' SYED NASIR ALI SHAH, MEMBER.--- This appeal is directed against the order dated 31.10.2014 whereby minor penalty of "withholding of four annual increments" (without cumulative effect)" was imposed upon the appellant by the Authorized Officer/respondent No.1 and the subsequent order dated 6.5.2015 whereby respondent No.2 in his position as "Authority"/"Appellate. Authority" modified the aforesaid minor penalty to major penalty of "removal from service".
2. Facts leading to the filing of this appeal may be summarized. While posted as Deputy Superintendent (BS-16) Model Customs Collect orate (Preventive), Lahore the appellant was served with a charge sheet by respondent No.1 in his position as "Authorized Officer" on the allegations of inefficiency, misconduct and corruption. It was inter alia alleged that the appellant being hand in glove with the importers of betel leaves facilitated them to evade Government taxes and duties and thereby posted financial loss to the Government exchequer. The appellant in his reply to the charge sheet controverted the allegations leveled against him. Muhammad Irfan Waheed, Additional Collector was appointed as Inquiry Officer to probe into the allegations leveled against the appellant. Vide Inquiry Report dated 21.4.2014 the aforesaid allegations against the appellant stood proved. Thus respondent No. 1/Authorized Officer served a Show-Cause Notice dated 28.4.2015 upon the appellant. The appellant in his reply to the Show Cause Notice again refuted the allegations. Subsequently, vide order dated 31.10.2014 the Authorized Officer/respondent No. 1 imposed minor penalty of "withholding of four annual increments" (without cumulative effect) upon the appellant. On 17.11.2014 the appellant filed a departmental representation against the aforesaid order dated 31.10.2014. However, the aforesaid departmental representation was withdrawn by the appellant on 27/28.3.2015. But vide letter dated 26.3.2015 which was received by the appellant on 30.3.2015 a Show-Cause Notice was served upon the appellant to explain as to why major penalty of dismissal from service be not imposed upon him. The appellant in reply to the Show-Cause Notice again controverted the allegations. He also maintained that he had already withdrawn the departmental representation. However, vide impugned order dated 6.5.2015 major penalty of removal from service was imposed upon the appellant.
3. Against such a ticklish backdrop the appellant brought this appeal by inter alia maintaining that the impugned order is defective in that respondent No.2 acted as "Authority" instead "Appellate Authority" and as such lacked competence to impose the impugned penalty upon him. He also maintained that respondent No.2 had not assigned any reason while enhancing minor penalty into major penalty. The appellant thus prayed for setting aside of the impugned orders dated 31.10.2014 and 6.5.2015 with consequential relief of reinstatement into service with back benefits.
4. The appeal was resisted by the respondents. It was inter alia maintained that keeping in view the gravity of the allegations leveled and proved against the appellant during the inquiry respondent No.2 after fulfilling codal formalities had justifiably imposed the major penalty upon the appellant.
It was pointed out that the appellant had filed departmental appeal before the Chairman, FBR, Islamabad, which has not yet been decided and as such the instant appeal is incompetent.
5. We have heard the learned counsel for the parties and gone through the available record with their able assistance.
6. As noted supra, the impugned penalty of removal from service was imposed by respondent No.2 upon the appellant. First of all it has to be seen and determined as to in what capacity respondent No.2 had imposed the aforesaid penalty upon the appellant. Section 3 of the Civil Servants (Appeal) Rules, 1977 reads as under:- "3. Every civil servant shall be entitled to appeal, to the appellate authority from an order passed by an authority or an authorized officer imposing upon him any penalty."
In the case in hand, as noted above, the minor penalty of "withholding of four annual increments"
(without Cumulative effect) was imposed upon the appellant by the Authorized Officer. As such the departmental appeal which was filed by the appellant against the aforesaid order was to be heard and decided by respondent No.2 in his position as "Appellate Authority" and not as an "Authority".
But a perusal of the impugned order dated 6.5.2015 reveals that respondent No.2 was himself not sure whether he was acting as "Authority" or "Appellate Authority". In the impugned order respondent No.2 arrogated to himself both positions as "Authority" and "Appellate Authority". Not only this the Show-Cause Notice which was issued by respondent No.2 to the appellant for imposition of major penalty provision of Rule 6-A of The Government Servants (Efficiency and Discipline) Rules, 1973 was invoked which reads as under:- "6-A (Revision).--- The authority may call for the record of any case pending before or disposed of by the authorized officer and pass such order in relation thereto as it may deem fit."
A bare reading of the aforesaid provision of law makes it abundantly clear that this power is available to "Authority" and not the "Appellate Authority". Additionally, the power conferred under the aforesaid provision of law is revisional and not appellate and has to be exercised suo motu. But the respondent No.2 was acting as "Appellate Authority" and not as "Authority". As such the aforesaid revisional power was not available to him. Besides, the respondent No.2 exercised this power in his appellate jurisdiction and not suo motu. As such reliance on the aforesaid provision of law was misconceived and untenable.
7. Notwithstanding the above we have to see whether respondent No.2 was justified in enhancing the minor penalty already imposed upon the appellant by the Authorized Officer to the major penalty. Section 6(a) of the Civil Servants (Appeal) Rules, 1977 does empower the Appellate Authority to confirm, set aside or modify the previous order. But in G.M. Pakistan Railways and others v. Muhammad Rafique (2013 SCM R 372) it was held that while enhancing the penalty the Authority is required to specify the reasons for the proposed enhancement. Similar view was adopted in Secretary, Government of the Punjab (C& W) and others v. Ikramullah and 5 others (2013 SCM R 572).
8. Now we have to see whether respondent No.2 while issuing Show-Cause Notice to the appellant for the enhancement of penalty had specified the reasons. In the Show-Cause Notice dated 25.3.2015 issued to the appellant by respondent No.2, it was merely mentioned that the penalty imposed by the Authorized Officer "is inadequate and does not commensurate with the gravity of the charges established against you". Similarly while imposing enhanced major penalty of removal from service vide impugned notification dated 6.5.2010 the aforesaid assertion made in the Show- Cause Notice was reiterated. This was a vague and skimpy statement and as such it is difficult to hold that respondent No.2 had specified reasons for the enhancement of the penalty within the contemplation of the aforesaid pronouncements of the Hon'ble Supreme Court of Pakistan.. Viewed in such a perspective respondent No.2 was not justified in imposing impugned major penalty upon the appellant.
9. Not only this it has to be seen whether charges were proved against the appellant during the departmental inquiry. It is pertinent to mention that in the concluding paragraph of the Inquiry Report the Inquiry Officer had felt not inhibition in concluding that "the Department could not place on record direct or corroborated evidence pertaining to Corruption of the accused official in this case. The charge of corruption thus remains unsustainable at this stage." Besides, gravamen of the respondents against the appellant is that he failed to check weight of betel leaves and did not point out its inordinate tare weight. It is pertinent to mention that eighteenth of betel leaves was the responsibility of the examining officer and not of the appellant. As such the appellant could not be held responsible for this lapse. Besides, it was not the duty of the appellant to assess duty and taxes enviable on the import of betel leaves in question. As such the allegation of posting financial loss to the Government exchequer cannot be foisted upon the appellant. Not only this, the findings of the Inquiry Officer are based on hypothesis and conjectures.
10. As noted supra, initially the minor penalty of "withholding of four annual increments (without cumulative effect)" was imposed upon the appellant. The appellant did file departmental representation against the aforesaid minor penalty but subsequently withdrew the same. But it needs to be kept in mind that there is no estoppel in law. As such withdrawal of the departmental representation by the appellant will not have the effect forfeiting his vested right to assail the imposition of the aforesaid minor penalty of withholding of four annual increments (without cumulative effect)" before this Tribunal. As noted above findings of the Inquiry Report on the basis of which the impugned minor penalty was imposed upon the appellant have been found to be unfounded and misconceived. As such there was no justification of imposition of the aforesaid minor penalty upon the appellant.
11. Lastly a few words may be said about the objection of the respondents that the instant appeal is incompetent as the departmental appeal filed by the appellant before the Chairman, FBR is still pending. In the preceding paragraph we have already held that respondent No.2 was acting as "Appellate Authority" and not "Authority". This being so after the decision of the Appellate Authority dated 6.5.2015 there was hardly any necessity to file the departmental representation against the same. As such the aforesaid departmental representation, if filed by the appellant, in inconsequential and of no legal effect.
12. For the foregoing reasons, while accepting the instant appeal, the impugned orders dated 31.10.2014 and 6.5.2015 are accordingly set aside. Consequently, the appellant is ordered to be reinstated into service with effect from 6.5.2015 with all consequential back benefits.
13. No order as to costs.