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Case No. 499/368 of 1985, decided on 24th August, 1985.
-----R. 7‑A‑‑Punjab Service Tribunals Act (IX of 1974), S. 4‑‑Jurisdiction of Authorised Officer‑‑Minor penalty has to be imposed by Authorised officer himself‑‑Authorised Officer deciding that case calls for minor penalty but forwarding same to Authority and Authority imposing major penalty after show‑cause notice‑‑Authorised Officer, held, should have passed penalty order himself after show‑cause notice to accused‑‑Order passed by Authority was illegal‑‑Tribunal setting aside impugned penalty order and directing Authorised Officer to proceed afresh from stage of illegality.
Mian Nazir Akhtar for Appellant.
Manzoor Hussain, District Attorney for Respondent.
‑‑Mirza Jameel Ahmad, Excise and Taxation Inspector, Murree Brewery Co. National Park Road, Rawalpindi has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Secretary, Excise Taxation, Government of the Punjab, Lahore as respondent.
2. By virtue of this appeal, he has prayed that the impugned order, dated 30‑1‑1985 and 17‑7‑1985 be set aside.
3. Brief facts of the case are as under:‑‑
The appellant while working as Inspector, Excise & Taxation was charged for misconduct and penalty of reduction to minimum of time scale was inflicted upon him. The earlier history of this case reveals that while appellant was being proceeded against the Authorised Officer who was acting under Rule 7‑A of the Efficiency and Discipline Rules, 1975 found that the appellant was liable for minor penalty and instead of dealing the matter himself forwarded the case to the Authority who issued a show‑cause notice in the name of the appellant and ultimately inflicted a major penalty of reduction to the minimum of the time scale in B.P.S.‑8.
4. Without going into the merits of the case, the learned counsel for the appellant has submitted that the case hinges on legal point and particularly on the infliction of Rule 7‑A of the Efficiency and Discipline Rules, 1975. According to the learned counsel once the Authority pass an order under rule 5 and appoints Authorised Officer in a particular case then the responsibility for further proceedings devolves on the Authorised Officer who vide Rule 7‑A would be the sole judge whether or not the charges are proved or what sort of penalty is called for. It has been vehemently stressed that the said Authorised Officer would only refer the matter to the Authority if he decides that the case calls for major penalty or the proceedings are to be dropped against him. According to him besides these two functions the authority does not come into picture at all. It has been submitted that a serious illegality has occurred in this case as the Authorised Officer travelled beyond his jurisdiction so conferred upon him under Rule 7‑A and has forwarded the case to Authority who in its own behalf has also acted without jurisdiction.
5. On the other hand the learned District Attorney has submitted that although Rule 7‑A calls upon the Authorised Officer to decide the case himself yet if he forwarded the case to the Authority no prejudice could ha caused in this way.
6. We have given our anxious thought to the arguments advanced by the parties and we will reproduce the Rule 7‑A as under:‑‑--
"7‑A. The Authorised Officer on receipt of the report of the Inquiry Officer or Inquiry Committee, shall determine whether the charge has been proved. If it is proposed to impose a minor penalty he shall, after affording the accused an opportunity of showing cause against the action proposed, pass order accordingly.
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 alongwith the charge‑sheet, a 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. In case, it is proposed to drop the proceedings, the Authorized Officer shall submit the case with all relevant material/documents to the Authority for appropriate orders."
The reading of this rule would reveal that the word shall has been used and the Authorised Officer has been at all to decide whether the case was of minor penalty or major penalty. In case the Authorised Officer comes to a conclusion that the case was for minor penalty he is not authorised under this rule to forward the case to authority and has to act himself by passing an order after giving show‑cause notice to the said civil servant. In the present case what we find is that the Authorised Officer did come to the conclusion that this case of the appellant was a case of minor penalty, therefore, he had to pass an order himself after giving show‑cause notice to the appellant and conclude the matter there and then. This being the legal position, we have no alternative but to accept the appeal on this short ground and direct the Authorised Officer to proceed where from the illegality has so occurred. The impugned orders in question are set aside as nullity in l the eyes of law. However, there will be no orders as to costs. Judgment to be communicated to the parties.
A.E. Appeal accepted
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