' SALIM GUL SHAIKH (MEMBER).--- This appeal has been filed under section 4 of the Service Tribunals Act, 1973 assailing the impugned order dated 27-7-1998 whereby major penalty of dismissal from service has been imposed on the appellant. The appellant preferred departmental appeal dated 21-8-1998 against the decision which was addressed to Secretary, Revenue Division. He was informed vide letter dated 2-9-1998 that his appeal should be addressed to the appellate authority, i,e, the Prime Minister. Consequently, the appellant submitted his departmental appeal dated 22-9-1998 addressed to the Prime Minister. There is nothing on record about its disposal.
Thereafter, the appellant filed this appeal before the Tribunal.
2. Briefly, the facts leading to the filing of this appeal are that the appellant is an employee of the Income Tax Department having joined service in 1966 as Steno Typist. He was promoted to the rank of Income Tax Officer BS-16 on 8-3-1994, after serving the department in various capacities. In September, 1996 the appellant was transferred to Sukkur Circle from Mirpur Mathelo. In November, 1996, Special Assistant to the Commissioner Income Tax (C.I.T.), Sukkur, went on inspection of Mirpur Mathelo circle and checked the record pertaining to the period when the appellant was the Assessing Officer. In his report, the Special Assistant pointed out certain irregularities that had been committed. On the basis of this report, the Additional Commissioner Income Tax called for the explanation of the appellant vide letter dated 21-11-1996. The appellant submitted his reply vide letter dated 27-11-1996 denying all charges vehemently. On 18-3-1997, the appellant decided to apply for pre-mature retirement on medical grounds on completing 30 years of service. The department however served him with show-cause notice dated 10-4-1997 on charges of gross misconduct and inefficiency under the Government Servants (Efficiency and Discipline) Rules, 1973.
The Authorized Officer also appointed a BS-20 level officer Mr. Daud Tahir as the Enquiry Officer to conduct full-fledged inquiry into the allegations conveyed to the appellant through the statement of allegations. The charges levelled against the appellant are reproduced hereunder:---
(h) Mr. Tayeib Hussain Qureshi, while posted as Income Tax Officer, Mirpur Mathelo Circle, reported wrong and fictitious figures relating to gross collection for the months of July, August and September, 1996. The difference between the figures shown in the monthly performance report and those of register of daily collection (Cash Book) is given as under:-- Months Gross Collection Difference In M.P.R. In C.B.
July, 1996 2.189 M 2.204 M (-)0.015 M August, 1996 2.878 M 2.488 M 0.390 M September, 19964.634 M 3.659 M 0.975 M Total 9.701 M 8.351 M 1.350 M
(ii) Mr. Tayeib created refunds totalling Rs,4.513 million during the month of September 1996 as per Demand and Collection Register (D.C.R.) but reported Rs,0.479 million only in the monthly performance report and thus concealed refunds of Rs,4.034 million. Similarly, he actually issued Refunds amounting to Rs,4.406 million, as per Books of Refunds Vouchers issued/ adjusted but misreported these figures in the monthly payment register as Rs,0.479 million only.
(iii) Mr. Tayeib reported the fictitious figures of collection by stating Rs,4.155 million against actual net collection of Rs,0.747 million only with a view to conceal the refunds actually determined with mala fide intention to conceal the "refunds issued illegally."
(iv) The scrutiny of the case papers of 105 Dhobi and Barber contractors, to whom refunds amounting to Rs,4.386 million were fraudulently issued by Mr. Tayeib, has revealed that the question of issuance of any refund in these 105 cases did not arise at all, as the tax deducted at source from payments to these contractors is full and final discharge of tax liability in terms of section 80 C of the Income Tax Ordinance, 1979. He finalized these cases totally contrary to the instructions on the subject. All the 105 assessments creating refunds of millions of rupees were therefore, not only illegal but there are sufficient grounds available on the record to believe that they were made with mala fide intention to secure personal gains.
(v) Mr. Tayeib had no lawful jurisdiction over these assessees as none of them fell within the territorial jurisdiction of the Mirpur Mathelo Circle as the residential addresses given on the National Identity Cards of these 105 assessees indicate the addresses of the withholding tax authorities as well as the residential addresses of these assesses clearly prove that the assessments were made by him without lawful jurisdiction and were therefore, illegal and he intentionally caused substantial loss amounting to Rs,4.386 million to the national exchequer.
(vi) Mr. Tayeib failed to verify the tax deduction from the deducting authorities before counting the refunds. Even issuance of refunds on the basis of certificates of tax deductions which in many cases are dubious and erased/over-typed was not only with mala fide intention but also improper clearly departing from procedure.
(vii) The refunds were issued by Mr. Tayeib Hussain Qureshi by fragmenting the amounts so that these did not reach the limit prescribed for an officer of his status. There are 14 cases out of 105 in which the total amount of refund involved was Rs,50,000 and above and in 9 other cases, amounts of refund exceeded Rs,100,000 for which he had not obtained the prior-approval of senior authorities as required under the existing instruction rules, thereby transgressing his authority with mala fide intention and ulterior motives.
(viii) In 78 cases out of 105 cases the assessments for more than one assessment year were made by one combined assessm ent order which is also against the normal procedure and existing instructions.
(ix) In all other 105 cases, all involving refunds, not a single person holds any National Tax Number or Trial Register number. All of them happen to be new assessees who filed their returns for current as well as past years to get refunds only.
(x) The assessm ents in these cases were framed in an absolutely slipshod manner with a clear and deliberate intention of creating refund in as such much as no trading/profit and loss account is found to have been furnished along with the returns in these cases. The wealth statements, wherever filed, bear no signatures of the assessee. No thoughtful notice under section 62 was issued to confront the (issues and defects) in this regard.
(xi) All the returns were filed in the month of September, 1996, the assessments and refund thereupon were finalized in the same month. Indecent haste and extra zeal smack of mala fides.
(xii) Mr. Tayeib, thus, misused the powers as an Assessing Officer by acting in an arbitrary manner which caused loss of Rs,4.386 million to the Government Exchequer.
(xiii)The above mentioned acts of omission and commission on the part of Mr. Tayeib Hussain Qureshi, constitute gross inefficiency and misconduct in terms of Government Servants (Efficiency and Discipline) Rules, 1973.
(Sd.) (Muhammad Sarwar Khawaja) Member (Income Tax) (Authorized Officer)
3. The appellant, in his reply to the charge-sheet, denied all charges levelled against him. After finding his reply as not satisfactory, the respondents issued him a show-cause notice dated 27-2- 1998 stating that since the charges against him had been proved in the inquiry, he should submit his reply within ten days stating why major penalty of dismissal from service should not be imposed on him. The appellant was provided the copy of the inquiry report and was also asked to state whether he wanted to be heard in person.
4. The appellant in his detailed reply dated 18-5-1998 to the show-cause notice, consisting of 21 pages, once again vehemently denied all charges levelled against him. The respondents, however, found his reply not satisfactory and passed the impugned order dated 27-7-1998 whereby major penalty of dismissal from service was imposed on the appellant. The appellant preferred departmental appeal against this decision on 22-9-1998 which has remained undecided.
Consequently the present appeal was filed before the Tribunal on 21-12-1998 in time. It is however, relevant to reproduce here the contents of the departmental appeal submitted by the appellant addressed to the appellate authority who, in his case, was the Prime Minister:--- To, ' The Honourable Prime Minister, Islamic Republic of Pakistan Prime Minister's Secretariat, Islamabad.
Subject. Appeal under rule. 3 of the Civil Servants (Appeal) Rules, 1977 against Notification No,138- ITE/98 dated 27-7-1998.
' Sir, ' I have the honour to submit herewith my appeal papers before your honour as directed by the Second Secretary, C.B.R. Islamabad vide letter No,18(29)/94-AIT-I/841 dated 2nd September, 1998 which has been received by me through my son on 29-9-1998 (copy enclosed for your ready reference), for your kind perusal, sympathetic consideration and decision in the interest of natural justice. Yours faithfully, Dated 22-9-1998 (Tayeib Hussain Qureshi)
Ex-Income Tax Officer (BS-16) Previously Staff Officer-II To the Commissioner of Income Tax, Sukkur Zone, Sukkur.
5. During the course of the hearing the counsel for the appellant spent considerable time in trying to establish the charge of mala fide against the respondents in general and the Special Assistant to the Commissioner Income Tax, the officer who conducted the inspection of the record of Mirpur Mathelo Circle, which later formed the basis for disciplinary action against the appellant, in particular. The learned counsel for the appellant explained that the Special Assistant to the Commissioner Income Tax (C.I.T.) became irritated because the appellant "barged into his office" without any prior appointment when the, appellant went to pay a courtesy call on the Commissioner. The learned counsel contends that after this incident, the Special Assistant, who developed a grudge against the appellant, manoeuvred to obtain orders from the C.I.T. To undertake inspection of Mirpur Mathelo Circle, which happened to be the immediate past posting of the appellant. According to the appellant's counsel, this step was prima facie illegal because this work is done by the Inspection Wing of the department, and it was beyond the charter of duties of the Special Assistant since he was merely a staff officer to the Commissioner by virtue of his post.
The learned counsel for the appellant also attributed element of bias against the Inquiry Officer, Mr. Daud Tahir, who was appointed by the Authorized Officer to enquire into the charges levelled against the appellant on the ground that he too was a directly recruited officer while the appellant was a promotee having risen from the ranks.
6. Raising the issue of denial of personal hearing, the learned counsel for the appellant contends that the appellant was unable to appear before member, C.B.R. On the specified date for personal hearing as he was bed-ridden on account of serious illness. The learned counsel states that the appellant, in fact, requested for rescheduling the tearing by writing a note in his own hand on the face of the letter sent to confirm the date of personal hearing. He further contends that although the Authorized Officer was aware of appellant's serious illness and also the fact that he was on medical leave from 20-2-1998 onwards, still he fixed the date of personal hearing on 11-7-1998. He contends that the respondent disregarded genuine request for postponement and decided to take ex parte decision against the appellant which has seriously prejudiced appellant's rights under principles of natural justice which enjoin that nobody should be punished unheard.
7. The learned counsel for the appellant further contends that neither the Inquiry Officer nor the Authorized Officer had taken pains to appreciate the circumstances under which assessing officers perform their duties in the Mufassil areas. He further contends that the Enquiry Officer did not consider the evidence placed on record in its correct perspective and also misinterpreted the legal provisions and procedures of income-tax that were widely prevalent in Mufassil areas. According to the learned counsel for the appellant, the Enquiry Officer had based his finding merely on conjectures and surmises which were not sustainable either on points of law and fact and therefore any punishment based on this inquiry report was flawed in the eyes of law.
8. The learned counsel for the appellant also questioned the competence of the Authorized Officer to issue show-cause notice to the appellant on the ground that it should have been signed by the Secretary, Revenue Division, who had been delegated this authority. On the same analogy, the counse questioned the power of the Authorized Officer to appoint the Enquiry Officer to inquire into the charges. He further contends that the Enquiry Officer, Mr. Daud Tahir, was holding the post of Director Enquiries, Islamabad and therefore was incompetent to undertake inquiry of the case in Southern Region.
9. Clarifying the allegation about wrong reporting of revenue collection figures for the months of July, August and September, 1996, the counsel for the appellant pointed out that such mistakes were routine happenings and the figures were finally corrected at the close of each quarter. He placed the responsibility of miscalculation of figures squarely, on the shoulders of the U.D.C. While responding to the charge that the appellant had wilfully suppressed the amount of refunds by under reporting them, the learned counsel states that less reporting of figures, although unintentional, was based on actual encashment advice received by the office. About the observation that he had reported fictitious figure of collection amounting to Rs,4.155 million as against the net collection of only Rs,0.747 million, the learned counsel states that this was a mistake of calculation committed by the U.D.C. The learned counsel therefore called for the setting aside of the impugned order on the ground that it was capricious and illegal.
10. The learned counsel for the respondents forcefully repelled the arguments of the appellant's counsel by first questioning the jurisdiction of the Tribunal on the ground that the appellant had not preferred the departmental appeal to the Appellate Authority who was the Prime Minister in this case.
11. He stated that the Enquiry Officer, appointed by the Authorized Officer to inquire into the charges, had held the appellant culpable on all charges levelled against him. He stated that the appellant could not distance himself from all responsibilities by placing the blame of miscalculations on the shoulders of the U.D.C. Because he was incharge of the circle and the figures were sent to the head office under his signature. He further states that the reason given by the appellant for giving huge refunds to barbers . And Dhobis (Washermen) was unconvincing. The learned counsel also repelled the argument about the denial of personal hearing to the appellant stating that the appellant was called four times to appear before the Authorized Officer for personal hearing but he failed to turn up on all four occasions. According to the learned counsel, the appellant was called for personal hearing on 1-4-1998, but he did not appear. He was again called to appear before the Authorized Officer on* 21-4-1998 but this time also he did not turn up. The appellant was called for the third time in the first week of May, 1998, at Karachi, this time also the appellant did not turn up. The appellant was called for the fourth time on 11-7-1998 and again he failed to turn up. Thereafter the respondents were left with no choice but to finalize the disciplinary proceedings. The learned counsel stated that the appellant was provided sufficient opportunity to exercise the option of personal hearing which he failed to do.
12. The learned counsel for the respondents concluded his submissions by stating that after carefully considering the charges against the appellant and the contents of the inquiry report, the Authorized Officer submitted his recommendations to the authority as per rules for taking appropriate action against the appellant.
13. We have heard the arguments from both sides and have also carefully perused the record that has been placed before us. We would like to proceed in this case by first making a general observation about the manner in which the case has been pursued by both sides and thereafter examine the legal questions and the points of facts that have been placed for consideration.
14. This case appears to us to be distinguishable in many respects from most other cases not only because it has been bitterly contested by both sides, but also perhaps due to the fact that opposing sides have adopted absolutely diverse approaches in pursuit of their objectives. For instance, the thrust of appellant's arguments has been to establish mala fide intentions on the part of the respondents by highlighting the widely prevalent, although mostly unacknowledged, bitter tussle between the directly recruited (C. S. S. Nominees) and those who come through departmental quota (euphemistically called promotee officers.) This rift, unfortunately, is prevalent in all cadres of the civil service. The respondents, on the other hand, have focused their arguments on trying to establish the charge of wilful misconduct on the part of the appellant.
15. Returning to the discussion on legal points, in the first place, we would like to take up the issue of competence that has been raised by the learned counsel for the appellant. The answer to the appellant's objection can be found in the ESTACODE (1989 edition) at page 500 wherein it has been mentioned that Secretary is the Authority and the Additional Secretary is the Authorized Officer in matters relating to disciplinary proceedings against officials in 13S-16, Superintendents and equivalent under the Government Servants (Efficiency and Discipline) Rules, 1973. In our view, this power has been delegated to these officials by the President of Pakistan, therefore it cannot be further delegated except with the approval of the President. Since it is undisputed that the appellant is an Income Tax Officer in BS-16 having been promoted to the post in March 1994, therefore, in our view, the respondents have acted correctly in this matter and consequently, we are not inclined to accept the contention that the Authorized Officer was not competent to issue the show-cause notice to the appellant. This argument should also set at rest the objection raised by the appellant about the appointment of the Enquiry Officer. In order to further strengthen our argument, we would like to mention that under sub-rule (ii) of Rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973, the Authorized Officer is empowered to decide whether the enquiry should be conducted by the Enquiry Officer or a Committee. Here also, we find that the respondents have strictly followed the rules. The next question raised by the counsel for the appellant is whether Director Enquiries, C.B.R. Islamabad can be validly appointed as the Enquiry Officer for a case in the Southern Region. In this connection, we would like to point out that Mr. Daud Tahir has been appointed Enquiry Officer under ,section 5(H) of the Government Servants (Efficiency and Discipline) Rules, 1973. This appointment has not been made under Income Tax laws. Therefore, the contention of the appellant that the person holding the charge of Director Enquiries, Islamabad, cannot be rightfully appointed as the Enquiry Officer, has no force.
16. More importantly, we find that the appellant appears to be evasive in responding to charges during the cross-examination by the Inquiry Officer by saying that the stop was taken in view of practice prevalent in the Muffassil areas (without actually pointing out the rule etc.) or that he was under pressure from higher authorities to decide the cases without actually identifying the "higher authority". He also appears ,to be placing the entire responsibility on the shoulders of junior officials.
For instance, when questioned about the misreporting of figures, the appellant takes the position that a calculation mistake (which happens to be in millions) was un-intentional and was "adjustable, revisable after receiving the reconciliation of collection figures from treasury for the first quarter". Similarly in reply to another observation, the appellant maintains that less reported figures of refunds were not intentional but based on actual advices received of encashment but he does not provide any evidence of the advice in the record. The responsibility of exaggerated reporting of collection figures (Rs,4.155 million as against collection of Rs,0.747 million) has been placed on miscalculation by the U.D.C.
17. We shall not go into the details of each charge. This has been done adequately by the Enquiry Officer in his detailed report wherein all the charges levelled against the appellant have been established. We would, however, like to conclude by examining the issue of personal hearing which has been vigorously contested by both sides. The appellant claims that he was called for personal hearing on 11-7-1998 when he was bed-ridden and that he requested for fixing another date after he was in a position to travel. The respondents, on the other hand, have stated that the appellant was called for personal hearing on four occasions and each time he failed to turn up. This assertion has not been contradicted by the appellant's side in their detailed written rejoinder to the objections filed by the respondents. In our opinion, the respondents have made every effort to provide the appellant a fair opportunity for his defence. To be fair the respondents could not have waited indefinitely to decide the case.
18. In view of foregoing discussion, we are not inclined to accept this appeal as the appellant has failed to provide sufficient evidence in support of his contentions.
19. We, therefore, reject the appeal as being devoid of merit. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.