Tauqeer Ahmed Khan, Member.--Through this appeal under Section 4 of the Service Tribunals Act, 1973 the appellant assails the order dated 7.4.2021 imposing upon him the penalty of compulsory retirement from service. He preferred a departmental appeal to the Prime Minister within 30 days, which remained un-responded within 90 days, but vide letter dated 02.06.2021, he was directed to re-submit Appeal through the Commissioner-IR, Appeals-III, as per Civil Servants (Appeal) Rules, 1977 to which the appellant responded vide letter dated 13.07.2021, stating that the same has rightly been submitted through Member (Admin), FBR, Inland Revenue.
2. Briefly stated the facts of the case, as disclosed in the appeal are that the appellant was lastly posted within the office of Commissioner Inland Revenue (Appeals-III), when he was served with a show-cause notice dated 19.02.2021, contents whereof are as follows: "WHEREAS you, Mr. Ghulam Hussain Chand, Assistant Director (Audit), (BS-18), office of Commissioner Appeal-III, Karachi have committed following acts of omission and commission constituting "Inefficiency & Misconduct" as defined under Rule 2(1)(h)&(d) of the Civil Servants (Efficiency and Discipline) Rules, 2020 and decided to proceed against you under the said rule for the following charges: "That while posted as Assistant Director (Audit) in office of Commissioner, (Appeal-HA Karachi you have been found to be continuously absent from duty without any prior approval by the Authority w.e.f. 17th August, 2020".
2. AND WHEREAS the charge of un-authorized absence from duty since 17th August, 2020 stands established from record and it has been decided to proceed against you on grounds of "Inefficiency & Misconduct" under Rule 3(a)(b) of the aforesaid Rules.
3. AND WHEREAS, I Muhammad Javed Ghani, Secretary Revenue Division Chairman FBR being "Authority" under the Civil Servants (Efficiency and Discipline) Rules, 2020 have decided under Rule 6 read with Rule 7 of the Civil Servants (Efficiency and Discipline) Rules, 2020, that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee as charges levelled against you are established from record.
4. NOW THEREFORE, you, Mr. Ghulam Hussain Chand, Assistant Director (Audit), Commissioner Appeal-III, Karachi are called upon to Show Cause under Civil Servants (Efficiency and Discipline)
Rules, 2020 within fourteen (14) days of the receipt of this notice, as to why one or more penalties including Major Penalty of "Dismissal from Service" may not be imposed upon you as prescribed under the Civil Servants (Efficiency and Discipline) Rules, 2020.
Please take notice that in case of no or unsatisfactory reply within the stipulated time it shall be construed that you have nothing to say in defence.
You may also state whether you wish to be heard in person".
The appellant submitted his reply to the said show-cause notice vide reply dated 01.03.2021, denying the allegations levelled therein and explaining his position by stating that he has always been diligently present on duty and that there is no mechanism for monitoring/ maintaining attendance record in the office. It was also emphasized that he has no office accommodation and was only give a chair and no table to sit in the office and discharge his duties, despite the fact that his juniors in rank and experience have proper office accommodation. Further stated that from August, 2020, the Respondent No. 2 had taken charge of the post of Commissioner Inland Revenue (Appeals-III), Karachi and that her behaviour and attitude towards the appellant was not proper nor reasonable. When it was brought to her (Respondent No. 2) knowledge, instead of dealing with the appellant's concern, she told the appellant to approach Additional Commissioner (HQ), Corporate Tax Office (CTO) to get accommodation. The appellant in compliance approached the CTO, who instead just told the appellant to ask the Respondent No. 2 to send written request to the CTO. When the appellant requested her to do so, she became annoyed and misbehaved as well as insulted the appellant and directed him to get out of her chamber. Further, she directed the appellant to obtain appointment slips in future and when the appellant requested in writing for appointment, she refused to meet the appellant on the same day and gave him an appointment after two days. Subsequently, Respondent No. 2 stopped assigning official work to the appellant on the grounds, inter-alia, of non-availability of office accommodation. The appellant again wrote to the commissioner Inland Revenue (Appeals-III), the Respondent No. 2 with reference to his request dated 27.07.2020 in respect of providing office accommodation which was duly received in the office of the said Commissioner on 17.09.2020. Keeping in view the attitude of the Respondent No. 2, the appellant wrote to the Member (Admin/HR), Federal Board of Revenue, Islamabad for transfer from the office of Commissioner Inland Revenue (Appeals-III). The Respondent No. 2 opposed the appellant's transfer request with the false remarks that the appellant already stands surrendered to the office of Chief Commissioner Corporate Tax Office and that the appellant is absent from office without approval. The Respondent No. 2 instead of calling any explanation from the appellant, used to write directly to the CTO about the alleged absence of appellant. The appellant applied to the concerned authorities for issuance of documents for the purpose of his retirement, through the Respondent No. 2, yet the same were never forwarded by the Respondent No. 2.
The appellant filed departmental appeal to the Prime Minister through Member Admin, FBR, within 30 days of receipt of impugned order dated 07.04.2021 for the reasons that the impugned order was issued by the Secretary (HRMIR-III) with the approval of Chairman, FBR, therefore, the higher authority of the Chairman, FBR, is the Prime Minister of Pakistan. The above said appeal was/ is not decided by the department within a period of 90 days as mandated by Section-4(a) of Service Tribunals Act, 1973. The Secretary (HRMIR-III) wrote to the appellant vide letter dated 02.06.2021 received by the appellant on 2I.O6.2021 that he should resubmit his appeal through the office of Commissioner-lR, Appeals-III, Karachi (Respondent No. 2) as per the Civil Servants Appeals Rules, 1977. The appellant replied to the above said letter dated 13.07.2021 and inter-alia, submitted that the departmental appeal is rightly submitted through Member Admn FBR, Islamabad, who in turn, vide letter dated 29.03.2021 asked the appellant for his personal hearing and appellant submitted his reply dated 07.04.2021; hence, this appeal.
3. In the comments, it was stated the disciplinary proceedings under Civil Servants (Efficiency & Discipline) Rules, 2020 were initiated against the appellant on the charge of "Inefficiency & Misconduct" on account of unauthorized absence from duty w.e.f. 17.08.2020. Direct show-cause notice dated 19.02.2021 under Rule 6 read with Rule 7 of the Civil Servants (Efficiency & Discipline)
Rules, 2020 issued to the appellant. On grounds of "Inefficiency & Misconduct" as defined under Rule-2(1)(h)(k) of Civil Servants (Efficiency & Discipline) Rules, 2020 and the inquiry was dispensed with by the competent authority in terms of Rule-6 as facts were apparent/part of record. In response to it, the appellant submitted his reply vide letter dated 01.03.2021 and denied the charge of unauthorized absence levelled against him and requested for personal hearing.
Secretary Revenue Division/Chairman, FBR, being competent authority in the instant case appointed Member (Admin/HR) as hearing officer under Rule-17 of Civil Servants (Efficiency & Discipline) Rules, 2020, who granted personal hearing to the appellant on 07.04.2021 on behalf of the Authority i.e. Secretary Revenue Division/ Chairman, FBR which he attended. He was asked to produce a single document which would prove that the appellant did any official work or attended office, but he failed to produce any document to negate the contention which substantiates the assertion of the Commissioner-IR (Appeal-III), Karachi as well as Chief Commissioner-IR, CTO, Karachi. The Authority i.e. Secretary Revenue Division/ Chairman, FBR keeping in view the relevant record, written defence of the appellant and his verbal explanation during the course of personal hearing, found the appellant guilty of the charges of "Inefficiency & Misconduct", therefore, after examining the entire record of the case, Secretary Revenue Division/Chairman, FBR in his capacity as Authority, decided to impose major penalty of "compulsory retirement from service" upon the appellant, which was notified vide FBR's Notification No. 0819-IR-III/2021 dated 07.04.2021.
4. We have heard learned counsel for the parties and carefully perused the record.
5. As per the allegations, contained in the show-cause notice dated 19.02.2021, the appellant is alleged to have been absent from duty with effect from 17.08.2020, which allegation has been denied by the appellant in his reply to the said show-cause notice. From perusal of record, we find that a letter dated 07.01.2021 was forwarded by the Respondent No. 2 to the Additional Commissioner (HQs), Corporate Tax Office, Karachi, reporting for the first time absence of the appellant. The letter is reproduced as under:- "SUB: ABSENT FROM DUTY/ ABSCONDER -MR. GHULAM HUSSAIN CHAND, SENIOR AUDITOR, (BS-U).
Please refer to the subject cited above.
Mr. Ghulam Hussain Chand, was transferred from LTU, Karachi to this office vide Board's Transfer and Posting Notification No. 2127-IR-III/2014, dated 31.10.2014.
It is however noted with concern that since I have joined the charge of this office in Aug, 2020, Mr. William Hussain Chand has been continuously absent without any leave application or cogent reason. It is therefore, recommended that his performance allowance be stopped forthwith. He is also hereby surrendered to your office for further necessary action".
It is not understandable that the officer, who has reported against the appellant took five months to report about the absence of appellant since her taking over of the charge of the office of Commissioner Inland Revenue (Appeals-III), Karachi, admittedly in the month of August, 2020, why she took such a long period to report, no reason assigned. Further it has been noted by us that while sending such letter, recommendation was made for stoppage of appellant's performance allowance and he was surrendered for further necessary action. Although the report was made on 07.01.2021, it has not been made known the Court whether the salary for the said period was paid to/ drawn by the appellant during the said period. There is an application dated 27.01.2021 made by the appellant, requesting for his transfer, made to the Member (Admin/HR), FBR, Islamabad, where it was also mentioned that he is going to attain the age of superannuation on 04.10.2021, but no decision seems to have taken on it. Even there is another application dated 24.02.2021, addressed to Secretary (Management), FBR, Islamabad, having been made by the appellant requesting for issuance of retirement with effect from 03.10.2021 and issuance of necessary orders for, his retirement from Government of service. These facts have been taken into consideration by the respondents and action has been taken upon the show-cause notice and notification has been issued imposing upon him major penalty of compulsory retirement vide dated 07.04.2021, without holding a proper and regular inquiry against him, which could not have been done when the allegations, levelled against him in the show- c cause notice, have been denied by the appellant, rather the inquiry has been dispensed with without any justification or show reasons for such dispensation. It has been repeatedly held by the Apex Court that reasons for dispensing with the regular departmental inquiry should have been given. We do not find any reason for such dispensation. During the course of arguments, it has been-conceded by the learned counsel for the respondents that no regular inquiry was conducted against the appellant while imposing major penalty of compulsory retirement upon the appellant, which fact cannot be disputed upon the material available on record.
6. In a case reported in 2010 SCMR 237 (Executive Engineer, GEPCO Limited and another v. Liaqat Ali), it has been held by the Apex Court that: "5. Having examined the arguments of the learned counsel and the record, we are afraid we cannot approve the lopsided contention of the learned counsel. He reads admission of the respondent in reply to the show-cause notice while no such admissions exist therein. Instead, respondent in a detailed reply set up his defence pleas along with supportive documents in total denial of the charges and also alleged mala fide of the relevant authorities against him. What was alleged against the respondent was denied by him The allegation thus became disputed and required inquiry as envisaged in Sections 3 and 5 of the Removal from Service (Special Powers)
Ordinance, No. XVII of 2000".
It was further held that: "8. The competent authority, for even handed administration of justice, was obligated to follow the prescribed procedures before passing the order of imposition of major penalty i.e. compulsory retirement from service.
9. It was not a case falling within the statutory ambit of proviso to Section 3 or Sections 3A, 5(4) and 5(5) of the Ordinance, where holding of inquiry or opportunity of hearing could be dispensed with.
The petitioners have not pleaded or made out a case under these provisions of law."
7. The facts of the case of appellant in hand is identical to the cited case as the appellant in reply to the show-cause notice denied the allegations and alleged mala fide against the Respondent No. 2. Para-1 of reply of the appellant to the show-cause notice dated 19.02.2021, being relevant, is reproduced as under: "1. That with regard to the contents of opening paragraph wherein "inefficiency and misconduct" has been mentioned, it is submitted that the allegation about continuous absence from the duty without any prior approval by the authority w.e.f. 17th August, 2020 is absolutely false, incorrect and baseless. In fact in the month of August, 2020, Madam Shazia Abid had taken over the charge of Commissioner Inland Revenue (Appeals-III), Karachi and since than her conduct, attitude and behavior with the undersigned is not proper and reasonable; as such, initially the undersigned was not provided office accommodation to sit and work properly and when the undersigned brought this fact into the knowledge of Madam Shazia Abid, Commissioner Inland Revenue (Appeals-HI), Karachi, she instead to made some sitting arrangements, directed the undersigned to approach Additional Commissioner (HQ), Corporate Tax Office (CTO) and get the accommodation, therefore, the undersigned approached to CTO and they instead to give/ provide any accommodation to the undersigned to sit and work, directed him to ask Madam Shazia Abid to send a written request to CTO, therefore the undersigned informed and requested Madam Shazia Abid about the demand of CTO upon which Madam Shazia Abid becomes annoyed and by misbehaving and insulting the undersigned, directed him to leave her chamber and go out, beside she further directed that in future the undersigned may not approach her without sending a slip and obtaining appointment.
Subsequently, the undersigned, in compliance with such directions, send a written request/slip in order to meet her, however she refused to meet with the undersigned on the same day and called him after two (2) days; therefore, the undersigned restrained him from approaching Madam Shazia Abid, besides, Madam Shazia Abid stopped to assign any official work to the undersigned due to, inter-alia, non-availability of office accommodation, which is also evident from photographs attached herewith as annexure `A-1' to 'A-4'. It is important to mention here that the Junior Inspectors of BS-16 Mr.Mansoor Ahmed (dealing in Sales Tax) and Mr. Muhammad Akhtar (dealing in Income Tax) and UDC of BS-11 Mr. Shamim are having offices with table and chair but the undersigned used to sit only on the chair and even don't have any table to discharge his obligations. It is also important to point out here that despite the circular dated 12.11.2020 issued by FBR, whereby "employees above 50 years of age may be allowed to work from their homes, except those employees whose presence is unavoidable for smooth functioning of the official business.
Heads of all field formations are advised to take decision on this regard, accordingly.........", but Madam Shazia Abid did not allow the undersigned to work from his home, despite the fact that the age of the undersigned is more than fifty-nine (59) years and he is also suffering from various chronic diseases, including Diabetic, Hypertension, Blood Pressure, Tremors & Shivering so also Eye- side problems etc; on the contrary she had directed the undersigned to attend his office but did not assign any official work to him, resultantly the undersigned used to attend his office regularly without fail and/or did not remained absent from his office but due to non-assigning of any official work, he used to leave the office after sitting for the whole day in office. It is important to mention here that there is no mechanism of attendance available in the office, including any attendance register or biometric attendance system, therefore it could not be judged and assumed that the undersigned was absent since 17th August, 2020, hence, the allegation of absence is incorrect and baseless and replied accordingly". "emphasis added"
8. In such a clear out and unambiguous contentions, made by the appellant in his reply to show- cause notice, the dispensation of regular inquiry, without any reasons, could not have been done, as such, penalty imposed upon him could not have been done. For such conclusion, we are fortified by a judgment of the Hon'ble Supreme Court as reported in 2017 SCMR 1880 (Muhammad Sadiq v.
Inspector General of Police Punjab Lahore and others).
9. As observed above, the appellant in his applications dated 27.01.2021 and 24.02.2021 clearly stated that he is going to retire on 04.10.2021 on attaining the age of superannuation and one of his requests was duly forwarded by the Respondent No. 2 vide letter dated 26.02.2021, but this aspect of the matter has not been taken into consideration as the authority was duty bound to look into each and every aspect of the matter and should have allowed/ considered the appellant's request, when apparently the appellant did not remain absent and attending to his duties, but he was deliberately and intentionally prevented and m alafidely shown absent, as such, we are constrained to hold that principles of natural justice have grossly been violated in the case of appellant and he has not been afforded a chance to defend himself properly.
10. Admittedly, during the pendency of instant appeal, appellant has since retired from service on 03/04.10.2021, on attaining the age of superannuation, his date of birth being 03.10.1961, as such, we cannot direct the respondents to hold de novo proceedings against him and for such conclusion, we rely on 2020 SCMR 1018 (Muhammad Shoaib Ahmed v. The Controller General of Accounts, Islamabad).
11. The upshot of the above discussion is that the impugned order dated 07.04.2021, compulsorily retiring the appellant, is set-side and it is ordered that the appellant be treated as on duty till attaining the age of superannuation on the basis of his date of birth i.e. 04.10.1961 and all back/consequential benefits be calculated and paid to him forthwith without any further delay. No order as to costs.
12. Parties be informed.