B. G. N. KAZI (MEMBER).-----Mr. Jameel Ahmed Bhutto who was compulsorily retired by way of punishment under rule 3 of the Government Servants (Efficiency and Discipline) Rules, 1973 by order contained in Noti--fication No. 4/IT/EST, published in the Gazette of Pakistan dated 19th November, 1976, has preferred this appeal against the order.
2. The appellant who had competed in the Central Superior Services Examination held by the Central Public Service Commission in the year 1967 was selected for Pakistan Taxation Service and was appointed as Income-- tax Officer with effect from 1-11-1967. After completion of training the appellant was given various assignments as Income-tax Officer and with effect from February 8, 1972 he was drawing pay in the senior scale. It is also admitted position that the appellant's case was recommended for promotion as an Assistant Commissioner (Grade 19). He was selected to attend 28th Advance Course in Administration and Development at the National Institute of Public Administration, Karachi, from 12th July, 1976 to 16th October, 1976.
3. The appellant has challenged the impugned order of his compulsory retirement on the ground that the action taken by authorities was not in accordance with the provisions of the Government Servants (Efficiency and Dis--cipline) Rules, 1973 (hereinafter referred to as the Rules) which are applicable in his case. He also raised the contention in his defence that the disciplinary action against him was taken in spite of his record of good service under the circumstances stated in Chapter IV at page 75 of the White Paper on the conduct of General Election in March, 1977 published by the Government of Pakistan in July, 1978. As the aforesaid contention forms an important aspect of his defence and as a perusal of his record of service by this Tribunal has shown that it was unexceptionable and good, the extract from the White Paper pointed out by the appellant which is on page 75 of the official publication is reproduced below: "Dismissal.
Mr. Bhutto decided in 1976 to large scale dismissals as part of his election strategy to break the morale and the spirit of the services well in time for the general elections. The details of this operation are of some interest. This was the second purge of his six years old regime. He indicated That 200 person, should be retired, removed from service. Subsequently this figure was reduced to
100. The actual, bag, was about an exact mean of these two targets, and eventually 158 persons were served with orders of retirement, termination of service or show--cause notice in October, 1976. It is characteristic that he was concern--ed not with the merits or demerits of the unfortunate individuals involved but only with the round figures of casualties.
The plan prepared by the Establishment Secretary under Mr. Bhutto's order was that all retirement orders as well as show-cause notices and also the orders of termination of service be served simultaneously on October 16, 1976 on selected employees of Federal Government as well as of the Provincial Governments and autonomous Corporations. The retirement orders were becoming effective forthwith, while 7 days were given for reply to the show-cause notice. The cases falling in the show cause category were to be retired on October 30, 1976, and except for a few cases, these deadlines were duly observed."
4. It was pointed out by the appellant that the show-cause notice issued to him was also dated 16th October, 1976 and the order of his retire--ment from service was dated 30th October, 1976 and the case of his retirement is one of those referred to in the White Paper published by the Government of Pakistan.
5. The appellant has based his appeal inter alia on the following important grounds : (1) that the exercise of discretion by the authorised officer not to order enquiry through Enquiry Officer or Enquiry Committee was unjust and male fide ; and (2) that there was no compliance with clauses
(a) and (b) of sub-rule (3) of rule 5 of the Rules.
6. These grounds have been totally denied on behalf of respondent and their learned counsel has taken the stand that the departmental proceedings were in accordance with the Rules. It has been contended on behalf of the respondents that the Rules of 1973 give discretion to the authorised officer to decide whether an enquiry should be held by the Enquiry Officer or Enquiry Committee or not. The discretion was, therefore, rightly exercised in this case and it is further contended that inasmuch as show-cause notice was served on the appellant and his explanation was taken, there was proper compliance with clauses (a) and (b) of sub-rule (3) of rule 5 of the Rules.
7. In view of the contentions of the parties it is necessary to determine whether in the instant case the exercise of discretion by the authorised officer in not holding an enquiry was legal and proper.
There are decisions of superior Courts on tile point that it any discretion is given to an authority under any rules it is to be exercised in the spirit of the Rules. In the decision of this Tribunal in Appeal No. 20 (K)/77 reference had been made to the decision of the Chief Court of Sind reported in PLD 1955 Sind at page 78 wherein quotations had been given from Maxwell on Interpretation of Statutes and from the book `Justice and Administrative Law' by William A. Robson and it had been held that discretion cannot be exercised in a capricious or impetuous way but should be exercised in a disciplined and responsible man--ner and that exercise of discretion should be in the spirit of the rules and in accordance with the Rules of reason and justice and not according to private opinion and humour. It is to be not arbitrary, vague and fanciful but legal and regular. To the same effect are the decisions reported in P L, D 1964 Lah. 359, PLD 1969 Dacca 417.
8. The rules of 1973 under which action against the appellant was taken indicate the manner in which the authorised officer has to exercise his discretion in the matter. Sub-rule (2) of rule 5 lays down that the authorised officer shall decide whether in the light of facts of the case or interests of justice an enquiry should be conducted through Enquiry Officer or Enquiry Committee and sub-rule
(3) further provides that if the aforesaid officer decides that ix is not necessary to have an enquiry conducted through an enquiry officer or enquiry committee, he should proceed in the matter as prescribed. It is, therefore, quite clear that the discretion has to be exercised in the light of the facts of the case and the interests of justice.
9. The 3 charges mentioned in the show-cause notice are not such as could be established by reference to any record and further the charges were not such which could be reasonably defended by the accused officer by just making a reply.
10. The 3 charges mentioned in the show-cause notice are as under:
(i) Enjoy persistent reputation for corruption. As Income Tax Officer, Companies Circle, Hyderabad, you took bribes in large amounts from Ship-brokers who have offices at Hyderabad and Quetta.
(ii) Took a large bribe from Fateh Textile Mills at Hyderabad for showing them extraordinary favour by not charging tax on the dividend income received by the Share-holders/Directors from the above Mills (which was approved under section 15-BB of the Income-tax Act) despite instructions from Central Board of Revenue, resulting in considerable loss of revenue.
(iii) Own property far beyond your means.
11. With regard to charge (i) there is no indication as to the sources of information on which the authorities had relied and the Ship-brokers were not named.
12. With regard to charge (ii) no specific amount taken as bribe was mentioned and with regard to charge (iii) although the accused officer was being taken to task over owning property far beyond his means, the property was not specified.
13. The nature of charges being vague and general it was pertinent on the part of the appellant in his reply to the show-cause notice to request that in the interest of justice a formal enquiry may be ordered to be conducted to enable him to put in his best defence as otherwise it would. Amount to his being condemned unheard merely on the basis of surmises and conjectures.
14. As already stated the allegations were not such as could be decided by reference to record is a summary manner and, therefore the ends of justice would have been served if the discretion had been exercised by the authorised officer to order holding of an enquiry through Enquiry Officer or Enquiry Committee.
15. It may here be stated that the record of the enquiry proceedings and the character rolls of the appellant had been requisitioned from the Establish--ment Division and a perusal of the same discloses that there was nothing in writing about the sources of information with regard to the three charges. With regard to charge of having persistent reputation for corruption annual confidential reports for the years 1969 to 1976 have been examined and all these reports in the column referring to integrity, intellectual and moral show that the appellant received the remarks "good" or "very good". It is therefore, not easily conceiveable that if the appellant had acquired a reputation for being corrupt such reputation had escaped notice of all the reporting and counter- signing officers who were very senior and responsible officers. All the reports invariably speak very highly about the integrity, efficiency and good work of the appellant.
16. The learned counsel for the respondents was put a direct question by this Tribunal to state on what material the charges were based and to justify from the record the exercise of discretion by which it has been ordered no: to bold an enquiry. He could not point out any such material and state that the record of the enquiry and the annual confidential reports which had been produced before the Tribunal were all the material he could rely on. Incidentally it may here be stated that there is a report from the Deputy Director, Crime, F.I.A. With regard to the fact that the identity of the appellant who had been reported against had been established but the report is made after the application for review of the impugned order was made by the appellant and again the same does not disclose the sources of information.
17. I have, therefore, no hesitation in arriving at the decision that the authorised officer did not exercise his discretion given under sub-rule (2) of D rule 5 of the rules in a legal and proper manner and looking to the facts of the case and interests of justice he should have ordered enquiry to be conduc--ted by an Enquiry Officer.
18. As contravention of the provisions of clauses (a) and (b) of sub-- rule (3) of rule 5 of the Rules has been alleged, the same are reproduced and read as under: "Sub-rule (8).-If the authorised officer decides that it is not necessary to have an enquiry conducted through an enquiry officer or enquiry committee he/she (a) by order in writing inform the accused of the action proposed to be taken in regard to him and the grounds of such action ; and (b) give him a reasonable opportunity of showing cause against that action: Provided that no such opportunity shall be given where the authority is satisfied that in the interest of security of Pakistan or any part thereof it is not expedient to-give such opportunity."
19. At the outset it may be stated that proviso to sub-rule (3) is not applicable in this case. With regard to clauses (a) and (b) it may be stated that safeguards provided under the case have never been considered as minimum protection afforded to the public servant since a long time.
20. Under the constitutional provisions rules inter alia with regard to discipline and conduct of a civil servant have been made from time to time affording safeguards and protection to them with regard to cases of enquiry into alleged misconduct. Under section 96-B which was added to the Government of India Act, 1915 by the Act of 1919 the Civil Services (Classification, Control and Appeal) Rules, 1930 were framed which inter alia provided for giving an adequate opportunity to an accused servant on receipt of show-cause notice to defend himself before the penalty of punish-- ment could be imposed.
21. Rules framed under section 96-B of the Government of India Act were given further constitutional status under section 240 of the Act, 1935 and the Civil Services (Classification, Control and Appeal) Rules, 1930 continued in effect under the Government of India Act, 1935 and no civil servant could be dismissed by any authority subordinate to that by which he was appointed. It was further provided that no person shall be dismissed or reduced in rank unless he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Provision in subsection (3) of section 240 of the Government of India Act, 1935 in this regard was made clear by the Federal Court of India in the decision of Mr. I. M. Lall's case (AIR 1945 FC47) as under :- "Subsection (3) of section 240 was not intended to be, and was not, a reproduction of rule 55 of the Civil Services (Classification, Control and Appeal) Rules, which was left unaffected as an administrative rule. Rule 55 is concerned that the civil servant shall be informed of the grounds on which it is proposed to take action, and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing ; this is in marked contrast to the statutory provisions of a reasonable opportunity of showing cause against the action proposed to be taken in regard to him'. In the opinion of their Lordships, no action is proposed within the meaning of subsection until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally deter--mined. Prior to that stage, the charges are unproved and the suggested punishment is merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which sub--section (3) makes provisions. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under rule 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out but that would not exhaust his statutory right. And he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry."
22. Thus before coming into effect of the Government Servants (Effici--ency and Discipline) Rules, 1973 it was settled legal position that two opport--unities had to be given to the official concerned, the 1st during the enquiry to defend himself and the second to show cause against the proposed punishment.
23. A departure from the previous legal position was made in the Government Servants (Efficiency and Discipline) Rules, 1973 in that the enquiry procedure laid down in rule 5 gives the discretion to the authorised officer in the light of the facts of the case or the interest of justice whether an enquiry should or should not be conducted through the enquiry officer or enquiry committee. If he decides that enquiry should be conducted the procedure indicated in rule 5 applies but if he decides against holding of enquiry the rules provide that : (a) by an order in writing the authorised officer shall inform the accused of the action proposed to be taken in regard to him and the.
Grounds of the action ; and (b) give him a reasonable opportunity of showing cause against that action.
24. In the instant case as a perusal of the show-cause notice would show the action proposed to be taken was not specified and a vague and general reference was made "as to why the major penalty as prescribed in the above-mentioned rules should not be imposed on you". The show- cause notice, therefore, could not be said to be compliance of clauses (a) and (b) of sub-rule (3) which make it necessary that the accused be informed of the action proposed to be taken in regard to him and further provide for giving him a reasonable opportunity of showing cause against that action.
25. There is also contravention of clause (b) aforesaid inasmuch as the 3 charges in the show- cause notice were for the reasons already given too vague and therefore, the accused officer could not possibly have shown sufficient cause by making a reply in writing. He denied all the charges in his explanation but since no details of sources of information with regard to charges were made he could not possibly defend himself against the proposed action. For instance if details of property alleged to have been owned by him were given and the allegation was that he owned property beyond his means his denial and specifying property really held by him put the duty on the authorities concerned by an overt act to further inform him by specifying the property before he could be considered as having been given a fair chance of putting in defence.
26. The expression "reasonable opportunity" has been interpreted in judicial decisions. The provision as to the reasonable opportunity of showing cause against the proposed action in clauses (a) and
(b) of rule 5(3) is on the same basis as the provisions in subsection (2) of section 240 of the Govern--ment of India Act, 1935. The point was examined in the decision of this Tribunal in Appeal No. 20(k)/77 and it was observed that mere question and answer could not be considered as reasonable opportunity.
27. The appellant has pointed out that the Federal Cabinet decided that in all disciplinary proceedings under the (Efficiency and Discipline) Rules, 1973 it should be ensured that the accused is given right to defend himself properly. He has invited the attention of this Tribunal to circular letter issued by the Regulation Wing of the General Administration Department of the Govern-- ment of Sind No. SOIX-NEC (S & GAD) 2/B/1-73 dated 10th February, 1976 in which there is reference to the aforesaid decision of the Federal Cabinet.
28. For the reasons given above it is quite clear that exercise of discretion in adopting the summary procedure under rule 5(3) was not proper in view of the nature of allegations against the appellant.
It is also clear that the action proposed to be taken was not specifically mentioned in the show- cause notice in accordance with clause (a) of rule 5(3) and no reasonable opportunity was given to the appellant as provided for in clause (b) o rule 5(3) of showing cause against the action.
29. In view of the findings stated above, .The impugned order cannot be sustained and is accordingly set aside. It is further directed that the appellant be re-instated in service with all the consequential service benefits.
30. Parties to be informed.
N. A. CHOUDHURY (MEMBER).-----My learned brother Mr. Kazi has already included in his judgment all the necessary arguments on no-observance or incorrect observance of procedural details which could be marshalled in the case. He has also included in his judgment the necessary arguments on the merits of the case and the legal issues framed by the petitioner. While I agree with him throughout regarding the above judgment I would add the following brief paragraph to re-enforce the arguments on which he has based his judgment: The provisions of rule 5(3) (a), (b) presuppose that the grounds of proposed action/allegations included in the show-cause notice would be specific so as to afford reasonable opportunity to the accused to defend himself and to show cause against those grounds otherwise it is tantamount to denying this opportunity which is the mandatory requirement of the rule. This denial would alone be sufficient to vitiate the proceeding of the disciplinary action.
The three charges which constitute the grounds for proposed action against which the accused has been required to show cause have been mentioned at para. 10 of the above judgment. The allegations (i) and (iii) are vague, non-specific without proper details to enable the accused to exercise reasonable opportunity to show cause. They are as such, completely irrelevant within the framework of rule 5(3) quoted above and do not legally constitute grounds for proposed action.
Allegation No. (ii) is to some extent specific wherein it. Has been mentioned by the respondent that the accused took a large bribe from Fateh Textile Mills at Hyderabad for showing them extraordinary favour by not charging tax on the dividend income received by the Shareholders/Directors from the above Mills. I would invite a reference to page 4 of the appeal against the order of removal submitted to the President of Pakistan, the relevant portion of which runs as follows :-- "The fact was that I had no occasion to deal with these cases and that favour, if any, was shown to them in June, 1971, a long time before my posting in the Companies Circle, Hyderabad, by the then Income-- tax Officer who did not charge them tax on their dividend income in question. The correspondence available with the Central Board of Revenue; Islamabad, in their File C. No. 13(68)- IT/75 would clearly show that I was not responsible, for any act of commission or omission on my part,"
1t is clear from the explanation that allegation which was to some extent specific and formed the ground for proposed action has been clearly refuted by the petitioner because the transaction did not belong to the period for which he was incharge of the work. The two allegations contained in the show-cause notice being no specific have to be excluded from the proceedings. The third having been refuted clearly does not leave any justifiable ground for the punishment awarded.