1983 PLP (C (PLC(CS))

ABDUL HAMID CHAUDHRY (MEMBER).‑Mr. Jullion Michael Gill, Ex‑Excise and Taxation Sub‑Inspector has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974 wherein he has impleaded the Director, Excise & Taxation, Sargodha and Director‑General, Excise & Taxation, Punjab, Lahore as respondents.

2. By virtue of this appeal he has prayed that the impugned order dated 21‑1‑1982 be set aside and the appellant be re‑instated in service with full benefits of pay, allowances, seniority etc.

3. The brief facts of the case are that the appellant while working at Mianwali/Bhalwal, there were grave charges of misconduct, evasion of Government revenue, exceeding the powers beyond his compe tency and dereliction of duty. The Excise and Taxation Officer, Sargodha was appointed as an authorised Officer to proceed against the appellant under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. The appellant was served with a charge‑sheet and statement of allegations as appended in Annexures `B' and `C' with the appeal. An Enquiry Committee was appointed by the Authorized Officer to go into the details of the charges against the appellant. The enquiry was completed. A report was submitted to the Authorized Officer. The Enquiry Committee held the appellant guilty of all the charges except charge No. 4 which was partly proved. The Authorized Officer on the basis of this enquiry report made recommendations to the Authority for taking further action against the appellant. The appellant was heard in person by the Authority on two occasions, even in the presence of Enquiry Officers. The charges against the appellant were proved. A penalty of removal from service was imposed on the appellant by the Director, Excise & Taxation, Sargodha vide his order dated 28‑1‑1982. The appellant made an appeal to the Director‑General, Excise & Taxation, Punjab, Lahore on 14‑2‑1982 for which he had no response. Hence this appeal.

4. The arguments in this case were submitted in detail by the learned counsel of the appellant by arguing each and every charge in detail but the appellant's counsel raised a legal objection laying his reliance on Syed Mir Muhammad v. N.‑W.F.P. Government through Chief Secretary (P L D 1981 S C 176), wherein it has been held by the Supreme Court, that the accused officer is required to be supplied copy of enquiry report by the Authorized Officer and the Authorized Officer must consider the explanation of the accused officer after supplying a copy of the enquiry report before making his recommenda tions. In this case the appellant's counsel argued that the appellant was never provided the report of the Enquiry Committee and he was not asked to explain his position by the authorised Officer and the recommendations so made against the appellant by the Authorised Officer are unjustified and unlawful keeping in view the clear cut verdict of the Supreme Court Controverting these arguments the learned District Attorney submitted that it is clear from the proceedings of this case that the appellant was heard in person by the Authority two times and especially at the second time, the appellant was heard in the presence of Enquiry Officers, when each and' every charge was read to him. Thus the requirements of the Rule have been met with and the opportunities to the appellant to defend himself have been provided.

5. We have given our anxious thoughts to the arguments put forth by the parties on the legal issue and have also consulted the record care fully. We have gone through the judgment of the Supreme Court, Syed Mir Muhammad v. N.‑W.F.P. Government through Chief Secretary, which reads at page 187, paras. 1 and 2 as under:‑ "It seems to us, therefore, that on a proper construction of rules 5 and 6 read together, it is a statutory requirement that if a formal enquiry is held, then the authorised officer should, after he has tentatively decided upon the action he proposes to recommend to the Authority, give an opportunity to the accused officer to offer his explanation against the proposed action in the light of the findings of the Enquiry Officer or Enquiry Committee, before sending his recommendations to the Authority. This would, of course, necessitate that a copy of the enquiry report be furnished to the accused officer at this stage, and he should be apprised of the action proposed against him. In this case, a copy of the Enquiry Report was not supplied to the accused officer by the authorised officer and be was not allowed an opportunity to submit his explanation with regard to the findings of the Enquiry Officer, which were adverse to him; nor was he apprised of the action proposed to be recommended against him. Consequently, the authorised officer, before formulating his recommendations for the authority, did not have the benefit of the explanation of the accused officer in relation to the material brought on the record during the enquiry proceedings and the findings recorded thereon by the Enquiry Officer. This being essential in order to satisfy the requirement of the Rules, the failure to do so invalidates the recommendations of the authorised officer and the ultimate order passed on their basis by the authority against the accused officer. " Keeping the above judgment of Supreme Court in view we agree with the learned counsel of the appellant that the appellant has not been provided proper opportunity to defend himself as laid down in the above judgment of the Supreme Court because the Authorised officer "failed to provide the copy of Enquiry Report and call for his explanation before, making his recommendations to the authority.

6. Keeping in view tile above analysis, the impugned order is set aside and the case is remanded to the authority concerned to proceed against the appellant, keeping in view the observation of the Supreme Court and the rules. The appellant is ordered to be re‑instated in service to bestow upon him the status of a civil servant to enable the "Authority" to proceed against him. The period from the date of his removal from service to that of reinstatement will be considered as extraordinary leave without pay. There will be no orders as to costs. To be communicated to the parties.