' TASSADUQ HUSSAIN JILLANI, J.---Appellant while serving as Assistant Director, Directorate of Inspection and Internal Audit, Customs and Excise, Lahore, was proceeded against on charges of misconduct and in terms of the show cause notice, following charges were framed:-- "CHARGE NO. 1: "Where, he processed 14 claims during the month of August, 2004 in the queue of Mr. Azhar Irfan, Auditor, who was on ex-Pakistan leave since 25-6-2004. His queue should have been blocked and cases pending in it reassigned to other auditors of the refund division,. Sialkot.
He kept that queue deliberately active to process claims out of turn."
' CHARGE NO. II: "Whereas, he did not follow the principle of first come first in processing the refund claims. Instead claims submitted to his office just six days earlier were sanctioned. On the other hand claims since year 2000 onward were pending in his office. Most of these cases were processed in the queue of Mr. Azhar Irfan, Auditor."
' CHARGE NO. III: "Whereas, he processed II claims involving an amount of Rs, 13.135 million on 26-8- 2004 and 27-8-2004 i,e, after his transfer from Sialkot Refund Division. But by maneuvering the dates, on his computer he tried to show these claims sanctioned on 24-8-2004. The data obtained from STARR Sialkot clearly corroborates this allegation."
' CHARGE NO. IV: "Whereas, he processed and sanctioned 162 claims on 24-8-2004. Scrutiny of few files sanctioned on that date showed that certain points, which would have caused sanctioned amount to be deferred, were ignored and full amount was sanctioned. The haste in which claims were sanctioned on 24-8-2004 resulted in sanctioning of objectionable claims. Moreover, the register wherein RPOs were entered showed that uptill 28-8-2004 there was no entry of 27 claims including the claims mentioned at para (iii) above."
' CHARGE NO. V: "Mr. Abdur Rasheed Khan, Superintendent Refund, in reply to explanation memo stated that he had intimated him that password of auditors of his group was being misused by the KPO and requested him to take appropriate action to stop that practice. But he did not take notice of that complaint and continued sanctioning refunds out of turn."
2. The Inquiry Officer having carried out an elaborate inquiry held as follows:- "In view of the position stated above, the accused officer has been found guilty of negligence in performing the supervisory duties as Incharge, ST&CE Refund Division, Sialkot. As such the charge of mis-conduct in terms of section 3.1(b) of Removal from Service (Special Powers) Ordinance, 2000 is proved. As regards the charge of mal-administration is concerned, it is difficult to prove the involvement of the accused officer unless the detail audit of the refund claims particularly those which ave been entertained against the principles of first come first asis, is conducted by the concerned authority.
' The undersigned in his capacity as Enquiry Officer, is therefore, obliged to recommend a minor penalty to be imposed upon Mr. Asif Yousaf Ghurki, Assistant Collector as prescribed under the rules of the said Ordinance."
3. The Competent Authority, however, notwithstanding the recommendations of the Inquiry Officer for a minor penalty awarded appellant major penalty in terms of the order/notification dated 20- 7-2006, para 3 of which reads as follows:-- "3. The Competent Authority/Secretary General, Revenue Division/Chairman, CBR after examining the entire record of the case, defence of the accused officer including reply to the Show Cause Notice and observations/findings of the enquiry report and arguments made by the accused officer during personal hearing concluded that there was substantial evidence on record to prove the charges and has imposed major penalty of "Dismissal from Service" upon Mr. Asif Yousaf Ghurki, Assistant Director (BS-17), Directorate General of Inspection and Internal Audit (Customs and Excise), Lahore under Section 3 of Removal from Service (Special Powers) Ordinance, 2000."
4. Leave was granted by this Court in terms of the order dated 14-2-2011, which reads as follows:-- "2. Leave is granted, inter alia, to consider whether before converting the minor penalty as suggested by the Inquiry Officer into major penalty of dismissal from service competent authority has served the. Notice upon the petitioner and whether sufficient material was available before the competent authority to pass order impugned before Service Tribunal. Since a short question is involved office is directed to fix the main appeal within two months. The parties can file additional documents if any, in support of their respective contentions."
5. We have heard learned counsel for the appellant and learned Deputy Attorney General at some length and have gone through the precedent case-law to which reference was made by learned counsel for' the appellant i,e, Khalid Mansoor v. Director FIA (2008 SCM R 1174) and Abid Hussain v.
Chairman, NESCOM (2009 SCM R 1025).
6. There is no cavil to the proposition that the Competent Authority is not bound by the recommendation of Inquiry Officer qua the award of penalty to the accused officer. However, while disagreeing and awarding higher penalty than recommended by the Inquiry Officer, he has to firstly' provide opportunity of hearing to the accused officer and secondly, he has to pass a reasoned order with conscious application of mind. The tenor of the order passed to which reference has been made above indicates that although the Inquiry Officer had found the appellant to be negligent in his conduct and the charge of 'mal-administration' was not proved yet the Competent Authority while awarding him major penalty of dismissal from service found that "there was substantial evidence on record to prove the charges". There is no reference to the evidence or material which found favour with the Competent Authority to award major penalty of dismissal from service. Admittedly there was no allegation that the accused officer was guilty of corruption or of financial gain.
7. In the afore-referred circumstances, this appeal is partly allowed and the order of the Competent Authority dated 20-7-2006 is set aside. The case shall be deemed to be pending before the Competent Authority or his successor, whoever he may be, to pass a fresh order after hearing the appellant and within 30 days of the receipt of this order.