2002 PLP (C (PLC(CS))

Date of hearing: 25th October, 2001. GHULAM SARWAR KHERO (MEMBER‑I).‑‑‑On conclusion of the arguments the instant appeal was allowed by our short order dated 25‑10‑2001 The reasons for such short order are given by this judgment.

2. This appeal was filed under section 4 of the Sindh Service Tribunals Act, 1973 by appellant Mr. Sheraz Gul Thebo against impugned dismissal order dated 10‑6‑2000 issued by the Secretary, Excise and Taxation Department, Government of Sindh.

3. The appellant filed departmental appeal on 8‑7‑2000 to the Chief Secretary, rejection of which was conveyed to him by the Excise and Taxation Department vide their letter dated 29‑11‑2000.

4. The facts of the case in brief are that Secretary Excise and Taxation as 'Authorised Officer' issued show‑cause notice dated 30‑9‑1999 (signed on 9‑10‑1999) to the appellant who was serving as Excise and Taxation Inspector, Karachi on account of certain alleged acts .of misconduct. The appellant submitted his reply to the said show‑cause notice on 8‑11‑1999 rebutting the said allegations/charges with the request for the withdrawal of such notice. Subsequently, Secretary, Excise and Taxation while considering the said reply as 'unsatisfactory, incorrect and unconvincing' issued a second/final show‑cause notice on 28‑10‑1999 proposing the imposition of major penalty of dismissal from service on the appellant and the reply to which was too found 'quite unsatisfactory and not plausible'. Ultimately, Secretary Excise and Taxation in the capacity of 'authority' imposed major penalty of dismissal from service on the appellant vide impugned order dated 10‑6‑2000.

5. At the very outset the counsel for the appellant raised the point that the Secretary, Excise and Taxation had acted as 'Authorised Officer' as well as 'authority' in this case and imposed major penalty of dismissal on the appellant for which he was not competent as per Efficiency and Discipline Rules. He contended that by such act the Secretary concerned had exceeded beyond his jurisdiction and usurped the powers of the Chief Secretary who was the 'Authority' in this case. Hence he contended that the impugned order was the exercise in nullity in the eyes of law which was required to be set aside and withdrawn accordingly.

6. The learned A.A.‑G. for the official respondents also supported the position of the law on the subject as raised by the counsel for the appellant.

7. Since it was settled position of the law that the 'Authorised Officer' as well as 'authority' cannot be one and the same and that the Secretary has assumed the powers of 'authority' illegally hence impugned order is illegal and liable to be set aside.

8. We also failed to understand as to how an officer of such a senior position i.e. Secretary, Excise and Taxation Department (Mr. Aijaz Kazi) can flout the law by assuming the powers of the 'authority' i.e. Chief Secretary in him and imposed major penalty of dismissal from service whereas he was supposed to only recommend such major penalty to the Chief Secretary/'Authority' as provided under Sindh Civil Servants (Efficiency & Discipline) Rules, 1974 which should be taken note of.

9. In view of the above discussions and without going to the merits of this case we allow this appeal and reinstate the appellant in service by treating the intervening period as leave due basis with no order as to costs. These are the reasons whereby the instant appeal was allowed by our short order dated 25‑10‑2001.

10. Given under our hands and Seal of the Tribunal this 17th day of November, 2001 at Karachi. H.B.T./86/K(S.trib)????????????????????????????????????????????????????????????????????????????? Appeal allowed.