' MUHAMMAD ATHER SAEED, J.---This Civil Petition for leave to appeal has been filed against the judgment of the learned Federal Service Tribunal, Islamabad, dated 31-1-2008 in Appeal No.345(K)CS/2001, whereby the learned Service Tribunal had dismissed the appeal filed by the petitioner.
2. Leave to appeal was granted by this Court vide its order dated 27-5-2009, which is reproduced hereinbelow:-- "After hearing learned counsel for the petitioner, following points appeared to be wroth consideration:--
(a) Whether the charge against the petitioner was factually proved through the inquiry?
(b) Whether the petitioner could be subjected to fresh inquiry despite his order of reinstatement, passed by the competent authority, containing no direction for fresh inquiry? And
(c) Whether the Chairman, CBR could legally act as authorized officer qua the petitioner?"
3. Brief facts of the case are that the appellant joined Government service in the Commerce and Trade Group on 31-10-1992. His services were placed at the disposal of 'the Central Board of Revenue under section 10 of the Civil Servants Act, 1973 on 22-3-1994 by whom he was posted as Assistant Commissioner, Income Tax Circle-07, Zone-A, Lahore. In the year 1997; Mr. Saeed Ahmed Chaudhry, the then President of the Income Tax Bar Association, Lahore, complained to the Commissioner of the Income Tax, Lahore that the appellant was harassing the tax payers and had extorted illegal gratification amounting to Rs 60,000 from two tax payers, namely, Mr. Zahid All (NTN-05-07-1211692) and Mr. Shakoor Ahmed Khan (NTN-05-07-TR590), who were being assessed in his circle. The Commissioner of the Income Tax deputed Mr. Abdur Raul, the then Inspecting Additional Commissioner, Lahore, who conducted a raid at the office of the appellant along with the President and Members of the Lahore Tax Bar Association and allegedly recovered the amount of illegal gratification from the possession of the appellant. On the basis of the above raid a charge-sheet dated 19-8-1997 was served upon the appellant by respondent No.2. Whereby Mr. Mazhar Farooq Sherazi, Director Enquiries, Enquiry Wing, Lahore was appointed as Inquiry Officer.
The said charge-sheet was accompanied by the following statement of allegations:- "GOVERNMENT OF PAKISTAN CENTRAL BOARD OF REVENUE ' STATEMENT OF ALLEGATIONS ' Mr. Muhammad Shahzad Zaheer, Assistant Commissioner of Income Tax (BS-17) (under suspension) is accused of "corruption/misconduct" arising out of the acts of commission in the form of extorting illegal gratification. Mr. Muhammad Sneed Chaudhry, President, Tax Bar Association made a complaint to the Commissioner of Income Tax, Zone-A, Lahore, alleging that Mr. Muhammad Shahzad Zaheer, Assistant Commissioner of Income Tax, then posted in Cricle-7, Zone-A, Lahore was involved in extorting illegal gratification from tax pavers.
(2) A surprise search of his office was conducted by Mr. Abdul Rauf IAC, Range-IV, Zone-A, Lahore.
A sum of Rs.60,000 (Rupees sixty thousand) was recovered from the pocket of the officer which he got as illegal gratication from two tax payers, namely, Mr. Zahid Ali (N7'N-05-07-1211692) and Mr. Shakoor Ahmed Khan (NTN-05-07-TR-590).
' Sd/- ' 19-8-1997 (Hafeezullah Ishaq)
' Chairman, CBR ' Authorized Officer."
' The appellant submitted his reply dated 13-9-1997 to the said charge-sheet/statement of allegations, wherein he denied the said allegations. The inquiry officer after conducting an inquiry submitted his inquiry report, whereby he found the appellant guilty of corruption and misconduct under the E & D Rules, 1973. On the basis of this inquiry report, a show cause notice dated 12-11-1997 was issued to the appellant wherein a major penalty of dismissal from service was proposed by respondent No.2. In response to this show cause notice a reply dated 28-11-1997 was filed by the appellant whereby he denied the allegations as false and fabricated. However, his reply was not found satisfactory and he was dismissed from service vide notification dated 8-8-1998.
4. Aggrieved by the above notification, he preferred a departmental appeal on 7-94998 and since it was not responded to, he preferred an appeal before the learned Federal Service Tribunal. While the appeal was pending adjudication, respondent No.2 issued a notification No.20-1TE/2000, dated 18-1-2000 reinstating the appellant in service with immediate effect and the intervening period was treated as leave admissible to him under the rules, therefore, the appellant withdrew the service appeal filed by him. The appellant's services were then retransferred' to his parent department where he was posted as Technical Editor in the Foreign Trade Institute with immediate effect until further orders. During this posting vide memo dated 7th September, 2000, he was directed to proceed on leave with immediate effect for the purpose of conducting disciplinary proceedings afresh against him and a show cause notice dated 2nd September, 2000 was thereafter issued.
The appellant submitted his reply to the said show cause notice and besides denying the allegations once again submitted that vide his reinstatement notification dated 18-1-2000 the issue pertaining to the allegations had been settled and his dismissal from service was set-aside and he was reinstated in service. He further challenged the show cause notice by stating that the issuance of show cause notice on the same allegations on the basis of which he had been dismissed earlier would amount to double jeopardy. After providing him an opportunity of personal hearing, he was dismissed from service vide notification No.4(3)/92-Admn.Ill, dated 9-7-2001 with immediate effect under the Government Servants (Efficiency and Discipline Rules, 1973. He preferred a departmental appeal against the said dismissal order but the, same remained unattended then he filed an appeal before the Federal Service Tribunal which was dismissed vide impugned judgment dated 31-1-2008. Hence this appeal with the leave of the Court.
5. We have heard Hafiz S.A. Rehman, learned Senior Advocate Supreme Court for the appellant, Mr. Imran Fazil; learned Advocate Supreme Court for respondent No.2 and Sajid Ilyas Bhatti, learned Deputy Attorney-General for respondents Nos. 1 and 3.
6. The learned Senior. Advocate Supreme Court for the appellant argued that the appellant had been subjected to double jeopardy as earlier on the basis of the same allegations he was dismissed from service and then that dismissal was set aside and he was reinstated in service but on the basis of the same allegations a show cause notice was again issued and he was once again dismissed from service. He next argued that the procedure provided in Rule 9 of the Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as 'Rules, 1973') were not followed in letter and spirit as respondent No.2 was not an authorized officer to take any adverse action against the appellant. He further argued that respondent No.3 while passing the second dismissal order did not conduct any inquiry and took the action of dismissal from service on the basis of the earlier inquiry conducted by respondent No.2 which had been made the basis of his first dismissal from service. He submitted that this action is against the principles of natural justice, as respondent No.3 should have conducted disciplinary proceedings afresh and should have appointed an inquiry officer to conduct a fresh inquiry and take action upon his report. He, therefore, submitted that this action of respondent No.3 was illegal and, therefore, while retaining his right to rebut the arguments of the learned Deputy Attorney-General and other Advocate Supreme Court for the respondents, he prayed that the appeal be allowed and the impugned judgment of the Tribunal being illegal and invalid be set aside and appellant may be reinstated in service.
7. The learned Deputy Attorney-General for Pakistan strongly opposed the arguments of the learned Senior Advocate Supreme Court for the appellant and supported the impugned judgment.
He submitted that the reinstatement order of the appellant dated 18-1-2000 was not passed by exonerating the appellant from the allegations made against him but in pursuance to the office memo dated 21-12-1998, issued by the Establishment Division. He also produced before us a copy of this memo for our perusal. The learned DAG also submitted that the appellant has been relying on the amended Rule 9 of Rules, 1973, which was incorporated in the Government Servants (Efficiency and Discipline) Rules, 1973 vide S.R.O.74(I)/2001 published in the Gazette of Pakistan Extra.
Part.II, Page No.275 dated 3rd February, 2001, whereas the entire action had been taken by respondent No.2 before this date therefore the old law as it stood in the year 2000 would be applicable to this case. He also provided us a copy of Rule 9 of the Rules, 1973, as it stood before 3rd February, 2001. He further argued that the appellant had been reinstated into service because of the provisions of Rule 9 of the Rules, 1973, as it stood then which provides that if in the opinion of the borrowing authority any penalty should be imposed on an officer of the lending authority it shall transmit to the lending authority all the records of the proceedings and the lending authority shall take any action as prescribed in these rules and the reinstatement order was issued as the procedure prescribed had not been properly followed and therefore the statement of the appellant that he was exonerated from the allegations is not correct. He further submitted that the borrowing authority had the powers under the un-amended rules to place the officer of the lending authority under suspension or require him to proceed on leave and initiate proceedings against him under these rules. He, therefore, prayed the appeal being merit-less may be dismissed.
8. The learned Advocate Supreme Court for respondent No.2 adopted the arguments of the learned Deputy Attorney-General.
9. Exercising his right of rebuttal, the learned Senior Advocate Supreme Court for the appellant referred to the conditions specified in first and second provisos to Rule 9(1) of the Rules, 1973, which provides that the borrowing authority shall inform the lending authority of the circumstances leading to the order of his suspension and the commencement of the proceedings as the case may be and secondly that the borrowing authority shall obtain prior approval of the Prime Minister before taking any action against a member of an All-Pakistan Service or a Class-I Service or a holder of a Class-I post. He submitted that these conditions were not fulfilled and therefore, the entire proceedings had been rendered invalid for non-following of these procedures.
10. We have examined the case in the light, of the arguments of the learned Senior Advocate Supreme Court for the appellant and the learned Deputy Attorney-General for Pakistan for respondents Nos.1 and 3 and have carefully perused the, entire records of the case and the law on the subject.
11. Before we proceed further it would be relevant to reproduce rule 9 of the Rules, 1973, as it is stood when respondent No.2 proceeded against the appellant and also the same rule as it stood after amendment made in by the S.R.O No.74(I) 2001.
"Rule 9 as it stood before the year 2001
9. Procedure of inquiry against officers lent to Provincial Government, etc.---(I) Where the services of a Government servant to whom these rule apply are lent to a Provincial Government or to a local or other authority, in this rule referred to as the borrowing authority, the borrowing authority shall have the powers of the authority for the purpose of placing him under suspension or requiring him to proceed on leave and of initiating proceedings against him under these rules: ' Provided that the borrowing authority shall forthwith inform the authority which has lent his services, hereinafter in the rule referred to as the lending authority, of the circumstances leading to the order of his suspension or the commencement , of the proceedings, as the case may be: ' Provided further that the borrowing authority [ ] shall obtain prior approval of the **(Prime Minister] before taking any action under these rules against a member of an All-Pakistan Service or a Class-I Service or a holder of a Class-I post.
(2). If, in the light of the findings in the proceedings taken against the Government servant in terms of sub-rule (1), the borrowing authority is of opinion that any penalty should be imposed on him, it shall transmit to the lending authority the record of proceedings and thereupon the lending authority shall take action as prescribed in these rules.
' Rule 9 as it stood after the year 2001 [9. Procedure of inquiry against government servants serving in Provincial Government or working on deputation outside their department or service to which they belong. ---When a government servant, to whom these rules apply, is serving under a Provincial government or in a department, outside the department or service to whom he belongs, or in a statutory organization, corporate body, or local authority, and the borrowing authority wants to initiate disciplinary proceedings against such government servant under these rules, the borrowing authority shall forward to the concerned lending authority a report with supporting documents on the basis of which disciplinary proceedings are proposed, and, if considered necessary, it may with the approval of the lending authority place him under suspension or send him on forced leave. On receipt of report from the borrowing authority, the lending authority shall take action as prescribed by these rules..1"
12. From a perusal of the old rule, it is clear that the borrowing authority can take action against an officer of the lending authority by initiating proceedings against him under these rules subject to certain conditions. Apparently, the borrowing authority in this case i.e. Respondent No.2 took action without fulfilling the above conditions and therefore, under directions issued by the Establishment Division vide Office Memorandum No.8/70/98-D.3, dated 21-12-1999, the borrowing authority reinstated the appellant and this fact was also mentioned in the letter dated 18-1-2001 by which the appellant was reinstated into service. From a perusal of this letter it is clear that respondent No.2 had reinstated into service the appellant not because he had been exonerated from the statement of allegations made against him but because there were certain procedural flaws in the procedure adopted, After such reinstatement the, appellant was sent back to the lending authority and the entire material on the basis of which the proposed action, which had been withdrawn, was taken against the appellant was sent to the lending authority. From the above it is clear that the appellant was not exonerated from the allegations made against him which resulted in his earlier dismissal but was reinstated because the procedure followed was flawed and therefore, the learned Senior Advocate Supreme Court's contention that the appellant has been subjected to double jeopardy inasmuch as action against him has been taken on the same set of allegations does not carry any weight and is repelled. The other fact which becomes clear that once action taken on the basis of Rule 9 of the Rules, 1973, as it stood before 2001 has been withdrawn then all procedural lapses which may have resulted in the first order of dismissal cease to exist and in the second round the respondent No.2 has followed Sub-Rule 2 of Rule 9, of the Rules, 1973 and had transmitted to the lending authority the records of the proceedings whereupon` the lending authority has taken action as prescribed in these rules.
13. From the facts of the case it has become clear that the appellant had committed an act of corruption and misconduct while in the service of borrowing authority and therefore, the inquiry was rightly conducted by the borrowing authority i,e. Respondent No.2 and respondent No.3 had issued a show cause notice on the basis of this inquiry. The learned Senior Advocate Supreme Court for the appellant had argued that vide Office Memorandum dated 21-12-1999, the Establishment Division had issued direction as, per paragraph-b, which reads as under:- "(b) That the disciplinary proceedings against him be conducted afresh in terms of Rule 9 of the Govt, Servants (E4D) Rules, 1973, from the stage that the CBR, being borrowing authority is required to transmit the lending authority i.e. M/0 Commerce the record of proceedings for taking further action as prescribed in the E&D Rules, 1973.
' And since the directions were that the disciplinary proceedings against him be conducted afresh in terms of Rule 9 of the Rules, 1973 after transmission to the lending authority the records of the proceedings for taking further action, therefore, the entire disciplinary proceedings including the conducting of an inquiry has to be conducted afresh. We find ourselves unable to agree with this argument of the learned Senior Advocate Supreme Court for the appellant because according to the above paragraph the disciplinary proceedings shall be conducted afresh from the stage the borrowing authority is required to transmit to the lending authority the records of the proceedings which included the inquiry already conducted.
14. We are, therefore, of the considered opinion that the proceedings have been conducted in accordance with Rule 9 of the Rules, 1973 and all the principles of natural justice have been followed and the appellant has been provided opportunities to reply to the show cause notices and statement of allegations at both the stages and also given a chance of personal hearing. The judgment of the learned Service Tribunal is, therefore, unexceptionable and no interference is called from this Court.
15. As a result of the above discussion, this appeal being merit-less is dismissed. No order as to costs.