' The appellant Mr. Khalid Siddique was served with a charge-sheet dated 24-5-1990 by D.-G., E & T, Punjab/Authorized Officer (respondent No, 2) as follows:-- "You collected Rs,43,860 and Rs,2,500 from Mr. Karamat Ali, Managing Director, Jubilee Circus on account of entertainment duty payable in respect of Jubilee Circus and well of death respectively for the shows held by them in Mela Chistian District Bahawalnagar during the period from 6-7-1989 to 7-7-1989 but deposited partial amount of Rs,9,500 in the Government Treasury and embezzled the remaining amount of Rs,34,360 with mala fide intent."
2. An inquiry was held and authority/Secretary, E & T Department-(respondent No,1) imposed on the appellant the major penalty of reduction in time scale by three stages and recovery of Rs,34,360 vide order dated 6-81992. On review petition filed by the appellant against the said order, respondent No,1 converted the penalty of reduction in pay by three stages to reduction in pay scale by one stage vide order dated 13-7-1994. The instant appeal was filed on 11-8-1994.
3. The appellant has contended that the authorized officer also acted as authority as the same person was later on promoted to the post of Secretary, E & T Department after he sent the recommendations as authorized officer, and therefore, the order of authority having been passed by the same person is not sustainable; that respondent No,1 when acting as authorized officer had actually recommended exoneration of the appellant of all the charges and subsequently acting as authority ignored the said recommendations; that there are contradictions in the evidence produced before the Inquiry Officer by the prosecution, which is also corroborated by the parawise comments filed by the Inquiry Officer/Additional D.-G., E & T (respondent No, 3) who has also stated that the amount in question was collected/deposited into the bank by the Inspector, and Director, E and T, Bahawalpur approved the action taken by the appellant; that the inquiry has not been conducted in accordance with the provisions of the E & D Rules inasmuch as the charge-sheet was issued on 24-5-1990 whereas the directions for initiating disciplinary proceedings were issued by the authority under rule 5 of the said rules on 177-1990, much after the issue of the charge-sheet; that the co-accused of the appellant for the same charges were let off but the appellant has been picked up for punishment; that an important witness i,e, Munshi Muhammad Saleem of Jubilee Circus offered by the appellant as a witness was not examined; that the complaint was lodged 38 days after the deposit of the amount, and this delay was not explained before the Inquiry Officer who noted this point in his inquiry report; that the review petition was taken after more than four years, on 3-7-1994, violating the time-limit prescribed by the Government and resulting in mental and financial loss to the appellant.
4. Respondents Nos. 1 and 2 in their written objections have contended that the charge-sheet was served on the appellant after obtaining the permission of the authority, that the authorized officer was changed during de novo inquiry and the recommendations made by the first authorised officer who later decided the case as authority became redundant, that the inquiry officer did not point out any contradiction in the evidence, that the major penalty; was reduced by the authority if there were some weaknesses in the prosecution evidence, that the credibility of the witness is not the only basis for sustaining the penalty; that the appellant being in charge of the district was more responsible than the co-accused; that the delay in lodging the complaint occurred due to late production of receipt by the appellant and that the recovery was effected by withholding all the monthly emoluments.
5. Respondent No, 3 in his written objection has admitted that the charge was proved only on the basis of the evidence of the complainant and his two employees and that no independent witnesses were produced by the prosecution and complainant and that the charge had to be proved on the basis of the evidence available at the time; that the contradictions in the statements of the complainant were noticed by the authority himself as is evident from his order dated 11-2- 1993. It is further admitted that the amount was collected/deposited into the bank by the Inspector and the Director, E & T, Bahawalpur approved the action taken by the appellant, that the complainant failed to offer any explanation for delay of 38 days in filing the complaint. It is also admitted that the complainant never paid the entertainment duty up to the amount alleged in the complaint; that the statement of the Manager of the Circus could not be recorded because he left Pakistan and his whereabouts were not known to the complainant.
6. Arguments were heard and record perused. It was .Brought out that the authorised officer recommended exoneration of the appellant but the then authority ordered de novo proceedings through a different inquiry officer. The second inquiry report was put up to the authorised officer who heard the appellant but then the authorized officer was himself promoted as Secretary (Authority), and his successor as authorised officer also heard the appellant and submitted his recommendations to the authority who had earlier acted as authorised officer and heard the appellant both in the original as well as subsequent inquiry proceedings. Although it was explained that the second authorised officer made his independent recommendations to the authority, yet it cannot be denied that the authority had dealt with the case to the extent of having formed an opinion. The authority should have excused himself for exercising the power of authority in the case when he had earlier not only heard the case up to the stage of personally hearing the appellant before submitting recommendations as authorized officer to the then authority but had also in the first place recommended to the then authority for initiating action against the appellant. Closely linked with this legal point is the fact that the charge-sheet was issued on 24-5-1990 and the direction under rule 5 of the E & D Rules was issued much later, on 17-7-1990, which is borne out by record. This is not only violate of the E&D Rules in which it is mandatory that the departmental proceedings shall commence on receiving the direction of the authority. The denial by respondents of these facts is not borne out by record. This fact coupled with the fact that the charge-sheet was served by the same person acting as authorized officer who, later on, decided the case as authority seriously erodes the legal basis of the proceedings started and completed against the appellant. Similarly, the contradictions pointed out by the appellant in the evidence produced by the prosecution are also corroborated by the statement of the inquiry officer made in the written objections as respondent No, 3 and also referred to in the inquiry report itself. No explanation has been offered for delayed filing of the complaint. The Inquiry Officer himself has pointed out this flaw. Again, an important witness Munshi Muhammad Saleem offered by the appellant as the person who stately handed over the amount to the inspectors was never examined. It was explained that the said witness had left the Circus. It was indeed incumbent on the prosecution to have taken measures to produce the witness whose statement could be crucial to the determination of the fact whether the appellant received the amount or not. The appellant has clearly been deprived of the right to put up his defence. Still further, the statement of the complainant himself appears to be of little evidentiary value inasmuch as he made different statements before different Inquiry Officers. How was this contradiction resolved is not known. The only evidence which formed the basis of proceedings is the statements of the employees of the complainant and no other independent witness was produced or examined. The stand taken by the respondents that the appellant being in charge of the district was more responsible for the non-deposit of the actual amount of duty would be relevant in case the involvement of the appellant to some extent could be established. Here, the amount was directly taken by the Inspectors as already found by the Inquiry Officer himself. It is a matter of surprise that the Inspectors were let off and the appellant has been punished on the charge of collection and embezzlement of the money. A perusal of the impugned order dated 13-7-1994 indicates that the authority while reviewing the earlier order reached the conclusion that the evidence in the case was not considered to be of a level to inflict a harsh penalty like removal from service. This observation is intended to determine the quantum of punishment. On the other hand, when the authority was in doubt about the quality of evidence itself, no punishment was warranted as the quality of evidence is the same as discussed above, in that the material evidences was not examined, contradictions were not explained and the finding of the inquiry officer was clearly misread and misapplied to reach a conclusion which would not be logically drawn from proceedings based on such evidence.
7. For the reasons mentioned above, no justification exists to sustain any of the punishments imposed on the appellant. Accordingly, the appeal is allowed, the impugned orders dated 6-8- 1992 and 13-7-1994 are set aside with effect from the date of imposition of the penalties and the amount already recovered from the appellant shall be reimbursed to him forthwith.
8. Parties are informed.
THE END