' SAIYED SAEED ASHHAD, J.--- This appeal with the leave of this. Court assails the judgment of Federal Service Tribunal, Islamabad, dated 22-8-2001 in Appeal No,139(K)(.S.) of 2000.
2. Brief facts requisite for disposal of this appeal are that appellant an officer of the Income. Tax Department and performing duties as Commissioner of Income Tax . In BS-20 was proceeded against departmentally. Mr. Javed Hasan Ali Director-General (Enquiries Wing) was appointed as Inquiry Officer who served the following consolidated charge-sheet upon the appellant:- ' Charge No,1 Failure to file declaration of assets for the years 1984, SCIV 1R 1986, 1987, 1989 to 1994 and 1996 in violation of rule 12(2) of the Government Servants (Conduct) Rules, 1964.
' Charge. No,2 Purchase of car worth Rs,5,27,000 without prior permission from the competent authority as required vide rule 11 of the Government Servants (Conduct) Rules, 1964 from out of unknown sources of income.
' Charge No,3 That the cash balance of Rs,3,20,000 portfolio charges Rs,2,20,000 and prize bonds of Rs,5,00,000 declared in the declaration of assets were not commensurate with the known sources of income.
' Charge No,4 Declaration of assets of Rs,10,67,512 in the name of children in the available declaration of assets.
' Charge No,5 Present reputation of being corrupt and living beyond means of income.
3. The Inquiry Officer after providing opportunity to the appellant held him guilty of Charges Nos.2, 3, and 4. Thereafter show-cause notice was issued to the appellant on 17th October, 1997 which was replied by the appellant vide reply dated 4-11-1997 wherein he claimed that proper opportunity of hearing was not afforded to him during inquiry proceedings. The authority after taking into consideration the inquiry report and the reply submitted by the appellant concurred with the finding of the Enquiry Officer, found the appellant guilty of the aforesaid charges and awarded him the major penalty of compulsory retirement. Departmental appeal filed against the same was not responded to and after expiry of the statutory period, the appellant approached the Federal Service Tribunal by way of above appeal which has been dismissed vide impugned judgment.
Hence this appeal.
4. We have heard the arguments of Syed Shahenshah Hussain, Advocate Supreme Court on behalf of the appellant and Mr. Muzaffar All Khan, Advocate-on-Record who made appearance on behalf of respondents.
5. Syed Shahenshah Hussain, Advocate Supreme Court submitted that the Inquiry Officer did not apply his mind to the facts of the case in deciding the charges levelled against the appellant and had conducted the inquiry in slipshod manner without taking pain to minutely examine the material placed by the,appellant and affording full opportunity of hearing to the appellant to defend himself. He further submitted that the appellant had provided documentary evidence to disprove Charges Nos.3 and 4 but the same was completely ignored by the Inquiry Officer and his finding of guilt was absolutely illegal being contrary to record.
6. With regard to Charge No,2 he submitted that it is true that prior permission was not taken from the competent authority for purchasing the car in question but submitted that the same could not be taken into consideration to adversely affect the appellant as he had submitted an application to Messrs Pak Suzuki Motor Company for purchase of a Suzuki Car which was owned and managed by Federal Government and further that the funds which were utilized in purchasing the car were mentioned in the declaration of assets and in the circumstances omission on the part of the appellant to obtain permission was an innocent, inadvertent and bona fide mistake without any dishonest or mala fide intention and lacked mens rea. With regard to Charges Nos.3 and 4, he submitted that plausible and satisfactory documents were produced by the appellant to disprove the above charges but the Inquiry Officer ignored the same without assigning any cogent reasons which resulted in causing grave and serious prejudice to the appellant. Another important factor which was highlighted by Syed Shahenshah Hussain is that the judgment was delivered by majority of 2 to 1 as one of the member who had originally authored the judgment found charges 3 and 4 not to have been proved and with regard to omission/failure of the appellant to obtain prior permission to purchase the vehicle he opined that the punishment of censure would be just and proper in the circumstances of the case. This view was not shared by the second member. It was a split judgment as the Chairman concurred with second member.
7. Mr. Muzaffar Ali Khan, Advocate-on-Record fully supported the judgment of the Tribunal and submitted that the Department had brought on record satisfactory, credible and trustworthy, evidence against the appellant to establish the charges and the Inquiry Officer rightly found the appellant guilty of the charges as a' result whereof order of compulsory retirement was fit and proper punishment.
8. We have Considered the respective arguments advanced by the learned counsel for the parties and have perused the material on record. The judgment authored by Mr. Mahmoodul Haq Thanvi, who on consideration of the facts of the case as well as earlier decision of the Tribunal in Appeal No,1977(L) of 1998 and Appeal No,1983(R) of 1999 accepted the appeal and reduced the penalty of compulsory retirement to that of censure. The appellant was directed to be reinstated in service with all back-benefits.
9. With regard to the Charge No,2 learned member concluded that no, doubt that prior permission for purchase of the car as required by Rule 11 of the Rules but the fact of making an application to Messrs Pak Suzuki Motors Company, a Government owned company, for purchasing a car, making advance payment at the time of application; and the final payment when in the balloting he was found to be successful and was allotted a car were declared by him in his declaration of assets. He further observed that in view of the above facts technically the appellant violated the provisions of Rule 11 of the Rules but such omission was not with any mala fide intention to conceal either the purchase of the car or the funds utilized in purchasing it and could not be considered to be so serious as to award him the penalty of compulsory retirement. It is pertinent to note as strenuously canvassed by Mr. Shahenshah Hussain that the appellant was under the impression that Messrs Pakistan Suzuki Motor Company being a Government organization, permission as required under Rule 11 of the Rules was not attracted on the analogy that no permission is required to apply for allotment of plot in a Government Housing Scheme.
10. With regard to Charges Nos.3 and 4 the learned Member observed that sufficient material/evidence was produced by the appellant to account for the cash balance of Rs,1,29,552 prize bond of Rs,4,62,500 disclosed in the declaration of assets as well as assets of Rs,10,67,512 in the names of his children. In this context learned Member referred to the family background of the appellant and his subsequent status on account of his marriage stating that father of the appellant served as a Secretary to the Government of the Punjab and after his retirement became an Advocate of the Supreme Court of Pakistan and further that his father-in-law served as Secretary to the Government of N.-W.F.P., one of his brothers-in-law was a Judge of Peshawar High Court in late 1970 and valuable properties were given to the wife of the appellant in dowry which was mentioned in the Nikahnama. Learned Member further proceeded to observe that the appellant had succeeded in justifying the amounts mentioned in charges 3 and 4 as the same were acquired from the sale of jewelry; a sum of Rs,2,17,000 was received by him as his share from the family settlement after the demise of his parents; an amount of Rs,2,13,000 was his savings from his salaries received by him during 25 years of service and a sum of Rs,4,62,500 was the prize money received by him on his prize bond. In view of the above facts and circumstances learned Member held that Charges Nos.3, 4 and 5 were not proved.
11. The other Member Dr. Akhtar Hasan Khan disagreed with the findings of Mr. Mahmoodul Haq Thanvi and held the appellant guilty of Charges Nos.2 to 4. From perusal of the portions from the judgment of Dr. Akhtar Hasan Khan it is to be observed that Enquiry Officer had rightly refused to accept the documents and the explanation given by the appellant to account for the amounts mentioned in Charges Nos.2 to but did not advance any cogent reason for the act of the Enquiry Officer in discarding the documentary evidence and the explanation relating to the sources of income like sale of jewelry, receipts from family settlement and prize bonds and personal savings without assigning any plausible grounds. There was no reason for the learned Member to look with suspicion the assertion of the appellant that he had received Rs,4,62,500 on his prize bond and the same is based on conjectures. Learned Member had no right to import his personal knowledge to the facts of the case that such claim was usually made by corrupt officers and defaulters of income tax. In the end the Member observed that he was of the view that the appellant had partially accounted for the amounts mentioned in charges 3 and 4 from sale of jewelry and receipt of money from family settlement but still a considerable amount remained umccounted for without specifying as to how much of the assets were proved and how much assets remained unproved, therefore, he was of the view that penalty of compulsory retirement awarded to the appellant was just and proper and did not require to be modified. The findings of the learned Member are not sustainable being based on conjectures, surmises and his personal knowledge.
12. Learned Chairman while accepting the version of Dr. Akhtar Hasan Khan did not assign any reason why the findings of Member Dr. Akhtar Hasan Khan were to be given preference over the findings/ pronouncements made by Mr. Mehmoodul Haq Thanvi. It was imperative for the Chairman to have given sound and cogent reasons for discarding the version of Mr. Mehmoodul Haq Thanvi and accepting the version of Dr. Akhtar Hasan Khan which he failed to do. In the- circumstances the observations of the Chairman would appear to be without any legal basis, arbitrary and capricious. The pronouncements/ findings arrived at by Mr. Mehmoodul Haq Thanvi were beneficial and favourable to the appellant and he could have been deprived of the benefit thereof only if convincing, satisfactory and plausible grounds were advanced for discarding his version which was not done.
13: For the foregoing facts, reasons and discussion the appeal is found to have merit and the judgment of the Tribunal cannot be sustained. Resultantly the appeal is allowed and judgment of the Tribunal is modified. The penalty of compulsory retirement is converted to the penalty of censure. The appellant is reinstated in service from the date of his compulsory retirement with all back-benefits. No order as to costs.