M. SALEEM CHAUDHRY (CHAIRMAN).-Appellant in this case at the relevant time was a Forest Guard Incharge of Khoriot Beat in Pail Range in Shahpur Forest Division, Jauharabad. He is aggrieved of the order dated 28th May, 1971 of D. F. O. Shahpur Forest Division, dismissing him from service and the order dated 13th September, 1971 of Conservator of Forests, Lahore, rejecting his appeal. His Writ Petition No. 1552-S-71 in the High Court was ordered to have been abated on 15th July, 1974.
2. The appellant was served with a charge-sheet dated 7th April, 1971 in which he was accused of disobeying the order of his superiors and creating hindrance in the performance of their official duties and for misbehaving with them. These charges were based upon a report dated 6th April, 1970 of the Range Officer, Pail that when on 5th April, 1970 he along with a Forester (Muhammad Suleman) and three Forest Guards (Mahla Khan, Khan Muhammad and Sher Muhammad) went to inspect Kheriot Beat under the charge of the appellant, he refused to accompany them and flared up and misbehaved with them and blocked their way through the normal approach and declared that he will not allow any body to inspect his beat. The inspecting party had resultantly to follow a circuitous route to inspect the beat. It may be observed that earlier the explanation of the appellant was called by the D. F. O. Vide his letter dated 28th December, 1970 on the charges later incorporated in the charge-sheet and his explanation dated 18th January, 1971 thereto was considered unsatisfactory.
3. Mr. Muhammad Insha Ullah, Range Officer, Mitha Tiwana was appointed as Enquiry Officer to whom the appellant was required to sub--mit his reply within 14 days of the receipt of the charge- sheet. It appears that in the meanwhile the appellant who had been transferred to another beat in Quidabad Range vide D. F. O., Shahpur order dated 7th February, 1970, reported for duty in that range on 19th April, 1971 but instead of taking over charge of the beat, sent a medical certificate from A.M.O. Gunjial recommending him rest for two weeks. His leave was not sanctioned and he was informed through a registered (AD) latter of D.F.O. No. 3017 dated 26th April, 1971 that he was being treated absent from duty and was directed to report back on duty within 48 hours or to get the medical certificate of the A.M.O. Verified from the Medical Superinten--dent, Sargodha within 24 hours. The letter was received back undeliver--ed. The same directions were also sent by the D.F.O. To the residence of the appellant through Gul Muhammad, Peon, and Asghar Ali, Dak, Runner who reported back, with the attestation of the Lambardar, that the appellant was not available at his residence. The A.M.O., Gunjial also informed vide his letter dated 3rd May, 1971 that he had not given a medical certificate to the appellant but, had only sent an official intima--tion to the Range.
Officer, Qatdabad that the appellant was not admitted as an indoor patient. Similar attempts made by the Enquiry Officer to serve the appellant with notice to attend for enquiry on 10th May, 1971 in the Range Office at Jauharabad met with failure so that ultimately a notice to that effect was published in the Press which appeared in three dailies: Musawaat and Imroze of Lahore and Wifaq of Sargodha. The Enquiry Officer due to his other engagements admittedly did not hold enquiry on 10th May, 1971. It is stated by the Enquiry Officer that on 6th May, 1971 he left a notice with his range clerk, addressed to the appellant and the P. Ws. Notifying the change in the date of enquiry from 10th March, 1971 to 11th May, 1971. Since the appellant did not attend on 11th May, 1971 the Enquiry Officer proceeded ex parse and after examining five P. Ws. Submitted his report dated 13th March, 1971 to the D.P.O. Holding the appellant guilty. It was also held by the Enquiry Officer that the appellant did not attend on the earlier notified date of 10th May, 1971 and, therefore, failed to get notice for 11th May, 1971 and was thus wilfully absent from enquiry. The D.F.O. Agreeing with the Enquiry Officer served a show-cause notice dated 13th May, 1971 for a dismissal from service and offering an opportunity for a personal hearing on 25th July, 1971 at 9 a.m. In the Divisional Office.
This notice was received by him on 14th May, 1971 but he neither submitted a written reply nor appeared for a personal hearing on the appointed date. The D.F.O. Held the appellant guilty and ordered his dismissal from service ride the impugned order dated 28th May, 1971. The appellant submitted a departmental appeal against this order to the Chief Conservator of Forests which was rejected vide order dated 13th September, 1971 after affording him a personal hearing on 7th September, 1971.
4. The appellant, however, imputes mala fide to the Range Officer, Pail (who reported against him) and the D.F.O. And vehemently argues that the charges against him are baseless and concocted and the proceed--ings against him are the product of a conspiracy against him by the Range Officer and the D.F.O.
5. In the first place he alleged that his Range Officer, Mr. Muhammad Rafique Bhalli was annoyed with him as the appellant was delaying handing over the charge of his beat in compliance with the D.F.O. Order dated 7th March, 1970 transferring him to Quaidabad Range on the plea that he was awaiting disposal of his representation dated 13th July, 1970 made to the D.F.O./C.C.F. Against the aforesaid transfer order. He contends that instead of acceding to appellant's request for awaiting the result of his representation against his transfer, the said Range Officer caused a proclamation to be made in the area that the appellant was no longer incharge of the beat. Another cause of annoyance of the R. O. According to the appellant was that he refused to pay him a monthly bribe of Rs. 50 which the other forest guards were paying to him. The cause of annoyance of the D.F.O., according to the appellant, was that the appellant had supplied to him on the eve of his sister's marriage such com--modities as ghee, chickens, eggs, etc. Through the R. O. And when he (appellant) demanded the costs of these commodities, the D.F.O. And the R. O. Were highly irritated and the matter came to a head when the appel--lant served the D.F.O. With a legal notice dated 15th March, 1971 through his counsel Mr. Muhammad Bashir Awan for the recovery of the disputed amount after which the said amount had to be paid by the D.F.O. On 16th April, 1971. In support of this plea the appellant had placed on record a photostat copy of the aforesaid legal notice claiming an amount of Rs. 336/4. The appellant submits that it was after the aforesaid incident that the case of disobedience and other charges, as for charge sheet, were concocted against him. In support of this contention the appellant submits that the incident is alleged to have taken place on 6tb April 1970 and the allegations against him involving discipline, misbehaviour, defiance and threats of physical violence and even of use of fire-arms were so serious that in the natural course of events these would have caused a stir and evoked immediate action against him by the superiors, but oddly enough even the first explanation (dated 8th October 1970) was called after a silence of more than 8 months and the charge sheet was served still three months after he submitted his explanation on 18 January 1971. This sudden and belated activity against him by the D. F. O. Is attributed to and synchronises with the appellant's action of demanding and receiving the amount as aforesaid. In support of his allegation of supply of the aforesaid commodities for the D. F. O. Through the R. O., the appellant has placed on record.--
(1) A photostat copy of a written message purporting to be signed by Mohd. Rafiq Bhalli R. O. On 19th October, 1970 and directing the appellant to send the commodities mentioned blow through Nur Khan Peon (the bearer of the message) as the marriage of the sister of the D. F. O. Was about to be solemnized: Chickens 3 dozens, Ghee (desi) 12 seers, eggs 35 dozens.
(The appellant was also directed to return the original) chit through Nur Khan Peon).
(2) Photostat copy of another message dated 14th January 1970 purporting to bear the signatures of Muhammad Rafiq Bhalli dated 14th January 1970, demanding his monthly contribution from the appellant and directing him to send 2 bags of wheat, 4 chickens 2 bottles of pure honey and five seers of Ghee. He was also directed to return the original message.
(3) A receipt purporting to be signed by Nur Khan Peon both in English as well as in Urdu, acknowledging receipt from the appellant of chickens 30, Ghee 10 seers and eggs 20 dozens.
The appellant submits that he has been deprived of an opportunity of defence at the enquiry stage as well as before the D. F. O. In a mala fide manner because of the revengeful attitude of the R. O.
And the D. F. O. The appellant pleads that he had genuinely fallen ill after reporting his arrival at Qaidabad Range on 20th January 1971 and had sent a leave application supported by a medical certificate from the A. M. O., Gunjiai where-after on further deterioration of his condition, he was carried by his relatives to Rawalpindi where the Medical Superintendent, Rawal--pindi advised further rest of two weeks vide his certificate of 3rd May, 1971 addressed to the D. F. O. He thus seeks to establish his illness on 10th May, 1971 the day on which the enquiry was scheduled to be held and of which admittedly he was on notice. Regarding his appearance before the enquiry officer on 10th May, 1971, the appellant avers that despite his illness, he was carried by his relatives on a cot to the Rang; Officer but nobody was present there and after waiting till 2-00 p. m. When, the office time was over, he was taken back and he also issued a postal telegram to the D. F. O. And the Chief Conservator of Forests indicating his attendance, of which he did produce a postal receipt on one of the tearing brat has not placed the same on record. It is thus vehemently argued that designedly no enquiry was held on 10th May 1971 and the postponement of the enquiry to 11th May 1971 without informing the appellant was a device to hold an exparte enquiry to deprive the appellant of his right of putting up his defence. It is thus urged that the enquiry held on 11th May 1971 was ex parte and illegal and cannot be used against him, rendering the entire proceedings thereafter against him as illegal and void:
6. His non-appearance before the D. F. O. For personal hearing for which he had a notice for 27th May 1911, he attributes to his illness and consequent admission as an indoor patient on 26th Mayth 1971 in the Civil Hospital, Kolu Tarar in District Gujranwala of which the D. F. To was duly informed, but the D. F. O. Being inimical towards him took the opportunity to decide the case ex parte against him.
7. In support of his plea of male fide the appellant also relies upon the letter of the D. F. O. Shahpur Division to A. M. O. Gunjial dated 30th April, 1971 in which the former had raised a number of objections or: the medical certificate issued by the latter to the appellant, such as, the issuance of medical certificate without a docket, not taking the signatures of the appellant on the medical certificate and that the appellant was evading his transfer and disciplinary proceedings against him and finally requesting him "to look into the matter and should cancel the already issued certificate". According to the appellant, requesting the A. M. O. To cancel a medical certificate issued by him was clearly indicative of male fide mind of the D. F. O.
8. Since the controversies had been raised before us as to the questions of fact and law and the appellant pleaded lack of opportunity to defend himself, the Tribunal examined three witnesses before it. Mohammad Khan, then Block Officer, Khabaki Range and Nur Mohammad Peon were examined at the request of the appellant, while Mohammad Rafiq Bhalli, the then Range Officer, Pail was summoned by the Tribunal.
9. Mohammad Khan deposed that on 3rd April 1971 when all the range staff had gathered at the Range Office for receiving salaries, the appellant alongwith 3 private persons (unnamed) came and demanded from the Range Officer payment for the articles supplied to him by the appellant and there were some arguments between the two. The R. O. Asked the witness to advise the appellant not to discuss such matters in the presence of private persons. The R. O. Asked the appellant to come to Block Headquarters on 16th April 1971 the R. O. And appellant and the witness boarded a bus for Nowshera where the R. O. Passed some money to the appellant in his presence.
The witness, also stated that the signatures on the photostat copy at Annexures "I & 'J' are similar to those of Mohammad Rafiq Bhalli who had been his R. O. And he was familiar with his signatures. On cross-examination the witness conceded that the village of appellant is at a distance of one mile from his own village. He also stated that the R. O. Associated him because ht was known to be a friend of the appellant. According to him the entire staff of the Range was also present at the Headquarters on 3rd April 1971. He also admitted that the R O had not launched any enquiry against the witness.
10. Nur Khan Peon in his evidence stated that he was a peon under Mohammad Rafiq Bhalli, R. O.
And used to collect such articles as chickens, eggs, etc. For the R. O. On the relevant occasion he stated he carried a letter from the R. O. To the appellant who gave him two baskets one containing about 4-5 dozens eggs and other containing chickens which was large enough to contain about 10 to 12 chickens. He carried the two baskets to R. O. The next day. He did not carry any tin of Ghee. The appellant in order to be sure that there was no pilferage made him to sign a receipt on which he put his signature in Urdu as well as in English. In cross-examination he conceded that he was illiterate and did not know what was written can the receipt. He stated that Rafiq Bhalli had been posted as R. O. About a year and a half before the above incident and the witness had been off and on taking such articles to him. He stated that his village was at a distance of 8/9 miles from the appellant's village.
11. Mr. Mohammad Rafiq Bhalli in his evidence narrated the incident of 5th April 1970 when he proceeded to inspect the beat of the appellant along with Mohammad, Suleman, Mallah Khan, Mohammad Khan and Sher Mohammad Forest Guard. The appellant who met them became furious, used abusive language to dissuade them from inspecting his beat. He blocked their way, he was armed with a gun while the appellant and his party had no fire-arms The appellant also threatened that he had posted his men in the forest with loaded guns. The witness and his party had to make a detour of 4-6 miles to inspect the beat. The appellant abandoned chasing them after 2-3 miles. The witness stated that he made a report to the D. F. O. Of the incident on 6th April, 1970. He did not mention in the report the names of persons accompanying him on that occasion or that the appellant chased there for 2-3 miles. Al--though, as R.O. He was competent to call for explanation of the appellant himself but he did not do so in this case but instead made a report to the D. F. O. As the appellant was not prepared to receive any communica--tion from the witness.
The witness denied receiving articles such as eggs, chickens etc. From the appellant through Nur Mohammad Peon. When confronted with Annexures `I' & ---J' (photostats) he denied having sent any such demand for articles and stated that these were not in his hand and his signatures appeared to have been forged by tracing on the documents. The witness also denied having received a legal notice demanding any payment through Malik Bashir Ahmed Awan, Advocate. He denied having gone to the Range Headquarters on 3rd April 1971 for distributing salaries too the staff or having any altercation with the appel--lant on the question of any payment nor did he make any payment to the appellant. The witness also stated that he appeared for enquiry on 10th May 1971 but was bound down for the next day i.e. 11th May 1971 when his evidence along with other witnesses was recorded by the Enquiry Officer.
12. It is submitted on behalf of the respondents that the appellant was rightly charge-sheeted for the misconduct as charged in the charge---sheet and that the plea of mala fide is an afterthought. It is also contended that the appellant wilfully evaded appearance before the Enquiry Officer and later on before the D.F.O. His plea of illness was false and he was seen moving about, in quite normal health. It was on this account that the D. F. O. Addressed his letter dated 30th April, 1971 to A. M. O., Gunjial when tire latter gave him a medical certificate of illness recommending pct for two weeks and this was not indicative of any male J6de or vindictiveness on the part of the D.F.O. It is submitted that the evasive tactics of the appellant as abundantly borne out by his conduct in maneuvering to be absent at all crucial stages of the case on the plea of illnessand his playing a game of hide and seek with the Department by shifting his abode from one place to another. His leave application was a device to evade service of arty communication from the Department. He sent a medical certificate first from Gunjial, then from Rawalpindi and thereafter from Kalu Tarar (Gujranwala District). It is averred that he was repeatedly advised through letters to submit his reply to the charge-sheet but he failed to do so with the result that recourse to notification in the Press was found necessary to notify to him the date of enquiry as 10th May, 1971 and clearly indicating therein that in case of his failure to attend, ex parte proceedings will be taken up. It is contended that the appellant (who was not ill but was quite healthy and vigilant) on coming to know that the enquiry had been postponed to 11th May, 1971 and that the Range Officer (the Enquiry Officer) was away on 10th May, 1971 made use of this situation by concocting the story of his being carried on a cot by his relatives in a state of illness to the Range Office. According to the learned counsel for the reason--dents this concocted story is absolutely inconsistent with the past and future conduct of the appellant. The appellant's contention that up to 2 p.m. There was nobody in the range office, is strongly controverted as it is argued that it is not conceivable that in the absence of an officer on tour duty, the entire office was empty. It is contended that the Range Clerk was present in the office who bound down all the persons attending in connection with the enquiry for the next day, i.e. 11th May, 1971. The appellant, it is argued kept himself away and cleverly thought it fit to issue a postal telegram to the Chief Conservator of Forests to create an alibi of his presence at the range office on 10th May, 1971. Under the circumstances it is pleaded that the ex parte proceedings of the enquiry on 11th May 1971 were the result of wilful absence of the appellant and did not suffer from any illegality on that account.
13. It is submitted that at the next crucial stage of appearance before the D.F.O. On 27th May, 1971, he managed to produce a medical certificate for illness and admission in the hospital from 26th to 28th May, 1971, at a place Kolu Tarar (District Gujranwala) just to avoid appearance before the D.F.O.
On 27th May, 1971.
14. The main plea of the appellant, on which hinges his entire case, i.e. Mala fide on the part of the R.
O. And the D.F.O., is vehemently denied and it is argued that it is a mere afterthought to undermine an otherwise genuine and unassailable case against him. The R. O. Pail, Mr. Rafiq Ahmad Bhalli strongly refutes the allegation of his producing arty articles as alleged, from the appellant or for demanding any monthly bribe from him. He emphatically denies having written the chits (Annexures I & J) or making any such demand otherwise. According to him (without conceding) even otherwise it should be a stupid act on the part of any official to make such illegal and incriminat--ing demands in writing from his subordinates and the story of the chits on the face of it is untenable. According to hire the chits as Annexures I & J are the product of photographic forgery, his signatures appear to be traced and has challenged the appellant to produce the originals. With these submissions it is argued that the plea of mala fide against the D.F.O. Also falls to the grounds.
Regarding the evidence of Muhammad Khan, Block Officer it is stated that it is unreliable as according to his own deposition he was known to be a friend of the appellant and their villages were also situated quite close to each other. Moreover the incident of 3rd April, 1971 at the range office is not fly denied as the identity of the private person accompanying the appellant has not been disclosed and no one from the entire range staff said to be present on that occasion has been either cited or produced in support of the incident.
Moreover, there is no mention of such an incident in the appeal filed by the appellant before the C.C.F. On 13th June, 1971. Resultantly it is pleaded that the evidence of Muhammad Khan is unreliable and false.
15. The evidence of Nur Khan Peon is also attacked on the grounds of inconsistencies present between his statement and the story of the appellant. Contrary to the story of the appellant, Nur Khan categorically states that he did not carry any tin of Ghee, the baskets of chickens and eggs carried 10-12 chickens and 4-5 dozens eggs as against 30 chicken: and 20 dozens eggs shown to have been acknowledged by him on the receipt signed by him. It is further submitted that on his own admission the witness was illiterate and had no knowledge of what was written in the receipt which he had signed. It is thus pleaded that the evidence of Nur Khan Peon is unreliable and worthless. It is also submitted that in the first reply of the appellant dated 18th January, 1971 to the allegations against him there was no mention of supply of any articles to the D.F.O. Or the R.O. By the appellant. The allegation according to the respondents came as an afterthought in his appeal submitted to the C. C. F. On 13th June, 1971, after the impugned order of dismissal was passed by the D.F.O. On 28th May 1971.
16. We have heard the parties at length. The main argument of the appellant is the allegation of mala fide against the D.F.O. And the Range Officer, Pial (Mr. Rafiq Ahmad Bhalli). In support of this allegation the appellant has placed on record the receipts (Annexe. I & J) purported to lave been signed by Rafiq Ahmad Bhalli and photostat copy of the legal notice which he claims to have sent to the D.F.O. Requiring to reimburse the appellant with the price of the articles he claimed to have supplied to hint on the event of marriage of his sister. It is noteworthy that in spite of demand of the respondents and our directions to the appellant, he was not able to supply the originals of Annex I & J and also produced no material to controvert the assertion of the Range Officer that the aforesaid documents were the product of forgery. The receipt signed by Nur Khan (Annex K) in our opinion is a worthless piece of evidence as according to his own admission Nur Khan Peon was illiterate and had no knowledge what was written on the receipt. This receipt also loses all strength as an evidence as he did not carry any tin of Ghee as stated in the receipt and also the basket of chickens which he was given carried only 10-12 chickens as against 30 chickens shown in the receipt. Similarly there is discrepancy as to the number of eggs carried by him inasmuch as the receipts shows 20 dozens whereas the witness stated that he carried only 4-5 dozens of eggs. As originally stated by the appellant and also narrated in the memorandum of appeal he raised a demand, of Rs. 537 against the D.F.O. Through a legal notice but the photostat copy of the notice is for only Rs. 336-4-0. Moreover, whereas the appellant asserted in his memorandum of appeal that he had served a legal notice on the R. O. Pial as well as the D. F. O. He could only produce before us a photostat copy of the notice claimed to have been served upon the D.F.O. No notice to the R. O.
Pial was produced. The R. O. Pial also denied having received any such notice in his statement before us. As regard the notice to the D. F. O. Issued through Malik Bashrr Awan, Advocate, Jauharabad neither the copy retained by the counsel has been produced, nor any evidence has been produced to show that the notice was actually sent and served upon the D. F. O. The additional fact that this copy of notice was not attached with the original memorandum of appeal and was produced before us at a very late stage of the proceedings does not inspire confidence. In the absence of any evidence of service of notice on the D.F.O. Mere copy of such a notice being placed on record carries no value as an evidence in favour of the appellant.
17. Mohd. Khan Block Officer in his statement before us has conceded that he was known to be a friend of the appellant, that their villages were situated quite close to each other and that it was for this reason that R. O. Pial has asked him to intercede between him and the appellant. Moreover the incident of 3rd April, 1971; regarding altercation between the appellant and the R. O. At the occasion of disbursement of salaries when the entire staff' was present at the Range Office has neither been narrated in the memorandum of appeal nor in the first explanation tendered by the appellant on 18th January, 1971. Similarly it does not find mention in the appeal submitted by appellant to the C.
C. F. Dated 3rd June 1971. Neither the identity of the there; private persons said to be accompanying the appellant at that time has been disclosed nor have they been produced as witnesses and also that no other member of the staff has been produced or cited as witness in support of the incident although the entire staff is stated to have been present on that occasion. Evidence of Mohd. Khan, Block Officer also does not impress us. The incident of 3rd April 1971, clearly appears to be an After thought and we are not inclined to place reliance on the statement of Mohd Khan.
18. It is also observed that in the first explanation of the appellant to the charges dated 18th January 1971, there is no mention of the supply of any edibles, i.e. Ghee, chickens, eggs, etc. To the R.
O. Or the D. F. O. And no mala fide is alleged on that account. It is in our opinion evident that the appellant has failed to bring home his allegation of mala fide against the D.F.O. Or the R. O. Pial.
19. As narrated above the appellant, on his own admission, was on notice for appearing before the Enquiry Officer on 10th May, 1971. We are not impressed by his assertion that he was carried in a state of ill-health on a cot by his relatives to the Range Office for an enquiry and that nobody was present in the Office till 2 p. m. Admittedly the Enquiry Officer had to postpone the enquiry due to his official engagements. According to the respondents the Enquiry Officer had left notice with the Range Clerk for the appellant and other persons attending in connection with the enquiry that the same was postponed to next day, i.e. 11th May, 1971, and all persons other than appellant had got the notice and did appear before the Enquiry Officer next day. In our opinion the appellant either did not attend the enquiry on 10th May 1971, or purposely evaded notice for the postponement of enquiry to the next date and made use of this situation to create a plea of lack of notice for enquiry for 11th May, 1971. His evasion is consistent with his subsequent conduct in evading to appear before the D.F.O. Also on the plea of illness. The appellant has not established any mala fide against the Enquiry Officer (R.O. Mitha Tiwana) beyond a bald assertion that he was a friend of R.O. Pial (Mr. Rafiq Ahmed Bhalli). The plea of the appellant that he attended the range office on 10th May 1971 and nobody was there to inform him of the postponement of the enquiry is thus not believable and is rejected.
20. The appellant has employed the hackneyed manoeuvre of changing his abode and sending medical certificates from different stations one after the other. Firstly he sent medical certificate from the A.M.O. Gunjial and when directed to appear before the M. S. Sargodha, he next showed up at Rawalpindi from where he sent the next medical certificate thus creating a plea of non-receipt of letter of the D.F.O. Similarly after Rawalpindi, he sent the next medical certificate from Kolu Tarar and has the plea of non-receipt of the D.F.O.'s letter directing him to appear before the Director, Health Services. He was on notice to appear before the D.F.O. For personal hearing on 27th May 1971, and this time his medical certificate of illness and admission in hospital at Kolu Tarar from 26th to 28th May, 1971 was remarkably timed to aide over the crucial date of 27th May 1971. As he failed to appear before the M. S. Sargodha and later before the Director, Health Services, Lahore as directed by the D.F.O. We are not inclined to place reliance on, the medical certificate obtained by him from lower authorities from here and there. In the fact of the aforesaid conduct of the appellant his plea of lack of opportunity to defend himself in the enquiry does not hold water and is rejected.
21. The appellant having failed to establish his plea of mala fide and genuineness of the grounds of his non-appearance before the Enquiry Officer and the D.F.O., we do not find any illegality in the impugned order and are not persuaded to interfere with the same.
The appeal is accordingly rejected with no orders at to costs.