' FAKHAR HAYAT (MEMBER-V).--- Brief facts of the case are that the appellant who was working as an Excise and Taxation Inspector was charge-sheeted by the competent authority on following charges:-- "(1) He took into possession tractor No,LHD-8235 on 25-5-2004 and VRB-2251 on 10-6-2004 on account of non-payment of token tax and subsequently released the same on 27-5-2004 and 14- 6-2004 respectively without any payment of token tax and accepted Rs,4,000 and Rs,3,000 respectively as illegal gratification from the complainant Muhammad Saleem.
(2) He impounded Tractor/Trolly No,SAE-4797 in the Police Station Farid Nagar Pakpattan due to short of token tax and subsequently released the same after acceptance of Rs,12,500 from the complainant (Khalid Javed) but only payment of Rs,3,900 has been entered in the Registration Book and the remaining amount was embezzled by them.
(3) That he detained the following tractors on 24-5-2004 in Malka Hans, Police Station of Pakpattan District due to non-payment of token tax and subsequently released on 25-5-2004 without payment of any token tax after receiving illegal gratification money:-- FDL-2659, FDL-4635, JGB-4162, SLD-2243 and VRB-7856.
(4) He detained tractors/vehicles in various police stations on 25/26-5-2004 and released the same on 27/28-5-2004 without payment of token tax after receiving illegal gratification money:-- ' SAF-4039, SLJ-9389, PKA-2466, VRA-8192, LEZ-6417
(5) He detained the following tractors/vehicles for more than 3 days in various police stations and then released with payment of Rs,200 only or without payment:--- ' LOT-5733, PK-7175, SLD-1147, MH-7311, SLF-2369, VRC-1821. PKA-1643, SAB-3613, PKA-2152, SLB-7495, VRB-2251, SAD-3437, PK-4296, SAB-4006, SLG-1585, SLJ-7423, SLD-3091, MHB-3972, KSB-4703, SLK- 1771, SLH-7504, BRF-9966, LEG-4582, PKA-2551, DG-5862, SLF-5590,
(6) That he took into possession hundreds of tractors used for agriculture purpose, due to non- payment of token tax, during June. 2004 and released majority of tractors without payment of token tax with ulterior motive.
(7) One Mst. Perveen got registered F.I.R. No,238 of 2004 dated 8-6-2004 in Police Station City Arifwala against him that he entered into her house, took away Rs,1,500 recovered 8.5 Kgs. Poppy heads from her husband falsely.
(8) He was involved in breaking the locks of Almirahs/Safe of District and Taxation Office, Pakpattan in the presence of Muhammad Nawaz Khan, Chowkidar of the office on 8-7-2004 (mid-night) and took away the official record."
' An Inquiry Officer was also appointed to whom the appellant submitted his reply to the charge- sheet issued to him under the Punjab Removal from Service (Special Powers) Ordinance, 2000 wherein he denied the allegations levelled against him. The. Inquiry Officer conducted inquiry and held that the charges Nos.1, 5 and 8 were proved against him. After issuance of the show-cause notice the competent authority viz. Secretary Excise and Taxation vide order, dated 20-5-2005 dismissed the appellant from service. The appellant preferred an appeal which was also dismissed by the Chief Secretary Punjab, vide order, dated 22-9-2005.
2. The learned counsel for the appellant has contended that the impugned orders are against law and facts; that appellant had categorically rebutted the veracity of the charge but the Inquiry Officer wrongly found the appellant guilty under some of the charges; that requisite procedure of inquiry was not adopted; that instead of repeated requests of the appellant important witnesses were not summoned and that competent authority as well as departmental appellate authority did not appreciate these facts.
3. Appeal has been contested by the respondents according to whom the charge of misconduct against the appellant was proved during the inquiry and that proper procedure was adopted during the departmental proceedings and as such impugned orders were passed on merit.
4. Arguments on behalf of the parties have been considered and available record gone through.
5. The departmental representative has brought the record which has also been examined, according to which a large number of witnesses were examined on 5-3-2005 in the absence of the appellant. Record further reveals that no opportunity of cross-examination on the witnesses was provided to the appellant. This factor alone goes to the very root of the case because the appellant was denied of his valuable right of cross-examination on the witnesses against him who were examined at his back. The learned counsel for the appellant further contended that even if the report of the Inquiry Officer is scrutinized the findings are not sustainable. The Inquiry Officer while discussing the charge No,1 mentioned that it was established that E.D.O.R. Had conducted the inquiry lodged an F.I.R. With the Anti-Corruption Establishment. It is a well-settled principle of law that any fact finding inquiry or preliminary inquiry cannot be taken into consideration for the purpose of final adjudication nor any evidence taken in such preliminary inquiry can be treated as substantive piece of evidence during the departmental inquiry. As to charge No,5 the Inquiry officer found that some vehicles were impounded by the appellant which were late released by Gulzar Ahmad as co-accused officer. With respect to charge No,8 the Inquiry Officer held that it was established to the extent that the appellant visited the office along with the co-accused officer and broke the locks of Almirahs.
6. As narrated above the fundamental principle of providing opportunity of cross-examination on the witnesses has not been provided to the appellant nor a large number of material witnesses examined in his presence, thus, vitiating the whole inquiry proceedings. Due to these reasons serious irregularity is found in inquiry which cannot be made basis of punishment by the competent authority. The impugned orders are not sustainable in the eyes of law.
7. In the light of above discussion the appeal of the appellant is accepted, impugned orders are set aside and as a consequence the appellant shall be reinstated in service. The competent authority is directed to appoint a new Inquiry officer who shall conduct the inquiry in accordance with the law, record the evidence in the presence of the appellant and provide him an opportunity of cross- examination on the witnesses whereafter matter shall be decided afresh in accordance with law.
On conclusion of de novo proceedings the competent authority shall also determine the nature of intervening period for which the appellant remained out of service.