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Appeal No. 5 (K) of 1983, decided on 11th February, 1985.

‑‑R. 5 (i) (iii) (a)‑Show‑cause notice procedure‑Dispensing with enquiry‑Discretion of authorized officer‑To be exercised justly, fairly, reasonably and for good reasons to be recorded otherwise he exceeds his jurisdiction and abuses his powers‑Appraiser, Customs Valuation Department (appellant) charged for issuance of forged advice under forged signatures of Deputy Collector‑Same Deputy Collector acting as Authorised Officer adopting show cause notice procedure‑Accused in reply to show‑cause notice vehemently denying charges by detailed explanation and demanding regular enquiry and also for appointment of someone else as Authorised Officer‑Demand not accepted and penalty of dismissal from service imposed by Authority.‑Service Tribunal finding that charges and detailed explanation could not be considered as such as could be inquired into and decided without holding regular enquiry and ends of justice would have served only if enquiry procedure had been adopted‑Discretion exercised to proceed summarily, in circumstances, held, resulted in denial of reasonable opportunity of defence to appellant and entire proceedings and impugned penalty order stood vitiated on that account alone Penalty order set aside by Service Tribunal leaving it open to Authority to proceed afresh by designating any other officer as Authorised Officer‑Service Tribunals Act (LXX of 1973), S.4.

Manzoor Ali Khan for Appellant.

Niaz Ahmed Khan Counsel for Respondents Nos. 1 and 2.

Date of hearing : 16th January, 1985.

‑The appellant then au Appraiser (under suspension), Customs Valuation Department, Karachi, was served with a show‑cause notice, dated 3rd May, 1982 which is reproduced below.‑

Whereas a forged advice No. I/114/82‑IV had been issued to the Assistant Collector, Air Freight Unit, Karachi, under the forged signature of Mr. N. M. Alvi, Deputy Controller of Customs Valuation, Karachi, photo copy attached ;

Whereas the issuance of the above‑mentioned advice was based upon ulterior motives obviously to help importers, Messrs Sony Inter national, Karachi, in clearing their goods on 25% loading on declared value as against 75% loading suggested earlier in an identical case of importers Messers Agro Bag Industries, Karachi ;

Whereas the Office File No. 1/114/82‑V which was under submission to the Assistant Controller according to the office note of Principal Appraiser, Incharge Group V was intercepted and diverted for action helpful to importers ;

Whereas interception of the file is evident from your note which is unsigned and for which there was no justification, whatsoever, as the file had neither been marked to you and nor you were the dealing officer ;

Whereas a forged advice was prepared and delivered by you to Mr. Mir Ahmed Qureshi, despatcher of this office for immediate issuance to Assistant Collector, Karachi Airport as is evident from his statement, dated 25th March, 1982 copy attached ;

Now, therefore, you are found guilty of gross misconduct within the meaning of rule 2(4) of Government Servants (Efficiency and Discipline) Rules, 1973 ;

You are called upon to show cause why disciplinary action under rule 4 (b) (iv) of the said rules should not be taken against you and why you should not be dismissed from Government service ;

Your reply should reach the undersigned within 7 days of receipt of this notice.

(Sd.)

(N. M. ALVI),

Deputy Controller of Customs Valuation

Authorised Officer

Dated : 3‑5‑1982."

The appellant submitted a detailed reply to the above show‑cause notice emphatically denying the allegations by offering a detailed explana tion. He also submitted that the nature of allegations did not justify holding summary proceedings under rule 5(1)(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973, hereinafter referred to as the Rules), as dispensation of a regular enquiry as envisaged by rule 6 of the Rules, would not be in the interest of justice. He, therefore, requested for adoption of the enquiry procedure prescribed in rule 6 of the Rules. He further requested that Mr. N. M. Alvi, who bad formulated, signed and issued the show‑cause notice, 'under reply, should not act as Authorised Officer in the matter and refer the case to the Authority for authorizing some other officer to be an Authorised Officer because the advice, in question, was issued under his (Mr. N. M. Alvi's) designation and signature allegedly forged and if a regular enquiry is held as prayed for by the appellant, then Mr. N. M. Alvi's (Authorised Officer) position would be that of a witness. This request was not acceded to by the Authorised Officer who, however, intimated the appellant that be bad been allowed to cross‑examine Mr. Mir Ahmed Qureshi, Despatcher, on the 13th of July, 1982 in his (the Authorised Offcer's) presence. In his reply thereto the appellant declined to avail this opportunity by stating that he had requested to change the course of enquiry from summary procedure to a regular enquiry and also requested to cross‑examine all the prosecution witnesses and not only Mr. Mir Ahmed Qureshi. He again reiterated his request to Mr. N. M. Alvi not to act as Authorised Officer. These requests appear to have been turned down again and on the 13th of September, 1982, the impugned order was passed by the Authority which is reproduced below :‑‑

"Consequent upon the issuance of a bogus advice vide U. O, endorsement No. 1/114/82‑IV, dated 13th March, 1982 under the forged signatures of the Deputy Controller of Customs Valuation and preliminary enquiries, it was revealed that the said advice had been prepared and got issued by the Appraiser Mr. M. Mobin Khan. This was corroborated by the office notes in the Office Case File I/114/82‑IV as well as by the statement of the despatcher Mr. Mir Ahmed Qureshi. This was further confirmed by the verbal confession of Mr. M. Mobin Khan before the Deputy Controller of Customs Valuation.

In view of the incontrovertible evidence available on record, it was decided by the Authorised Officer not to appoint any enquiry officer or any enquiry committee and instead a show‑cause notice was issued in exercise of the powers under rule 5(iii)(a) of Govern ment Servants (Efficiency and Discipline) Rules, 1973, to afford a reasonable opportunity of defence to Mr. M. Mobin Khan.

1n his reply to the show‑cause notice Mr. M. Mobin Khan raised several points which have been examined in detail. Mr. M. Mobin Khan had also requested for the exercise of his right to cross examine the despatcher Mr. Mir Ahmed Qureshi. However, on being afforded this opportunity, Mr. M. Mobin Khan declined to do so. The arguments advanced by Mr. M. Mobin Khan in his defence were found to be illogical, untenable and contrary to facts of the case.

The involvement of Mr. M. Mobin Khan in the interception of the case file, preparation of the bogus advice under forged signatures of the Deputy Controller and its issuance having been proved beyond shadow of doubt, Mr. M, Mobin Khan has been found guilty of the gross misconduct within the meaning of rule 2(4) of Government Servants (Efficiency and Discipline) Rules, 1973. He is, therefore, dismissed from Government Service with effect from 13th September, 1982 (afternoon), the date of issuance of this order under rule 4(b) (iv) of the aforesaid Rules.

Mr. M. Mobin Khan would be entitled to draw the subsistence allowance for the entire period of suspension."

2. Undoubtedly nobody has a vested right in a particular procedure and under rule 5(1)(iii) of the Rules the authorised officer has a discretion to decide whether, in the light of the facts of the case, or the interest of justice, an enquiry should be conducted through an Inquiry Officer or Inquiry Committee and, if he decides that it is not necessary to have an enquiry conducted through an Inquiry Officer or Inquiry Committee, he shall proceed in a summary manner in accordance with the procedure laid down in rule 5(1)(iii) of the Rules. It is, however, well‑established that no discretion vested in an executive authority is an absolute or an arbitrary discretion but it is vested in him for a public purpose and must be exercised honestly, fairly and in the spirit of the Statute. In the words of Maxwell, "according to his discretion means, according to the rules and reason and justice, not private opinion, according to law and not humour, it is to be not arbitrary, vague and fanciful, but legal and regular. to be exercised, not capriciously but on judicial grounds and for substantial reason." In other words an executive authority, while passing an order in the matter of his discretion, must act justly, fairly, reasonably and for reasons to be recorded but if he does otherwise, he exceeds his jurisdiction and abuses his power. It, therefore, follows that although it has not been specifically provided in the said Rules that the Authorised Officer is bound to give reasons for exercise of his discretion for proceeding under rule 5, he can exercise such discretion only for good reasons to be recorded. We have held in some earlier cases that for the purpose of determining whether the discretion not to hold enquiry through an Inquiry Officer was properly exercised, the nature of the allegations against an accused official and the available evidence in the case have to be considered. In the instant case, the charges were vehemently denied by the appellant by giving a detailed explanation thereto. These charges and the explana tion of the appellant could not be considered such as could be enquired into and decided without holding a regular enquiry under rule 6 of the said Rules. In our view, therefore, the ends of justice would have served only if a procedure of enquiry prescribed in rule 6 of the Rules had been adopted. After all, justice is not only to be done but it should be known that justice has been done. We have, therefore, no hesitation to hold that the discretion exercised to proceed summarily in this case has resulted in denial of reasonable opportunity to the appellant to defend himself. The entire proceedings and the impugned order passed thereon stood vitiated on this account alone.

3. In the result we accept the appeal, set aside, the impugned order and direct that the appellant be re‑instated in service with back benefits. It may, however, be clarified that it is open for the relevant Authority to proceed afresh for the charges against the appellant in accordance with law and following the prescribed procedure. We would add that if the appellant is so proceeded against afresh the Authority may consider, to designate any one officer other than Mr. N. M. Alvi to act as authorised officer to the case.

4. No order as to costs.

A. E. Appeal accepted.

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