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Appeal No. 94 (K) of 1982, decided on 13th February, 1985.

‑‑R. 5 (1)‑Show‑cause notice procedure‑Dispensing with regular enquiry‑‑ Punishment on basis of statements recorded in preliminary enquiry in absence of accused‑Not sustainable‑Customs Inspector (appellant) removed from service by adopting show‑pause notice procedure on charge of accepting bribe from smugglers‑Appellant raising factual controversy by vehmently denying allegations Circumstances demanding regular enquiry wherein statement of material witnesses ought to have been recorded in presence of appellant with opportunity of cross‑examination‑Appellant during personal hearing before Authorised Officer allowed to cross‑examine one prosecution witness and that too without recording any examination‑in‑chief of such witness‑Penalty order based upon statements recorded during preliminary enquiry in absence of appellant and such cross‑examination in absence of examination‑in‑chief‑Procedure and proceedings, in circumstances, held, wholly untenable being totally violative of law of evidence and contrary to norms of justice and impugned penalty order based upon such defective proceedings, held, unsustainable hence set aside by Service Tribunal‑Appeal having been accepted on technical grounds proceedings afresh by following prescribed procedure left open for competent authority‑Treatment of intervening period also left for decision by competent authority in case fresh proceedings initiated otherwise appellant, held, entitled to salary and other service benefits for intervening period‑Service Tribunals Act (LXX of 1973), S. 4.

Manzoor Ali Khan for Appellant.

Niaz Ahmad Khan for Respondents.

Date of hearing : 13th January, 1985.

The appellant while serving as Inspector, Central Excise and Land Customs, Quetta, was served with a notice requiring to show cause within ten days as to why a major penalty should not be imposed on him for the following allegation :‑

"Preliminary investigations in the case in which Mobile Squad Quetta seized two buses loaded with smuggled goods on 22nd February, 1981 near Daranjun have revealed that these buses came on the main road and passed unchecked through Sariab Check Post with your active connivance. On interrogation from the owners of the goods/buses it was further revealed that you accepted Rs. 6,000 (Rupees Six Thousand) each from the owner of the goods/buses as illegal gratification which was subsequently returned to them.

You are thus guilty of 'gross misconduct' and corruption' under the Government Servants (Efficiency and Discipline) Rules, 1973."

In his reply to the above show‑cause notice the appellant denied and refuted the charge concluding that "since the statement of allegations does not contain full fact nor copy of preliminary enquiry had been supplied to me, I am unable to submit reply without knowing correct facts and my reply is based on imagination and I am sure that your honour would have judged that only an attempt has been made to involve me in a false case". He was then afforded an opportunity of personal hearing by the Authorised Officer and accordingly he appeared before him on 16^th August, 1981 when on being allowed, he cross‑examined Mr. Saadullah Shah, Deputy Superintendent. It is significant that no statement as examination‑in‑chief of the said Mr. Saadullah Shah was recorded in the presence of the accused‑appellant. Thereafter on 2nd December, 1981 the impugned order was passed whereby the penalty of removal from service was awarded to the appellant. His departmental appeal was also rejected. He then filed the present appeal assailing the impugned order on several grounds of law and facts.

2. We have given our anxious thought to the arguments advanced by the parties and carefully perused the record. It has revealed that the impugned order is mainly based on the statements of the witnesses which they had made in the absence of the accused‑appellant during the prelimi nary investigation'. Though during the personal hearing before the Authorised Officer the appellant was allowed to cross‑examine Mr. Saadullah Shah yet that too without recording any examination‑in‑chief of the said Mr. Saadullah Shah in the presence of the appellant. Indeed when the accused‑appellant raised the factual controversy by vehemently denying the allegation it was only proper that a regular enquiry should have been held wherein the statements of material witnesses ought to have been recorded in the presence of the accused‑appellant and he should have been allowed to cross‑examine them which was not done, instead novel manner of awarding punishment on the basis of statements recorded in the absence in the accused‑appellant and cross‑examination without examination‑in‑chief was adopted. In this way, the proceedings taken against the accused‑appellant are wholly untenable as these are totally violative of law of evidence and contrary to the norms of justice. Based on such defective proceedings, the impugned order is unsustainable.

3. In view of the foregoing, the appeal is accepted, the impugned order is set aside and it is directed that the appellant shall be re‑instated in service. It may however, be clarified that in view of the acceptance of the appeal on technical ground, it is open to the relevant authority to proceed afresh for the charge against the appellant in accordance with law and following the prescribed procedure. If the appellant is so proceeded afresh then at the conclusion of such proceedings, an order shall be passed by the Authority about the treatment of the period during which the appellant has remained out of job. In other case the appellant shall be entitled to the salary and all other service benefits for the intervening period deeming that the impugned order never existed.

4. No order as to costs.

A.E. Appeal accepted.

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