ABDUL HAMID KHAN (MEMBER).---The appellant, Khalid Siddique, Excise and Taxation Officer was proceeded against departmentally on the following charges:-- "(1)You connived with the management of New Alam Lobar Lucky Drama Party and allowed them to operate without realisation of Entertainment Duty at Mela Khichiwala, District Bahawalnagar on 17- 9-1989. Due to your culpable indolence, the management of the Drama Party had admitted 6,500 spectators at the rate of Rs.10 each without issuance of duty paid admission tickets. Thus, management because of your active connivance had evaded entertainment duty to the tune of Rs.32, 5W which was detected by the Headquarter staff and subsequently recovered from the management concerned.
(2)That you also had failed to get the prescribed registers in Form ED-3 and 4 duly maintained by the management of New Alam Lohar Lucky Drama Party and also did not care to inform the Directorate of Excise and Taxation, Bahawalpur about functioning of the concerned entertainment in the annual Mela. In addition you did not make any reference to the Director, Excise and Taxation, Bahawalpur for fixing of entertainment duty in respect of the aforesaid item of entertainment if it was to be allowed to pay entertainment duty in cash otherwise then by sale of stamps.
(3)You also unauthorisedly recovered from the management concerned an amount of Rs.4,500 as entertainment duty in cash along with an amount of Rs.500 as penalty for the Show held by them on 16-9-1989. Thus by receiving the consolidated amount of entertainment duty, you flayed all norms of official discipline and also took upon yourself to exercise the powers which never were invested with you. Even otherwise, the meagre amounts of entertainment duty viz. Rs.4,500 and Rs.3,000 as recovered by you for the respective days of 16-9-1989 and 18-9-1989 were disportionately low on comparative grounds and leads to irresistible conclusion that much larger amounts of entertainment duty were recovered by you but lesser amounts were deposited into the Government Treasury."
2.On the conclusion of the proceedings the minor penalty of stoppage of two annual increments was imposed on him vide order dated 26-12-1991 of respondent No. 2 Authorised Officer. His departmental appeal filed before respondent No. 1 was also rejected vide order dated 4-10-1992 and hence the present appeal.
3. The appellant has challenged the validity of the impugned orders both on merits as well as on the ground of certain legal infirmities. In the main he has questioned the legality of these orders on the plea that "no one can be a judge of his own cause". He has argued that the then Director- General, Excise and Taxation had lodged a complaint against the appellant with the Secretary, Excise and Taxation asking for permission under rule 5 of the Efficiency and Discipline Rules to proceed against the appellant which fact had rendered the proceedings invalid. He had also requested the Enquiry Officer to record the evidence of the Director-General/complainant but no heed was paid to his request.
4. The respondents have on the other hand asserted that the complainants in this case were the officials "who checked the peculiar item of entertainment and found the appellant guilty for affording the management of Alam Lohar Lucky Drama Party an unusual opportunity of evading the Government revenue. The concerned members/complainants appeared as necessary witnesses in the disciplinary proceedings conducted against the appellant and proved the charges of corruption against the appellant beyond any shadow of doubt".
5. We are not persuaded by the plea taken by the respondents. The officials who conducted the raid cannot be termed as complainants by any stretch of imagination. It is an admitted fact that they had been deputed to carry out the checking by the Director-General. Theirs was only a fact- finding mission and it was on receipt of their report that the Director-General chose to make a complaint to the Authority for issuing the necessary direction to initiate departmental proceedings against the appellant after which he could not be appointed as Authorised Officer in this case as by virtue of having lodged the said complaint the latter had become an interested party. This was the view taken by the learned Service Tribunal Azad Jammu and Kashmir in the case reported as 1992 PLC (C.S.) 1000 and we quote: "------.And this fact is very clear that originally the complaint against the appellant was initiated by the D.F.O. Demarcation Division who was subsequently appointed as inquiry Officer by the Authorised Officer. It shall be noted here that a complainant himself cannot be permitted to sit as a Judge after he is found to have submitted his report against accused civil servant to be proceeded against. In the instant case the Authorised Officer should have made over the inquiry to some other competent officer and not to the D.F.O. (Demarcation Division) who had earlier initiated complaint against the appellant."
6. This dictum was followed by the Lahore High Court in a recent case cited as 1993 CLC 81 wherein the Hon'ble Court made the following observations: "I am of the view that there is hardly any need for going into the merit of the charge-sheet because the disposal of case can be made on facts established on record namely that she was not provided copy of the inquiry report to tender her explanation for consideration of the competent authority. The Authorised Officer himself lodged complaint against the petitioner as such, he was not competent to act as Authorised Officer, she moved application to the authority against the Authorised Officer, before she was charge-- sheeted, therefore her apprehension that he was biased against her was not ill-founded."
7. In another case cited by the appellant the Hon'ble Supreme Court quashed the departmental proceedings as void being against natural justice and held as under:- "The whole proceedings in a departmental inquiry is required by the rules to be conducted in accordance with the principles of justice. The superior Courts will not tolerate and certainly not within the frame--work of the judicial administration itself condition in which officials can be made prosecutors, complainants, and Judges merely on the ground that the powers of removal is vested in them as appointing authorities under the rules. There is power and there are facilities available, to place the conduct of the inquiry and the report thereon in other hands, and in such a case the officer who is the offended complainant must give his evidence in support of the complaint before such officer." (PLD 1960 SC 1964).
8. Thus in view of the fact that the Director-General was the complainant in this case he could not be appointed as Authorised Officer to conduct the enquiry against the appellant even if he had been notified as such under the Delegation of Powers Rules of the Department. The proper course for the Authority in this case was to appoint some other officer senior in rank to the appellant to conduct the proceedings so as to avoid prejudice to him.
9. In view of the foregoing we do not consider it necessary to go into the merits of the case as the appeal can be disposed of on account of the above facts established on record. Resultantly, the appeal is allowed, the impugned orders are set aside and the case remanded to the Authority to the conduct the proceedings de novo in the light of the foregoing. No orders as to costs.