' MUHAMMAD ILYAS LODHI (MEMBER).---While serving as Assistant Commissioner, Lahore, the appellant was charge-sheeted for misconduct committed by him. He submitted detailed report to the charges levelled against him and did not plead guilty. An Inquiry Officer was appointed who submitted his report on 3-10-1988 and came to the conclusion that the Income Tax Officer does not constitute a case of corruption but it only falls within the ambit of inefficiency. The charge of breaking lock was not proved and there was no mala fide intention of favouring the party. It was just to cover up his negligence etc. However, under Notification No, 190-ITE, dated 27-10-1992 the competent Authority after examining all the aspects of the case imposed a major penalty of reduction by three stages in time scale upon the appellant. After exhausting departmental remedy he has come before this Tribunal under section 4 of the Service Tribunals Act, 1973.
2. We have heard Mr. S.A.M. Wahidi, Advocate on behalf of the appellant and Mr. Javid Aziz Sandhu, Advocate on behalf of respondent Department.
3. The main contention of the learned counsel for the appellant is that no charge against the appellant was proved as result of an inquiry conducted against him. He has relied on finding of the Inquiry Officer which is to the following effect: "The charge of breaking open of almirah cannot be established."
' He also challenged the action taken by the Authorised Officer as the second inquiry report is not according to the procedure laid down in the rules. The Authorised Officer cannot order for a second inquiry when he has already accepted the first inquiry report and also proposed necessary action.
According to him this action on the part of the Authorised Officer is illegal, void and has no legal weightage. In view of the above it is clear that the appellant was not found guilty and the second inquiry is also void as such the major punishment awarded to the appellant is not justified and is liable to be set aside.
4. The contention of the respondents on the other hand is that although the charge against the appellant has not been proved yet he cannot be absolved from negligence. Further the second inquiry was conducted on the advice of the Secretary Establishment and on the basis of that inquiry the major penalty of "reduction by three stages in time scale" was imposed upon the appellant. Therefore, the impugned order dated 27-10-1992 is just and proper and may not be set aside.
5. There is no need for recapitulating the charge-sheet reply to the charge-sheet, second-show cause notice and reply to the show-cause notice because we will only touch the case on the legal points raised by both the parties.
6. No doubt that under the Government Servants (E&D) Rules, 1973 the Authorised Officer if not satisfied with the findings of the inquiry report, he can initiate the second inquiry by giving detail reasons but when he accepts the report and also recommends the penalty then to order fresh inquiries illegal and void under the eyes of law. Moreover, under rule 5 (iv) if the Authorised Officer recommends a minor penalty there is no need of sending the case to the competent Authority and he can pass and communicate such orders to an accused officer. Consequently the penalty order issued on the basis of second inquiry is of no legal effect. It is in consequence of first inquiry report the Authorised Officer had decided to impose a minor penalty of withholding of promotion for one year and was not conveyed to the appellant because of the advice from the Secretary Establishment to enhance the period of penalty. Since the first penalty order was not conveyed to the appellant, therefore, the order, has become infructuous as it cannot be imposed retrospectively. The Honourable Supreme Court has held in 1985 SCMR 1178 and 1986 PLC (.C.S) 719 that the order passed with retrospective effect is illegal and void and should be set aside.
7. We have examined the record, the inquiry report and find that the charge of breaking the lock of almirah was not directly established against the appellant. It was only a presumption that he had broken the lock. Besides that the respondent departmental representative conceded at the Bar that there was no loss to the Government. Since the appellant has already undergone the agony of reputation and disciplinary proceedings for about three years, we therefore set aside the impugned notification dated 27-10-1992. No order is made for costs. Parties to be informed accordingly.
8. NOOR MUHAMMAD MAGSI (MEMBER).---I have availed the advantage of going through the judgment initiated by the learned Member Mr. M. Ilyas Lodhi but I would like to record my own reasons for deciding the appeal in a different way than that of the learned Member. The facts given by the learned Member in para. 1 of his judgment do not appear to depict the clear picture.
9. Brief facts of the case are that appellant was working as Income Tax Officer, Circle 18, Kasur wherefrom he was transferred and posted as Wealth Tax Officer, Circle IV, Lahore. On a report from Regional Commissioner of Income Tax Lahore regarding breaking open of almirah and tampering with the record of Income Tax Officer Circle 18, Kasur the appellant was placed under suspension with effect from 9-6-1988. Allegations against the appellant are that while posted at Lahore he allegedly visited the Office of the Income Tax Officer, Circle 18, Kasur on 20-1-1988 alongwith two officials broke open the lock of almirah and tempered with the Demand and Collection Register.
Preliminary inquiry revealed that, the appellant did break open the lock of almirah of the office of Income Tax Officer, Circle 18, Kasur and made back dated entries in the said Register at SI. No, 6394-A, 6395-B and 6489-A in three cases. Accordingly a charge-sheet dated 3-7-1988 alongwith statement of allegations was served upon the appellant.
10. A formal inquiry under rule 6(2) of the Government Servants (E&D) Rules 1973 was ordered to be held against the appellant by the Chairman, CBR in his capacity as authorised officer. The appellant submitted his defence reply to the aforesaid charge-sheet on 22-8-1988. The inquiry was held by Mr. S.M. Munir, Commissioner of Income Tax (Survey and Registration), Central Region, Lahore. He allowed the appellant to produce defence witness. As desired by the appellant, he was also heard in person on 22-9-1988 on which date he filed further statement clarifying his point of view. Full facts of the case were discussed by the Enquiry Officer and necessary clarifications were obtained. Consequently, Enquiry Officer held the appellant guilty of misconduct and inefficiency as he was of the view that the appellant had done all this just to cover up his negligence and inefficiency. As a result of the inquiry, a show-cause notice dated 5-12-1988 was issued to the appellant alongwith copy of the inquiry report calling upon him to show cause within 14 days of the receipt of the notice as to why a major penalty of dismissal from service may not be imposed upon him. The appellant accordingly submitted his reply to the show-cause notice on 19-12-1988.
11. The authorised officer thereafter, proposed to withhold the appellant's promotion for a period of one year till the earning of a satisfactory report for the year 1989. On 27-2-1989 the case was sent to the Secretary, Establishment Division who was competent Authority, for reinstatement of the appellant and treatment of his suspension period. The Secretary, Establishment Division observed vide U.O. Dated 6-6-1989 that the penalty proposed by the CBR was too lenient therefore the authorised officer may like to reconsider the recommendation regarding penalty.
12. In pursuance of the observations of the competent Authority, the Chairman Central Board of Revenue in his capacity as authorised officer ordered to hold the second inquiry under the Government Servants (E&D) Rules, 1973 against the appellant. Accordingly a charge-sheet alongwith statement of allegations was served upon the appellant by the authorised officer on 22- 11-1989 to which the appellant submitted his defence statement on 11-12-1989. Mr. Abdul Malik CIT (S&R) Lahore was appointed as Enquiry Officer. On the conclusion of the inquiry held by Mr. Abdul Malik holding the appellant guilty of misconduct and inefficiency, second show-cause notice dated 1-2-1992 alongwith copy of inquiry report was served on the appellant. He submitted his reply to the show-cause notice on 15-3-1992. After examination of second inquiry report, written defence of the appellant as well as personal hearing the authorised officer was of the view that the charges stand established and the appellant was guilty of misconduct and inefficiency causing loss of revenue. Therefore, he recommended the penalty of removal from service. The competent Authority, thereafter imposed the "major penalty of reduction by three stages in the time scale" by order dated 27th October, 1992.
13. The appellant filed an appeal, to what he called Review petition against the aforesaid penalty on 25-11-1992, which was rejected by order dated 26-5-1994 against which he has come up in appeal before this Tribunal on 21-7-1994.
14. 1 have gone through the entire record of the case including the two inquiry reports, but I feel myself unable to agree with my learned brother Mr. C M. Ilyas Lodhi, that this is a case of clear acquittal. I am therefore unable to subscribe to the conclusion arrived at by him. Both the inquiry officers had unanimously held that the appellant did visit the office of Income Tax Circle 18, Kasur on the evening of 20-1-1988 alongwith two officials, when he was not posted in that Circle and had nothing to do and go there at odd hours. Both the Enquiry Officers M/s. S.M. Munir and Abdul Malik have stated in their reports that the entries in question were made by the appellant. Both the officials who accompanied the appellant to the office of Income Tax Circle 18, Kasur had stated in their statement given on 17-4-1988 before Mr. Shahid Bashir, ITO (Enquiry Officer in the case of Mr. Shakeel Ahmed UDC), corroborating the statement of Chowkidar Nazir Ahmed that the appellant visited the office of Income Tax Circle 18, Kasur on 20-1-1988, broke open the lock of almirah and tampered with the DCR. Before the second Enquiry Officer they submitted that they had given those statements under pressure, but they were not in a position to name the persons who had put pressure on both of them. This is sufficient to belie their stand that any pressure whatever was exerted on them. Para-11 of the inquiry report of Mr. Abdul Malik, Commissioner of Income Tax, shows that the statements of Chowkidar and Peshi Clerk were recorded who deposed that the almirah was broken open on 20-1-1988 and the DCR was taken out. It is also mentioned in the inquiry report that the Chowkidar and Peshi Clerk were vehement in their statements but unfortunately no complaint was made to the IAC by the Income Tax Officer nor the complaint was lodged with the Police. It was for this reason the second Enquiry Officer was of the view that the charge of breaking open of lock could not be ascertained. But the fact remains that M/s. Shakeel Ahmed, UDC and Muhammad Ilyas, LDC in their earlier statement before the Enquiry Officer had categorically stated that the appellant had visited the office of Income Tax Circle 18, Kasur alongwith them broken open the lock and tampered with the DCR. They are supported by the evidence of Chowkidar, who corroborated them in all particulars. Any way it does not matter whether the lock was broken or not. The facts have revealed that the Demand and Collection Register was some how taken out from almirah and was tampered with by making three entries therein. The two Enquiry Officers have held the appellant guilty of misconduct and inefficiency. The charge against the appellant is quite serious and to my mind he has already been dealt with very leniently. His visit at odd hours to the office especially when he is not posted there, is itself sufficient to prove that there was something wrong at the bottom. In these circumstances of the case I cannot but uphold the punishment of reduction by three stages in the time scale. Consequently I dismiss the appeal but no order for costs.
' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Appellant Mr. Zafar Yasin, an Assistant Commissioner of Income Tax, filed this appeal against the impugned order dated 27th October, 1992 whereby penalty of reduction by three stages in time scale was imposed on him consequent to the disciplinary proceedings taken against him under the E&D Rules. The appeal was heard by a Bench of this Tribunal, consisting of Mr. M. Ilyas Lodhi and Mr. Noor Muhammad Magsi, Members. There is difference of opinion between the two learned Member and as such this case has been placed before me by virtue of clause (b) to subsection (2) of section 3A of the Service Tribunals Act, 1973 for which notices were issued to both the parties for today, and I have heard Mr. SA.M. Wahidi, the learned Advocate as well as the appellant and also the departmental representatives.
2. The facts of the case have been given in the proposed judgments, which I would not like to reiterate. Consequent to disciplinary proceedings, departmental enquiries were held against appellant and in both the inquiries, the admitted position is that the appellant was found guilty of the charge of inefficiency and misconduct. Mr. M. Ilyas Lodhi, Member, in the concluding paragraph of his judgment has observed that since the appellant has undergone the agony of reputation and disciplinary proceedings for about three years, he has therefore, set aside the impugned punishment. The other Member, Mr. Noor Muhammad Magsi has taken different view that the charge of inefficiency and misconduct have been proved against and the charge was of serious nature but the appellant has been dealt with leniently, and he has upheld the punishment and dismissed the appeal.
3. The argument of the learned counsel for the appellant is that the appellant has been awarded two punishments - one of withholding of promotion for one year and the other is reduction by three stages in the time scale. I do not subscribe to this view, as the earlier penalty of withholding of promotion was set aside by the Secretary, Establishment Division, and as such, it is not in the field, and I would like to confine my findings to the extent of difference of opinion between the two Members, and not beyond that. The admitted position is that in both the inquiries, the appellant was found guilty and I most respectfully disagree with Mr. Lodhi that in case the charge is proved, the punishment could not be set aside merely on the basis of long drawn disciplinary proceedings.
He has not exonerated the appellant from the charge and the view held by him for setting aside the impugned punishment has no force. On the other hand, Mr. Noor Muhammad Magsi has dealt with all aspects of the case and has rightly observed that the charge of inefficiency and misconduct proved against the appellant and the charge being of serious nature, the appellant has been dealt with leniently. I fully agree with his findings and I would also dismiss the appeal.
4. Before parting with this judgment, the impugned order of penalty suffers from legal lacuna, as specific period for which reduction by three stages in the time scale has to operate, has not been mentioned, and it is violative of the Fundamental Rule 29, as the appellant cannot be deprived for indefinite period, but for a specific period. Since this point has not been taken by any Member, therefore, it is beyond my scope as both learned Members have not taken of this legal infirmity. I would, therefore, suggest to the departmental authority to take into consideration this glaring illegality and pass an appropriate order under FR 29 as deem fit.
' ORDER OF THE TRIBUNAL By virtue of clause (b) to subsection (2) of section 3A of the ServicelF Tribunals Act, 1973, the appeal is dismissed.