RASHID ALI MIRZA, MEMBER.--- The Appellant hereinabove who was working as Sub--Inspector with the Respondents, posted in Immigration F.I.A. At QIAP at Karachi has challenged the order of his compulsory retirement from service under Removal from Service (Special Powers) Ordinance, 2000, with immediate effect. The order is reproduced hereunder:---- "No. Z/3097/Admn-II/2001/2298-99 OFFICE OF THE DIRECTOR GENERAL FEDERAL INVESTIGATION AGENCY ISLAMABAD Dated: 23-10-2001 PART-IV OFFICE ORDER NO. 232/2001 This Order disposes of departmental proceedings initiated against S.I. Mumtaz Ahmad Baloch, of FIA Karachi Zone, Karachi, who was issued Charge-Sheet under Removal from Service (Special Powers) Ordinance, 2000, on the following charges:----
(i) Mr. Muhammad Aslam, Passport No. C- 036754 was deported to Karachi on 2.6.2000 by Flight No. PK-214 from Dubai with COD amount AED 1330/-. During interrogation, the deportee disclosed his real name as Muhammad Hafeez s/o Bashir Ahmad r/o Chak No. 115-P, Rahimyar Khan. He had purchased the said passport for Rs. 45,000/- from real passport holder. The record of Immigration (Departure) Karachi shows that the said passenger was cleared by you while performing duties as Re-checking Officer with ulterior motive in connivance with Inspector Bashir Ahmad Soomro (Shift Incharge) and ASI Inde-Riaz Bahadur (Stamping Officer).
(ii) While performing duties as Re-checking Officer (Departure) QIAP, Karachi, on 5.5.2000, you cleared two passengers (Mst. Shazia Habib w/o Habib Mustafa Butt and one child) travelling on Turkish Airline, Flight No. TK-1057 for London, on Pakistani Passport No. G869886 issued from Rawalpindi on 25.9.1997 with ulterior motive in connivance with Inspector Bashir Ahmad Soomro, as Shift Incharge. On arrivaling UK, it was disclosed that they had travelled on photo-changed passports. Both were Afghan nationals who stated their real names as Bibi Raja Saddat and Wahidullah"
2. The Enquiry Officer, after fulfilling the necessary formalities, submitted his report concluding that the charges levelled against the accused S.I. Stand proved and recommended to award him minor punishment of with-holding of annual increments for three years.
3. In view of the recommendation of the Enquiry Officer, S.I. Mumtaz Ahmed Baloch was issued a show-cause notice by the Director-General FIA, on 14.5.2001. He submitted his reply to the show-cause notice and was heard in person by the Director-General on 17.10.2001. Charges against the officer have been proved and the competent authority has held that the quantum of punishment recommended by the Enquiry Officer does not commensurate with the gravity of the charges, proved against the delinquent official. Therefore, the Director-General, in the capacity of Competent Authority has awarded the officer major penalty of Compulsory Retirement from service under Section 3 of Removal from Service (Special Powers) Ordinance, 2000 with immediate effect.
Sd/- (Muhammad Akbar Khan Hoti) Dy. Director/Admn-I"
2. The Appellant after submitting his departmental representation dated 25.11.2001 to the Respondent No. 1 which was not responded to had approached this Tribunal by filing the present appeal on 28.1.2002 praying therein to set aside the order of Compulsory Retirement from service dated 23-10-2001 issued by Respondent No. 2 and reinstated the Appellant in service with all back/consequential benefits.
3. The brief facts giving rise to this appeal are that the Appellant joined F.I.A. As Assistant Sub- Inspector on 10-1-1976. He had undergone departmental courses from respective Training Centres and was subsequently promoted as Sub-Inspector in the year 1985. According to the service record of the Appellant, he never earned adverse reports and his career is spotless and was not awarded minor/major punishments during the entire career in F.I.A. On 12-9-2000 while performing his duties as Re-checking Officer at Immigration (Departure) QIAP, Karachi the Appellant was served with Charge Sheet dated 12-9-2000, which was issued by Respondent No. 2. Thereafter, an Inquiry Committee comprising of Mr. Abdul Qadeer, Deputy Director, FIA CC Hyderabad was constituted under section 5 of the Removal from Service (Special Powers) Ordinance, 2000. The Enquiry Officer in his report recommended minor punishment of with-holding of annual increments for three years on the charges mentioned in the Charge-Sheet but the Respondent No. 2 did not agree with the quantum of punishment recommended by the Enquiry Officer and imposed a major penalty of Compulsory Retirement in terms of section 3 of the Removal from Service (Special Powers) Ordinance, 2000. Before awarding punishment as provided finder section 3(2)(b) a show- cause notice was also issued to the Appellant which was replied by him denying the charges levelled in the Charge Sheet as well as show-cause notice.
4. Mr. Sanaullah Noor Ghauri, Advocate for the Appellant has contended that no material documents in support of the charge necessitating holding of enquiry were supplied to the Appellant for his defence. He has contended that the impugned order is nullity in law as the Respondent No. 2 flagrantly violated the provision of Section 5(1)(a) & (c) of the Removal from Service (Special Powers) Ordinance, 2000, as such the charge- sheet dated 12.9.2000 prepared and issued by the Director-General, F.I.A./Competent Authority (Respondent No. 2) was not in accordance with the provision as envisaged in section 5 of Removal from Service (Special Powers) Ordinance, 2000. The relevant portion of section 5(1)(a) & (c) is reproduced as under:- "(1) Subject to the provisions of sub-section (2), the competent authority shall, before passing an order under section 3, appoint an Inquiry Officer or Inquiry Committee to scrutinize the conduct of a person in Government service or a person in corporation service who is alleged to have committed any of the acts or omissions specified in section 3. The Inquiry Officer or, as the case may be the Inquiry Committee shall---
(a) communicate to the accused the charges' and statement of allegations specified in the order in inquiry passed by the competent authority;
(c) enquire into the charge and may examine such oral or documentary evidence in support of the 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 Thus, according to the above provision of law it is clear that the charge-sheet was to be issued by the Inquiry Officer.
5. Mr. Sanaullah Noor Ghauri also contended that passengers were travelling on genuine documents. He contended that the conclusion of the Inquiry Officer (Mr. Abdul Qadeer), Deputy Director, F.I.A. Was based on his own presumption and he could not find out any concrete evidence to establish the offence against the Appellant. In the instant case no report regarding travelling of passengers on fake documents alleged in the charge-sheet was made either through airline or Deputy Director, Immigration, F.I.A., Karachi. He has also contended that the passengers whose names have been mentioned in the charge-sheet as well as show-cause notice and the impugned order were deported back from their destination and were detained by F.I.A. Immigration (Arrival) and no F.I.R. Was lodged in the Passport Cell nor they were handed over to the Passport Cell for prosecution before Judicial Magistrate for taking cognizance under section 512, Cr.P.C.
Lastly he contended that the punishment awarded to the Appellant be set aside and he be reinstated in the same position i.e. As Sub-Inspector, FIA, as the Inquiry Officer dd not record the statement of passengers who were principal witnesses and were deported to Pakistan and that the Appellant was also not provided an opportunity of cross examining the prosecution witnesses. In support of his contention, he has placed reliance on (1993 SCMR 1440), (PLD 1981 SC 176), (1997 SCMR 1543), (2000 PLC(CS) 1996), (2000 PLC (CS) 270) and (1999 SCMR 1181). He contended that the Appellant has been punished illegally and was compulsorily retired from service when there we no allegation of corruption or misconduct against him, as such, the punishment awarded to him is liable to be set aside.
6. Mr. Asif Hussain Mangi learned Standing Counsel supported.The parawise comments filed on behalf of the respondents. He re-iterating the same has contended that the allegations against the Appellant regarding quantum of punishment proposed by the Inquiry Officer were proved. He contended thatthe impugned order is speaking order and was passed by. The authority after considering all the facts and circumstances keeping in view the inquiry proceedings as well as oral and written defence produced by the Appellant.
7. After hearing the learned counsel appearing for the parties, we have gone through the appeal file, so also the provision of section-5 of the Removal from Service (Special Powers) Ordinance, 2000 and have observed that the Respondents have failed to produce any document, such as deficient papers, passports of the passengers who were departed and deported. The Standing Counsel as well as D.R. Also could not be able to produce such documents as well as D.R. Also could not be able to produce such documents as mentioned in the Charge-sheet, Show-cause Notice or impugned order. It is an admitted fact that while the Appellant was posted. At Immigration (Departure) QIAP, Karachi the passengers were cleared on their genuine documents, therefore, in absence of any record which is a requirement of law, the Appellant was not able to put up his defence when the entire material was based on documentary evidence. The passengers deported back who were principal witnesses were not examined by the Inquiry Officer nor statements of prosecution witnesses was recorded, nor the Appellant was provided an opportunity to cross-examine them. Not a single word has come from the mouth of any witness against the Appellant. Therefore, the holding of enquiry by the Inquiry Officer is unilateral and against the law.
8. We are therefore, of the view that the principle of natural justice have been violated meaning thereby that the Respondent No. 2 had himself issued Charge-sheet and thus violated the provision of section 5(1)(a) & (c) of the Removal from Service (Special Powers) Ordinance, 2000, therefore, the impugned order is not sustainable in law. Accordingly, we, while allowing the appeal in hand direct the Respondents to reinstate the Appellant in service from the date of his compulsory retirement with full back benefits. No order as to costs.
9. Copies of the judgment be sent to the parties (under 'registered cover) and to the relevant quarters under rule-21 of Service Tribunal (Procedure) Rule, 1974.