' The appeallant, former Inspector in the Excise and Taxation Department has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 against the order of his compulsory retirement from service, passed by the Director Excise and Taxation (Region-A), Directorate of Excise. And Taxation, Lahore Division, Lahore dated 14-7-1998. He tiled departmental appeal before the Director General, Excise and Taxation Punjab which failed. He has challenged these orders before this Tribunal on various grounds.
2. The facts of the case which can be culled and collected from the memo. Of appeal and parawise comments submitted by the respondents briefly are that the appellant was Inspector, Excise and Taxation, Sandha area, Lahore city during the relevant period. He was accused of poor tax recovery vide show-cause notice dated 13-6-1998 which was as follows:- "That you being Excise and Taxation Inspector Incharge of Sandha Circle are responsible for 100% liquidation of Property Tax damand both current and arrears. That your collection figures as reported by you upto 31-5-1998 is 46% for current and 24% for arrears and you have still to recover Rs,36,31,905 on account of Property Tax current and arrears damand. That above recovery position has been noticed to be highly unsatisfactory and you have become inefficient and also guilty of misconduct within the meaning of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975."
3. The appellant refuted the charges but the Authorized Officer (Excise and Taxation Officer) imposed penalty of stoppage of one increment under rule 4(a)(iii) of Punjab Civil. Servants (E&D)
Rules, 1975. After one and a half months, the Director, Excise and Taxation, Lahore passed order of compulsory retirement of the appellant on the same charge.
4. The appellant has assailed the validity of these orders, contending, inter alia, that the allegations were factually incorrect and his collection was surely more than those of previous years, that his service record has throughout been good and during his 36 years of service, he had never been communicated any adverse remarks, that the Director, Excise and Taxation had no mandate in law to impose major penalty of compulsory retirement once Authorized Officer had imposed minor penalty, that after the orders of the Authorised Officer, the matter stood as a past and closed transaction and the Authority had no power to reopen the case as has been done by him, that he has been condemned unheard, that it amounted to a factual controversy which called for a regular inquiry, that the Authorized Officer as well as the Authority had failed to consider his genuine and solid pleas taken up by the appellant, that last but not the least in identical sitiations, the appeals of various Inspectors, whose recoveries were allegedly not upto the mark, were accepted but the appellant has been illegally discriminated.
4. The respondents in their written objections have defended the impugned orders claiming inter alia that the appeal was not maintainable as the appellant had undertaken not to file his appeal against the impugned orders and had also drawn his pension, gratuity and other consequential benefits. On facts it was claimed that the recovery was very poor and the appellant had failed to render plausible explanation.
5. Arguments have been heard and the record has been perused. The department has failed to come up with any satisfactory/plausible explanation as to why after imposition of minor penalty by the Authorized Officer, the case was reopened because neither the Authorized Officer had recommended for imposition of major penalty nor any show-cause notice was issued to the appellant spelling out the reasons for disagreeing with the Authorized Officer. In this case, no notice for personal hearing of the appellant was ever issued to him. It is equally noteworthy that the claim of the appellant that his recovery of the current as well as arrears was more than the previous years, was never properly investigated nor inquired into. The appellant had claimed the following recoveries for the year 1997-98:- {{TABLE}} Upto May 97 Upto May, 98 % C 12,72,355 34% 12,74,179 46% A 5,49,096 24% 6,54,397 24% ' It has not been claimed by the department that the appellant has made misstatement' regarding these recoveries but 'it has been branded as unsatisfactory.
6. The learned Counsel for the appellant drew my attention particularly to the fact that Sandha area was the constitutency of the then Chief Minister, Punjab who often visited the area. As such the people of the area who felt encouraged by such gestures of the Chief Minister would feel encouraged and were out to defy the orders of the Government. Moreover, the people of the area, being in the periphery of the Lahore city, being mostly of rural background, were not in the habit of paying such site taxes.
7. A reference was also made to the facts that on these very grounds, appeals filed by the following Excise and Tax. Inspectors were accepted by the Director General, Excise and Taxation, Punjab:- {{TABLE}} Order No, & Date.
1. Malik Muhammad Adam E&T Inspector
2. Mr. Taha Hussain, E&T Inspector
3. Mr. Muhammad Rashid, E&T Inspector
4. Sardar Muhammad Sharif, E&T Inspector
5. Rana Rashid Ahmed, E&T Inspector
6. Mr. Maqsood Ahmad, E&T Inspector
7. Malik Muhammad Aslam, E&T Inspector
8. Mr. Fida Hussain, E&T Inspector
9. Mr. Riaz Bhinder, E&T Inspector No,1999-99/1110-E (E&T)-II Dated 24-8-1999 No,1999-99/1117-(E&T)-II, Dated 24-8-1999 No .1999-99/1114-(E&T)-II, Dated 24-8-1999 No,1999-99/119-E(E&T)-11, Dated 24-8-1999 No, 1998-98/2030-(E&T)-II, Dated 24-11-1999 No . 1999-99/ 1144-(E&T)-II , Dated 25-8-1999 No,1999-99/1111-(E&T)-II, Dated 24-8-1999 No,1999- 99/1146-(E&T)-II, Dated 25-8-1999 No,1999-99/1141-(E&T)-II, Dated 25-8-1999
8. The learned D.A. When confronted with the above proposition was frank enough to concede that the appellant has been unjustificably discriminated and has been unduly imposed a harsh penalty.
9. After going through the record and hearing the arguments addressed from the both sides, it appears that the case of the appellant was on better and stronger foottings than the cases of the appellants whose names have been mentioned above. The area indeed was of rural nature where residents maintained buffalos etc. And fell within the constituency of the then Chief Minister. The residents of the area had no commercial background and as such much tax recovery could not have been expected from them. The figures/recoveries made by the appellant have not been disputed by the department. The figures show and show very clearly that the appellant has not lagged behind his collegures in recovering the arrears and the current taxes. As such there was no valid ground for imposition of any penalty upon the appellant. His claim that during his 36 years of service, he had never been communicated any adverse remarks, has not been challenged either.
There is yet another aspect of the matter that even if it is conceded that the appellant has failed to show recovery upto the mark yet it appears his first remiss and according to the establishment norms of justice, all such types of lapses merit to be condoned. Reference is made to dictum of the honourable Supreme Court reported as 1988 SCM R 691.
10. The learned D.A., however, emphatically argued that the appellant had himself undertaken not to file appeal in case he is paid his pensionary benefits, hence he was estopped from agitating the matter in the Court. This, I am afraid cannot debar the appellant from seeking legal remedy inasmuch as there can be no estoppel against law. He also pointed out that since he had already drawn the amount of gratuity and other pensionary benefits he had no right to invoke the jurisdiction of this Court. This plea is equally devoid of any force, as, the very penalties imposed upon the appellant were without any justification, as such the receipt of pensionary and other benefits would not stand in the way of his regaining his rightful position.
11. What comes out of the above discussion is that both penalties not being sustainable in law are set aside and the appeal is accepted. The appellant shall be deemed to be in service from the date when he was compulsorily retired and would be entitled to all consequential benefits. He shall, however, refund all the benefits drawn by him in lump sum.
12. There will be no order as to the costs.