' SARDAR ALAM KHAN (MEMBER-II)---This appeal is directed against an order, dated 20-4-1999 passed by Director General, Excise and Taxation (E&T), Punjab respondent No,1 whereby the appellant had been dismissed from service and againgt the order, dated 7-2-2000 passed by Secretary Excise and Taxation respondent No,2 with which he reduced the penalty from dismissal to reduction in rank i,e, from Assistant Excise and Taxation Officer to Excise and Taxation Inspector.
2. Briefly stated the relevant facts of the case, are that while the appellant Mr. Muhammad Anis Haider was posted as Assistant E&T Officer, Rahimyar Khan, he was charge-sheeted on the following allegation:-- "That you in complicity with Messrs Jam Muhammad Hayat Javed, Excise and Taxation Inspector, R.Y. Khan and Hamid Raza Shah, Senior Clerk (formerly M.T.C. R.Y.K.) received 541 cases of registration on account of various motor vehicles along with registration fee/token tax, incorporated particulars of these vehicles in the relevant allotment register, issued acknowledgement slips but did not deposit the amount so recovered into the Government treasury till the matter was noticed to this Directorate. In this way an amount of Rs,11,30,275 was defalcated/embezzled by you."
' Director E&T, Bahawalpur was designated as Authorised Officer who constituted an enquiry committee consisting of E&T Officer Bahawalngar and Assistant E&T Officer, Ahmadpur East to conduct the enquiry jointly against the appellant, Jan Muhammad Hayat Javeid E&T Inspector, Rahimyar Khan and Hamid Raza Shah, Sernior Clerk in the office of E&T Officer, Rahimyar Khan. The Enquiry Committee submitted its report holding Hamid Raza Shah aforesaid directly involved in prohibited cash handling relating to different taxes levied upon Motor Vehicles. The committee also found the charge partially proved against A the appellant. The Authorised Officer recommended major penalty against him and the two co-accused. Director General, E&T Punjab in his capacity as Authority concurred with the recommendations of the Authorised Officer and passed the impugned order. The appellant preferred a departmental appeal which Secretary E&T accepted partially and reduced the penalty vide the second impugned order, dated 7-2-2000. This has led the appellant to approach the Punjab Service Tribunal through the present service appeal.
3. In support of appeal, the learned counsel contends that the impugned order is not sustainable because the appellant was charge sheeted for mis-conduct but the appellate authority has penalized him for inefficiency and lack of proper control; that the original charge of misconduct had not been proved against the appellant and therefore he should have been acquitted; that the appellant had no notice of charge of inefficiency and lack of control over his subordinate and as such he could not be punished for these charges; that the amount had been received by the cO- accused Hamid Raza Shah which was not a part of his official duty and as such the appellant could not have any control over any private transaction which the said clerk had with the owners of the vehicles; that the said co-accused had confessed having received the cash which was his exclusive act without connivance of the appellant; that there is no evidence to show that the act of the clerk was ever brought to the notice of the appellant and he failed to control him.
4. Respondent No,2 failed to file written objections despite the issuance of many notices and ex parte proceedings were ordered against him. Respondent No,1 has filed written objections. The case of the respondent No,1 is that as an immediate supervisory officer, the appellant must have known the lapses of his subordinates. It has further been contended that the appellant had connived with the clerk in embezzling the amount which was proved at the level of Enquiry Committee, Authorises Officer and Authority.
5. It is a matter of record that the appellant was charged for embezzling an amount of Rs,1,130,275 in complicity with his co-accused but the appellate authority had himself conceded that the appellant could be held responsible only for lack of supervision and inefficiency to detect mal- practice of his subordinate. In this view of the matter the appellant has been punished for the charge of inefficiency which had not formed a part of the charge sheet and thus the impugned order is not sustainable. The learned District Attorney when faced with the above situation, has argued that the appeal should be remanded for holding a de novo enquiry in respect of the charge of inefficiency. However, he has not been able to convince me as to how the charge of lack of supervision or inefficiency could be proved against the appellant. In the present case the concerned clerk and been held responsible for collecting cash from the vehicle owners outside the premises of the office and for embezzling it. The departmental representative has failed to explain as to how the appellant in his supervisory capacity could come to know the malpractice of the clerk. It is an admitted fact that the clerk was not officially required to receive the cash from the vehicle owners. His duty was merely to issue challan forms with which the owner of the vehicle was to deposit cash in the Govt. Treasurary. There was no machanazim for the appellant to know if the amount had been deposited. In this view of the matter, if the clerk , working under the appellant, collected cash in his private capacity and embezzled it, the appellant had no means to know about it and resultantly he could not be responsible or any lack of supervision or for lack of efficiency.
7(sic). For the above reasons, I accept the appeal and set aside the the impugned orders, dated 20-4-1999 and 7-2-2000. There shall be no order as to the costs. Announced.