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CBR adopts methods to penalise delinquent tax officers

ISLAMABAD (August 11 2003) : After four years delay in issuing guidelines on the Removal from Services (Special Powers) Ordinance (RSO) 2000, the Central Board of Revenue (CBR) has devised mechanism for slapping major penalties on tax officers/officials, including dismissal/removal from services, compulsory retirement and demotion.

The CBR could compulsory retire tax officials on persistent reputation of being corrupt; possessing pecuniary resources/property, etc disproportionate to his known source of income or frequent unauthorised absence from the duty, and in cases where two or more penalties were imposed.

Similarly, the CBR could impose minor penalties like censure or withholding of promotion or increment for a specific period.

The Central Board of Revenue (CBR) has formulated a new procedure ensuring proper implementation/interpretation of the Removal from Services Ordinance, 2000.

The procedure has defined the powers to be exercised by the tax officials in disciplinary cases leaving no room for the corrupt to wrongly interpret the law.

The guidelines have specifically given the conditions/circumstances for slapping major/minor penalties on the tax officials.

However, cases before Federal Service Tribunal, etc. would be dealt through a separate procedure issued through an order of June 27, 2003.

Sources said here on Sunday the CBR used to initiate disciplinary proceedings against tax officials under the Government Servants (E&D) Rules, 1973 up to May 26, 2000.

The Removal from Service (Special Powers) Ordinance, 2000 was promulgated on May 27, 2000, but the CBR failed to formulate updated procedure to deal with the disciplinary matters.

This benefited some of the corrupt officials, whose cases were pending before the court, and the CBR was not able to properly plead such cases due to the absence of up-dated guidelines.

Instructions issued by the Establishment Division after the promulgation of the said ordinance were not readily accessible by the CBR and its field formation.

The result is that in some cases penalties could not sustain in the courts due to procedural flaws.

To overcome this situation, the CBR has decided to provide up-dated guidelines along with supporting documents and necessary specimen to facilitate the officials concerned to effectively deal with the disciplinary matters.

According to the guidelines, the prime minister is legally authorised to order inquiry against officials working in BS-20-22; Secretary, Revenue Division, BS-17-19; CBR member (admin), BS-16; heads of the customs, central excise and sales tax/commissioners of income tax, BS 1-15.

While imposing penalties, the tax officials concerned should understand that only minor penalties have been adopted from the Government Servant (E&D) Rules, 1973, and the major penalties are included in Section 3(1) of RSO, 2000.

Major penalties include dismissal from service; removal from service; compulsory retirement from service and reduction to lower post or pay scale.

Minor penalties include censure, withholding for a specific period, promotion or increment, otherwise than for unfitness for promotion or financial advancement, in accordance with the rules or orders pertaining to the service or post; stoppage, for a specific period, at an efficiency bar in the time-scale, otherwise than for unfitness to cross such bar; recovery from pay of the whole or any part of any pecuniary loss caused to the government by negligence or breach of orders.

The penalty of reduction to lower post cannot be imposed upon an official, who was directly recruited to the current post. For example, a directly recruited inspector cannot be demoted as the upper division clerk. However, an inspector promoted from the post of upper division clerk can be demoted to the post of upper division clerk.

While slapping the penalty of reduction to lower post, the pay scale or the withholding of promotion or increments, the period should invariably be specified.

The Removal from Service does not, but dismissal from service does, disqualify for future employment.

Criminal proceedings and departmental action can go side by side, and may end in varying results.

The reason is that in departmental proceedings, the desirability of a civil servant to continue in service is under examination whereas the objective of the criminal proceedings is to enforce the criminal liability of an accused.

The nature of evidence and standards of proof are different in the two proceedings.

The CBR could compulsory retire accused officials in the following cases (applicable in cases where 20 years of service was being completed):

— Where two or more penalties under the Government Servants Rules, 1973, have been imposed on a civil servant.

— Where overall grading of the ACRs is average, and/or where adverse remarks in regard to acceptance of responsibility, integrity, reliability, output of work and behaviour with the public were recorded in the ACRs.

— Where a civil servant is twice recommended for suppression by the Selection Board/DPC and the recommendation of the Selection Board/DPC is approved by the competent authority.

— Where other specific and cogent grounds, including the following, may warrant retirement of a civil servant:

— Persistent reputation of being corrupt; possessing pecuniary resources and/or property, etc disproportionate to his known sources of income, and frequent unauthorised absence from duty.

In case, where it is decided to proceed against a civil servant under the Removal from Service Ordinance, 2000, a decision is to be taken under Section 4 of the RSO, 2000 by the authority itself either to place him under suspension or to send him on forced leave.

This would ensure that the accused should not have any access to tamper with the official record, etc. Where the official is required to proceed on leave, instead of suspension reasons should be recorded in writing in support of such decision.

Section 8 of the Ordinance provides that every finding recorded by the Inquiry Officer would be submitted to the competent authority which may pass such orders in accordance with the said Ordinance.

However, prior to passing of the final order, the authority is legally obliged that it would order in writing, inform the accused of the action proposed to be taken against him, and the grounds of the action, and give him reasonable opportunity of showing cause against that action within seven days or within such extended period as the competent authority may determine:

-Provided that no such opportunity shall be given where the competent authority is satisfied that in the interest of security of Pakistan or any part thereof it is not expedient to give such opportunity.

-Provided further that no such opportunity shall be given where the accused is dismissed or removed from service or reduced in rank on the ground of conduct which has led to a sentence of fine or of imprisonment or where the competent authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to give the accused an opportunity of showing cause.

The dismissal or removal or premature retirement from service or reduction to lower post or pay scale of a person under sub-section (1) shall not absolve such person for liability to any punishment to which he may be liable for an offence under any law committed by him while in service.

In case an officer has been empowered by the prime minister to initiate proceedings against an office of BS-20-22, he has to submit his recommendations in the form of a “summary for the prime minister” for the purpose of approval.

The inquiry office/inquiry committee would communicate to the accused the charges and statement of allegations specified in the order of inquiry passed by the competent authority;

Enquire into the charge and may examine such oral or documentary evidence in support of he charge or in defence of the accused as may be considered necessary, and the accused shall be entitled to cross-examine the witnesses against him; and hear the case from day to day and no adjournment shall be given except for special reasons to be recorded in writing and intimated to the competent authority.

Where the Inquiry Officer or as the case may be the Inquiry Committee is satisfied that the accused is hampering, or attempting to hamper, the progress of the inquiry he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as he, or it deems proper in the interest of justice.

The Inquiry Officer (or as the case may be, the Inquiry Committee) shall submit his, or its findings and recommendations to the competent authority within 25 days of the initiation of inquiry.

It may be recalled that under the Government Servants Rules, 1973, the charge sheet/statement of allegations was issued by the authorised officer.

Under RSO, 2000, the tier of the authorised officer has been eliminated and the charges/statement of allegations is to be issued by the inquiry officer/inquiry committee appointed by the authority.

The specimen of charge sheet/statement of allegations to be issued by the inquiry officer/inquiry committee.

Under Section 8 of RSO, 2000, the inquiry officer/inquiry committee has to submit the report to the authority with recommendation and the authority may pass an order after issue of show-cause notice and the grant of personal hearing.

The instructions also said the departmental representative is appointed by the ministry/division/department concerned to assist the inquiry officer in the proceedings.

The departmental representative should, if necessary, also be present on the date fixed for hearing of the proceeding, and should be responsible for producing the required witnesses/documents on behalf of the prosecution as required by the inquiry officer.

The CBR pointed out that if it is decided to issue a direct show-cause notice, it may be kept in view that the Supreme Court through numerous judgement has given direction that if the charge is based on admitted documents/facts, no full-fledged inquiry is required, but if the charge is based on disputed questions of fact(s), no major penalty should be imposed on a civil servant without recording evidence, and affording opportunity of cross-examination of witnesses, etc.

In this regard, the authority has to take into consideration the nature of charges and other facts, and has to satisfy itself that the allegations against the accused could be decided without holding an inquiry.

The authority before issue of the show-cause notice has to record cogent reasons for not holding an inquiry to ensure that there is no violation.

Section 5(5) of the ordinance provides that “Where a person who has entered into plea bargaining under any law for the time being in force, and has returned the assets or gains acquired through corruption or corrupt practices voluntarily, the inquiry shall not be ordered: Provided that show-cause notice shall be issued on the basis of such plea bargaining to such person informing of the actin proposed to be taken against him, and the grounds of such action requiring him to submit reply within 15 days of the receipt of the notice. On receipt of the reply, the competent authority may pass such orders as it may deem fit.”

After receipt of reply to the show-cause notice, the authority should be provided an opportunity of personal hearing.

Later, the authority has to pass order under Section 8 of RSO, 2000 pertaining to the penalty imposed.

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