1. ' MUNAWAR ALI KHAN (CHAIRMAN).--This case embarked on its journey over a decade ago when the appellant Achar Khan was Range Forest Officer (R.F.0) Nala Range . As a first step towards departmental proceedings initiated against him he was placed under suspension on 3-7-1974. It was followed by service of charge-sheet on him containing the charge of connivance at the damage caused to the Forests in the appellant's Range and other allied charges. Mr. Afaq Muhammad Khan, RFO, Silvi Cultural Range, Hyderabad who was appointed as Enquiry Officer, after completing the enquiry, submitted his report to the Conservator of Forest, Hyderabad (Respondent No,1). The said respondent acting as Authorized Officer passed order dated 28-8-1975, imposing major penalty of dismissal from service against the appellant. This order was challenged in appeal made to the Chief Conservator of Forests (Respondent No,2) but as no decision was taken by him within 90 days the appellant filed Service Appeal No,5 of 1976, before this Tribunal. The appeal was allowed vide order of the Tribunal dated 9th June 1977 leaving it open to the Department to proceed against the appellant afresh accordance with the rules.
2. ' Despite the specific directions of the Service Tribunal, neither fresh charge sheet was served on the appellant nor fresh proceedings were taken against him. Instead Respondent No,2 obviously acting as Authority passed order dated 5th November, 1977 *whereby not only the appellant was dismissed from service but also the amount of Rs,1,11,700 equivalent to half of the damage was directed to he recovered from him. The appellant went in appeal against this order to the Secretary, Government of Sind Forest Department who allowed the appeal by his order dated 31st March, 1980 directing that the appellant be first reinstated and. Thereafter fresh charge-sheet be served on him , and further proceedings he taken in accordance with the Efficiency and Discipline Rules. Accordingly the respondent No, -1 issued a fresh charge to be served on the appellant vide his letter dated 26-8-1980 and appointed Mr. Abrar Hussain Mirza, DFO, Afforestation Division, Nawabshah as Enquiry Officer by his order dated 6-10-1980. However, the.Said charge-sheet was once again withdrawn by the respondent Nb. 1 by his order dated 8-2-1981. On the following day (i,e,9-2-1981) the DFO Afforestation Division, Hyderaodd issued a fresh charge-sheet which was verbatim the same as was issued on 12-12-1984, except with minor change in the figure of stacks.
3. Mr.Abrar Hussain Mirza who was retained as Enquiry Officer held the necessary enquiry in which he recorded statements of four witnesses and examined the requisite documents and other relevant record. On completion of the enquiry, he submitted his report. In the wake of the enquiry report, final show-cause notice was served on the appellant who was also supplied a copy of the report. In the said notice he was called upon to state if he needed personal hearing. Although the appellant submitted his reply to the show-cause notice, he did not avail, the opportunity of personal hearing ultimately the respondent No,1 by his order dated 7-6-1981 dismissed the appellant from service with a direction that the amount of Rs,1,12,325 be recovered from him. The said order was allegedly served on the appellant on 10-6-:)81 where after he filed departmental appeal to the respondent No,2 on 9-7-1981. After lapse of nearly three years, the Chief Conservator of Forests by his order dated 5-8-1984, dismissed the appeal. The appellant then filed present appeal on 4-9-1984 before this Tribunal.
4. ' Fairly lengthy arguments were made by 'the learned counsel for the parties and with their help we went through the relevant record which was also quite bulky.
5. ' The charges contained in the memo. Of allegations dated 9-2-1981 which was served on the appellant may be summarized as under:--
(1) With connivance of the appellant damage was caused in the Forests in his charge in the form of ruthless cutting and lopping of trees including the cutting of the reserved trees in contract areas, unauthorized charcoal making and misuse of hammer mark, whereby the Government sustained a huge loss of Rs,10,48,229.32.
(2) After his suspension the appellant did not hand over the charge of his duties to his successor Imam Ali Shah who therefore had to assume the charge. The appellant continued to reside in Hata Range quarter even after having been relieved of the charge.
(4) The appellant did not cooperate with the assessment party set up for assessment of the extent of damage having occurred in the Forests but he rather hindered the task of the party by various ways.
6. ' However as disclosed in the final show-cause notice vide letter of the Respondent No,1, dated 25- 5-1981, the appellant was intimated that the Enquiry Officer has held him guilty for the damage caused in (the Forests of) Nala Range amounting to Rs,2,14,650 and that the said respondent agreeing with the findings of the Enquiry Officer has held him guilty of the charge of misconduct.
7. The impugned order shows that the appellant has been punished for the aforesaid charge.
8. Accordingly we have to concentrate on the findings of the Enquiry Officer as rggards the damage attributed to connivance of the appellant. In other words we have. To see how far the conclusions arrived at by the Enquiry Officer are justified.
9. ' Taking up the charge of damage, we may refer to the abstract of the damage for which the appellant has been charge-sheeted. It appears at page 3 of the Enquiry Report. It comprises three items. The items No,2 is with regard to the damage resulting from lopping of 70% to 80% of trees. In terms of money this loss has been estimated hs three lacs. However, we need not waste our time on discussion of this item, because the Enquriy Officer has exonerated the appellant from the liability of the said loss in the following words:-- "I give full benefit of doubt to the accused and exonerate him from the charge of lopping damage levelled against him and his accomplices."
10. ' The other damage as reflected in the abstract arose from cutting of babul and kandi trees beside cutting of reserved trees. The total loss on this account has been specified as 344.71 Stacks. As is clear from the enquiry report the Enquiry Officer has obviously considered the statements of the witnesses recorded in course of the enquiry and has consulted the relevant record including the booklets prepared by the assessm ent party set up for assessment of losses for arriving at his conclusions. The enquiry report shows that after making deduction owing to certain allowances given by the Enquiry Officer the net loss worked out to 99.17 Stacks. Thus even the loss in terms of money caused to Government got reduced from Rs,7,48,279 to Rs, 2,24,650 (figure mentioned in the final show-cause notice). The reasoning for the deductions allowed by the Enquiry Officer as given in his report is as follows.
11. "Against 344.71 Stacks, 41.98 Stacks have been supplied to flood affected families as per record produced by the prosecution side 73.68 Stacks cut and supplied to PWD vide Divisional Forest Officer, Hyderabad letter No, Bl.b. Ii/183, dated 17-7-1975, 31 Stacks booked as damage by various subordinates, 6.2 Stacks amounting to Rs,29,624.50 as paid value and compensation of recovered trees from contractors. 52 Stacks towards 15% tapering allowance from measurements taken at stamp level and 0.69 stacks for 15 trees included in the list of Khobrani Forest Comptt: No,14 Green Wood cut 1975-76 (The list includes volume for 2522 trees whereas the list prepared by Mr. Qadri, Surveyor shows 2507 trees standing as reserved trees). Thus the total deductions are arrived at 245.54 and the net unhooked damage precipitates out to 99.17 Stacks."
12. ' The defence put in by the appellant in reply to the charge-sheet has been noted in the enquiry report at pages 5 and 6 thereof. One of the points raised by the appellant in his defence as regard the allowance/deductions has obviously been fully met with, as is clear from the observations of the Enquiry Officer reproduced above. His next objection that the damage was wrongly calculated and much exaggerated is obviously too vague to need any reply. Moreover the original figure of loss (344.71 Stacks) as stated in the charge-sheet has considerably come down as a result of close scrutiny done by the Enquiry Officer and the net loss calculated by him works out only 99.17 Stacks.
13. Thus even if there was any error or exaggeration in the figure of the loss, it seems to have been considerably rectified as the figure of the net loss arrived at by the Enquiry Officer has remained only 1/3rd of the original figure. The appellant's other objection was that damage lists also included the damage that did not occur during the period of his posting at Hala Range. In our opinion this objection was devoid of any truth. Obviously charge-sheet served on the appellant was based on the information of the loss collected for the period preceding his handing over of the charge. As such it is beyond comprehension how the material collected after his relinquishment of the charge came to be part of the charge sheet. Similarly it is incredible that the damage that occurred prior to the appellant's taking over the charge of Hala Range was included in the charge-sheet. In fact no material has been produced by the appellant to draw such inference. Likewise no authentic material was laid before the Enquiry Officer to lend support to the appellant's other objection, namely the felling of the reserved trees in thinning areas by various contractors which was reported from time to time; that value of pollarded trees stood recovered; that work in thinning areas continued even after expiry of contract period and after his handing over of the charge of Hala Range and as such the removal or most of the reserved trees was not reported by his successor and that manufacture of Charcoal by the Contractor Haji Usman took place when Mr. Imam Ali Shah, R.F.O. Was Incharge of Hala Range. Moreover as has been stated in the enquiry report, all these allegations have been given due attention by the Enquiry Officer.
14. ' Apart from the appellant's defence which found its way in the enquiry report, we would also refer to his reply dated 2-6-1981 which he submitted in response to the final show-cause notice. His initial objection in the said reply was that the figure of the loss given in the charge-sheet does not tally with the figure of loss relied upon by the Enquiry Officer. We have checked the details of the total loss mentioned in the charge-sheet and have found that there was no discrepancy as has been pointed out by the appellant. He has further complained that unlike the previous Enquiry Officer who had given 25% rebate, the present Enquiry Officer, has allowed only 15% rebate. We feel that findings of both the Enquiry Officers on the point of percentage of the rebate should not necessarily be the same. In this connection we may reproduce the views expressed by ire present Enquiry Officer. They are as under:-- "From the data gathered by the departmental working in well-managed forests, it is proved beyond doubt that the outturn is exceeded by 10.15% of the volume worked out from the volume tables. Thus, a tampering allowance of 15% is more than sufficient. Actually this rebate should not have been given to the accused because he had been very clear and purposely up-rooted the stumps at the time when the abkalani season was approaching."
15. ' We are of the view that the Enquiry Officer's observations as mentioned above should serve as appropriate reply to the appellant's objection about the rebate.
16. ' The appellant has also complained in his reply that the Enquiry Officer did not take into account the specified number of Kandi and Babul trees pollarded by habitual offenders for which report was made by him to the R.F.O. By his letter dated 5-7-1974. Furthermore, the appellant wanted his letter to be treated not only as proof of the booking of the damage but also of the fact that the said offenders were already challaned. We regret we cannot attach so much credence to his letter in absence Of reliable evidence to that effect. Apart from above the appellant has raised number of other points in his statement in reply to the final show-cause notice which according to him were not taken into consideration by the Enquiry Officer. As a matter of fact excepting one or two points which were raised by the appellant even in his previous reply to the charge-sheet, the remaining points were highlighted for the first time in his reply to the final show-cause notice. Therefore to say that they were not considered by the Enquiry Officer was quite unjustified. Since they were not .Agitated before the Enquiry Officer, the question of their consideration by him did not arise.
17. ' After thorough study of two replies furnished by the appellant - first in reply to the charge-sheet and second, in reply to the final show-cause notice the significant point to note would be that he had not denied that the damage had occurred in the Forests of the Range in his charge, though according to him the extent of the damage highlighted in the charge-sheet as well as in the enquiry report was exaggerated.It was also clear from his defence that he had seen the documents which spoke of the damage. His statement; "damage lists included the damage which occurred before and after his stay as R.F.O. Hala." is indicative of the fact that he had gone through the damage lists which, according to him, included even the damage relating to the period when he was not R.F.O. Of the said Range.Thus it would not be unjustified to hold that this is not -a case of "Much Ado About Nothing" as the appellant's learned counsel wanted us to believe. According to the learned counsel as if nothing had happened and the appellant had been involved in totally false charge.
18. ' In all four witnesses were examined in course of the enquiry. They are: Mr.Akhter Hussain R.F.O.
19. Mr.Abdullah .Soomrani, R.F.O., Mr.Ubaid Hashmi R.F.O. And Mr. Imam Ali Shah R.F.O.They adopted their statements recorded in course of the previous enquiry and therefore were only cross- examined by the appellant on their previous statements. We have perused their statements which have no doubt proved the damage caused to the Forests incharge of the appellant. But their statements have not given the details of the damage. Of course as pointed above the Enquiry Officer had consulted the damage lists prepared by or under supervision of the aforesaid witnesses.Even the appellant had admittedly seen the said lists. Despite all this, we are doubtful about the figure of the actual damage arrived at by Enquiry Officer as he has discussed in enquiry report. Our doubts are deepened by the following observations of the Enquiry Officer made in the enquiry report: "From perusal of the assessm ent booklets prepared by assessment party for Matiari block, it is evident that someone from the office of Divisional Forest Officer Afforestation Division, Hyderabad has collaborated with Mr.Achar Khan R.F.O. And has very cleverly tampered with original record on which enquiry has been based.Thus in many cases the birth classification has been reduced by overwriting, erasing and rubbing the original figure. While preparing charge-sheet, a figure of 103.67 Stacks was calculated from the unhampered record for Matiari block but surprisingly this figure was alarmingly reduced to 50.42 stacks when the attested copies were supplied to Mr. Muhammad Achar Khan R.F.O. By the D.F.O. Hyderabad.
20. ' Thus by the time enquiry was held by Mirza Abrar Hussain D.F.O. The record showing the damage had already been tampered with and hence there was a vast difference between the figure of the damage calculated for the charge-shee and that mentioned in the attested copies supplied to the appellant May be the appellant had hand in the said tampering but in absence of authentic proof h cannot be condemned for the said mishap.
21. ' It appears to us that from the material available on record all that has been established is that extensive damage was detected to have occurred in the Forests within the Hala Range when the appellant was in charge of that Range. No satisfactory evidence is forthcoming to determine its exact extent. However since the appellant was in charge of the Range at the reverent time, he could not escape his liability irrespective of the magnitude of the damage. Therefore, it would not be unjustified to conclude that whatever damage was detected in the Range in charge of the appellant, it was done with his connivance. In support of our findings we may reproduce the relevant observations of the Enquiry Officer as under: "The connivance of the accused is proved from the fact that he did not hand over the charge to his successor, Mr.Imamali Shah R.F.O. Who assumed the charge. His ulterior motives are further proved from the fact that he remained at Range Head QuarterIt difficult to establish the statement of Mr. Achar Khan RFO regardin: damage at accelerated pace during the days of his successor Mr.Imamali Shah, RFO because no substantial evidence has been produced by the accused. The facts rather go against him because the charge of Hala Range was not at all handed over to Mr.Imamali Shah R.F.O. Who rather assumed the charge and remained in charge of Hala Range, for the period of couple of weeks Damage done by RFO, within 15 days at such a large..Scale :s out of question and rather impossible . As for the charge of misuse of..Hammer Retention of hammer for a ,period of more than 5 months even if not misused win not absolve him of the charge and I believe that the hammer was purposely retained by him................................................................................ Mr.Muhammad Achar R.F.O. Was placed undersuspension on 3-7-1974 by Conservator of Forests Aff: Circle, Hyderabad and his headquarter during suspension period was fixed at D/Office at Hyderabad.
22. ' The accused R.F.O. Failed to hand over the charge of Hala Range to his successor Mr. Imamali Shah R.F.O. Who finally assumed the charge on 10-7-1974. In the defence statement Mr.Achar Khan R.F.O. Has admitted that he was at Police Station Hala on 10-7-1974 when Imamali Shah came to Range Office. The Range Office is next door to Police Station. From it it appears that accused official willfully absconded from the headquarter and remained in hide out so as to avoid handing over of the Range Charge to his successor."
23. ' In view of the above discussion we hold the appellant guilty for his connivance over the extensive damage in the vicinity of 99.17 Stacks done in the Forests of Hala Range in his charge.
24. As for the punishment inflicted on the appellant, we may not overlook the long service that he has rendered in the Forest Department. Moreover the appellant alone was not responsible for the unfortunate loss sustained by the Govt. The Foresters and Forest guards working under the appellant also shared the responsibility. Accordingly, we are of the view that penalty awarded to the appellant is too severe. The penalty of compulsory retirement from service would meet the ends of justice. Therefore the penalty awarded to the appellant is substituted by compulsory retirement. Subject to this modification in the penalty, the appeal is dismissed with no order as to costs. Dismissal substituted with Retirement.