1. B. G. N. KAZI (MEMBER).---Arguments in this appeal were heard by the Full Bench of this Tribunal consisting of Mr. Muhammad Ilyas, Chairman, Dr. A. Q. K. Afghan, Member and Mr. N. A. Choudhury, Member. However, before the order could be recorded and signed by the Chairman he was elevated as Judge of the Lahore High Court and therefore, the arguments by the counsel for the appellant and counsel for the respondent have been heard afresh.
2. The admitted facts of the case are that the appellant while working as Upper Division Clerk in the Office of the Income-tax Commissioner was alleged to have been involved along with some other colleagues in interfering with and causing obstruction against the action by police party which had raided the office in connection with detection of case of illegal gratification. The Police registered a case against a number of employees of Income-tax Department but the name of the appellant was not shown in the F. I. R. The date of occurrence was 29th June, 1974 and the first show-cause notice was served on the appellant on 26th July, 1975 in connection with the departmental enquiry which was ordered to be held.
3. The appellant submitted reply to the show-cause notice on 4th August, 1975 and the enquiry, was conducted by the Enquiry Officer who was appointed by the respondent. Thereafter the Commissioner, Income-tax, Rawalpindi vide his order dated 1st March, 1976 removed the appellant from the service. Appellant filed a departmental appeal to the Central Board of Revenue but did not receive any response and therefore he filed the instant appeal before the Tribunal.
4. At the very outset it may be stated that the learned counsel for the appellant has attacked the impugned order on the plea that Government Servants (Efficiency & Discipline) Rules, 1973 and specially the rule 5 (2) thereof were not followed and therefore, the entire desciplinary action taken is ab initio viod and on this short ground alone the appeal should be allowed.
5. Article 240 of the Constitution of the Islamic Republic of Pakistan 1973 inter alia provides that subject to the Constitution the con--ditions of service of a person in the service of Pakistan shall be determined in the case of the services of the Federation and posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Parliament. The Civil Servants Ordinance, 1973 (XIV of 1973) was promulgated and repealed by the Civil Servants Act, 1973 which was enacted by the Parliament. The Government Servants (Efficiency & Discipline) Rules, 1973 were made in exercise of powers conferred by section 25 of the Civil Servants Ordinance, 1973 and admittedly are applicable to the case of the appellant.
6. In view of the preliminary objection raised on behalf of the appellant that there was a contravention of the Government Servants (Efficiency and Discipline) Rules, 1973 this Tribunal does not feel called upon to go into the merits of the Enquiry held against the appellant.
7. The Government Servants (Efficiency and Discipline) Rules, 1973 prescribe Enquiry procedure in rule 5 thereof. A perusal of the afore--said Rule would show that sub-rule (2) prescribes that the authorised office shall decide whether in the light of the facts of the case or in the interest of justice Enquiry should be conducted through an Enquiry officer or Enquiry Committee and if he decides that the Enquiry should be con--ducted, the procedure indicated in rule 6 shall apply. Sub-rule (3) prescribes summary procedure, in case the authorised officer decides that it is not necessary to have Enquiry conducted through an Enquiry Officer. Sub-rule (4) of the Rules provides that on receipt of report of Enquiry Officer the Authorised Officer shall determine whether the charges have been proved, and what is more important the sub-rule gives the power to the Authorised Officer to impose a minor penalty. It is only if the authorized officer proposes to impose a major penalty that he shall forward the case to the authority along with the charge and statement of allegations served on the accused, the explanation of the accused, the evidence of the Enquiry officer and his own recommendations regarding the penalty to be imposed. It is then for the authority to pass such orders as it may deem proper.
8. In the circumstances, no doubt there has been a departure from the procedure prescribed in rule 5, in that the authority initiated the enquiry proceedings completely eliminating the procedure which required the authorised officer to do so and the authority imposed the penalty.
9. It has been contended by the learned counsel for the respondent that the authorised officer is only delegatee of power of the authority and therefore, the authority could under the rules take action itself. A perusal of rule 5, however, would show that this contention cannot be accepted. There is no mention about authority delegating the power to the authorised officer. As a matter of fact the authorised officer and the authority under the aforesaid rules are appointed by the Government and it is an admitted position that the authorised officer and the authority in the instant case were different.
10. There can be no doubt about the fact that prejudice has been caused to the appellant by not following the prescribed Rules inasmuch as the authorised officer might have considered to be one where a minor penalty bad to be imposed and the authority would then have been the appellate authority against such order of the authorised officer. Even otherwise the prescribed procedure for disciplinary action as laid down in rule 5 had to be observed by the authority concerned. The authorised officer should have initiated the enquiry proceedings and appointed enquiry officer and observed the procedure as specified above.
11. It has been argued on behalf of the appellant that the action taken by the authority in this case will show that such action was a mala fide. However, without going into the matter at this stage and in view of the fact that it has been observed that the impugned order was passed by the respondent without observing that the rules of procedure as stated in Rules, 1973 the impugned order cannot be sustained and is hereby set aside. The appellant be re-instated in service with effect from the date he was removed with all the consequential benefits.
12. It may, however, be remarked that this Tribunal has not gone into the merits of the charges and disciplinary proceedings are being set aside on ground of non-compliance with the rules of procedure ; the holding of a fresh Enquiry could not be considered violative of the principle of autre fois acquit. Since as already stated the order of the Tribunal is not passed on merits of the case but merely on technical grounds.