damage. During this episode one of the culprits Muhammad Yaqoob of Pattoki appeared at the site and admitted that the damage was caused by him. The competent authority decided to proceed against the Appellant and Muhammad Yaqoob under Efficiency and Discipline Rules and suspended them from service on 28-5-1978. They were saved with 4 show-cause notice, Appendix IV of the appeal whereby it was allege that they had connived in illicit theft of 106 trees from Q Block and 1,3 trees from of R D.' and that they had tampered with the record. It was also alleged that they did not perform the duties properly vigilantly and honestly. By reason these charges they were called upon to show cause as to why they should not be dismissed from services on account of misconduct inefficiency, and corruption. The Appellant submitted reply to the charge sheet on 14-6-1977 and was hued personally by the Divisional Forest Officer on 25-6-1971. It appears that as an abundant action the Divisional Forest Officer recorded the proceedings of personal hearing, in question answer from which is Appendix VII of the :written-statement. Similarly Appendix VIII was prepared as a record of personal hearing of Muhammad Zaki Forester the appellant and Muhammad Zaki were also confronted, with each, other and record of their statement and cross-examination is Appendix VIII. The Divisional Forest. Officer was not satisfied with the reply of the appellant and his co-accused Muhammad Zaki and passed the order on 10-7-1977 whereby he dismissed the appellant, from service and treated the intervening period as leave with out pay However, he awarded punishment of compulsory retirement to Muhammad Zaki because he had served the Department for more than 29 years. The appellant filed an appeal to the Convervator of Forests which was dismissed. The appellant then filed an Appeal No. 97/368 of 1978, before the Punjab Service. Tribunal which was accepted on the ground that the appellant was not heard in person by the Conservator of Forests consequently the appeal was remanded to the Conservator of Forests: to dispose it afresh after providing an opportunity of personal hearing to the appellant. On remand of the case the Conservator of Forests heard the appellant in person on 5-2-1980. The appellant made a statement before the Conservator Forests which was reduced into writing. After going through the entire record the Conservator of Forests rejected his appeal vide order dated 10-2-1980. Hence the present appeal.

4. We have heard the learned counsel for 'the appellant as well as the learned District Attorney on behalf of the respondents it has been argued on behalf of the appellant that the impugned order is discriminatory because while the appellant has been dismissed from service, the penalty of compulsory retirement from service has been imposed upon his co-accused Muhammad Zaki without any cogent reason. It has also been argued that the authority has dispensed with a regular enquiry and has decided to proceed against the ,appellant under rule 6(3) of the Punjab Civil Servants (Efficiency and Discipline) Rules which discretion was' arbitrary and unjustified. He has prayed that in the present circum stances of the case the authority should have conducted a regular enquiry. Thus according to the appellant he has been deprived' of the right of proper defence. It has also been argued that Muhammad Yaqoob and Miraj Din, and the labour present at site were not examined during the enquiry. On the other hand the 'learned ' D.A. has argued that the impugned order is justified in the' circumstances of the case arid is sot at all discriminator. The penalty of 'compulsory 'retirement was imposed upon the co-accused taking into consideration his long spent service spreading over a period of 29 years while the appellant was not an old employee of the Department. Regarding dispensing with the regular enquiry and resorting to rule 6(3) of the Efficiency and Discipline Rules the learned District Attorney has submitted that the case against the appellant mostly depended on documentary evidence including damage list which was signed by the appellant mostly depended on documentary evidence including damage list which was signed by the appellant in token of its correctness. Hence the regular enquiry was not deemed proper in this case in the interest of justice. He has also submitted that the examination of the persons mentioned by 'the appellant was not at all necessary in this case.

5. We have given our anxious thoughts to the arguments advanced by the learned counsel of both the parties and have also perused the record of the case very carefully So far as the legal objection raised by the appellant regarding dispensing with regular enquiry is concerned, the perusal of the record shows that the evidence on charge of illicit damage to trees solely consists of the damage list Appendix II with the appeal. We find that this list was signed by the members of the raiding party which also included the appellant. It is crystal clear that the appellant had signed this list in token of its correctness and had not objected to his correctness a that time In view of this document we feel that the authority was justified in dispensing him with the regular enquiry. We are also oblivious of the fact that at the time of personal hearing the appellant arid Muhammad Zaki Forester were examined by the authority, they were confronted with each other and the record of this proceedings was prepared by the authority under his own' hand. The record also shows that Muhammad Azmat Rubbani, Riaz-ul-Haq and Riaz Hussain, Foresters were also confronted with the appellant and they were cross-examined by the appellant at length. As such the requirement of justice were substantially met and no prejudice was caused to the appellant.

6. So far as the charges are concerned, we are inclined to agree with the learned District Attorney that there is sufficient evidence/proof on the record to show that the entire damage was done with the active connivance of the appellant. Appendix II of the appeal shows that a large scale of damage was caused to the forest produce which was also admitted by the culprits which could not have been done without the active connivance of the appellant. This damage was caused in the broad daylight in the area under the control of the appellant and it was his duty to patrol the area in order to see that no damage is caused to the forest in his beat/ area. The fact that during the inspection of the forest, one of the culprits namely Muhammad Yaqoob of Pattoki appeared before the Divisional Forest Officer and admitted that the damage was caused by him also shows that he was in league with the appellant. As such we hold that the charges stand proved against the appellant Charges of being inefficient and his connivance in the illicit damage of trees is proved against the appellant. The record also shows that the enumeration register was tampered by the appellant. The plea of the appellant that he had erased the figures by ink remover to correct them is not plau sible. If at all the figures were not correct the appellant could have scored then out and written new figures. The fact of tampering with the record clearly proves that he is guilty of misconduct. Hence we hold that all the charges are proved against the appellant.

7. So far as the quantum of penalty is concerned, we 'are inclined to agree with the learned counsel for the appellant that the punishment is harsh and is discriminatory. The charges against the appellant and co -accused Muhammad Zaki were identical and substantially the same and there was no justification for the authority to impose harsher punish ment upon the appellant than that upon his co-accused Muhammad Zaki. So in the circumstances of the case we have decided to vary the punishment imposed upon the appellant.

8. In view of the above analysis we accept the appeal to the extent that penalty of dismissal from service is converted into compulsory retirement from service and the period of suspension shall be treated as such. However, there will be no order as to costs.