' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).---By this appeal under rule 3 of the Civil Service Appeal Rules, 1977 (mistakenly mentioned-it should be under section 4 of the Service Tribunals Act, 1973) filed by her on 5-8-2000, the appellant, above named, has challenged the order passed by the competent authority vide Notification dated 8-3-2000 modifying the penalty of her compulsory retirement and imposing a minor penalty of withholding of one annual increment for a period of one year'. She has also assailed the order dated 13-7-2000 of the CBR (Revision Division) whereby her departmental appeal was not entertained alleging that she had already availed the appellate stage/opportunity of appeal which had resulted in her favour.
2. In the memo of appeal, the appellant has prayed as under:--
(a) Notification No,78-ITE/2000 dated 8-3-2000 be declared as null and void.
(b) The order imposing the penalty may please be declared as illegal.
(c) The appellant may please be declared as exonerated/acquitted of all the charges.
(d) The appellant may plese be granted all the benefits which have been derived to her since the initiation of these un-merited disciplinary proceedings."
3. Briefly, the facts of the case are that, after passing the CSS Examination, the appellant was inducted into service as Assistant Commissioner Income Tax (BS-17) (for short ACIT). She was promoted to the post of Deputy Commissioner of Income Tax (BS 18) (for Short DCIT) on 22-10-1995.
She claimed to have unblemished service record but on 9-4-190, she was suspended along with many other colleagues of her's. Then one after the other following charge-sheets (along with statements of allegations) were issued to her
(1) First charge-sheet dated 14-5-1997;
(2) Second charge-sheet dated 19-5-1997;
(3) Third charge-sheet dated 25-6-1997 in continuation of charge-sheet dated 19-5-1997.
' No statement of allegations was issued with charge-sheet dated 14-5-1997 and it was withdrawn.
In all the above charge-sheets, Asad Arif, Regional Commissioner of Income Tax Southern Region, Karachi was appointed as inquiry officer. Statement of allegations with charge-sheets dated 19-5- 1997 and 25-6-1997 are reproduced as under:-- "Statement of allegations pertaining to the charge-sheet dated 19-5-1997.
STATEMENT OF ALLEGATIONS ' Mrs. Lubna Ayub Asif, a BS 18 officer of Income Tax Group, enjoys a general reputation of being a dishonest and corrupt officer.
(2) Mrs. Lubna Ayub Asif, while posted as BS-18 and BS-17 officer of the Income Tax Group has, not been regularly filing declaration of assets for each calendar year which is in violation of rule 12(2) of the Government Servants Conduct Rules, 1964.
(3) She visited abroad quite a few times as per available record during her service and her own sources and the sources of her spouse do not permit to spend such huge amounts on foreign trips out of his known source of income.
(4) Mrs. Lubna has persistent reputation of being corrupt and her style of living is apparently beyond her known means of income. There is also reason to infer that her pecuniary assets are disproportionate to her known means of income.
(5) The aforementioned acts of omission and commission on the part of Mrs. Lubna Ayub Asif, tantamount to misconduct under the Government Servants (Efficiency and Discipline) Rules 1973."
"Statement of allegations pertaining to the charge-sheet dated 25-6-1997.
STATEMENT OF ALLEGATIONS ' Mrs. Lubna Ayub Asif, Deputy Commissioner of Income Tax, (BS 18) (under suspension) is accused of corruption/misconduct arising out of the following acts of omission and commission--
1. You, Mrs. Lubna Ayub Asif while posted as BS-18 and BS-17 officer of the Income Tax Group failed to file the annual declaration of assets for the years 1990, 1991, 1992, 1993, 1994 and 1995 in violation of rule 12(2) of the Government Servants (Conduct) Rules.
1964.
2. As per record available, you undertook private foreign visites during your service on the following dates.
Country visitedDuration of stay Purpose of stay
(i) Singapore 10 days (from 26-1-92 to 4-2-92) Honeymoon after marriage.
(ii) Saudi Arabia10 days (from 19-1-94 to 28-1-94) Performance of Umra
(iii) U.K. (London)40 Days (From August to September, 1996)Father's medical treatment.
' The expenses on visit to Singapore and Saudi Arabia were shown to be incurred by your husband but your own sources and sources of your spouse do not permit you to spend such huge amounts on these trips.
"Further, in your application dated 4-7-1996, requesting for meeting the expenses of your father's medical treatment abroad by the Government you had shown your father as dependent upon you, whereas I Co. IV of your application pro forma dated 24-7-1996 for grant of ex-Pakistan leave, you had shown your father as "businessm an" and all the expenses on your visit including your father's treatment abrod were claimed to have been financed by your father. This is clear contradiction of statements. The expenses were apparently borne by you which cannot be justified from your known source of income i,e, salary.
3. You had declared assets held by your husband worth Rs,7,03,000 comprising of car, at Rs, 3,25,000 cash/bonds at Rs,2,48,000 and a plot in Lahore at Rs,1,30,000. Your husband is employed as Sales Officer in Duty Free Shop and was drawing salary of Rs,6605 P.M. In 1992 as per information furnished by you. The assets declared cannot be justified from the declared source of income i,e,, salary."
' On 16-7-1997, the Appellant replied both the charge-sheets dated 19-5-1997 and 25-6-1997. Asad Arif Regional Commissioner of Income Tax, Southern Region, Karachi held a detailed inquiry into the charges/allegations against the appellant. As per the appellant, she learnt that she was exonerated by the inquiry officer, as no charge/allegation was proved against her. However, it was alleged that copy of inquiry report was not given to her and a fresh charge-sheet dated 29-11-1997 was issued to her containing the same allegations of the charge sheets dated 19-5-1997 and 25-6- 1997, for de novo inquiry by another inquiry officer namely Muhammad Dawood Tahir, Director (Enquiries). The appellant again denied the charge relying on the earlier reply dated 16-7-1978 to the second and third charge-sheets. At the same time, she raised serious objections against the appointment of another inquiry officer. An extensive inquiry was held by Muhammad Dawood Tahir. A copy of the inquiry report dated 10-3-1998 was supplied to the Appellant along with second show-cause notice for imposing major penalty issued by the authorized officer through letter dated 20-3-1998. The appellant submitted a detailed reply dated 26-3-1998, repelling the charges against her. The authorized officer granted personal hearing to the appellant which took place on 2-4-1998 at Islamabad. Thereafter, on 16-4-1998, the competent authority imposed a minor penalty of withholding of one increment of the appellant for a period of one year. Againit such minor penalty, the appellant preferred a departmental appeal on 20-8-1998, but having received no reply within the statutory period she filed appeal No,1934 (K)/98 before the Tribunal on 2-12- 1998. During the pendency of the said appeal the Government authority imposed major penalty of compulsory retirement on the appellant in exercise of power vested in him under Rule-3 read with rule 6-A of the Government Servants (Efficiency and Discipline) Rules, 1973; vide notification dated 4-8-1998. The appellant preferred another departmental appeal on 25-8-1998 against her compulsory retirement, but having not received any reply thereof, she preferred appeal No, 1984 (K)/ 98 before the Tribunal on 21-12-1998 against the penalty of her compulsory retirement.
Subsequently, vide notification dated 8-3-2000, the competent authority accepted the departmental appeal of the appellant whereby notification dated 4-8-1998 of compulsory retirement of the appellant was withdrawn and the penalty of compulsory retirement from service was modified into withholding of one increment for a period of one year, hence, this appeal No, 143 (K)CS/00. Earlier appeal No, 1934(K) of 1998 against minor penalty of withholding of one increment and appeal No, 1984(K)/98 against compulsory retirement were withdrawn by the appellant on 23- 1-2001.
4. In the written comments, the respondents initially objected to the maintainability of the appeal in law and on facts of the case, as the appellant had already availed the appellate stage/opportunity of appeal which resulted in her favour, therefore, her appeal was not entertainable under the relevant rules/instructions. They stated that the appellant had no cause of action to file this appeal.
The respondents stated that the appellant had earlier filed appeal No,1934(K)/1998 which she had already withdrawn. The respondents admitted the factum of the first inquiry held against the appellant and explained that the copy of said inquiry report was not given to her as no action was taken against her on the basis of the inquiry report. About the de novo inquiry (second inquiry), it was stated by the respondents that in the light of the facts of the case holding of second inquiry was considered necessary. Other undisputed facts of the case were admitted by the respondents.
Finally, it was stated that the major penalty of compulsory retirement was imposed upon the appellant on the basis of the finding in the inquiry report but the said penalty was ultimately modified to minor penalty of withholding, of one increment for a period of one year, which action, according to the respondents, was correct and justified.
4-A. We have heard the learned counsel for the parties carefully and perused the record of the case. We have also gone through the authorities cited at the bar.
5. The learned Counsel for the appellant argued that entire disciplinary proceedings against the appellant were mala fide and aimed at embarrassing and harassing the appellant with a pre-set mind to victimize her and spoil her career by levelling extremely serious allegations against her which could not be proved in the first inquiry held against the appellant; that repeatedly charge- sheets were issued to the appellant and without any justification or assigning any reasons for appointing another Inquiry Officer and holding de novo inquiry, the appellant was subjected to vexing her twice which amounted to double jeopardy'; that the respondents shelved the first inquiry report which was favourable to the appellant exonerating her of all the charges levelled against her in order to obtain the findings of their own choice; that in the second inquiry no serious charge was proved against the appellant except that the inquiry officer was able to lay his finger upon two trivial matters only viz., the failure of the appellant about properly accounting the profit of Rs,60,000 earned by her husband in connection with sale of his second hand car and marking an application dated 4-7-1996 to the Director General Health for incurring expenses of the treatment of her father abroad; that during the first inquiry before Asad Arif both questions of car and the said application came up for explanation of the appellant; that the appellant had explained that the car in question was one of the items of the assets of the appellant husband shown in the year 1992; that the said car was in possession of the appellant's husband since 1989 i,e, prior to her marriage with him and he had sold it for Rs,1,85,000 against a receipt produced by her which was not rebutted by the departmental prosecutor and the inquiry officer was satisfied by the explanation of the appellant; that the said inquiry officer, therefore, did -not give any adverse finding in connection with the car of the appellant's husband; that about the application dated 4-7-1996, the appellant had stated that her father was dependent upon her being an old and ailing person, but she had never said that her father was financially not able to meet the expenditure of his treatment; that thinking that she was entitled to the treatment of father at Government expenses of her father, the appellant had made the said application for incurring the expenses of her father's treatment by the Government as per her entitlement; that there was no contradiction in the statement of the appellant about the financial position of her father and the application she had made for his treatment; that the reply of the appellant had satisfied the inquiry officer, who had not given any adverse finding on that score, against the appellant; that no charge/allegation against the appellant as set out in the charge-sheets dated 19-5-1997 and 25-6-1996 was proved against the appellant as per inquiry report, simple copy of which the appellant had acquired subsequently when the Tribunal directed both the parties to file copy of such inquiry report; that the learned counsel for the respondents had not filed copy of the inquiry report in question, but the appellant had given a copy of that inquiry report to the Advocate for the respondents, who did not rebut the contents of findings in the said inquiry report; that the exhaustive inquiry report favourable to the appellant was deliberately hushed up by the respondents and without any cogent reasons, another inquiry officer of equivalent grade was appointed for holding de novo inquiry; that in the de novo inquiry no charge was proved against the appellant except the adverse findings with regards to the car of appellant's husband and the application of the appellant for incurring expenses by the Government on the treatment of her father; that in the second inquiry the respondents did not rebut that the appellant had been in possession of the car in question since 1989 as shown in the statement of assets in the year 1992; that the inquiry officer had himself stated in paras. 4, 7, 3 of the inquiry report that the arguments of the appellant to the effect that the assets of her husband as on 31-12-1992 including the car in question pertained to the period before her marriage could not be brushed aside easily; that profit on selling the car was unnecessarily made an adverse point by the inquiry officer, as it is a matter of common experience that like immoveable property the market price of cars had always been appreciating and increasing; that it should be appreciated that the inquiry officer could not pick any other hole in all the assets of the husband of the appellant who; that not satisfied with inflicting minor penalty on the appellant on contradictory findings of the two inquiry officers the competent authority without any notice to the appellant and without any plausible reason chose to inflict major penalty of compulsory retirement upon the appellant but when she challenged the same action before the Tribunal; the respondents perhaps realized the illegality committed by them and withdrew the major penalty of compulsory retirement however, they again imposed the same minor penalty on the appellate forgetting that after withdrawing the said penalty earlier they could not legally re-impose the same penalty which amounted to subjecting the appellant to 'double jeopardy' that the respondent did not stop there but prevented the appellant from approaching the appellate authorities against the minor penalty against imposed upon her, by not entertaining her departmental appeal on the ground that she had already availed the remedy of appellate stage earlier; that such contention of the respondents was incorrect for that reason by imposing minor penalty again on the appellant the respondents had given to her fresh cause of action to file a departmental appeal; that the appellant was made to suffer mental torture over years for nothing by suspending her which was reported in press and by levelling against her very serious allegations which defamed her unnecessarily. In view of his arguments the learned counsel for the appellant passionately urged the Tribunal to save the appellant from victimization and spoiling of her career by allowing her appeal and setting aside the order of minor penalty which might create hindrance in her other otherwise unblemished career. In support of his arguments, the learned counsel for the appellant relied on the judgment of this Tribunal reported in 2005 PLC (C.S.) 614 (Syed Shah Sawar and others v. Karachi Electric Supply Corporation Limited and others).
6. The learned counsel for the respondents relied on the written comments filed on behalf of the respondents. He reiterated that the appeal was not maintainable as there was no provision in law for second appeal. He relied on NLR 1990 TD 281. He urged that the minor penalty of withholding of one increment for one year in respect of finding of the inquiry officer with regard to the quantum of profit earned by sale of the car of her husband and the application for treatment of her father was neat and proper; hence, he urged that such penalty be maintained.
7. We have carefully considered the arguments of both sides and assiduously examined the appeal file.
8. A perusal of the record shows that the appellant had an unblemished record of about nine years service when vide order dated 4-9-1997 she was placed under suspension along with other officers and as per arguments of her learned counsel, such suspension was published in the press.
Thereafter, three charge-sheets were successively issued to her levelling serious allegation of her invokment in corruption, having, a persistent reputation of being corrupt and having style of living apparently beyond her known means and income etc. A senior officer of BPS-20 viz. Asad Arif held a very detailed inquiry into the allegations against the appellant but as per his inquiry report none of the charges were proved against the appellant, even so, a fourth charge-sheet was issued to her containing almost the same allegations and inspite of her detailed reply to the charge-sheet, de novo, inquiry was ordered against her by another inquiry officer of equal rank i,e, BPS-20 namely, Muhammad Dawood Tahir Director, Inquiries Wing, CBR Islamabad.
9. Legally speaking, the competent authority was not bound to accept the findings of the earlier inquiry report and he had the power to appoint a new inquiry officer, but he could do so only for some tangible reasons to be recorded in the order of de novo inquiry and appointing the new inquiry officer. That for doing so the competent authority was bound to give reasons in accordance with the provisions of section 24-A of General Clauses Act.
10. On objection during the inquiry by the appellant about appointing by the authorized officer to hold second inquiry by a new inquiry officer, vide Circular No,9/95 dated 19-11-1995, the matter was referred by Enquiry Wing, Central Board of Revenue, Government of Pakistan Islamabad to the Establishment Division to seek their advice on such points. The question was examined by the Establishment Division which, relying on PLD 1982 Lhr. 525, was of the opinion that where there was no prohibition in the Government Servants (Efficiency and Discipline) Rules, 1973 for holding second inquiry by a new inquiry officer, authorized officer, who was not bound to accept the findings of the earlier inquiry, could order second inquiry by another inquiry officer which would be deemed to be permissible in the absence of any prohibition. However, in the same Circulation No,9/95 of CBR (Inquiry Wing) (at pages 58-59, annexure 'G'), another authority PLC 1985 (C.S.) 711 was cited and following excrept from it was reproduced as under:-- 'The best course for the Secretary should have been to stay his hands and refer the matter to the Government for appointment of another inquiry officer/authorized officer. Due care and caution, fair play, reasonableness and justice all demanded that."
' In the same circular, the advice of the Law and Justice Division was also reproduced, which is as under:- "3. There are nothing in the Government Servants (E&D) Rules 1973, that prevents the authorized officer or the authority from changing the inquiry officer and ordering fresh inquiry but there must be good reasons for doing so and it should not have the semblance of second trial. An Inquiry officer cannot be changed merely because he had returned a verdict in favour of the accused and against the authorities. As matter of fact and policy, this power should be very rarely and exceptionally exercised only in case where very strong reasons would justify the same, as otherwise the action may be hit by Article 13(a) of the Constitution."
' From the material reproduced above, only one conclusion can be drawn which is that the second inquiry by another inquiry officer could only be resorted to by the respondents for very strong reasons to justify the same. In the case in hand, the second inquiry by Director Muhammad Dawood Tahir was ordered by authorized officer Hafeezullah Ishaq Chairman, Central Board of Revenue vide order dated 29-11-1997. A perusal of this order shows that no cogent reasons have been assigned for Second inquiry by the authorized officer. The authorized officer was required to state why and how he disagreed with the findings of the first inquiry officer. He was required to give such reasons also as required under section 24-A of the General Clause Act, but that was not done, which vitiated the second inquiry.
11. In the second inquiry, the appellant was again subjected to a very lengthy and minute inquiry, but the end result was that the second inquiry officer was also not able to find any fault with the appellant except that the after digging/ranking the entire mountain he found two mice hardly able to stand on their feet. The profit earned by the husband of the appellant by selling his car and the application of the appellant to the Director General Health for incurring the expenses of treatment abroad of her father. We think that the inquiry officer has unnecessarily bothered himself much about the car matter. It was an old car in possession of the husband of appellant since before his marriage with appellant. As per valuation certificates in the year 1992, the value of the car in question was Rs,1,20,000 to Rs,1,30,000. The car was sold in 1998 as argued by the learned counsel for the appellant that rising price of old and new cars a profit/gain of Rs,60,000 was not unimaginable and could not be said to have been out of any proportion. Moreover, sale price depends upon the negotiations between the parties and need of the seller and purchaser. The value of the car and the sale price both have been supported by the documents by the appellant and the respondents have not been able to rebut these documents.
12. Under the circumstances, we do not attach any importance to the observation/findings of the inquiry officer to the effect that the authenticity of declared proof of Rs,60,000 could not be proved as the appellant has not produced receipt of the car. In view of the two unrebutted documents of valuation and sale receipt, the objection of the inquiry officer was not so detrimental as to have made the matter of car to be one of the two grounds for imposing penalty upon the appellant.
13. As to the making of application by the appellant with regard to the incurring of expenditure for treatment of her father, no exception seems to have been taken by the Director General Health in question nor any explanation of the appellant was called in that respect. The appellant explained that her father was not financially dependent upon her. Being an old and ailing person he was dependent upon her and her family. It appears that she had made a 'Pun on the similar sounding words having different meaning. Her father to be physically dependent upon her but being a responsible officer of Income Tax Department, she must have known that for her father not dependent upon her financially, she was not entitled to the benefit of getting him medically treated at Government Expenses. It appears that her request was not acceded to, but making an application for a concession/benefit she was not entitled to was an unwise wrongful act on her part which was though not culpable, could not but be depreciated and for that, in the circumstances of the case, a warning to her would have been sufficient. However, the respondents imposed upon her a minor penalty. The appellant challenged such penalty in appeal No, 1934(K)/98 before this Tribunal which was, perhaps, not liked by the respondent and they took extreme step of imposing a penalty of compulsory retirement on the appellant illegally without issuing a show-cause notice to her or personally hearing her before enhancing the minor penalty to the said major penalty, but when the appellant challenged the enhanced major penalty of her compulsory retirement, the respondents modified the said penalty into the old penalty of withholding her increment, for one year which penalty had already been withdrawn earlier by them vide notification dated 8-3-2000.
14. All the facts mentioned above show that the respondents had not only grilled the appellant for a petty misconduct, if any, but they appear to have played hide and seek with her due to which she suffered mental torture and agony over years. It appears that there was a mindset to punish the appellant come what may. The case of the appellant, did not strictly fall within the phrase 'double jeopardy', but without any hesitation we can say that it was a case of vexing the appellant not only twice, nay thrice. In the case of Pakistan International Airline Corporation through Managing Director, PIAC, Head Office, Karachi, respondent Shaista Naheed was exonerated in the first inquiry, but in act of the petitioner-PIAC was held to be unjustified showing that the employer (PIAC), which was bent upon to remove the employee (Shaista Naheed) from service in any case. In the case of the Director General (Field), Agricultural Department, Lahore and another v. Haji Abdul Rehman reported 1989 SCMR 1224, the services of the respondent Haji Abdul Rehman were terminated on account of wilful absence from duty. On departmental appeal, order of termination was set aside and the period of absence was treated as leave without pay and a warning was given to him but his services were again terminated on the same charges. The Tribunal held that subsequent order was unlawful and void ab initio in that the respondents could not be vexed for the same charge twice. Civil Petition against the judgment of the Service Tribunal was dismissed by the Hon'ble Supreme Court. Both the above authorities apply to the case of the appellant.
15. The objection of the respondents about repeated departmental appeal does not appear to be correct as the re-imposing of penalty of withholding of one increment upon the appellant had given fresh cause of action to the appellant to file a departmental appeal against it. No prejudice was caused to the appellant on that account, but the appellant was prejudiced as by not entertaining her second appeal, she was deprived of the benefit of consideration of her case by the appellate authority. The authority cited by the learned counsel for the respondents does not apply to the case the respondents.
16. Elying on the above authorities of the Hon'ble Supreme Court and considering all the facts and circumstances, mentioned and the reasons assigned by us, we allow the appeal and set aside the impugned order dated 8-3-2000 of withholding one increment of the appellant for one year. She will be entitled to the back-benefit of the increments, ordered to be withheld by the respondents.
17. No order as to costs.
18. Copies of this judgment be sent to the parties under registered cover and to the relevant quarters as per Rule-21 of the Service Tribunals (Procedure) Rules, 1974.