Moazzam Hayat, Member.--Appellant Naimatullah Khan was an Inspector in the Customs Department. He was posted in the AFU, Quetta where he received four consignments of 69 packages of mobile phones and accessories. These consignments had been transited from Islamabad' and Karachi to PIA Cargo Quetta. It was alleged that the appellant had not filed GDs nor had recovered any duty / taxes. In this manner, the Government was deprived of revenue amounting to Rs,69 lac. It transpires from the record that on 14.04.2010 the appellant was served with a charge sheet by the authorized officer under the Government Servants (E&D) Rules, 1973. Mr. Shakir Muhammad, Assistant Collector was appointed as Enquiry Officer. He submitted his report on 22.06.2010. In the inquiry it was concluded that the appellant was guilty. A recommendation was made that he be awarded major penalty of reduction in time scale by seven stages for a period of four years. The authorized officer agreed with the findings of the Enquiry Officer and submitted the case to the competent authority for imposition of major penalty to the appellant. On 26.01.2011 the appellant was awarded penalty of removal from service. His departmental appeal dated 06.02.2011 was rejected on 22.11.2011. The order was conveyed to him on 07.12.2001. Hence this appeal.
2. The appeal is resisted by the respondents. It is stated that the charges against the appellant were fully proved in the departmental inquiry and all the legal and codal formalities had been duly observed.
3. It is maintained by Ms. Misbah Sharif, learned counsel for the respondents that since the appellant had committed serious misconduct, he deserved major penalty of removal from service.
4. We have heard the learned counsel for the parties and. have also perused the record.
5. The learned counsel for the appellant has placed on record copies of the judgments dated 23.04.2012 passed in Appeal No, 27(Q)CS/2011 and 28(Q)CS/2011. In Appeal No, 27(Q)CS/2011 the appellant was Sardar Ghayas. In Appeal No, 28(Q)CS/2011 the appellant was Muhammad Umar Farooq. Sardar Ghayas was an Inspector in the AFU whereas Muhammad Umar Farobq was Superintendent. It transpires from the perusal of these judgments that the appellant was a co- accused in the departmental proceedings against Sardar Ghayas and Muhammad Umar Farooq.
They all were also accused in a criminal case. In both the cases, it was held that acquittal in a criminal case did not automatically result into reinstatement in service. There is no nexus between the disciplinary proceedings and the criminal proceedings. Acquittal in a criminal case shall not entitle a civil servant to exoneration of the disciplinary charges. Such charges are to be proved independently in accordance with the rules.
6. We are of the view that all the necessary proceedings had been held against the appellant. An authorized officer had been appointed. A regular inquiry was conducted by Mr. Shakir Muhammad, Assistant Collector. The appellant was served with a final show cause notice and was also heard.
Thus we are not in agreement with the learned counsel for the appellant that proper procedure had not been. adopted. His argument in that regard is repelled.
7. However, we find that in the impugned order the competent authority had not mentioned any reason to disagree with the recommendations made by the Enquiry Officer as well as the authorized officer. Under the disciplinary rules the Enquiry Officer is not required to give his recommendation as to the quantum of penalty. It is only the authorized officer who is required to give his recommendation in that regard. His recommendation deserves proper respect and due consideration. It was incumbent upon the competent authority to have recorded reasons for not accepting the recommendation of the authorized officer. In Rule 5(1)(iv) of the Government Servants (E&D) Rules, 1973, it is clearly stated that the authorized officer shall forward the case to the authority alongwith charges and statement of allegations served on the accused, the explanation of the accused, the findings of the Enquiry Officer and his own recommendations regarding the penalty to be imposed. The rule further says that the authority shall pass such order as it may deem proper. A bare perusal of this provision of law shows that the competent authority is definitely empowered to pass mob order as it may deem proper but at the same time it is also required to take into consideration the recommendation of the authorized officer. Such recommendation has not to be treated like a waste paper. The competent authority should have given cogent reasons for not accepting the recommendation of the authorized officer, especially when the Enquiry Officer, who had conducted the detailed inquiry into the 5 charges, was also of the same view. It was very easy for the competent authority to mention in the impugned order that the gravity of charges, proved in the inquiry, did not warrant a lesser penalty but warranted a real major penalty. In the absence of such remarks benefit of the recommendation has to be given to the appellant.
8. The appellant could not be awarded the penalty of reduction in rank Such a penalty can be awarded only to a promotee and not to a direct appointee in a certain grade. Following the judgment passed in Appeal No, 27(Q)CS/2011 we convert the penalty of removal from service into reduction in time scale by one stage for a period of one year. He is reinstated into service and shall be entitled to back benefits.
9. There shall be no order as to costs. Parties shall be informed.