Imtiaz Ahmad Khan, Member: Vide instant appeal the appellant has assailed the impugned orders dated 30.03.2021 and 03.09.2021, awarding of major penalty of "removal from service" and its enhancement to "dismissal from service" by the appellate authority.
2. Briefly stated, facts of the case are that the appellant was charge sheeted on account for misconduct and corruption relating to serious allegations including (a) involvement in unauthorized malpractice of tax consultancy by impersonating as lawyer (b) Signing of agreement with the complainant in the presence of other witnesses and (c) filing of tax returns of complainant using his passwo rd and login detail without authorization with the intent to blackmail the complainant etc. During the course of regular inquiry the serious charges of involvement in unauthorized tax consultancy, signing of agreement with the complainant filing fresh returns of the complainant, using the passwo rd and other login details without authorization were proved. The disciplinary proceedings initiated against the appellant culminated in award of major penalty of "removal from service" which was enhanced by the major penalty of "dismissal from service" by the appellate authority, hence this appeal.
3. The appellant has assailed the impugned orders inter- alia on the following grounds. a) That the proceedings against civil, servant can be initiated by and under the authority of competent authority. No, such order for initiating the proceedings against the appellant was ever passed by the authority. Note given by the Chief Commissioner, Inland Revenue, "Respondent No. 3" and the so called complaint filed by Mr. Aamir Shahzad, was as under: "Please ensure a thorough inquiry on merit and take necessary procedure to stall any malpractice on our official part."
This marking of the application is not a direction by the authority to proceed against the appellant under the government servants (E&D) Rules, 1973. b) That the so called authorized officer "Respondent No. 4" passed the order of suspension without meeting the requirement of Rule-5 of the Government Servants (E&D) Rules, 1973 as the authorized officer neither indicated any reason for suspension of the accused nor obtained the approval of the authority i.e. Respondent No. 3, in this regard. That the accused has been charge sheeted beyond the scope of the complaint filed by the complainant. c) That the inquiry officer did not require the statement of witnesses in present of the appellant and the appellant was not given an opportunity to cross examine the witnesses. d) That the affidavit provided by the witnesses were objected by the appellant as the same were not in accordance with the rules and regulations. e) That the inquiry officer Mr. Saleem Hussain, Respondent No. 5, the then Assistant Commissioner, Inland Revenue, Unit-1, Regional Tar Office, Sahiwal was transferred to Regional Tax Office, Karachi vide 3oard's notification dated 11.09.2020 and relieved from his duty from 18.09.2020. f) That the Inquiry Officer was required to submit the inquiry report to the Authorised Officer within 10-days, however, he failed to do the same within stipulated time and no extension was sought from the concerned authority h) That the Authorized Officer passed his recommendation of the major penalty on the basis of inquiry report without applying his judicial mind. Similarly, the respondents passed a non- speaking order without application of judicial mind. i) That the impugned' order of Appellate Authority converting the major penalty of "removal from service" into "dismissal from service" is in violation of Rule-6 of the Civil Servants (Appeal) Rules, 1977, as reasons for this change has not been mentioned. In view of the aforesaid submissions the appellant has requested for setting aside the impugned orders and his reinstatement into service alongwith all the consequential benefits.
4. The respondent-department on the other hand resisted the appeal inter-alia on the following grounds:- a) That formal complaint was lodged by one Mr. Aamir Shahzad, S/O Abdul Ghafoor, against the Muhammad Arslan/appellant on account of the serious allegations including providing Tax Consultancy by impersonating himself as Income Tax Lawyer, filing of Income Tax return by using the passwo rd and login without authorization with the intend to blackmail to the complainant, demanding 30 Million bribe from complainant in return of settlement of complaint signing the agreement with the complainant to receive the illegal gratification of 9-Million etc. b) That the disciplinary proceedings were initiated against the appellant under (E&D) Rules, 1973, on account of misconduct and corruption and Mr. Abdul Razzaq Khan, was appointed as Authorized Officer under Rule-2(3) of the Government Servants (E&D) Rules 1973. The Authorized Officer suspended the appellant and issued charge and statement of allegations on 02.07.2021 by appointing Mr. Saleem Hussain, ACIR, Unit-1, Sahiwal as Inquiry Officer under (E&D) Rules, 1973 to conduct the regular inquiry. c) That upon receipt of the inquiry report the Authority Officer afforded the opportunity of personal hearing to the appellant. The appellant attended the hearing but failed to prove his innocence. d) That upon the basis of inquiry report and recommendations submitted by the Authorized Officer, the authority i.e. Chief Commissioner, FBR imposed a major penalty of removal from service to the appellant vide order dated 30.03.2021. e) That considering the gravity of the allegations proved against the appellant, the major penalty of "removal from service" was enhanced to major penalty of "dismissal from service" by the appellate Authority, in accordance with the Rules and Regulations. f) That the charge sheet and statement of allegations were properly served upon the appellant vide letter dated, 20.07.2020 and appellant was supplied with all the documents requested by him, which were duly received by him.
In view of the aforesaid submissions the respondent-department has requested for dismissal of the appeal being devoid of merits.
5. We have gone through the record and considered the arguments advanced by the learned counsels for both the parties. We have observed that out of 10 allegations, 5 allegations including the serious charges of involvement of unauthorized practice of tax consultancy by impersonating by lawyer, filing of tax return of the complainant using his password and other login details without authorization with the intends to blackmailing the complainant, signing of the agreement by the accused with the complainant in presence of three others stood proved beyond any shadow of doubt. We have also observed that instead of contesting the allegations the appellant is seeking refuge behind technicalities on flimsy grounds. A regular inquiry against the appellant was conducted in the wake of the complaint received from one Mr. Aamir Shahzad, 5 out of 10 allegations of serious nature levelled against the appellant were proved during the regular inquiry.
Considering the fact that out of 10, 5 serious charges against the appellant have been proved beyond any shadow of doubt and the learned counsel for the appellant has not been able to rebut the same with any convincing evidence, we are of the considered view that the respondent- department has not committed any it legality/irregularity in the disciplinary proceedings and the penalty of dismissal from service has been lawfully enhanced by the Appellate Authority considering the gravity of the charges proved against the appellant during the course of inquiry.
Accordingly we see no legal or factual infirmity in the impugned orders warranting interference by the Tribunal. The appeal being devoid of merits is dismissed.
6. Parties be informed accordingly. File be consigned to record after codal formalities under Rule-21 of The Service Tribunals (Procedure) Rules, 1974.
Sd/- Member Dissenting Note by Ch. Muhammad Amin Javed, (Judicial Member) in Appeal No. 281(L)2021, Muhammad Arslan vs. FBR Mr. Bkhtayar.
7. Without peeping into the complexity of the facts of the case which have already been detailed in the judgment under discussion, I would like to straightaway touch the moot issues to be differed by me however to conclude the matter in its legal parameters to obviate the miscarriage of justice.
The charge sheet dated 02.07.2020, entailing the allegations stated 10 be served upon the appellant in terms of Rule 3(b)&(c)) of Government Servants (E&D) Rules 1973, is reproduced for ease of reference:- CHARGE SHEET "WHEREAS the Authority in your case in terms of Rule 2 of the Government Servants (Efficiency & Discipline) Rules, 1973 is of the opinion that sufficient grounds exists to proceed against you in terms of Rule 3(b)&(c) of the Government Servants (Efficiency & Discipline) Rules, 1973; and
2. WHEREAS, I, Abdur Razzaq Klan, Additional Commissioner (HQs), Regional Tax Office, Sahiwal as Authorized Officer in your case, have decided to proceed against you under Rule 5 of the Government Servants (Efficiency & Discipline) Rules, 1973; and
3. WHEREAS, I consider that in the light of the facts of the case and in the interest of justice, it is necessary to hold an inquiry through an inquiry officer and appoint Mr. Saleem Hussain, ACIR, IR Unit-01, Sahiwal to conduct an inquiry under the aforementioned rules into the charge against you, mentioned hereinafter.
4. NOW, THEREFORE, you Mr. Muhamad Arsalan, UDC, IR Unit-01, Sahiwal having allegedly committed following acts of omission and commission constituting "Misconduct & Corruption under the Government Servants (Efficiency & Discipline) Rules, 1973, are hereby charged as follows:- I. You have been involved in an unauthorized practice of tax consultancy by impersonating as a lawyer in violation of the provision of Civil Servants Act, 1973 and Rules made thereunder.
II. You have been found causing to issue notices to Mr. Amir Shahzad, hereinafter referred as the complainant, for the purpose of blackmailing and have extorted money from the complainant form time to time.
III. You have filed sales tax returns of the complainant using his password and other login details without authorization and for the intent to blackmailing the complainant.
IV. You with the help of a person have caused a complaint to be filed against the complainant for the intent of blackmailing, bribery and extortion.
V. You demanded Rs. 30 millions from the complainant in return of settlement of the complaint which you caused to be filed by yourself VI. You entered into bargain with the complainant and the bargain was settled by you by accepting Rs. 9 million at the end.
VII. Not only you agreed to receive 9 million in result of your blackmailing and deception, verbally but also entered into a written agreement with the complainant in presence of three others with your signatures affixed on the agreement.
VIII. You accepted Rs. 2 million in cash from the complainant under the condition that the payment should be in the shape of cash.
IX. In the agreement you signed with complainant in the presence of three others.
X. You are involved in tax practice, you are corrupt and have committed misconduct as defined under Government Servants (Efficiency & Discipline) Rules, 1973.
5. By reason of the above you appear to be guilty of "Misconduct and Corruption within the meaning of Rule 2 read with Rule 3(b)&(c) of the Government Servants (Efficiency & Discipline)
Rules, 1973, for the said commission/omission of your part; and
1. You are required to submit your reply within 7 days of receipt of this charge sheet to the inquiry officer."
8. The charge sheet was duly replied by the appellant in the farm of affidavit wherein he has specifically denied all the allegations with details and comprehensively which was not found favour by the Department and resorted to conduct Departmental regular inquiry against him consequently, an inquiry officer was appointed on the complaint of Muhammad Amir Shahzad, herein after referred to as the complainant. On 05.09.2020, the complainant along with two witnesses Mr. Mohsin Shahzad and Mr. Muhammad Saeed, appeared before the inquiry officer submitted their written statements which were entertained in the absence of the appellant being he was not summoned by the inquiry officer for the said date. This modus operandi is alien to the mandatory procedure of inquiry. The appellant appeared on 15.09.2020, and submitted his written defence qua all the allegations on oath in Urdu which is part of the inquiry report. The witnesses were not summoned to give an opportunity of for cross-examination to the appellant.
9. Principal mandatory legal flaw in the departmental proceedings having far reaching consequences, is the blatant violation of the mandatory provision of Rule 6(3) of The Government Servants (E&D) Rules, 1973, which enjoins upon the inquiry officer to provide an opportunity to the Civil Servant/accused to cross-examine the prosecution witnesses, which is reproduced as under: "The Inquiry Officer or the Committee, as the case may be, shall enquire into the charge and may examine such oral of documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him".
10. In the inquiry report charges No. I, III, VII, IX & X have been stated to be proved against the appellant and the remaining allegations No. II, IV, V, VI, VIII have been dubbed not to be proved.
The cumulative survey of findings of the inquiry report squarely divulges that the non-proved issues are material to connect the appellant with the findings of the statedly proved allegations.
Significantly, In the absence of prove of allegation No.(II) relating to issue of notices to the complainant for the purpose of blackmailing and extorting money issue No. (IV) qua blackmailing the complainant bribery and extortion, issue No. (V) Demanding Rs. 30 Million from-the complainant and the allegation No.(VI) with regard to bargain with the complainant for accepting Rs. 9 Million at the end and the allegation No. (VIII) Regarding acceptance of Rs. 2 Million in cash from the complainant. The record also substantiate the argument of the appellant side with reference to allegation No. VII qua the written agreement allegedly executed and signed by the appellant denied by him was not put to him specially his signatures on this document in the inquiry process and without fulfilment of this legal requirement it has no worth in law.
11. There is no denial of fact by the respondent's side during the course of argument that the appellant was not provided right of cross-examination on the prosecution witnesses. More so, the Inquiry proceedings and report also endorse this fact and in as much as it was also observed in the open Court qua remitting case to the department for denovo inquiry. It is seriously noted that the record lacks provision of right of fair trial to appellant which mandates right of proper hearing by an unbiased competent forum. Right to a fair trial has been associated with the fundamental right to access to justice, which should be read in every statute even if not expressly provided for unless specifically excluded. While incorporating Article-10A in the Constitution of Pakistan, 1973 and making the right, to a fair trial a fundamental right, the legislature did not define or describe the requisites of a fair trial, which showed that perhaps the intention was to give it the same meaning as is broadly universally recognized and embedded in jurisprudence in Pakistan. While holding so, guideline has been derived from the case reported in PLD 2012 SC 553. There can be a situation where real fate of allegations can only be adjudged by a regular inquiry and not by mere textual proof. The Hon'ble Supreme Court of Pakistan in the case of Abdul Qayyu m vs D.G. Project Management Organization Is HQ, Rawalpindi and 2 others (2003 SCMR 1110), held that requirement of regular inquiry could be dispensed with in exceptional circumstances. Where recording of evidence was necessary to establish the charges, then departure from requirement of regular inquiry under the Rules would amount to condemn a person unheard.
12. There is no cavil to the proposition that the accused has inalienable fundamental right guaranteed in the Constitution, 1973 the right of cross-examination on the witnesses, who deposed against him. So, providing him an opportunity to cross-examine the witnesses is one of the necessary ingredients to ensure the fairness of trial in terms of Article 10-A of the Constitution, reproduced below: "10-A. --- Right to fair trial: For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."
It has been further reiterated by the Supreme Court that right of the accused, which right he/she may forgo but one which he/she cannot be deprived of. The mandatory provisions of Rules-5&6 of The Government Servants (Efficiency & Discipline) Rules, 1973 also impose mandatory obligation upon Inquiry Officer to extend due right of cross-examination to the appellant. Reliance in this regard in placed on Abdul Ghaffor vs. The State (2011 SCMR 23) and a judgment passed by Singh High Court in case of Waqar and another vs. The State (2013 P.Cr.L.J. 1279): Muhammad Bashir vs. Rukhsar and others (PLD 2020 S.C. 334), has held that the Constitution of Islamic Republic of Pakistan mandates "fair trial and due process and the accused must be provided with an opportunity to cross-examine. In case of Abdul Rauf vs. The State (PLD 2001 Lahore 463), Muhammad Waris versus Director General, Punjab Emergency Services Rescue 1122, Lahore and 3 others (2022 PLC (C.S.) 367, Directorate General Emergency Rescue Service 1122 Khyber Pakhtunkhwa, Peshawar versus Nizakat Ullah (2019 SCMR 640), Ishtiaq Ahmed versus Hon'ble Competent Authority through Registrar, Supreme Court of Pakistan, (2016 SCMR 934) whereby it has been observed that if the prosecution witnesses not cross-examined, then an accused person's case can be seriously prejudiced and it has also been held that the cross-examination is a specialized job. Public functionaries owe a fiduciary duty to act in good faith and discharge their duties with honesty and in accordance with law. If a public functionary does not exercise such power in good faith and with honesty, the principle of merit gets compromised which damages the superstructure of merit, competence and good governance. Reliance is placed on Sindh Irrigations and Drainage Authority vs. Government of Sindh and other (2022 SCMR 595). It was also of absolute necessary upon the respondents to have provided an opportunity of hearing to the appellant under the principal of "audi alteram partem." An action taken in violation of the said principal will result in setting aside action impugned. In this regard reference is made to Muhammad Saleem vs. Province of Punjab through Administrator Town Municipal Administration, District Gujranwala and 2 others (2014 CLC 1259), Muhammad Younus vs. Secretary, Ministry of Communications and others (1993 SCMR 122), Shifa Laboratories (Pvt.) Ltd.
Through Chief Justice Executive vs. Lahore Development Authority, thorough Director General, LDA Plaza and 3 others (2004 MLD 1377 Lahore), Mst. Rehmat Bibi and others us. Punnu Khan and others (1996 SCMR 962) and Ch. Shahbaz Babar vs. Mrs. Rehmana Babar (2006 SCMR 1032).
13. It is also mandatory requirement of law that the accused is confronted with the statements of the witnesses and material produced against him, with opportunity of explanation, of rebuttal and cross-examination to find out the truth. In this behalf reliance may be placed on the principle laid down by the Hon'ble Supreme Court hi case titled "Senior Superintendent of Police (Operations) and others vs. Shahid Nazir" (2022 SCMR 327) Hon'ble Supreme Court in the case of "Naseeb Khan vs. Divisional Superintendent, Pakistan Railways, Lahore and another" (2008 SCMR 1369) held that in case of imposing a major penalty, the principle of natural justice requires that a regular enquiry be conducted in the matter and opportunity of defence and personal hearing be provided to the civil servant proceeded against. Reliance is placed on "Pakistan International Airlines Corporation vs. Ms. Shahista Naheed (2004 SCMR 316) and Inspector General of Police, Karachi and 2 others vs. Shafqat Mehmood (2003 SCMR 2007)
14. The dismissal from service is a major penalty as contemplated in Rule-4 (1)(B) of The Government Servants (E&D) Rules 1973. Rules 5&6 of the stated Rules deal procedure of inquiry to be followed by Competent Authority, the spirit of law is that as such major punitive action against an employee should be taken after an inquiry within contemplation of law. Needless to say that it is again the Principle of natural justice to draw a conclusion adverse to the interest of person on the basis of disputed facts without recording the evidence and providing him proper opportunity of cross examining the witnesses and to make his defense. In the instant case the respondents have proceeded to impose a major penalty upon the appellant without adhering to the mandatory procedure of inquiry. It is emphasize that simpliciter departmental inquiry is not sufficient unless it is conducted within the para meters of mandatory provisions of the relevant Rules, significantly the right of cross-examination in terms of Article-4 10-A of the Constitution of Pakistan 1973. Reliance is placed on Salman Faruqi vs. JavedBurki, Authorized Officer, Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and another (2007 SCMR 693), Saad Salam Ansari vs. Chief Justice of Sindh High Court, High Court, Karachi through Registrar (2007 SCMR 1726, Muhammad Abdul Moied, vs. Government of Pakistan through Secretary, Ministry of Housing and Works and others (2010 PLC (C.S) 1143), Muhammad Sadiq vs. Inspector-General of Police Punjab Lahore and others (2017 SCMR 1880), Farhan Mehmood vs. Secretary, Government of the Punjab Health Department and 3 others (2018 PLC (C.S.) Note 70, Prof Dr. Abdul Waheed vs. Rector, Comsats Institute of Information Technology, Islamabad and others (2019 PLC (C.S) 235) and Dr. Karim Shah vs. Chairman, Search and Nomination Counsel/Health Minister, Government of Khyber Pakhtunkhwa, Peshawar and others (2021 PLC (C.S) 235).
In the case of Abdul Qayyu m supra, the Hon'ble Supreme Court of Pakistan observed as under: ... The petitioner in the present case was not provided proper opportunity to cross-examine the witnesses and explain the circumstances under which he associated himself with the transaction through the evidence, therefore, his dismissal from service in summary manner was violative of principle of natural justice.
On the basis of the criteria laid down in the above referred judgments qua departmental inquiry has been followed in case of titled Muhammad Waris vs. Director General, Punjab Emergency Services Rescue 1122 etc (2022 PLC (C.S.) 367).
The latest view of the Hon'ble Supreme Court of Pakistan with regard to the Departmental inquiries is enshrined in (2022 SCMR 745) Usman Ghani vs. The Chief Post Master, GPO Karachi etc, which is reproduced as under: "The foremost aspiration of conducting departmental inquiry is to find out whether a prima facie case of misconduct is made out against the delinquent officer for proceeding further. The guilt or innocence can only be thrashed out from the outcome of inquiry and at the same time it is also required to be seen by the learned Service Tribunal as to whether due process of law or right to fair trial was followed or ignored which is d fundamental right as envisaged under Article 10-A