MR. JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-Mr. Farooq Ahmad Malik, Income-tax Officer was suspended from service on 31st July, 1974, under the order of the President of Pakistan. A charge- sheet was issued to him by the Finance Secretary on 26th September, 1974, which was accompanied by a statement of allegations. The statement of allegations contained two main charges which were levelled against the officer. The first was his misbehaviour with the Principal of Jack and Jill Nursery School over the telephone on 22nd May, 1974, and the second was harassm ent caused to the same Principal by managing to send two notices through his colleague.
Mr. Vakil Ahmad asking her to appear with all her books of accounts for inspection on the 25th May, 1974. The notice had been received by the Principal only on 24th May. The disciplinary action was initiated against the officer under Government Servants (Efficiency and Discipline) Rules, 1973 for misconduct.
2. A written reply to the charge-sheet and the statement of allega--tions was submitted by the appellant within eight days' stipulated time. The witnesses were examined by the Enquiry Officer (Mr. Aftab Ahmad, Member, Central Board of Revenue), and final reply was filed by the appellant with the Enquiry Officer after the conclusion of the evidence of the witnesses. The Officer was dismissed from service with effect from 30th May, 1975, by an order of the Authority, received by him on 4th June, 1975.
3. The appeal against the order of dismissal was made to the President of Pakistan under rule 10 of Efficiency and Discipline Rules on 24th June, 1975. No reply was given to the appellant for ninety days statutory time which expired on 22nd September, 1975. Hence this appeal before the Service Tribunal.
4. It was argued by the learned counsel for the appellant that the officer remained under suspension from 31st July, 1974 to 4th June, 1975, for over ten months, but no order of the competent authority extending suspension period, after every three months, was obtained as required under rule 5 of the Efficiency and Discipline Rules, 1973. Since the provisions of this rule are mandatory, failure to comply with the provi--sions touches adversely the service conditions of the appellant.
5. The learned counsel further explained that the President of Pakistan was the Authority under the operative rule to hear the final appeal. Since the President issued the suspension order, interference has been made in the case at the stage of charge-sheeting and punishment thus causing prejudice to the case. The subsequent disciplinary proceedings, there are, stand vitiated.
Under rule 5 (1) of the said Rules, the Authorised Officer was the only competent officer who could suspend the accused. The fact that such an order of suspension could be passed with the approval of the Authority does not confer on the Authority the powers to issue order of suspension directly over and above the head of the Authorised Officer. The power to grant approval does not include the power to direct suspension.
6. The counsel further explained that the enquiry proceedings were not conducted in accordance with the rules, because the enquiry officer examined three, out of four witnesses, during the enquiry in the absence of the appellant. Any such evidence recorded is of no legal consequence, and punishment based on such evidence is against the principles of justice and equity.
7. Explaining the events of the case in details, the learned counsel for the appellant stated further that suspension order was passed on 31st July,. 1974, when there was no complaint against the appellant on record, charge-sheet was issued to him on 26th September, 1974, when a complaint was obtained in writing from said principal. The charge of misbehaviour levelled against the accused is based on his conversation with the principal which took place on 22nd April, 1974.
Similarly, the charge of harassm ent levelled against the officer is based on the fact that notices were issued at his instance to the complainant by Mr. Vakil Ahmad, another Income-tax Officer. As the notices were issued earlier than the conversation of the complaint with the accused over the telephone, the conclusion that harassment has been caused by Mr. Farooq Ahmad is baseless.
8. The counsel for the appellant analysed the evidence and cross---examination of the witnesses in detail, quoting extensively from the record of proceedings. He pointed out numerous inconsistencies, inadequacies and even contradictions in the evidence. The complainant herself is not sure about the complaint she has made, because she has frequently used "perhaps" and "I surmise" while giving her statement, as witness. When cross-examined as to what made her surmise that Mr. Farooq Ahmad was at the back of so-called harassment. She could only point out that she has heard from her friend in the other schools not to have any differences with the Income-tax Officers, "so when I got the income-tax notices, I surmised that because I had that exchange of words with Mr. Farooq, he might have got the notices to me." When further cross- examined as to what made her surmise that Mr. Farooq Ahmad was angry with her, she could only say that it was feeling from Mr. Farooq's tone over the telephone that he was angry. When further asked whether she could distinguish between the angry tone and normal tone of the officer when she did not have any occasion previously to talk to him, it was not possible for her to further elaborate her contention. The learned counsel, therefore, pointed out that even if it is agreed that Mr. Farooq Ahmad was angry over the telephone. It does not prove necessarily that he was rude and misbehaved because there is clear distinction between being rude and being angry. As regards the harass--ment caused to the principal, the point was argued by the counsel that notices having been issued earlier than the date on which the telephone conversation took place, obviously there was no evidence to support that any harassment was caused by the appellant. In the evidence recorded, there is no clear indication that Mr. Farooq Ahmad was at the back of the notices issued by his department.
9. The learned counsel for the appellant argued with emphasis that it was the complaint made to Mr. Rafi Raza which precipitated in the order of punishment on political grounds. The complainant did not approach the normal channel of appeals through the higher officers belonging to the Income-tax Department. Her direct approach to an unconcerned political leader, therefore, supports the contention that political influence was used to obtain the order of punishment. Nor-- mally, it does not happen that the Authority directly reaches a conclusion to award major penalty when the recommendations of the Authorised Officer based on an enquiry, and evidence on record are to the contrary. He further stated that the order of punishment is not a speaking order inas-- much as it has not been passed by the Authority on independent application of mind and does not indicate the reasons for dismissal. There was no occasion for the Authority to apply his mind to the facts of the case when the recommendations of the Authorised Officer based on the evidence and facts of the enquiry were to the contrary, At this stage, the learned counsel referred to an affidavit placed on record, signed by the then Chairman of the Central Board of Revenue, who was the Authorised Officer in the case. The affidavit indicates clearly that no punishment was recommended to the Authority after applying his mind and consider--ing report of the Enquiry Officer. The case was referred to the Authority only to seek order of re-instatement because the original order of suspen--sion was passed by the President. The Authorised Officer was not competent to vacate this order, without reference to the Authority.
10. The learned counsel for the State analysed some portions of the evidence and cross- examination of the witnesses. He also quoted some portions of the evidence to prove that Mr. Farooq Ahmed had shown under interest in the case of assessment and issue of notices to the principal of the school. He argued that it was unusual on the part of the Income-tax Officer to issue notices on 24th July, 1974, directing the Principal to present the accounts on the 25th and then refusing extension in the time limit. The learned counsel also tried to prove that Mr. Farooq Ahmed was consulted by Mr. Vakil Ahmad repeatedly while considering extension of time limit. He supported his contention by the evidence given by Mr. Sarfraz, U. D. C. Through peer-hearing of the conversation between Mr. Farooq Ahmad and Mr. Vakil Ahmad in the office room of the latter.
11. After hearing the arguments from both the parties we come to the conclusion that no order extending the period of suspension as required under rule 5 (1) of the Efficiency and Discipline Rules was passed by the competent Authority. The counsel for the State has not been able to produce any such order. The clear provisions of the rule quoted, above have, therefore, been violated.
12. It is not possible to subscribe to the view of the learned counsel for the appellant that the President by issuing an order of suspension has caused prejudice to the case and that the subsequent proceedings should be treated to have been vitiated. Rule 5 (1) of Efficiency and Discipline Rules, 1975 reads as follows :- "In case where a Government servant is accused of subversion, corruption or misconduct, the Authorised Officer may require him to proceed on leave, or with the approval of the Authority suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months."
The order of suspension has to be passed by the Authorised Officer after approval of the Authority.
The Central Board of Revenue, in the instant case, has issued the suspension order after approval of the President. There is, therefore, nothing in the suspension order to violate the provisions of the rule.
13. The contention of the appellant that three witnesses were examined in his absence, could not be refused by the learned counsel for State during the arguments. The important evidence recorded in the absence of the accused, therefore, violates provisions of the rules and the conclusions arrived therefrom, cannot be considered reliable.
14. We have also no hesitation to accept the contention of the appellant that the course of events suggest abnormally about the proceedings and that the complaint has been obtained after it has been D decided to charge-sheet the officer. Likewise, we do not entertain any doubt in the contention that the punishment is a direct result of approach made to Mr. Rafi Raza, which generated political influence.
15. The quality of evidence that emerged from the detailed analysis presented by the learned counsel for the appellant also leaves no doubt that the evidence is inadequate, inconclusive, inconsistent and full of contradictions to prove the serious charge for which the extreme penalty has been imposed.
16. As regards the affidavit signed by the then Chairman of the Central Board of Revenue, who was the Authorised Officer in the case, the Establishment Division has not contradicted the contents of the same. They have only stated that the orders of punishment were passed by the Prime Minister under the delegated powers, and not by the Establishment Minister. We refer to rule 5 (4) of the Efficiency and Discipline Rules, 1973, which runs as follows :- "On receipt of the report of the Inquiry Officer or Inquiry Committee or, where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the Authorised Officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, be shall pass orders accordingly.
If it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of allegations served on the accused, the explanation of the accused, the finding of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper."
It is clear from the reading that where a minor penalty is proposed to be awarded, the Authorised Officer is competent to take final action and to issue orders accordingly. Similarly, when no penalty is proposed to be imposed, he is also competent to take final action to exonerate the accused of the charge. It is only where a major penalty is proposed to be inflicted that the powers original or delegated to the Authority, have to be invoked. In the instant case, since major penalty was not under consi--deration. A reference to the Authority was not necessary under the rules and the final action has been taken by the Authorised Officer except to seek approval of the Authority for issuing orders of re-instatement, because the suspension order was issued by the Authority. It is evident, therefore, that the delegated powers exercised by the Prime Minister in his capacity as the Authority were just not available to him under the rules. His powers came into play only where the Authorised Officer, after having been convinced regarding the evidence against an accused, proposed Ski major penalty to be inflicted. The Authority has, therefore no locus standi to issue order of punishment where no recommendation for major penalty has been made by the Authorised Officer.
17. We do not agree with the contention of the learned counsel for the State that it was unusual for the Income-tax officers to issue notices on 24th July, 1974 directing the Principal to present the accounts on the 25th July, and then to refuse extension to the time limit. In the interest of correct assessm ent and timely realisation of taxes. It is the normal procedure that short notices given to the assessee to present the accounts, so that the accounts already maintained are not corrected or charged on receipt of the notices. We also do not see anything unusual on the part of Mr. Farooq Ahmad to point out facts of the case to his colleague for consideration of normal assessment under the rules. It is the duty of every Income-tax Officers In fact of every citizen of Pakistan to bring correct facts to the notice of the concerned Taxation Authorities, in the interest of Tax realisation.
18. The arguments of the learned counsel for State that Mr. Sarfraz, U.D.C. Overheard the two Income-tax Officers discussing the case of assess--ment of Jack and Jill Nursery School in their offices has also failed to impress us. After all, over-hearing does not constitute reliable evidence in such cases. Moreover, Mr. Vakil Ahmad has categorically stated that notices were not issued by him at the instance of Mr. Farooq Ahmad. We find it difficult to give precedence to the evidence of a U.D.C. Based on overhearing of the conversation over the categorical statement of a res-- ponsible officer.
19. Both on procedural flaws and inadequacy of evidence, we come to the conclusion that the charges of rudeness and harassm ent have not been proved against the accused. We, therefore, vacate the order of punishment. The appellant should be re-instated into service with effect from the date he was originally suspended, with all the consequential benefit.
20. Parties to be informed. No order as to costs.