Full Judgment Text & Judicial Ruling

2008 P L C (C

2008 P L C (C.S.) 267

[Punjab Service Tribunal]

Before K.B. Abid (Member-II)

FAYYAZ HUSSAIN

Versus

DIRECTOR EXCISE AND TAXATION (REGION "C") LAHORE and another

Appeal No.411 of 2006, decided on 11th January, 2007.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3, 5 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Compulsory retirement from service---Appeal against---Penalty of compulsory retirement from service was imposed on appellant after serving him show-cause notice and holding inquiry against him on allegations of absence from official duty, gross misconduct and corruption within the meaning of R.3(1)(b) & (c) of Punjab Removal from Service (Special Powers) Ordinance, 2000---Appellant had contended that he had requested for medical leave for the relevant period---Departmental Authorities were supposed to get the verification of medical certificate and pass necessary orders on advice of Authorized Medical Attendant---Leave application was never considered and no orders were passed about acceptance of request submitted by the appellant---Inquiry Officer had himself admitted that the charge against appellant was partly proved---Validity---Appellant could not be penalized on the basis of charge of wilful absence partly proved---Competent Authority should have confirmed the misconduct of absence from record and facts---Inquiry Officer and penalty awarding authority had given the findings that benefit of doubt would go in favour of appellant and the charge of receiving of alleged misappropriated amount stood substantiated to some extent---Such were conflicting statements---On the basis of said conflicting and unconfirmed findings penalty could not be imposed on appellant---Other charge of receiving amount illegally by appellant was not proved because the complainant had not appeared to substantiate his claim---Appellant, in circumstances had been penalized without confirmation of evidences and record---Appellant was reinstated, in circumstances and intervening period was treated as leave of the kind due.

Mrs. Rizwana Anjum Mufti for Appellant.

Sadaqat Ali Shah, E.T.O. for D.G. Excise.

Date of hearing: 11th January, 2007.

JUDGMENT

K.B. ABID (MEMBER-II).--The appellant Fayyaz Hussain, Junior Clerk Excise and Taxation, Sheikhupura was departmentally proceeded containing the following charges:--

(i) Whereas you were posted in Excise and Taxation Office, Sheikhupura, are continuously found absent from official duty with effect from 5-8-2003.

(ii) There are two complaints filed by Messrs Muhammad Amin son of Ghulam Ali resident of Mohallah Muslim, Town, Zafar Wali, Tehsil and District Narowal and Mr. Ehsanullah whereby it has been alleged that you have received an amount of Rs.6,200 and 7,200 along with Registration Certificates of the vehicles from them respectively on account of getting transactions of their vehicles regarding transfer/duplicate and payment of token tax. Subsequently, you did not return the alleged amount along with registration certificates of the vehicles received from the complainant but misappropriated the amount in question unauthorizedly and fraudulently. In order to cover up your fraud, you wilfully absented yourself from the official duties.

(iii) In view of the above you prima facie appear to be guilty of gross misconduct and corruption within the meaning of rule 3(1)(b) and (c) of the Punjab Removal from Service (Special Powers) Ordinance, 2000.

2. The appellant submitted a letter, dated 19-10-2003 of P.S. to Minister of (E&T) in support of his defence and denied the allegations levelled against him. The Inquiry Officer after consideration of relevant record and reply of the appellant concluded that the absence period from 5-8-2003 to 18-9-2003 is justified because he was posted with the Minister Excise and Taxation. Regarding remaining absence, the Inquiry Officer gave his findings that charge is partly proved. Regarding charge No.2 the Inquiry Officer gave his findings that benefit of doubt goes in favour of accused. After consideration of the inquiry report, the appellant was served the show-cause notice for personal hearing on 25-1-2005. The appellant had requested for another date of personal hearing which was allowed and availed by the appellant on 17-2-2005. The competent authority concluded that the charge of absence from duty except for the period from 5-8-2003 to 18-9-2003 is proved. The Competent Authority further concluded that charge of obtaining Rs.7,200 stands substantiated upto some extent. Similarly, the charge of extracting the amount of Rs.6,200 from Muhammad Amin is proved from the statement of complainant. The penalty of compulsory retirement from service was awarded to appellant. The departmental representation filed against this order was rejected on 28-11-2005.

3. Learned counsel for the appellant has advanced the arguments and explained that the appellant has been thrown out from service merely on the basis of presumption. The inquiry was conducted in slipshod and defective manner. The full-fledged inquiry should have been conducted wherein the evidence of authority should have rebutted in the presence of appellant, hence given the opportunity of cross-examination of departmental witnesses. The Inquiry Officer had given his findings that (i) charge No.1 is partly proved, (ii) the complaint is, therefore, unfounded and baseless and (iii) as such the charge became doubtful. The Inquiry Officer had recommended the penalty on the basis of previous punishment awarded to appellant.

4. Respondents in comments to the appeal have explained that the appellant was given the opportunity of personal hearing by the Competent Authority. He had not produced the defence regarding medical leave duly countersigned by Medical Superintendent D.H.Q. Hospital Sheikhupura. Regarding resiling statement of the complainant, the D.R. was asked to initiate action (sic) taken against Mr. Ehsan Ullah Khan, E&T Inspector.

5. Record perused. Arguments of the counsel heard. The Inquiry Officer and Competent Authority had agreed that the appellant had performed the duty for the period from 5-8-2003 to 18-9-2003. Tile period beyond that was request of the appellant for medical leave. It was responsibility of departmental authorities to get the verification of medical certificates and pass necessary orders on advice of Authorized Medical Attendant. The leave application was never considered and no orders were passed about acceptance of request submitted by the appellant. The Inquiry Officer has himself admitted that the charge is partly proved. The appellant cannot be penalized on the basis of charge of wilful absence partly proved. The competent authority should have confirmed the misconduct of absence from record and facts. The Inquiry Officer and penalty awarding authority have given the findings that benefit of doubt goes in favour of appellant and the charge of receiving of Rs.7,200 stands substantiated to some extent. These are conflicting statements. On the basis of conflicting and unconfirmed evidence, the penalty cannot be imposed. The other charge of receiving Rs.6,200 is not proved because the complainant had not appeared to substantiate his claim. From these facts, it is concluded that the appellant has been penalized without confirmation of evidences and record. The appeal is accepted. The appellant is reinstated into service. The intervening period would be treated as leave of the kind due.

H.B.T./55.PST Appeal accepted

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