' CH. HASAN NAWAZ (MEMBER).--While he was serving as U.D.C. In the office of respondent No, 2, the appellant was removed from service on 3-31983 (Annex. E) in consequence of proceedings under the Government Servants (E & D) Rules, 1973.
2. He has challenged the validity of the order of removal in the present appeal under section 4 of the Service Tribunals Act, 1973, primarily on the ground that the procedure laid down in the Rules has not been observed.
3. As we see from notice dated 13-1-1983 (Annex. A), proceedings against the appellant were held under Rule 5(iii)(a)(b) of the Rules; which is clearly suggestive of the fact that the Authorised Officer had decided in accordance with the requirement of Rule 5(ii) that no enquiry need be conducted either through an Inquiry Officer or Inquiry Committee, in the light of the facts of the case and the interests of justice. Therefore, in the first place, it requires to be seen whether such a course was justified under the circumstances of this case and in view of the nature of allegations against the appellant.
4. Notice dated 13-1-19S3 (Annex. A) bears oat that five allegations Were in all leveled against the appellant. From the recommendation of the Authorised Officer (Annex. RA), it appears that only allegations in items Nos. 3 and of the notice were established against him. As already pointed out, these allegations require a detailed notice to assess if the procedure adopted by the Authorised Officer was justified. Allegation No, 3 makes the following reading: "Having been found delivering assessment order passed under Self-Assessment Scheme. This is in contravention of the standing instructions that assessment orders are to be sent by registered post and in case of non-availability of service labels, these notices are to be served through Notice Server of the circle. This has been intentionally done by you for ulterior motives."
5. The charge in item No, (v) is to the effect that he failed to perform his duty efficiently. It hardly requires an emphasis that this does not amount to any specific allegation, which even if established, would have warranted such a severe penalty as that of removal from service and even a minor penalty would have been quite sufficient to promote the ends of justice and achieve the desired result. In all fairness, even if the appellant was found to be inefficient, he should have been warned and asked to improve his performance before this inefficiency could have been considered sufficient to be visited by a severer penalty.
6. This leaves us with the allegation contained in item No, (iii) of the notice. The gist of the charge is that he himself delivered the assessment orders passed under the Self-Assessment Scheme in contravention of the standing instructions which said that they should have been dispatched either by registered post or served through notice server of the circle. It was alleged that the appellant had done it intentionally for ulterior motives. Merits of these allegations apart, we are inclined to observe that there is no specific charge of corruption against the appellant and what it comes to is that since he had himself delivered the assessment orders, it must have been done for ulterior motives. This apart, the nature of ulterior motives has not been specified and the charge, at the most contains only a suggestion that it must have been done for corrupt practices. Therefore, we are inclined to hold that the charge suffers from an inherent infirmity.
7. This aspect of the matter apart, the nature of allegations against the appellant was such as would have required an enquiry. The circumstances of the case did not provide the Authorised Officer with a justification for finding that no enquiry should be conducted in the interests of justice.
This is because of the fact that he had been personally delivering the assessment orders to the assessee, could be established only by a positive evidence and there was no justification for presuming that he had in fact been doing so. This was certainly not a case which attracted the summary procedure laid down in rule 5(iii) of the rules. The main allegation did require production of evidence for proof, as could have armed the Authorised Officer to make an adverse recommendation to the authority.
8. Which is incidentally also evident from the fact that he eventually did indulge in some sort of enquiry during which he recorded the statement of Muhammad Iqbal, Notice Server. However, leaving aside this aspect of the matter, even the material before the Authorised Officer was certainly insufficient to justify the conclusion that the charge had been established. He stated in his recommendation that "the deposition of the Notice Server Muhammad lqbal before me on 24-1- 1983 reveals that service in five cases has been made in the office and this could be made only by the person not other than the accused"; that "when the accused was given an opportunity to cross-examine Muhammad lqbal, Notice Server, the accused did not put him any question nor he wanted to say anything in this regard which amounted to admission of guilt" and that "the allegation stands established". We feel no hesitation in saying that there was nothing in the statement of Muhammad Iqbal, Notice Server to lead him to the conclusion that the allegation stands proved. Nor for that matter, the appellant's failure to cross-examine the Notice Server in any manner amounted to confession of guilt; for his statement proved nothing at all and the Authorised Officer's finding is clearly based only on a surmise. There was no material before him to lead him to the conclusion that the charge had been established.
9. Then, even if the Authorised Officer be taken to have conducted some sort of enquiry into the matter, there is substance in the contention that under the rules he was not authorised to adopt this procedure. We believe, as already noticed that no enquiry in this case was held and that the procedure laid down in rule 5(iii) of the Rules was adopted. But the arguments regarding contravention of the rules become important in view of the fact that the Authorised Officer as also the authority appears to have been influenced by the statement of Muhammad Iqbal, Notice Server. A detailed address to the rules on the subject is not necessary and it would be sufficient to observe that the scheme of the disciplinary rules does not visualise the holding of any enquiry by the Authorised Officer himself. It can be clearly read in the provisions of Rule 5(iv) and (vi) of the rules that the Enquiry Officer has to be a person other than the Authorised Officer. Therefore, the procedure adopted in this case vitiated the proceeding and consequently the finding of guilt against the appellant.
10. For these reasons, there has been a material irregularity in the procedure adopted by the Authorised Officer in this case, which has vitiated the proceedings. There was no justification for the conclusion arrived at by him and the penalty of removal from service was not warranted by the facts of the case. The impugned order is, therefore, set aside in acceptance of the appeal. There will be no order as to costs.