MEHBOOB ASLAM WATTOO Versus DIRECTOR-GENERAL, EXCISE AND TAXATION, PUNJAB, LAHORE
ARSHAD BIN AHMAD (MEMBER-III).--- Appellant Mehboob Aslam Wattoo, ex-Excise and Taxation Inspector was proceeded against thrice under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. He was first issued a show-cause notice, dated 9-9-1989 on the following charges:--
"(i) Connivance with the cinema management for evasion of entertainment duty amounting to Rs.670.
(ii) Non-detection of Excise crimes since March, 1989.
(iii) Short recovery of Paddy Husking Tax and non-submission of the returns for obtaining assessment orders thereof.
(iv) Late deposition of the amount regarding sale of opium tablets.
(v) Nil recovery regarding Tobacco Vend Fee.
The details of the above charges were issued through a statement of allegations. The appellant in his reply refuted the charges and requested that a regular inquiry be held in the matter. However, the competent authority/Director Excise and Taxation, Bahawalpur/respondent No.2 vide his order, dated 10-2-1990 imposed the penalty of reduction to the lowest stage in the time scale w.e.f. 1-3-1990 vide order, dated 4. 10-2-1990. The appellant preferred a departmental representation, dated 18-3-1990 before the Director-General Excise and Taxation/respondent No.1 who set aside the aforesaid orders of the respondent No.2 vide his order, dated 18-9-1991 and ordered for a regular inquiry-to be held. A fresh charge-sheet, dated 1-3-1992 was issued to the appellant and Abdul Rant' Butt, Assistant Excise and Taxation Officer (Headquarters) was appointed as Inquiry Officer. Except for the Charges Nos. (iv) and (v) the rest of the charges were the same as served in the original show-cause notice, dated 9-9-1989 and the statement of allegations attached therewith. As a result of the regular inquiry so held, the competent authority i.e. Authorized Officer imposed the minor penalty of "censure" upon the appellant vide his order, -dated 2-5-1992. However, the Appellate Authority/respondent No.1 quashed the entire proceedings and ordered for fresh inquiry to be held under Rule 5 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. Accordingly, fresh charge-sheet along with statement of allegations was once again issued under the Rules, (ibid) on 14-4-1993. The Inquiry Officer found the appellant guilty of all the charges and recommended imposition of major penalty upon the appellant under Rule 4(1) of the Rules, (ibid). The competent authority/respondent No.2 imposed the major penalty of reduction in time scale by five stages, vide impugned order, dated 28-10-1993. The appellant filed a departmental appeal before the Director-General, Excise and Taxation on 6-12-1993 which remained undecided till passing of the impugned appellate order, dated 27-9-2006 by the respondent No.1. In the meanwhile, in another case of absence from duty the appellant was awarded the major penalty of removal from service by the competent authority/Director/respondent No.2 vide his order, dated 11-3-1998, which was subsequently converted by the Director-General/respondent No.1 into compulsory retirement vide his order, dated 31-1-2002. However, the appellant did not challenge the aforesaid order of his compulsory retirement. The present situation is that the departmental representation against the impugned order, dated 28-10-1993 whereby the penalty of reduction in pay by five stages was imposed by the respondent No.2 was finally decided by the Director-General, Excise and Taxation, Punjab/respondent No.1 who upheld the impugned order, dated 28-10-1993 vide his order, dated 27-9-2006 impugned as appellate order in the instant appeal.
2. Learned counsel for the appellant has contended that the impugned order, dated 29-10-1993 passed by the respondent No.1 by imposing the penalty of reduction in time scale by five stages was passed after a lapse of more than almost seven months and the impugned appellate order, dated 27-9-2006 was passed after almost (13) years, which is in contravention of the provisions contained in Rule 18(2) of the erstwhile Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. It was further contended that the departmental representation filed by the appellant on 6-12-1993 was declared as time-barred by the respondent No.2 in the impugned appellate orders which was factually not correct as the impugned order, dated 28-10-1993 was communicated to the appellant by post in late September, 1993 whereafter, the appellant filed the departmental appeal within 30 days of the communication of the said order on 6-12-1993. It was further contended that the appellant after detailed inquiries held earlier twice, was exonerated but was deliberately roped in a third inquiry after the previous proceedings and penalty of "censure" imposed vide order, dated 2-5-1992 were quashed by respondent No. 1 who ordered for fresh proceedings to be conducted. The respondent No.2 on the basis of the findings of the Inquiry Officer on the basis of fresh charges added to the previous one awarded the major penalty of reduction in pay by five stages which was a violation of the rules. Reliance was placed on 2006 PLC (C.S.) 348.
3. Learned District Attorney on the basis of parawise comments opposed the contentions raised by the learned counsel. It was contended that there was a lapse of 43 days on the part of the appellant in filing the departmental appeal and hence it was time-barred. When his attention was drawn towards the delay on the part of the Appellate Authority/ respondent No.1 in deciding the departmental representation for almost 13 years, he had no answer
4. Perused the record and heard the parties in detail. On the issue of limitation, the contention of the appellant was that he received the impugned original order, dated 28-10-1993 by post some time in November, 1993 and the departmental appeal was then filed within the mandatory period of 30 days from the date of communication. The learned District Attorney insisted that the departmental representation was decided on merits and not on limitation only. It was however, found that the only objection/point raised by the' appellate authority/respondent No.1 while rejecting the said representation was that it was time-barred. It is strange that an appeal even if conceded, was time-barred for 43 days, was kept pending for almost 13 years and when finally decided was declared as time-barred. It was found that the impugned order was dispatched through ordinary mail in routine and received by the appellant some time in mid-November and was appealed against on 6-12-1993 which was within the mandatory 30 days period. The respondents through learned District Attorney could not produce any record to substantiate their stance. As for merits of the case the objection raised by the learned counsel for appellant about suo motu orders of quashment of the orders, dated 31-12-1992 awarding the punishment of "censure" after a lapse of 7 months when the punishment had attained finality, was found not sustainable as under Rule 18(2) of the Punjab Civil Servants (Efficiency and Discipline) Rules 1975 such order could be issued by the Appellate Authority within one year. It was however, found that on 14-4-1993 fresh charges were framed and served upon the appellant once again for the 3rd time along with the statement of allegations which are more or less similar to the original charges. The appellant contested the allegations mainly on the grounds that he could not have been vexed twice on the same charges. The charge of less collection of entertainment tax was refuted by the appellant on the basis of the rates fixed by the Government who contested the calculations made by the respondents as being unrealistic. As for the charge of non-detection of drug cases, the appellant contented that he had brought it to the notice of his supervisory officer i.e. the Excise and Taxation Officer a number of times since 17-8-1989 at the risk of his -life. To prove his point, he claimed to have been awarded cash awards for detection of drug cases which was not refuted by the respondents. He also gave details of recoveries made during the years 1988 and 1989 according to which the recoveries made in 1989 were more than the previous year. It was found that fresh disciplinary proceedings initiated against him suffered from legal lacunae in that firstly the Authorized Officer did not specify the penalty and only recommended imposition of major penalty to be awarded to the appellant which is contrary to Rule 7-A of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. Relevant extract 'is quoted as hereunder ".... If it is proposed to impose a major penalty, he shall after affording the accused an opportunity to offer his explanation against his recommendations for imposition of major penalty, forward the case to the authority along with the charge-sheet, statement of allegations served on the accused, explanation of the accused, the finding of the Inquiry Officer or the Inquiry Committee, as the case may be and his own recommendations regarding the penalty to be imposed ...." Thus, it is clear that the proposed penalty should have been specified by the Authorized Officer. The show-cause notice obviously should also have to be specific insofar the penalty proposed to be imposed upon the appellant. It was also found that while, quashing the previous proceedings, the respondent No.2 had ordered for fresh proceedings to be initiated whereas under the proviso under Rule 8 of the Rules, (ibid) he could only order for de novo inquiry. Thus, these two legal lacunae have rendered the entire proceedings' void in the eyes of law. On merits, the report of the Inquiry Officer relied upon by the respondents held the appellant guilty "prima facie". There was no solid evidence brought out against the appellant nor could it be ascertained as to whether the charges against the appellant were established/proved. Furthermore, the charges were rendered controversial in view of the acknowledgement by the respondent-Department of his performance during the period in question, by awarding cash awards to him. At the same time he was held guilty of showing poor performance which belies all reasonability. Last but not the least the appellate impugned order, dated 27-9-2006 was passed after almost 13 years of filing the departmental representation by the appellant which quite obviously appears to have been issued in routine without appreciating the legal lacunae pointed out above. Quite understandably a 13 years later, there was no way that the respondent No.1 could have reached a fair conclusion. This is evident from the fact that except from giving a brief resume of the background of the case, the aforesaid impugned appellate order; dated 27-9-2006 lacked the reasoning in arriving at the conclusions.
5. In view of the foregoing the appeal is accepted and the impugned orders, dated 28-10-1993 and 27-9-2006 are set aside. The appellant shall be restored to his original pay from date of the imposition of the penalty and paid all arrears in consequence. No order as to costs.
H.B.T./59/PST Appeal accepted.