' K.B. ABID (MEMBER-II).--- The appellant Zahid Ali, ExAETO, Lahore has filed this service appeal against the order, dated 18-11-2005 passed by the Director-General Excise and Taxation and .
Letter, dated 3-1-2006 issued by the Secretary Excise and Taxation, Egerton Road, Transport House Lahore whereby the representation of the appellant was rejected
2. Briefly stating the appellant was served a charge-sheet containing the charges that he had failed to exercise stringent administrative/supervisory control on the Excise and Taxation Inspectors and other lower staff of the circles including the Shandara Group which culminated in following, irregularities/gross misconduct/loss to Government revenue and embezzlement of property tax.
The appellant was intimated that he has failed to perform the duties .In respect of following:--
(i) non-conducting of internal Audit of Shandara Group.
(ii) non-conducting of annual admin / technical inspection.
(iii) reporting of inflated/bogus cash collection of property tax to the extent of Rs,41,64,043.
(iv) missing of payment receipts of property tax amounting to Rs,13,98,219.
(v) non-detection of bogus vouchers of payment of property tax to the tune of Rs,4,97,299.
2-A. The appellant submitted reply to the charge-sheet and defended the allegations levelled against him. As pleaded by appellant the drawing up of statistics, maintenance of registers and record is the specific responsibility of the lower staff. The appellant has been stressing upon the lower staff to keep the record upto date and correct. The appellant had also been pointing out this aspect before the Excise and Taxation Officer. In this connection, the request was made to the concerned officer incharge for completion of C.D.C. Record. Due to non-availability of C.D.C.
Record, the entire inspection was not possible. The charge of non-conducting of admn./technical sanction was denied by the appellant because it had to be conducted at the level of Collector or the District and Excise Taxation Officer. The appellant claimed that no evidence has been produced regarding inflated/bogus figures. The whole confusion had cropped up due to incomplete C.D.C.
Record, it had facilitated inflated and bogus cash collection statements. The appellant had consolidated the collection statement. There was no loss to Government and reported bogus collection of Rs,4,164,043 has not been waived off. As regards the missing receipts, under para.5-4 of Punjab Tax Manual Vol. (I), part-I, preparation and maintenance of assessees files is responsibility of taxation clerk and the Inspector is responsible. There was no evidence to indicate that the appellant had misplaced the receipts. After consideration of reply of appellant the Inquiry Officer gave his findings that the charge Nos.(i), (iii) and (v) are proved against the appellant whereas the charge No,(ii) is not proved and charge No,(iv) is partially proved. The Inquiry Officer recommended that the official who remained posted in C.D.C. Branch and were responsible to entertain tax payment vouchers in relevant registers, may be proceeded against. On this report of the Inquiry Officer no action was taken by Competent Authority. The Director-General Excise and Taxation vide order, dated 18-6-2004 had mentioned that the appellant has retired from service w,e,f, 31-10-2002 attaining the age of superannuation. The proceedings under Rule 1.8 of the Punjab Civil Services Pension Rules, 1955 were ordered and Deputy Secretary Excise and Taxation was appointed as Inquiry Officer to probe the matter. The same charge-sheet on 3-8-2004 was served upon the appellant. The appellant had replied and stated that the record pertaining to the year 1996-99 is necessary to search out of actual facts and responsibility of concerned officials. The appellant had also objected to the report of previous inquiry conducted by the then Director/District Officer Excise and Taxation, Gujranwala. The findings given by the Inquiry officer was that charge Nos.(i), (iii)(a) and (c) are fully proved against the appellant while charge No,(ii) is not proved and charge No, (iii)(b) is however, partially proved. The penalty of withholding of 25% pension was recommended by the Inquiry Officer. After consideration of this report, the Director- General Excise and Taxation had issued a show-cause notice to the appellant for personal hearing and passed the orders on 18-11-2005. The Director-General Excise and Taxation Punjab/Pension Sanctioning Authority had awarded the penalty of withholding of 50% pension upon the appellant.
The representation against this order was filed before the Secretary, Excise and Taxation which was rejected on 3-1-2006 with the observation that no appeal can be made against the orders of Pension Sanctioning Authority to the next higher authority.
3. Aggrieved by the orders of Director-General Excise and Taxation and Secretary Excise and Taxation, the appeal has been filed in PST under section 4 of PST Act, 1974.
4. Learned counsel for the appellant has argued and stated that the appellant was proceeded under Rule 1.8(a) of the Punjab Civil Services Pension Rules, 1955. The said Rule pertains to withdrawal of Pension by Government if the pensioner is convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service.
5. This Rule further specifies that before passing any order, the Pension Sanctioning Authority shall give full opportunity to the pensioner to vindicate his position. As pleaded by counsel the jurisdiction to withhold or withdraw the pension could only be exercised by the Government only.
The appellant has been treated discriminately and no action was taken against other Inspectors who have retired from service. The counsel has also objected that the Director, Excise and Taxation had recorded his observation that appellant had caused loss to Government in millions. The respondent No,2 has not worked out the exact loss. The observation of Director-General Excise and Taxation was fake and baseless. The respondent No,2 had withheld pension without mentioning the quantum of penalty in the show-cause notice and without defining the offence. The appellant was not given the opportunity of cross-examination of the departmental evidences or documents.
6. Respondents have opposed and stated that the appellant was responsible for financial irregularities, misplacing of treasury receipts and bogus treasury receipts. The appellant had been proceeded on account of the irregularities pertaining to bogus treasury receipts of property tax, bogus collection in PT-8 (demand register), misplacement of treasury receipts, bogus made up treasury receipts, fabricated stamps of different bank branches and embezzlement of huge amounts of property tax. The inquiry was got conducted by Deputy Secretary (Technical) who had reported that the charge Nos:(i), (iii) and charge No,(v) were proved. The charge No,(ii) was not proved whereas the charge No,(iv) was partially proved. The Director-General Excise and Taxation in his order, dated 18-11-2005 had referred rules, law and to instructions regarding the internal audit and pointed out responsibility of appellant. As per findings of D.-G. Excise and Taxation, the charges Nos.(ii) and (iv) were also proved against the appellant because he was responsible about the internal audit and administrative as well as technical inspection. The appellant had not produced receipts at the time of audit. Since all charges were proved, the penalty of withholding of 50% pension was awarded to the appellant.
6-A. Arguments of the counsel heard, record perused. The basic charge on the appellant was that he had failed to exercise stringent administrative/supervisory control on the Excise and Taxation Inspectors and other lower staff of the circles which culminated into financial irregularity. During the previous inquiry and in the subsequent inquiry, the tax payment vouchers of different branches of National Bank of Pakistan, Government Treasury and State Bank of Pakistan were not verified.
This means that the charges were framed without having requisite receipts and details from concerned branches of State Bank of Pakistan, National Bank of Pakistan and Government Treasury. The verification of basic record was essential and should have been provided to the appellant for opportunity of defence as well as cross-examination. The Inquiry Officer had relied on the available evidence and vouchers produced before him. The Inquiry Officer in his recommendations had mentioned that the staff of the C.D.C. Branch is responsible to enter such receipts in the relevant register. The total 333 receipts of payment were reported missing but during the course of departmental proceedings only 130 receipts were produced either by concerned ETI Clerk or through other means. The, remaining 203 were not produced. This means that charge of Rs,398,219 was framed without complete record and verification from the concerned channel. The Inquiry Officer had also given findings that out of reported 80 bogus receipts, only 2 were verified by the Bank or Treasury Office. The remaining receipts were not verified. This also indicates that the charge of non-detection of bogus vouchers of property tax to the tune of Rs,497,299 was framed ,just on assumption and without any details.
7. Learned counsel for the appellant has objected to the jurisdiction of Director-General Excise and Taxation and stated that only the "Government", can withhold the pension and Director-General Excise and Taxation can only issue the show-cause notice before making recommendations to competent Authority. The issue regarding withholding of pension as per Pension Rules has already been decided and settled by Honourable Supreme Court of Pakistan in its judgment reported in 1985 PLC (C.S.)
91. The relevant portion of the judgment is reproduced below:-- "Withholding of pension amounts to withholding a very valuable right of civil servant-Powers to withhold pension vest only in Government---Words "rescind" and "withhold" not synonymous with each other "Rescind" means to annul and word "withheld" means to keep back, to refuse to give--- Contention that authority competent to sanction the pension was competen to withhold pension- rejected-Government under obligation to proceed under Efficiency and Discipline Rules in order to withhold valuable right of pension appellant retired by Deputy Director, Food Department under section 12(ii) of Punjab Civil Servants Act, 1974---Pension withheld by same authority on account of conviction of appellant by Special Military Court and bad service record order passed in summary manner without resort to Efficiency and Disciplinary Rules held without Authority."
8. In the first instance the proceedings under RSO-2000 were initiated and inquiry report was completed on 4-1-2003 but no action was taken by the competent Authority. The orders for proceedings under Rule 1.8 of Pension Rules were issued on 18-6-2004 whereas the appellant had retired from service w,e,f, 31-10-2002. The Pension Rules are very much clear and state that "no proceedings would be started against the retired Government servant, after expiry of one year. The proceedings through order, dated 18-6-2004 started against the appellant, a Retd. Civil servant are against the Pension Rules, and instructions given in the S&GAD letter No,SOR-1(S&GAD)7-1/72, dated 23-10-1973 as well as letter No,SO(R)/58/7-46/65-SOX III, dated 1-2-1967.
9. The Secretary Excise and Taxation Department had rejected the representation on 3-1-2006. In case the appeal before Secretary (Excise and Taxation) was incompetent under Pension Rules, the Secretary (Excise and Taxation) on the same date i,e, on 8-12-2005 (date of filing of representation) should have returned the representation to appellant with specific direction to appellant to file representation before PST. The delay has been caused by office of Secretary (Excise and Taxation). The appellant is not responsible for this. The limitation will started from 3-1- 2006.
10. Factually the charges against the appellant were framed on the basis of missing vouchers or receipts which were required to be verified from the Treasury Office, State Bank of Pakistan and National Bank of Pakistan. Thereafter, the details should have been provided to the appellant. The Departmental Authorities had not furnished requisite details to the appellant which had created miscarriage of justice to appellant, no opportunity was given to him for producing the defence evidence.
11. On the basis of above mentioned facts, record, Rules and well-settled principle of law by the Honourable Supreme Court of Pakistan, it is concluded that the appellant was penalized on the basis of vague, unconfirmed charges, in discriminatory way and beyond one year of retirement.
The orders of D.-G. Excise and Taxation and Secretary Excise' and Taxation being unlawful, are set aside. The appeal is accepted.