1. MUNAWAR ALI KHAN (CHAIRMAN).--This appeal arose from the facts which may briefly be stated as follows. The appellant Niaz Hussain Memon was employed as senior clerk in the office of Excise & Taxation Officer, 'L' Division, when on 26th July, 1983 he received an office order relieving him of his duties, with a direction to report for duty at the headquarter of the Director Excise & Taxation (Administration).
2. On the same day by a separate order issued by the said Director the appellant was placed under suspension. Thereafter by a show-cause notice dated 17th August, 1983, served on the appellant, he was required to submit his explanation within 14 days of the notice as to why disciplinary action should not be taken against him and any of the major penalties prescribed by the Sind Civil Servants (E b D Rules), 1973 (hereinafter referred to as the said rules) should not be imposed upon him. The charges levelled against the appellant as per the said show-cause notice were as under:- "1. That according to the statement of Mr. Mushtaque Ahmed son of Abdul Basit, Attorney of the owner of Property Unit No.B-103, Block-I North Nazimabad, Karachi, contacted you for assessment of Capital Gains Tax in respect of the above-said property. On your commitment and demand of payment of C.G.T. Of Rs.30,000 the said attorney delivered the case papers, to you alongwith the above-said amount when the said property unit does not pertain to the beat where you were posted.
2. That on your personal pursuance on bahalf of the assessee/ attorney, the said property unit was assessed to C . G .Tax at Rs.48,052. You personally collected the challan on behalf of the assessee and produced the paid-up challan alongwith its photostat copy and the application for issuance of N . O. C .
3. That on verification by the Excise & Taxation Officer 'L' Division from Bank, it was proved that the said amount has not been deposited into the Bank and thus the paid-up challan produced by you, for issuance of N.O. C . Was bogus and forged and thereby you attempted to defraud Government to the extent of Rs.48,052."
3. The appellant furnished his explanation, denying the charges made against him. On receipt of his explanation the Director Excise & Taxation (Adorn.) passed the impugned order, dated 10th July, 1984, whereby the appellant was dismissed from service. The departmental appeal preferred by the appellant from the impugned order was dismissed vide order dated 30th October, 1985. In this way after exhausting the departmental remedy he filed the present appeal before the Tribunal.
4. After hearing the learned counsel for the appellant and the learned A.A.-G. On behalf of the respondents the appeal was allowed and the impugned order was set aside by short order, dated 3-12-1986 for reasons to be recorded separately. Following are the reasons in support of the said short order.
5. At the outset of his arguments, the learned counsel for the appellant raised a legal objection, contending that as required by rule 5 of the said rules, the Authorised Officer took no decision that holding of inquiry was not necessary. However, in the opinion of the learned counsel, the nature of the allegations made against the appellant called for a detailed enquiry. According to him the appellant was not even given a statement of allegations nor supplied relevant documents which have been relied upon for punishing him. The learned counsel further contended that there was absolutely no evidence to warrant the taking of impugned action. In any case, he added, no reasonable opportunity was allowed to the appellant to explain his side.
6. It is an admitted position that apart from the show-cause notice, no other document was furnished to the appellant. Even the statement of Mushtaq Ahmed, the alleged Attorney of the owner of the property in question on which the disciplinary action was initiated against him was not supplied to the appellant. It appears to us that after considering the explanation furnished by the appellant the Director straightaway passed the impugned order imposing the penalty of dismissal from service on him. No doubt the said rules confer a discretion on the Authorizes officer to take a decision about holding of "enquiry". But the record is silent if any such decision was ever taken by the Authorized officer. Even otherwise he was required to exercise the discretion in judicious manner and not arbitrarily. The decision of holding detailed enquiry invariably depends on the facts and circumstances of each case. A careful perusal of the charges contained in the show-cause notice clearly indicates that the charges were of factual nature. Therefore, unless they were admitted by the accused official, factual evidence was needed to prove them. Since the appellant vehemently denied the charges, the burden was cast on the Department to prove each charge separately by necessary evidence. Therefore, the Authorized Officer had no option but to order a detailed enquriy.
7. The first charge against the appellant was that one Mushtak Ahmad the alleged Attorney of the owner of the property unit No.B-103, Block-I, North Nazimabad, Karachi, delivered the case papers of the said property to the appellant alongwith Rs.30,000 for assessment of capital gain tax in respect of the said property. Admittedly the property in question did not situate within the jurisdiction of the Excise Division where the appellant was employed as senior clerk. The question arose how then the said Mushtaq Ahmed entrusted the matter of assessment of capital gain tax in respect of that property to him. In his explanation the appellant has vehemently denied the above charge contending further that Mushtak Ahmed is not at all the Attorney of the owner of the said property. According to him, he is simply an Estate broker. The statement of Mushtak Ahmed allegedly made before the Excise Authorities in relation to his alleged dealings with the appellant was admittedly not furnished to the appellant nor has it been placed on record of this Tribunal, as copy of the same has not been enclosed with the written statement filed on behalf of the official respondents. It is, therefore, difficult to appreciate if the impugned order was rightly based on his statement. On the contrary the said order gives an impression as if the said Mushtak Ahmed was not forthright in his statement but was rather luckewarm in implicating the appellant.
8. So far second charge is concerned, the relevant assessing officer has not come forward to say that the appellant had approached him for assessment of the capital gain tax in respect of the disputed property. There is also no statement of any official of the Excise Department to show that the appellant had produced any forged paid up challan alongwith application before him for the purpose of obtaining N.O.C. No evidence has been produced to prove that the accused official had forged or had hand in forging the paid-up challan produced for obtaining the N.O.C. On the contrary the appellant's version is that both the challan and the application bear the signature of the said attorney Mushtak Ahmed.
9. Coming to the 3rd charge the admitted position is that the amount assessed as capital gain tax in respect of the disputed property was not deposited in the bank and, therefore, the paid up challan produce for issuance of N .O . C . Was obviously bogus and forged. However as pointed out above there is absolutely no evidence to show as to who had forged the paid-up challan. In absence of such evidence, the accused official could not be held liable for the act of such forgery. Even there is no evidence to prove that the appellant had used the alleged forged paid-up challan by producing the same before the officer concerned for obtaining the N.O.C . Even if it was proved, it would not follow automatically that while producing the said forged challan the appellant knew that it was not genuine. The appellant would not be liable if he had no such knowledge.
10. For above reasons we are convinced that this is a cube of absolutely no evidence. Unfortunately the way in which the case was handled was improper. As soon as the case of this nature came to the notice of the Excise Director it should have been immediately reported to the Anti-corruption police for necessary action. Having done so, either the outcome of police action should have been awaited or in the alternative departmental action should have been simultaneously initiated by ordering a detailed enquiry through an enquiry officer or enquiry committee. Further action of awarding punishment should have been taken only in the light of result of enquiry and report of the enquiry officer of committee. However the impugned order is not sustainable on the material available on record. Accordingly as stated above appeal was allowed and the impugned order was set aside.
11. It may be observed that if so desired, the Deptt. Is still free to take action against the appellant for his alleged acts of omission and commission in accordance with relevant rules.
12. M.Y.H./101/Lb.S