1. MUHAMMAD DAUD KHAN (CHAIRMAN): Appellant Mr. Mohammad Akram, was appointed as Inspector in the Central Excise and Land Customs Department on 15th June, 1954. After his tenure of duty in various stations, he was finally posted on 18th December 1969 as resident Inspector to Woollen and Textile Mills Ltd. Lawrencepur. He remained there till 10th of October 1971.
2. Vide order of the Collector, Central Excise and Land Customs, Lahore the appellant was placed under suspension on 13th March, 197x. The order is No. IV-C (S) 4/73/4464 It is Annexure 2 on the file: The appellant made repeated requests for re-instatement which are exhibited on the file but in view of the final order of dismissal, are no longer of ,any .interest. Suffice it to say, they receive no consideration from the Collector. ` After six months of suspension the said officer informed the Appellant vide his letter C. No. 11-B (1)
3. Conf. 1/73-1409, dated 25th September 1973 about causes of his suspension. Charge sheet of inefficiency and corruption based on certain irregularities and omissions whereby the Woollen and Textile Mills Ltd., Lawrencepur were enabled to avoid substantial amount of excise duty was communicated.
4. The charge is under four heads
(i) a sum of Rs 52,349 evaded on-clearance of A. A. A. Blankets, Honey -Comb and Venus Blankets.
(ii) a sum of Rs 5,68150.18 evaded on the clearance of Woollen Fabrics as per detailed in Appendix 1.
(iii) a sum of Rs. "1,50,920 evaded on the clearance of Blankets and shawls as per above Appendix.
(iv) a sum of Rs. 25,63,443 evaded on the clearance of Woollen Fabrics as detailed.
5. The appellant replied the charges on 5th October 1973 repudiating all the allegations and asserting about the performance of duty in accordance with the procedural practice of concerned Department.
6. On receipt of reply the Collector decided to hold a formal Inquiry in the case on 26th January, 1975.
7. He appointed a Deputy Collector CE & LC to be Inquiry Officer. A direction was given to submit the proceedings within 10 days of completion as per rule 6 (6) of Government Servant efficiency and Discipline) Rules, 1973.
8. Report was submitted by the Inquiry Officer on the February, 1975. He found the appellant guilty of negligence and corruption under all the heads. Thereupon the order of dismissal was passed by the Collector, Peshawar on 27th February, 1975. Appeal filed to the Central Board of Revenue, Islamabad failed to get any reply. Hence this appeal dated 26 August, 1975.
9. The appellant has many objections to the inquiry. According to him no evidence was recorded for prosecution and his mere explanation was accepted as proof of his guilt. The inquiry was originally stated op 18th May 1974 and even a statement was made before the High Court that it has been kept in abeyance deference to the proceedings. No original proceedings were initiated as intended, yet. Inquiry so far admittedly incomplete and never resumed culminated in a report of dismissal. Besides, he considers himself aggrieved by his suspension under (Efficiency and Discipline) Rules, 1960 when inquiry was held under Rules of 1973. Other grievances agitated are illegal authorization by the Authority of authorised Officer to hold Inquiry and want of any legal evidence on record.
10. Respondents on the other hand contend that rules of 1960 having been repealed by rule 11 (Efficiency and Discipline) Rules of 1973, no Inquiry could be held under Rules of 1960 after 18th August, 1973, yet all actions taken under the repealed Rules, were beyond reproach as specifically provided therein. They have also urged want of any violation of rules 5 and 6 of efficiency and Discipline Rules, 1973 to justify interference, while the conclusions are irreproachable on merit.
11. In the context of these controverted assertions, we have to judge validity of these objections, propriety of Inquiry and any violation of natural justice. Principles of natural justice are; (a) a person should not be a judge in his own cause; (b) no man shall be condemned unheard and (c) that the hearing bas been given by an impartial Tribunal. Ostensibly there is no violation of any of these principles because Collector did not sit to judge in his own cause, hearing was granted and the departmental authority was presumably impartial.
12. Other questions like Collector authorising authorised officer to hold Inquiry requires examination. Its essentials may be mentioned to reflect the point at issue. This difficulty arose for reasons of lethargy on the part of the Customs department. Although rules promulgated on 18th August, 1973 had drawn a distinction between the authority and authorised officer, the department did not gauge its implication to appoint an authorised officer. Deputy Collector was appointed authorised officer on 15th October, 1974 when the report was already under compilation. In this context when there was no authorised officer m existence, the authority (f. e. Collector) initiated the Inquiry to appoint an Inquiry officer.
13. The word 'authority' has been defined by rule 2 of Government Servants (Efficiency and Discipline)
14. Rules, 1973 as President or an officer or authority designated by him, to exercise powers of authority.
15. Under another sub-rule (3) "authorised officer" means an, officer authorised by the Authority to perform functions of an authorised offer. Rule 5 contemplates the procedure to be followed.
16. Authorised officer is to order suspension after approval of the authority. Then authorised officer has to decide whether any facts brought to his notice justify appointment of an Inquiry Officer or Inquiry Committee. It is authorised officer again who can frame the charge and communicate it to' the accused and except in case of major penalty, the right to award punish--ment also vests in him. It is consider a lapse by the appellant that instead of authorised officer authority appointed an Inquiry officer to leave no occasion for authorised officer to apply his mind. These irregularitiesth accord--ing to him have caused injustice which can only be rectified by vacating the questioned order.
17. It is a well settle principle of law that when a thing is prescribe to be done in a particular way, it should be done accordingly or not at all. The rule: Government Servants (Efficiency and Discipline Rules, 1973; in appointment of an authorised officer whose functions are given in detail. There is no provision of ouster. An authority cannot resume the powers, which stand delegated by rules to an authorised officer. There is sharp distinction between discretionary and prescribed delegation which cannot be lost sight of. In the former case, powers can always be resumed and in the latter no such volition exists to be exercised. The rules were promulgated on 18th August, 1973 all subsequent acts by authorised officer or Inquiry Officer were not in accordance with the procedure prescribed for such inquiry. There is clear violation of rules which cannot be overlooked. Defence argument speciously irrefutable cannot stand up to the test. It is not a procedural irregularity only : it has also deprived the accused of a valuable right of being adjudged by Inquiry Officer, authorised officer and the authority independently of each other. Intermediary link of authorised officer being missing a valuable safeguard has been denied, causing injustice. Both the scheme and spirit of the rules not permitting such retrenched procedure, we cannot but hold the defence argument of mere procedural irregularity a rhetorical escape.
18. As to Inquiry itself, there is much to be desired. We said above that ostensibly and presumably there is no violation of natural justice. These words were not used loosely. Though accused was called upon to explain what he had already submitted in writing but a feeling persists that he was condemned without evidence. If charge-sheet and explanation were sufficient to condemn the accused the authority or authorised officer need not have taken trouble to appoint an Inquiry Officer. The very appointment discovers necessity for proof of guilty.
19. In this context we have to examine whether any evidence was recorded by the Inquiry Officer and if it was completed for report.
20. Rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1973 engendered communication of charges and statement of allegations, submission of written defence and then Inquiry into the charges. Sub-rule (3) enjoined Inquiry Officer to enquire into the charges and to examine such oral and documentary evidence as may be considered necessary. In the present case an unusual procedure was adopted by the Inquiry Officer. He did not examine any prosecution witness but started on cross-examination of the accused possibly to the end of clarification of his defence statement. During statement Mr. A. A. Bokhari was also put one or two questions as and when necessary and then the accused was asked to further explain the point raised by Mr. A. A. Bokhari. In strict legal sense, the statement cannot be termed as evidence. I have already said it may have been to elucidate certain points in defence statement but when inquiry was decided upon procedure would be to substantiate allegations by prosecution evidence. Mr. A.
21. A. Bokhari, Deputy Superintendent who had noticed non-printing of prices on the material lying in K.
22. B. IV should have been examined. So also the person appointed by the Directorate of Complaints who had received letter from some dealers. Only after the case was made out the accused could be called upon to enter his defence. Although sub-rules (3), (6) of (Efficiency and Discipline) Rules, 1973 does not detail any procedure and the only requirement is examination of oral or documentary evidence in support of the charge of defence, yet the missing details can be filled up by general conduct of such inquiries. Departmental inquiry has also to conform to such pattern and unless the charge is substantiated, the accused is net called upon to put in defence. The procedure in the present case could be justified if Deputy Collector Mr. N. H Younas had acted as authorised officer and proceeded to penalise the accused on his explanation but not when he was acting as an Inquiry Officer. To our mind this procedure does not do full justice to the accused. The deviation from generally accepted norms is exceptionable and can cause irreparable damage to the confidence in such inquiries.
23. Collector made a statement that Inquiry was incomplete yet no evidence was recorded thereafter.
24. Can we find any justification to hold that Inquiry rightly culminated in dismissal? It was for the department to decide whether to hold an inquiry or not. But once the decision had been taken, there was no option but to collect evidence. None being recorded report is based on incomplete data.
25. Evidence was also recorded without putting the witness on solemn affirmation. This was also irregular, and result is that report without any Inquiry is baseless. It has no roots to stay out. The order of dismissal is, therefore, vacated. No costs.