PUNJAB PROVINCE Versus BASHIR AHMAD

ORDER

This is a case of appeal by the Province of the Punjab praying for the setting aside of the judgment and decree dated 20-9-1973 passed by the Administrative Civil Judge, Bahawalpur whereby he has set aside the orders dated 4-5-1972 of Divisional Forest Officer, Bahawalpur Forest Division terminating the services of Bashir Ahmad, Forest Guard.

2. It is the common ground between the parties that there was illicit cutting of 38 trees from the beat of the respondent during December 1971. The loss was reported to the authorities on 22-12-1971 by the respondent and one Abdul Rehman was apprehended who confessed his guilt. The respondent was charge-sheeted for misconduct and inefficiency arising out of his failure to protect Government property under his care and charge. It is to be observed that the appellant was not charged with connivance at the loss or for any ulterior motive in illicit cutting of trees. An enquiry under the Efficiency arid Discipline Rules was held and the charge of inefficiency was held to be proved against the respondent and in the result he was removed from service vide order dated 4-5-72 of Divisional Forest Officer, Bahawalpur Division. Aggrieved by the said order the appellant filed a civil suit in the Court of Administrative- Civil Judge Bahawalpur and succeeded in obtaining a decree against the aforesaid orders of termination of his service. An appeal from the said order was filed by the present appellant in the Court of District Judge, Bahawalpur but Proceedings abated on account of promulgation of the Punjab Administrate the Tribunals Ordi nance, 1974 with effect from 23-4-1974. The abatement has resulted in the present appeal before this Tribunal praying for the setting aside of the impugned judgment and decree of Civil Judge, Bahawalpur dated 23-6-1973.

3. The learned Administrative Civil Judge in his impugned order has not found any flaw in the enquiry proceedings but has held that the proved default of the appellant does not fall within the definition of `inefficiency' as laid down in the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 (hereafter referred to as E. & D Rules, 1960) as amended in 1969, which Rules were in farce at the relevant time.

4. The statement of allegations served on the respondent alongwith the charge-sheet spell out that:-

"Although during the course of inquiry your connivance to illicit cutting of trees has not been proved yet if you had been alert and vigilant in performance of your duties, such large scale damage would not have been taken place."

In view of the above it is alleged that Bashir Ahmad, Forest Guard is guilty of charges of inefficiency for-

(i) not performing his duties properly;

(ii) to safeguard the Government property entrusted to him."

5. The learned Civil Judge in his impugned order has based his findings on his observations relevant excerpts from which are reproduced below:-

"7. Relying upon this charge the plaintiff has referred to West Pakistan Government Servants Efficiency and Discipline) Rules, 1960 as amended in 1969------------------------------------------------------------------------------------------------ after amendement in 1969 the definition of inefficiency was laid down as follows :-

(a) is inefficient or has ceased to be efficient, whether by (i) infirmity of mind or body or (ii) having on two or more consecutive occasions, failed to pass in a departmental examination prescribed for the purpose of maintaining or raising general efficiency (iii) having without reasonable cause failed to appear at any such examination as aforesaid or otherwise and is not likely to recover his efficiency.

So in view of the above definition of efficiency the plaintiff's case could not be covered within the definition of inefficiency. At the most he could be charged with negligence in his duties. . .

6. The learned counsel has tried to repel the arguments of the learned Civil Judge by ascribing an error of punctuation and paragraphing to the amended definition of inefficiency as substituted in the E. & D. Rules, 1960 vide notification of 15-3-1969. The learned counsel for the appellant has pointed out that the original definition of inefficiency before the above 3 mentioned amendment, was in the following terms :-

3. Grounds for penalty.-Where a Government servant in the opinion of the authority-

(a) is inefficient, or has ceased to be efficient, whether by reason of infirmity of mind or body or otherwise, and is not likely to recover this efficiency ; or

The above definition was substituted vide amendment of 5-3-1969 which is already reproduced in para. 5.

7. It is contended on behalf of the appellant that while carrying out the amendment in 1969, whereas the words or otherwise have been retained but due to error of punctuation and paragraphing these words have been made to appear, as a part of sub-clause (4) (iii) exclusively rather than to be read with all the sub-clause (a) (i) which has had to an erroneous definition of inefficiency.

8. It has been argued on behalf of the present respondent that tie order of the learned Administrative Civil Judge suffers from no illegality and is not based upon any misconception or misreading of the rules on the subject. It is pleaded that the learned Administrative Civil Judge has not gone beyond the Rules as laid down and there are no grounds to interfere with his orders. However, in view of our conclusion on the factual aspect of the case we do not feel called upon to express our opinion on this issue as it is not likely to affect the ultimate fate of the case.

9. It has been further argued on behalf of the respondent that at the time when the illicit cutting of forest trees took place the Indo Pak. War was raging. There was complete black-out and the air-raids were not infrequent. Total length of plantation of canals and roads under his charge totalled to 70 miles and the site of illicit cutting was 14 miles away from his Headquarters on a Kacha Road. Under these circumstances vigilance during night time when one could not even use a torch light in the jungle was not humanly possible. The report of illicit cutting was immediately made on the knowledge of the damage and the case was pursued with the police with the result that the culprit was apprehended. We find much weight in the arguments on behalf of respondent. We are of the opinion that the Department has failed to realise the impact of unusual circumstances created by the Indo-Pak. War. The Forest Guard had shown vigilance to the extent possible under the compulsion of the circumstances and for this reason we do not find arty grounds for interfering with the orders of the learned Administrative Civil Judge Bahawalpur and in the result reject the appeal with no orders as to costs.