2007 PLP (C (PLC(CS))

JEHAN ZAIB BURKI (MEMBER-IV).

Mr. Muhammad Tariq Javed, Inspector Excise and 'Taxation was awarded the penalty of reduction to pay scale vide impugned order, dated 205-2005. He filed a departmental appeal against the same on 16-12-2005 which was rejected vide the impugned .order dated 18-4-2006. Aggrieved with the above action, he filed the instant appeal before the Tribunal on 18-5-2006.

2. Briefly speaking, the appellant was served with the following charge-sheet along with the statement of allegations by the respondents on 11-2-2004:

"That during posting in Ward No.XXI, Multan, being Excise and Taxation Inspector Incharge you accepted illegal gratification and convicted to one year's rigorous imprisonment with a fine of Rs.3,500 by the Special Judge, Anti-Corruption, Multan on 22-1-2004."

3. He submitted a reply dated 16-2-2004 to the above charge-sheet and denied the allegations. It was asserted by the appellant that a false corruption case against him had been got registered by the complainant who owed Rs.3,500 as property tax to the Department. The complainant had handed over the above amount to him with the request to get the same deposited in the Bank as he did not want to close his shof for doing the same. The reply submitted by the appellant was not considered satisfactory and a formal inquiry was conducted. According to the appellant, the charge of accepting illegal gratification could not be proved during the inquiry. However, it was concluded by the Inquiry Officer that the appellant had acted beyond his authority to receive the tax in cash and hence, had committed misconduct.

4. The appellant stated that .the period for which the penalty of reduction in pay to the lower scale was to operate had not been mentioned in the impugned order. This was in violation of Fundamental Rules 29 and hence was unlawful. In this connection judgment of the Honourable Supreme Court of Pakistan reported vide 2005 SCMR 436 was also relied upon. During arguments, it was further contended that the pay of the appellant had been reduced to the minimum of the scale which was against the prescribed rules on the subject. Under the rules, the pay could be reduced only to one stage lower and not beyond that. In support of the above arguments, the appellant drew attention to a judgment of the Honourable Supreme Court of Pakistan reported vide 2003 PLC (C.S.) 1372.

5. It was contended by the appellant that collection of property tax in cash was a general practice in the Department and it was being undertaken with the full knowledge of the senior officers of the Department to meet the target of property tax collection, near the end of the financial year. The appellant stated that no act of corruption or acceptance of illegal gratification against him had been established. Moreover, the sentence awarded to him by the Special Judge Anti-Corruption, Multan had already been suspended by the Multan Bench of the Honourable Lahore High Court on 26-1-2004. Hence, he could not be accused of having been convicted in the above case as the final verdict in .that regard is still to be given.

6. The respondents have resisted the appeal and have stated that the appellant had transgressed his official powers by accepting the amount of property tax in cash. It had been clearly laid down in the Punjab Urban immovable Property Tax Act, 1958 and rules made thereunder that the property tax could not be collected/recovered from the .owner/occupier in cash. Instead to be deposited in the Government Treasury through the prescribed respondents that although the order of his conviction in the corruption case had since been suspended by the. Honourable Lahore High Court, he could not be given any relief on that score. The proceedings under the Anti-Corruption law and the Punjab Removal from Service (Special Powers) Ordinance, 2000, are mutually exclusive. It was further argued that the charge of accepting illegal gratification stood proved against the appellant as tainted money was recovered from him by the Anti-Corruption authority during the course of the raid conducted for the purpose. Hence, the penalty of reduction in pay scale awarded to him was justified.

7. The arguments of the parties have been heard and relevant record has been perused.

8. During arguments today, it was contended by the appellant that the respondents had accused him of accepting illegal gratification due to which he had been convicted to undergo one year's rigorous imprisonment along with a fine of Rs.3,

500. However, the Inquiry Officer while submitting the findings in the inquiry conducted against him had himself stated that the allegations accepting illegal gratification could not be established during the inquiry proceedings. However, the Inquiry Officer had held him guilty of receiving tax in cash which was stated to be a violation of the prescribed law or rules on the subject. It was argued by the learned counsel for the appellant that the above charge was not contained in either the charge-sheet or the statement of allegation levelled against the appellant. Hence, it was an afterthought as the impugned penalty could not be awarded to the appellant on this score. The above contention of the appellant is found to be valid. The tax in cash, he was required to have issued a fresh charge-sheet to the appellant to enable him to defend himself against such a charge. The failure of the Inquiry Officer to do that had seriously prejudiced the appellant in defending himself properly.

9. The appellant had taken up the plea that it was a wide spread practice in the Department to collect property tax in cash towards the closing of the financial year in order to meet the targets of property tax collection. It was contended by him that he had been singled out for punishment on the said charge although the above practice was fully in the knowledge of the senior officers of the Department and no other officials in the Department had been punished for indulging in the same. In this connection, the appellant has annexed a copy of a report, dated 28-6-2002 submitted by Mian Muhammad Waris, AETO, Multan, in which he had clearly stated that in the month of June, all Excise Inspectors .were collecting property tax by hand and after depositing the same in the Bank, were given the receipts to the property owner on the next date. The respondents have not been able to rebut the above assertion of the appellant, either in the written objections to the appeal filed by them or during the course of the arguments in the Tribunal today. Hence, although the practice may not be warranted by law and rules on the subject yet it has been correctly argued by the appellant. If such a practice was wide spread in the Department and he had been singled out for punishment on that score. Hence, he was discriminated against which was against the law of the land. Appellant has also correctly pointed out that while imposing penalty of reduction in pay to the lower scale, neither the period has been mentioned in pay, was to operate had been mentioned by the competent authority nor his pay could be reduced to the minimum of the scale which was a violation of the dictum laid down by the Honourable Supreme Court of Pakistan in their judgments reported vide. 2005 SCMR 436 and 2003 PLC (C.S.) 1372. Vide their Lordships' judgment reported vide 2005 SCMR 436,' it was laid clown as under:-- "While writing the .judgment, we have gone through Fundamental Rules 29 and the O.M. No.16/18/94-R-2, dated 9-9-1998. F.R. 29 requires that if a Government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post, or to a lower stage in his tune-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent. Above O.M. says that it is necessary that while passing an order imposing a penalty of reduction to a lower post or time scale or to a lower stage in a time scale, the requirements prescribed in F.R. 29 should be strictly observed."

10. In view of the foregoing discussion, the penalty of reduction in pay to the lower- stage awarded to the appellant cannot be sustained. Accordingly, the appeal is accepted and the impugned order, dated 20-5-2005 whereby the above penalty was unposed on the appellant as well as the impugned order, dated 18-4-2006 whereby the departmental appeal of the appellant against the above penalty was rejected, are set aside from the date of issue.

11. There shall be no order as to costs. Parties be informed. H.B.T./17/PST Appeal accepted.