1980 PLP (C (PLC(CS))

After a departmental enquiry, the Commissioner of Income‑tax, Karachi, passed an order and demoted the appellant from the post of U. D. C. to that of L. D. C. The departmental appeal before the appellate authority was also dismissed. Hence this appeal before the Tribunal. The learned counsel for the appellant argued that the order of punish ment was irregular and not covered by the relevant rules on account of the following procedural defects (i) The appellant was employed under the Commissioner of Income -tax, Hyderabad, and the Commissioner of Karachi, who awarded the punishment was not competent for the same. The order is therefore, without jurisdiction. (ii) The appellant was not afforded the opportunity of being heard in person while deciding the appeal submitted by him to the appellate authority, i.e. Member (Taxes), C. B. R. (iii) The Enquiry officer was personally prejudiced against the appellant, and as such his findings involved mala fides. (iv) The appellant was awarded the minor penalty of censure in respect of his previous performance earlier than the charges which are the subject of the present punishment. As such the Enquiry officer was prejudiced against him. (v) The Enquiry Officer was a direct subordinate of the punishing authority and as such the whole proceedings should be considered as vitiated. (vi) A new charge was introduced in the proceedings of the enquiry, which was not contained in the original charge‑sheet. As such, the Enquiry Officer was influenced by subsequent circumstances. The points were replied to by the learned counsel for State. He produced a copy of the Notification S. R. O. 1020 (K)/65, dated 1st December, 1965 along with an amendment dated December, 1967. Under this notification, the jurisdiction of the Commissioner of Income Tax, Karachi and that of Hyderabad, were reconstituted. Since the offices were reconstituted and the appellant was transferred to the jurisdic tion of the Commissioner Karachi Division, the order of punishment passed by the Commissioner, Karachi Division was in order. As regards the opportunity of being heard in person at the appellate stage, the learned counsel for State pointed out that the appellant did not request the appellate authority for being heard in person. It was there fore, not necessary to give him a personal hearing at the appellate stage. Regarding the prejudice and mala fide on the part of the enquiry officer. He said that the State counsel denied the presence of any such prejudice. In the present case, no direct or indirect evidence to this effect was visible in the proceedings or in the relevant office records. The State Counsel also pointed out that the Enquiry Officer was not influenced by subsequent circumstances and no nee, charge was introduced at the enquiry stage. He pointed out that the charge‑sheet issued to the appellant on 1st January 1969 contained the charge of wild and false :allegations levelled by the appellant against. the officers of the Department. Considering the arguments put forward by the learned counsel for the appellant and State, we come to the conclusion that whereas the order of punishment was not without jurisdiction and whereas prejudice and mala fides on the part of the Enquiry Officer and the punishing authority could not be proved nor was ft established that any new charge was introduced at the enquiry stage, the fact remains that the appellant was not given the opportunity of being heard in person by the authority deciding his departmental appeal. The provision in the 1960 Rules for disciplinary action is clear to the effect that the onus for proving the opportunity of being heard in person. at the appellate stage, lies with the departmental authority irrespective of the fact whether or not the appellant himself makes a request for being heard in person or not. The general accepted rule of law is that nobody should be condemned unheard. Since the appellate authority maintained the punishment without affording the opportunity of being heard in person to the appel lant, he is considered to have been condemned unheard at the appellate stage. The appellate order is therefore without effect and void. We, therefore, order to vacate the same. Parties to be informed. No order as to costs. Appeal allowed.