1995 PLP (C (PLC(CS))

Riasat Ali for Respondents. Date of hearing: 10th January, 1995. NOOR MUHAMMAD MAGSI (MEMBER): ‑‑Appellant Noor Muhammad, while posted as Deputy Superintendent, Hotels and Restaurants, was first placed under suspension vide order dated 12‑12‑1991 and then he was served with a show‑cause notice dated 1‑3‑1992 on account of taking a sum of Rs3,500 from M/s. laved Kabana Restaurant, Rawalpindi, as illegal gratification. According to appellant, he replied the show‑cause notice denying the allegations contained therein. He also submitted a representation against suspension to the Member (Administration), C.B.R. (in 7‑10‑1992, but of no avail. Enquiry was held and according to enquiry report dated 10 of 1992, the appellant was held guilty of the charges contained in the show‑cause notice. Final show‑cause notice was issued to the appellant on 14‑11‑1992, calling upon the appellant to explain if he have any tengible defence to negate the findings of the Enquiry Officer and also explain why major penalty of dismissal from service may not be imposed on him as provided under Government Servant (E&D) Rules, 1973. He was required to submit his defence reply within 10 days from the issuance of that notice and to appear for personal hearing on 29‑11‑1992 alongwith all evidence in his defence. Appellant submitted his reply on 9‑12‑1992. Keeping in view the defence reply and enquiry report, the authorised officer imposed upon the appellant, the penalty of dismissal from service vide detailed order dated 17‑3‑1993. Against the above order of penalty of dismissal, the appellant filed departmental appeal to the Member (Administration) C.B.R., Islamabad on 6‑4‑1993. The appellant was also afforded personal hearing by the appellate authority on 19‑7‑1994. The appellate authority after going through the facts and evidence of the case, converted the major penalty of dismissal from service, in minor penalty of stoppage of annual increments for two years (non‑recurring) by order dated 17‑9‑1994, and reinstated the appellant by treating the intervening period as leave on full pay. Thereafter, the appellant riled this appeal before the Service Tribunal with the prayer that the order of appellate authority for imposing minor penalty of stoppage of two years increments may be set aside and the appellant may kindly be ordered to be promoted to the rank of Superintendent in the order of existing seniority of Deputy Superintendents.

2. We have heard both the parties at length. Learned counsel for the appellant argued that the record of M/s. Javed Kabana Restaurant was manipulated and alleged entry was fabricated with mala fide to damage the career of the appellant. All that happened in the absence of the appellant. In spite of request of the appellant neither owner of M/s. Javed Kabana Restaurant, nor other prosecution witness was summoned at the time of personal hearing. No show‑cause notice alongwith statement of allegation was given to the appellant and no Enquiry Officer was appointed. All actions were revengeful and with prejudiced mind.

3. The respondents Department in their written comments, have stated that on 5‑11‑1991, a sum of Rs.3,500 was paid to the appellant by name, which is evident from the list, placed on the file. This entry was made by the party itself and was admitted as their monthly expenditure record. AS such the charge of manipulation is entirely baseless. The respondents' counsel contended that, at the time of 'personal hearing, the Assistant Collector, Superintendent and Deputy Superintendent of Audit and Intelligence Bureau, who had detected the case of evasion of central excise duty by M/s. Javed Kabana Restaurant, were called in the Chamber of competent Authority to cross‑examine the appellant. But the appellant failed to prove his innocence. The owner of the Restaurant was an accomplice in the evasion of central excise duty and he was ordered to deposit the evaded amount of central excise duty alongwith additional duty and penalty of Rs.4,00,000 in Government exchequer. As such his evidence could not be relied upon. As the evidence against the appellant was documentary, therefore, disciplinary proceedings against him were initiated under rule 5(i)(iii) of the Government Servant (E&D) Rules, 1973. He was provided full opportunity of his defence. The order of dismissal was approved by the authority, as such there is no infirmity in the dismissal order. However, the appellate authority had taken a lenient view and converted the punishment of dismissal in stoppage of two increments. Therefore, the appellant has no case to agitate before this Tribunal, and his appeal may be dismissed.

4. After hearing the parties, we have also gone through the record. It is evident from the statement of expenditure of M/s. Javed Kabana Restaurant that a sum of Rs3,500 is marked against Noor Muhammad, Excise Wala. Thus it is dear that this amount was received by the appellant as illegal gratification. The contention of the appellant that the evidence was recorded behind his back and entry of Rs3,5W was fabricated, is not correct and based on facts. To prove his innocence, the appellant relied on affidavit of the owner of the Restaurant, which could not be relied upon because the owner was also an accomplice in the evasion of central excise duty. The record in question was seized by the staff' of Audit and Intelligence Bureau, at the time of raid. The authenticity of its entries is not only based on the statement of the owner recorded at the time of seizure of the record, who admitted that the registers seized by the staff contained the entry relating to their day to day expenditure, but also on the fact that the entries are genuine and recorded in routine alongwith other daily entries, which makes the entry authentic beyond any shadow of doubt. The authorised officer after considering the written as well as verbal defence, of the appellant, in his enquiry report, held the appellant guilty of the charge of illegal gratification and recommended for major penalty of dismissal from service. While .forwarding the case to the Collector, the authorised officer remarked that "the tendency for corruption and turning a blind eye for obtaining monetary gains needs to be curbed with a strong hand." Sufficient opportunity was afforded to the appellant to prove his innocence. He was provided copy of the enquiry report and allowed examination of the original case file to make his defence reply. The allegation of the appellant that no charge‑sheet alongwith statement of allegation was issued, no Enquiry officer was appointed and other formalities regarding inquiry proceedings were completed, is not correct. Since disciplinary proceedings were initiated under rule 5(iii) of the Government Servants (E&D) Rules, 1973 by issuing direct show‑cause notice, such a procedure as stated by the appellant, was not to be followed.

5. In view of the above it is established that the appellant was guilty of the charge levelled against him. He was awarded major punishment of dismissal from service. However, the appellate authority, while considering his departmental appeal, had already taken a lenient view and converted the punishment of dismissal from service to minor penalty of stoppage of annual increments for two years, and accordingly reinstated the appellant in service. As such we see no justification to interfere with the order of minor penalty. The second part of the appellant's prayer for promotion, is hit by proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973, and is not IQ tenable under the rule. As a result the appeal fails and is dismissed,.

6. No order for costs. Parties be informed. H.B.T./1068/Sr.F Appeal dismissed.