In this appeal the appellant who is an ex-Forest Guard of the Lahore Forest Division has impugned the orders dated 16-11-1976 of reason--dent No. 1 whereby a recovery of Rs. 10,532.72 has been ordered from the appellant and the subsequent action of respondent No. 1 to ask the Deputy Commissioner, Kasur to have this recovery effected from the appellant, as arrears of land revenue.
2. The facts of the case as stated before us are that the appellant was suspended from service on 15-6-1974 in connection with the shortage of sonic trees and was ultimately removed from service on 22-7-1974. After two years of his removal from service, the D. F. O. (respondent No. 1) vide his order dated 16-11-1976 held the appellant responsible for the loss of 57 Shisham trees and asked the appellant to deposit an amount of Rs. 10,535.72 on the ground that the loss had been sustained by the Government due to his negligence during the period of his service while he was incharge of Karol Beat of Shahdara Block. Subsequently on 26-11-1976 the respondent No. 1 asked the Deputy Commissioner, Kasur to recover the amount from the appellant as arrears of land revenue. The appellant made an appeal to the Conservator of Forests in this; behalf but no decision was conveyed to him till the filing of this appeal. The Conservator of Forests, however has passed orders on 3rd August, 1978, rejecting this appeal.
3. Besides stating that he was not actually responsible for the said loss and that the then D. F. O.
Was personally inimical towards him which resulted in the fixation of the responsibility on him although the timber it) question had been embezzled at the behest of the said D. F. O., the appellant has made the following points :-
(i) No charge-sheet was ever served on him, no enquiry was held and no show-cause notice was issued to the appellant before infliction :of the penalty.
(ii) No recovery can be effected from a former civil servant as arrears of land revenue.
(iii) The orders were passed without following the relevant rules and without lawful authority.
4. The respondent No. 1 has conceded that the recovery has been ordered without observing the procedures under the Efficiency and Discipline Rules as the appellant was no longer a civil servant and as such could not be proceeded against under the said Rules. The learned Government pleader argued that the term "civil servant" for the purposes of E. & D. Rules did not include former civil servants and as such action was not taken under the said Rules. He went on to argue that, the D. F. O. Had ordered the recovery not as a penalty under the E & D Rules but ordered the same as a Forest Officer from a private individual. He further argued the term "departmental authority" appearing in section 4(1) of the Punjab Service Tribunal Act, 1974 meant "Competent Authority" and since the D. F. O. Was not competent to inflict any departmental penalty on an ex-Government servant, these orders could not be challenged in this Tribunal. He was of the view that if the appellant was aggrieved by the orders of the D. F. O. He may go to a civil Court.
5. The learned counsel for the appellant pointed out that the orders of recovery clearly indicated that the recovery was being effected on account of the alleged negligence of the appellant in the discharge of his official duties while he was in service. Since the recovery was a sequel to the performance of the appellant during his tenure of service, the recovery could not be considered to be anything other than a penalty which could only be imposed after going through the relevant procedures. He further argued that since the appellant had already been removed from service, he could not be proceeded against under the Efficiency and Discipline Rules and as such the recovery was without lawful authority. He also pointed out that there was no question of D. F. O. Ordering recovery from the appellant as a private citizen as contended by the learned Government Pleader and that for such an action the D. F. O. Could only have such recovery effected by instituting a civil suit against a private citizen or taking action under the Forest Act.
6. We have considered the arguments of both sides. We cannot accept the argument of the learned Government Pleader that the term "departmental authority" used in section 4(1) of the .Punjab Service Tribunal Act, 1974 meant "Competent Authority". If it were so, it would give rise to a very anomalous and ludicrous position, i. e. The civil servant would not be able to challenge illegal orders passed by an incompetent authority. A reading of the section 4(1) clearly shows that the expression used is "departmental authority" which includes "Competent Authority", but cannot be limited to mean only that. We also find that the orders of recovery passed by the respondent No. 1 are clearly in relation to the performance of the appellant during his tenure of service, and as such constitute a penalty imposed upon, him. Since the appellant was no longer in service and action under the' Efficiency and Discipline Rules, which was the only means for inflicting a~ penalty, was not competent against him as argued by the respondent No. 1 and the Government Pleader themselves hold the impugned orders of, respondent No. 1 as incompetent and set aside the same.
The appeal is accepted with costs.
M. SALEEM CHAUDHRY (CHAIRMAN).-I agree.