ABDUL HAMID KHAN (MEMBER): --The appellant, Saeed Ahmed Pervaiz, while working as Forest Ranger was dismissed from service on the basis of allegations contained in the charge- sheet/statement of allegations served on him by the Conservator of Forests, Bahawalpur vide notice dated 7-6-1983. On the conclusion of the departmental proceedings he was dismissed from service by respondent No. 1/Chief Conservator of Forests, Sargodha. The departmental appeal filed by him was rejected by respondent No. 2/Secretary, Forestry vide his order dated 11-11-1986. The revision petition preferred by the appellant way also dismissed by respondent No. 2 vide order dated 31-7-1990. Meanwhile. He had also submitted the present appeal to this Tribunal on 4-4-1990 along with an application for condonation of delay.
2. The appellant has contended that most of the allegations were directly related to the criminal cases registered against him in which he has since been discharged by the Court of competent jurisdiction; that he could not associate aim self fully with the enquiry proceedings as he was constantly being chased and harassed by the Police; that he was not afforded adequate opportunity to produce his defence; that the enquiry report was based on surmises and conjectures; that the copy of the enquiry report was not supplied to him; that the appellate authority did not give him any opportunity of personal hearing and that the extreme penalty awarded to him was very severe and harsh. Further contended that the appellant had on the bona fide advice of his counsel preferred revision/appeal before respondent No. 2 and as such the delay in filing the instant appeal may be condoned.
3. During the course of his submissions the learned counsel for the appellant further submitted that: (1)Whereas under the Delegation of Powers Rules under the E&D Rules the designated authority in the case of the appellant was the Conservator of Forests, the original order pf punishment dated 12-1-1985 was wrongfully passed by the Chief Conservator of Forests. Likewise, whereas the designated Appellate Authority in his case was the Chief Conservator of Forests, the appeal was considered and decided by the Secretary, Forestry. Since respondent No. 1/Chief Conservator of Forests was neither the Authority nor the Authorised Officer, the impugned order could not, therefore, be passed by him and the entire proceedings have, therefore, been rendered invalid.
(2)The Enquiry Officer has submitted his report/findings without actually conducting any proceedings. Even if the accused civil servant did not participate in these proceedings it was incumbent on the Enquiry Officer to hold the enquiry proceedings properly by recording evidence etc. This omission on the part of the Enquiry Officer has vitiated the entire proceedings.
4. The respondents have rebutted the above contentions and have explained that it was the appellant himself who did not participate in the enquiry proceedings despite numerous opportunities offered to him through written notices and as such there was no other way but to complete the proceedings ex parte. Similarly, a number of notices served on him for personal hearing before various authorities were also not responded by him. He neither made personal appearance before them nor submitted anything in writing in his defence. Not only that a copy of the recommendations of the Authorised Officer was provided to him but the enquiry report was also sent to him by the Authority. The respondents were, however, unable to meet the objections raised by the learned counsel for the appellant relating to the competence of the Chief Conservator of Forests in awarding the punishment as also the failure of the Enquiry Officer to conduct the proceedings in accordance with law.
5. In an almost identical case reported as 1986 PLC (C.S.) 719 (Muhammad Ilyas v. Chief Conservator of Forests) in which too a Forest Ranger was the aggrieved party and the orders had also been passed by the Chief Conservator of Forests, this Tribunal had observed as under: "I have given my anxious thought to the arguments advanced by the parties and find lot of force in the argument of learned counsel for the appellant that the show-cause notice was required to be served by the Authorised Officer and not by the Authority as clarified in the Delegation of Powers Rules, 1962, as amended by Government Notification No. SORI (S&GAD) 15-6/73, dated 25-9-1975, according to which Conservator of Forests is `Authority' and Divisional Forest Officer is the `Authorised Officer' for Forest Rangers, as defined in Rule 2, sub-rule (3), Chapter I of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. Thus the respondent No. 1 was neither Authority, nor Authorised Officer to initiate any action against the appellant and to pass any order thereon, the entire proceedings become illegal, without jurisdiction and cannot be confirmed, and the impugned orders are liable to be set aside on this score alone."
6.Similarly, in the case cited as 1992 PLC (C.S.) 341 (Azizur Rehman Khan v. Registrar, Cooperative Societies, Sindh and 2 others) in which no enquiry was held by the Enquiry Officer, the learned Service Tribunal Sindh had observed as under: - ---------even after declaring the deceased appellant as ex parte, no enquiry was ever held nor any material allegedly proving the charges levelled against the appellant was brought on record.
Mere absence of the deceased appellant from the enquiry proceedings was no reason to relieve the Enquiry Officer of his duty of holding the enquiry. Obviously he failed to discharge the duty assigned to him. The absence of the deceased appellant could not be held as proof of the charges which were required to be established independently by reliable evidence oral or documentary admittedly neither any witness was examined by the Enquiry Officer nor he took into consideration any document in arriving at the conclusion that the charges were proved against the deceased appellant. Obviously the Enquiry Officer had absolutely no basis for the finding recorded by him in his report."
7.In the case reported .As PLD 1992 SC 825 (Muhammad Masihuzzaman v. Federation of Pakistan through Secretary, Establishment Division and another), it was held by the Hon'ble Supreme Court that no bar of limitation was attracted nor any question of laches would arise if there was a continuing wrong and that it would arise only if the impugned order was "unconstitutional, inoperative and void and was not well founded". As shown above, the impugned orders in the appeal before us are void and not well founded. The delay in filing the appeal is, therefore, condoned.
8. Thus respectfully following the dicta laid down in the aforesaid two judgments mentioned in paras. 5 and 6 (supra) but without going into the merits of the case we proceed to accept the appeal, set aside the impugned order and remand the case to the competent authority to proceed afresh against the appellant, if it so desires, strictly in accordance with the rules. The appellant is reinstated in service with effect from the date he was dismissed. The intervening period during which he remained out of service shall be, decided by the Authority itself for purposes of grant of pay etc. There are no orders as to costs.