' ABDUL HAMID KHAN (MEMBER).---The appellant, Qari Shaukat Ali, during the posting as Excise and Taxation Inspector at Sheikhupura was specially deputed to check a touring cinema at Nankana Sahib on 17-8-1986, 18-8-1986 and 19-8-1986. He was later proceeded against departmentally for conniving with the cinema management in evading entertainment duty. Ultimately the penalty of stoppage of two annual increments was imposed on him by respondent No,1/Authorised Officer vide order, dated 18-11-1986 which was confirmed in appeal by respondent No,2/Director, Excise and Taxation, Lahore vide order, dated 24-5-1987 and hence the present appeal.
2. The appellant has contended, among others, that he has been punished on the basis of surmises and conjectures and in the absence of any evidence, that he was not supplied a copy of the enquiry report which has resulted in grave travesty of justice, that the surprise checking by the headquarters staff was done on 21-8-1986 when the appellant was no more incharge of the cinema and that the so-called formula of "tax behaviour" could not be made a basis for punishment. He has laid particular emphasis on the fact that although the Enquiry Officer had exonerated him but the authorised Officer goaded the latter into changing his findings to the detriment of the appellant.
3. The respondents have stated that copy of. The enquiry report was not supplied to him as the appellant did not insist on its supply at any stage earlier nor was it "a statutory requirement", that the collection of tax during the period 17-8-1986 to 19-8-1986, which were the peak days of the Eid holidays, did not compare well with these collected on 21-8-1986 when the cinema was raided and tax evasion of Rs,300 was detected during the second show and that the 'comparative table of tax behaviour' clearly proved the appellant's collusion with the cinema management in the evasion of entertainment duty.
4. The appellant has furnished a copy of the 'first' enquiry report, dated 15-10-1986 submitted by the Enquiry Officer to the Authorised Officer. The respondents have, however, denied the existence of any such report. According to them, only one report, dated 18-10-1986 was received and that the other report was not available in their record. The department's above assertion is completely belied by the statement and affidavit filed by the 'Enquiry Officer before this Tribunal wherein he has admitted in no ambiguous there ns the fact that he "had given another enquiry report" wherein he had "exonerated the appellant from the charges". According to him the report remained on the Authorised Officer's table or about four days from where it was misplaced whereupon the Authorised Officer suggested to him to prepare another enquiry report. He has clearly admitted without mincing words that materially the contents of the two reports were the same and that "the appellant was again exonerated by the respondent (the Enquiry Officer) in the second enquiry report" and further that "the report was never substituted but was prepared afresh in the exigencies of the circumstances of the case".
5. The Authorised Officer did not ago with the findings of the Enquiry Officer in the second report and asked him "to look into the matter again keeping in view" "the eratic behaviour of entertainment duty" which was "clearly indicative (of) the connivance of the checking authority", According to the Enquiry Officer, "in these circumstances it was incumbent upon the Authorised Officer to appoint another Enquiry Officer. Instead the respondent (Enquiry Officer) was ordered to review his own opinion and the guideline was provided to keep in view the eratic behaviour of entertainment duty. Thus keeping in view the comparative statement of the tax entertainment duty and in furtherance of the orders of the Authorised Officer the respondent (Enquiry Officer) held the Inspector responsible for evasion of the duty. However, there was no direct proof of any evasion".
This establishes the fact firstly that two reports were prepared by the Enquiry Officer of which the first report was misplaced; secondly that in both the reports the appellant had been exonerated and thirdly that the findings in the second report was altered by the Enquiry Officer at the behest of the Authorised Officer which goes to show that the Authorised Officer/respondent No,1 was clearly biased against the appellant and had already made up his mind, that the appellant was guilty. No reliance can, therefore, be placed on his sense of judgment.
5. The points that the Enquiry Officer had made in the (second) enquiry report were that (1)
Nankana Sahib is a small town and, therefore, the first shows are usually comparatively better attended and (2) in order to make a comparison of collection of entertainment duty the comparative consumption of duty cannot be made the basis. In the circumstances, he did not find the appellant responsible for 'presumptive evasion' but considered that on the basis of comparison embezzlement was apparent. However, after he was directed by the Authorised Officer to look into the matter again he did make such a comparison and submitted his findings with the brief remark that there had been an embezzlement in the entertainment duty and the appellant could not be absolved of the charge and recommended, although it is not required of an Enquiry Officer to make such recommendations, that his two increments be stopped.
7. Words speak for themselves. The above proceedings would show that respondent No,1 had directed the Enquiry Officer to reverse his findings. He had no right to do so. He could only order a de novo enquiry in which case the Enquiry Officer would have conducted the proceedings afresh.
The observations. Of the Authorised Officer clearly indicate that he had unlawfully directed the Enquiry Officer to give findings against the appellant. This was neither fair nor just. Even otherwise the so-called formula of comparative consumption of entertainment duty or 'tax behaviour' is evidently speculative and hypothetical and not a fool proof formula. Although 18-8-1986 was the Eid day and yet the collections made on 17-8-1986 were much more. If we go by the line of reasoning of the respondents and if the appellant had really connived with the cinema management, collections could easily have been shown less even on 17-8-1985. Furthermore, the raid by the headquarters staff was conducted on the last day of he movie which was a Thursday and when the appellant was no more incharge of the cinema. On the last day of showing of a movie, generally a larger number of viewers are attracted and hence the greater incidence of evasion. Further, could it not be that the pronounced evasion took place because the appellant was not there to control and contain it? Why was a raid not conducted during the period when the appellant was incharge of the cinema? There is also truth in the assertion of the appellant when he states that the raid was conducted almost towards the end of the show when generally the management of a touring cinema allows the free loaders gathered around it to enter the 'hall' without buying a ticket.
8. Supply of a copy of the enquiry report to the appellant is not a statutory requirement but in the peculiar circumstances of the case we feel that it was incumbent on the respondents to give a copy to the appellant and that the omission to do so has prejudiced his case. In the case of -Syed Mir Muhammad v. N.-W.F.P. Government through Chief Secretary reported as PLD 1981 SC 176, it was held that " by in a case where a formal inquiry is held, it seems to be an implicit requirement of the relevant rules that a copy of the inquiry report should be furnished to the accused official so as to enable him to offer his examination with regard to the adverse findings, if any, recorded against him by the Inquiry Officer or the Inquiry Committee, as the ase may be".
9. For all these reasons, we do not find the appellant guilty of the charges levelled against him. The appeal is, therefore, accepted and the impugned orders are set aside. There are no orders as to costs.