RASHID ALI MIRZA, MEMBER- The appellant herein above who was working as Inspector with the Respondents, posted in Immigration FIA at QIAP Karachi has challenged the order of punishment of reduction to two lower stages in his time-scale under Removal from Service (Special Power)
Ordinance, 2000 with immediate effect. Th,e order is reproduced here under:- No. Z/3458/Admn/l/2001/4344-49 Federal Investigation Agency, Islamabad Dated: 31-12-2001 OFFICE ORDER This Office Order disposes of department proceedings against Inspector Ellahi Bukhsh Tunio (BS-16) of FIA, Karachi Zone, Karachi initiated by the Director General, FIA, in the capacity of the Competent Authority, under Removal from Service (Special Powefs) Ordihance, 2000 (as amended vide Ordinance 2001). Charge-Sheet was issued to the defaulter official on 04.07.2001 and Rai Muhammad Tahir, Deputy Director, FIA, Karachi, was appointed as the Inquiry Officer to conduct the enquiry against the defaulter of official on the charge mentioned below:---
(i) That on 12.03.2001 a family consisting of the following six persons was cleared for departures on Swiss Flight No: SR-395 for Dubai on invalid traveling documents. Their destination as per embarkation cards was Canada.
(I) Imran Maknojiva S/o Kurban JVIaknojiva, R/o D-35, Rahimabad, Naseerabad, Block-2, Federal B Area, Karachi. Name used for travel, Syed Wajahat Husain S/o Iqbal Hussain.
(II) Naveed Jan Muhammad S/o Jan Muhammad r/o B-8. Prince Apartment, Garden West, Karachi.
Name used for travel, Syed Waqar Hussain S/o Syed Iqbal Hussain.
(III) Hameeda Barkat D/o Barkat Ali r/o A-15 Gulshan-e-Ali No. 1, Block 7, Federal B, Area, Karachi.
Name used for travel, Nadia Hussain d/o Iqbal Hussain.
(IV) Asif Jillani S/o Ghulam Jillani R/o House No. 19, near Majid Talab Wali, Sangla Hill, Sheikhupura.
Name used for travel, Syed Iqbal Hussain S/o Ghulam Hussain.
(V) Fareeda Hussain W/o Shahid Hussain, R/o House No. 101-B, Railway Officers Colony, Walton, Lahore. Name used for travel Shagufta Parveen who Iqbal Hussain.
(VI) Muhammad Muneeb Hussain S/o Syed Iqbal Hussain.
(ii) On their arrival at O'Hara International Airport, Chicago, USA, on 13.3.2001, it was detected by US Immigration and Naturalization Service that they were traveling on invalid passports. Out of these, five passengers were deported and reached Karachi airport on 19.3.2001 whereas Muhammad Muneeb Hussain (S.No, f) was allowed to stay in USA due to his old age.
(iii) A Case FIR No. 110/2001 had been registered against the above accused persons at FIA, Passport Cell, Karachi, U/s. 6(1 )(a)(f) Passport Act, 74 read with Ss. 419, 420, 468, 471, 109 PPC.
(iv) The record of FIA Immigration QIAP (Departure), Karachi, shows that the above- mentioned passengers were cleared by you as shift Incharge in connivance with AS1 Muhammad Waseem (Standing Office ) and S.I. Najmul Haq Chandio (Re-Checking Officer) for ulterior motive.
2. The Enquiry Officer conducted the enquiry and submitted his report in which he held the defaulter official guilty of the charges and recommended to award him major punishment.
3. The then Director General/FIA. Ln the capacity of competent authority, issued a Show-Cause Notice, dated, 18.9.2001 to the defaulter official stating therein as to why the penalty recommended by the Enquiry Officer or other major penalty including dismissal from service may not be imposed upon him.4. The defaulter official submitted his reply to the Show-Cause Notice and was heard in person by the undersigned at Camp Office, Karachi on 14.11.2001; both his verbal as well as written replies were not found satisfactory.
5. The defaulter official, being Shift Incharge, was overall responsible for the smooth and genuine clearance of the passengers and is vicariously liable for the acts of omission and commission jointly committed by FIA Immigration Staff.
6. In consideration of facts and. Circumstances, the charges against the defaulter official are proved beyond any shadow of doubt.
7. Therefore, keeping in view the conduct of the defaulter official which is prejudicial to good order and service discipline of the Agency, I, in the capacity of Competent Authority and in exercise of powers conferred upon me under Removal from Service (Special Powers) Ordinance, 2000, award him major penalty of reduction to two lower stages in his time-scale, under the said Ordinance.
Sd/- (Saiyed Mohib Asad) PSP Director General/FIA "Competent Authority"
The appellant submitted his departmental representation dated 29.3.2002 to the respondent No.1 which was not accepted and had to approach to this Tribunal by filling the present appeal on 1.4.2002 praying therein to set aside the order of reduction to two lower stages in his time-scale dated 3.12.2001 issued by the respondent No. 2 and to set aside the said impugned order with all back/consequential benefits.
3. The brief facts giving rise to this appeal are that the appellant joined FIA as Sub-Inspector on 8.5.1976. He has undergone various departmental courses from respective training center and was subsequently promoted as Inspector in November, 1987: According to the service record of the Appellant, he never earned adverse reports and hjs caredr is spotless and was never awarded minor/major , punishment during his entire service carrier in FIA on 12.3.2001 while performing his duties as Inspector/Shift Incharge at Immigration department (departure) QIAP, Karachi, the Appellant was served with charge sheet dated: 4.7.2001, which was issued by respondent No. 2.
Thereafter an enquiry committee comprising Mr. Rai Muhammad Tahir, Deputy Director FIA, Karachi was constituted under section 5 of the Removal from Service (Special Powers) Ordinance, 2000.
The Enquiry Officer in his report recommended major punishment of reduction in post/rank from Inspector to Sub- Inspector but the respondent No. 2 did not agree with the punishment recommended by the enquiry officer and imposed a major penalty of reduction of two lower stages in time-scale with no specified period mentioned therein under RSO 2O0O. Before awarding punishment as provided u/s. 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 Ghouri, Advocate for the Appellant has contended that no material documents in support of the chafge necessitating holding of enquiry were supplied to the appellant for 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 4.7.2001 prepared and issued by the Director General FIA/Competent authority (Respondent No. 2) was not in accordance with the provisions 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:-
(i) 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 have committed any of the acts of 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.
(b) 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 witness 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 Ghouri also contended that the passengers were travelling on genuine documents as the Passports were not provided to the Appellant He contended that the conclusion of the Inquiry Officer (Rai Muhammad Tahir) Deputy Director FIA was based on his own presumption and he could not find out any concrete evidence to establish the offence against the appellant, ln the instant case, the appellant was neither present on the duty spot nor he cleared or allowed the passengers and also he was not consulted by the rechecking officer or Stamping officer. Thus the appellant was even not in the knowledge about the clearance of such passengers.
Besides, the Deputy Director FIA Immigration was also not Inquired or examined by the Inquiry Officer to confirm as to whether the appellant was with him at his arrival office or on duty spot. He has also contended that the passengers whose name have to be mentioned in the charge sheet as well as Show- Cause Notice and the impugned order were deported back from the destination and were detained by FIA Immigration arrival and FIR was lodged in the Passport Cell against them but none of them was examined or have pointed out against the appellant. He also contended that the Stamping Officer of AS1 rank and the group Incharge/Rechecking Officer a senior Sub-Inspector are competent enough to allow any passenger without referring or consulting to the shift incharge.
Lastly the counsel for the appellant has contended that the period of punishment is not specified in tbe impugned order and that the punishment awarded to the appellant be set aside and he be restored on the position before 31.12.2001 with all back benefits as the Inquiry Officer did not record the statement of the passengers who were principal witness and appellant was also not provided opportunity of cross-examining the prosecution witnesses, ln support of his contention he has placed reliance on 1993 SCMR 1440, PLD 1981 SC 176, 1995 SCMR 2, 1997 SCMR 1513, 2000 PLC(CS)
1996, 2000 PLC (CS) 270 and 1999 SCMR 1181; He contended that appellant has been punished illegally and was awarded reduction to two lower stages of time-scale whereas there was 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 and contended they allegation regarding quantum of punishment awarded by the authority is justified. He further contended that impugned order is speaking one and had been passed by the competent authority after taking into consideration all facts in circumstances keeping in view the inquiry proceeding as well as oraf and documentary evidence came on record.
7. After hearing the learned counsel appearing for the parties, we have gone through the appeal filed and so also the provision of section 5 of the Removal from Service (Special Powers) Ordinance, 2000 and have observed that the respondent failed to produce any kind of documents such as relevant papers particularly passports of the concerned passengers who had left Pakistan and were deported but passports were not returned. The said passengers were the prime witness of the incidents and had been required to. Have been called for and examined by the Inquiry Officer thereby giving opportunity of cross- examination to the appellants as such there is mis-carriage of justice. The Standing Counsel was unable to produce any such documents as contended by the advocate for the appellant to rebut the charges, lt is an admitted fact that while the appellant was posted at Immigration (departure) QAIP Karachi, the passengers in Six number were cleared by the staff in absence of the appellant who had been busy with Deputy Director Immigration FIA Karachi and in this regard the statement of Re-Checking Officer SI Najmul Haq Chandio that the appellant was not present at venue when the alleged passengers were cleared by them nor the appellant had any kind of knowledge about such clearance of passenger by the immigration (departure)
QAIP Karachi staff. The passengers deported back were not examined by the Inquiry Officer nor any other material witness was ever called for and examined by the inquiry officer to prove the charges levelled against the appellant and in the proceeding the appellant was not provided proper opportunity of defence to cross- examine the witnesses. Not a single word has come from the mouth of any witness against the appellant on . Files as such conducting of inquiry by the Inquiry Officer is unilateral and against the law and in this regard we are supported by Judgment rendered in Appeal No. 26(K) (CS)/2002 Mr. Mumtaz Muhammad Baloach Verses Secretary Ministry of Interior Islamabad and other in which same question, of law and facts were involved. Other Judgment facts copy produced by advocate for the appellant Pf Appeal No. 143(K)(CS)/2002 Shams-ud-Din Junejo v. Secretary Ministry ohlnterior Islamabad is also applicable in this case. Furthermore facts involve in Appeals Nos. 142, 152, 157 and 226(K)(CS)/2000 Muhammad Dawood v. FIA are also having the same facts and said appeals were allowed by the Tribunal. The appellant was awarded the- penalty of reduction to two lower stage in time-scale on 31.12.2001 but the authority did not mention the duration of period .For which the said penalty had to remain in force which is violation of Fundamental Rules and in this regard we are fortified by the Judgment reported as 2004 PLC
(CS) 157 & 1991 PLC (CS) 713 and on this score the penalty imposed upon the appellant is not sustainable.
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 charged-sheet and thus violated the provision of section 5(1 )(a) & (c) of the Removal from Service (Special Powers) Ordinance, 2O0O, therefore, the impugned order dated 31.12.2001 is not sustainable in law. Accordingly the impugned order dated: 31.12.2001 regarding award of major penalty of reduction to two lower stages in his time scale awarded by the respondent No. 2 is hereby set aside and appeal is allowed with all consequential benefits. No order as to costs.
Copies of the judgment be sent to the parties (Under registered cover and to the relevant quarters under rule-21 of The Service Tribunal Procedure Rules, 1974).