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Case No. 436/2023 of 1982, decided on 24th April, 1983.

‑‑ R. 7 (8)‑Authorised Officer recommending major penalty and forwarding case to authority ‑ Opportunity to show cause against proposed recommendation not given to accused by Authorised Officer before forwarding case to Authority‑‑‑.Omission fatal render ing penalty order liable to be struck down.

Mir Muhammad v. Government of N.‑W.F. P. P L D 1981 S C 176 rel.

Mushtaq Masood for Appellant.

A. G. Humayun, District Attorney for Respondents.

Talib Hussain, Excise and Taxation Inspector, Bhakkar has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Director General, Excise and Taxation, Punjab, Lahore and the Director, Excise and Taxation, Sargodha and Faisalabad Division, Sargodha as respondents. By virtue of this appeal he has prayed that the impugned order dated 21‑9‑1981 passed by the Director, Excise and Taxation, Sargodha as modi fied by the order dated 13‑6‑1982 passed by the Director‑General, Excise and Taxation, Punjab, Lahore be set aside and the appeal be accepted.

2. Brief facts of the case are that while the appellant was working as Excise Sub‑Inspector, Shorkot, District Jhang, he was served with a charge sheet alongwith the statement of allegations by . the Authorised Officer on 9‑12‑1980 whereby the following allegations as contained in the statement of allegations were levelled against him and he was called upon to show cause as to why one or more major penalties prescribed by rule 4 be not imposed upon him :‑

(1) "That it has been detected that a mela namely Rajan Imam situated in Police Station, Wayyam, Tehsil Shorkot, District, Jhang, was held on 25‑9‑1980. Some theatrical companies functioned there unauthorisedly on that mela. You visited over there and checked the theatrical companies and Entertainment duty was recovered from them at the spot and not yet deposited the same into the Government treasury. Even you did not submit your inspection report up till now before the undersigned neither you informed the undersigned about the functioning of that mela in time. Thus, you embezzled the Government money in shape of Entertainment duty tax. You recovered Rs. 300 from the Manage ment of Safdar Theatrical Company.

(2) It has further been detected that a mela namely Shadi Sheikhan, situated in Police Station Burrana, Tehsil Chiniot, District Jhang, was held on 9 and 10‑9-1980, and Safdar Theatrical Company unauthorisedly functioned there. You also visited over there alongwith Muhammad Akram, Excise Constable, Jhang, and checked the Theatre and the amount of Entertainment duty was recovered from the management at the spot on physical checking. It has been pointed out that you recovered the Entertainment duty amounting to Rs. 300 (Rupees three hundred) and not yet deposited the same into the Government Treasury. Neither you submitted your inspection reports to the undersigned nor you informed the undersigned before or after the functioning of that mela. Thus you concealed the facts and embezzled the Govern ment money in shape of Entertainment duty tax.

(3) Another mela namely Altaf Sohara' situated in Tehsil Jhang was held and one theatrical Company namely Safdar Theatrical Com pany unauthorisedly functioned there. . You also raided over there and checked the theatre and the Entertainment duty to the tune of Rs. 300 was recovered from the management as lump sum. Enter tainment duty and not yet deposited the same, into the Govern ment treasury. You never challaned the management nor you submitted your inspection report to the undersigned. Thus, you also concealed the facts and embezzled the Government money in shape of Entertainment duty tax.

(4) That your work and conduct is found unsatisfactory. You have been warned so many times in writing on account of your inefficiency in' detection of Excise crimes, but all have proved futile.

(5) That you failed to improve your efficiency and proved yourself careless and negligent."

3. The appellant submitted his reply to the charge‑sheet and state ment of allegations. The Authorised Officer appointed Mehr Muhammad Zahoor, Assistant Excise and Taxation Officer, Jhang to conduct an enquiry into the matter. The Enquiry Officer conducted the enquiry and recorded the statement of witnesses. He submitted a report on 11‑7‑1981. The appellant was heard in person by the Director and he was compul sorily retired from service vide his order dated ' 21‑9‑1981 because the charges alleged against him were held to be proved. The appellant sub mitted an appeal to the Director‑General, Excise and Taxation, Punjab, Lahore which was partly accepted and the penalty imposed upon him was converted from compulsory retirement to that of reduction to the minimum of the time scale. The intervening period was treated as period spent on duty but he was not allowed the arrears of pay and allowances. Hence this appeal.

4. We have heard the parties and have perused the record. It has been argued on behalf of the appellant that after conclusion of the enquiry, the report was submitted to the Authorised Officer who in violation of the rules did not afford an opportunity of hearing before submitting his re commendations to the authority. It has further been submitted that the Enquiry Officer and the other Departmental, Authorities have mis -appreciated the evidence and have held the ‑accused guilty of the charges although there was no such evidence to support the allegations. On the other hand the learned District Attorney. representing the respondents has argued that a regular enquiry was conducted in the matter and even the copies of statements of the witnesses were also supplied to the appellant before his personal hearing. He has further submitted that although the Authorised Officer did not afford an opportunity of hearing to him before recommending major punishment to the authority, yet no prejudice has been caused to the appellant because he was supplied with copies of state ments of witnesses, copies of the enquiry report before his personal hearing to the authority. It has further been submitted that the allegations levelled against him are fully proved from the evidence on record.

5. We have given our anxious thoughts to the arguments of the parties and have perused the record. From the record it is quite clear that when the Enquiry Officer submitted 'the enquiry report alongwith the enquiry file to the Authorised Officer, who straightway sent the file to the authority holding that the appellant was guilty of the charges and as such he recommended imposition of one of the major penalties as defined in the rules vide his letter No. 1954/Estt. dated 12‑7‑1981. Thus, we can safely hold that while making recommendations for imposition of major punishment, the Authorised Officer did not offer an opportunity to show cause against the proposed recommendations. This omission on the part of the Authorised Officer is fatal to the proceedings from that stage and is illegal as held by their Lordships of the Supreme Court .of Pakistan in the case reported as Mir Muhammad v. Government of N.‑W.F. P. (PLD1981.SC176"). Thus the impugned orders are liable to be struck down on this ground. Although we could have accepted or remanded the appeal for proceeding in accordance with the rules ; yet we have chosen to dispose off the appeal on facts as well. The appellant was served with charges on five counts. The record of the Enquiry Officer shows that his report is commonly confined to charges Nos. 1, 2 and 3 only and he did not look into charges Nos. 4 and 5.. To prove charges Nos. 1, 2 and 3, the prosecu tion examined Mr. Jhangir Khan Toor, Assistant Excise and Taxation Officer and Ahmad Ali the complainant. The statement of Mr. Jhangir Khan Toor clearly shows that he did not check the melds‑at any time nor he had witnessed the alleged transactions as alleged in Charges Nos. 1, 2 and 3. His statement is indirect and is based on secondary evidence. The fundamental principle of law is that the oral evidence should always to be direct and the secondary evidence would not be admissible. Then remains the statement of the complainant Ahmad Ali. It seems that oral evidence of Ahmad Ali is not free from suspicions and seems to have been moti vated. Thus, we agree with the Director‑General when he has held in the impugned order that there is no corroboratory evidence to the effect that the appellant was charged with the checking of entertainment at the melas concerned and that he actually checked the entertainments and collected Entertainment duty in cash and that the amounts so recovered were mis appropriated by the appellant. Thus, we hold that even the charges Nos. 1, 2 and 3 are not proved and , the consequential order dated 13‑6‑1982 passed by the Director‑General imposing the penalty of reduction to the minimum of time‑stale is based on no evidence and is illegal.

6. In view of the above analysis we set aside the impugned orders and accept the appeal. The intervening period from the date of dismissal to that of the partly acceptance of his appeal by the Director‑General, Excise and Taxation shall be treated as period spent on duty as decided by him but he shall be entitled to all other financial benefits as well. There will be no order as to costs.

Appeal accepted.

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