' ABDUL RASHID BALOCH (MEMBER)---This is an appeal against the order dated 24-1-2003, whereby the appellant was demoted from Pay Group-V to Pay Group-IV. He filed departmental representation dated 8-5-2003, which was rejected on 19-6-2003, hence the present appeal.
2. The facts of the case are that the Deputy Superintendent of Customs, Departure Shift-I, Islamabad Airport reported on 28-7-2002 to the Deputy Collector (AB), Islamabad Airport that during the course of checking of crew baggage of Flight PK-771 bound for Copenhagen, 95 cartons and 50 packets of cigarettes of foreign origin were recovered from the baggage of the appellant, a crew member who on demand, failed to produce any evidence, documentary or otherwise, regarding legal import, export and lawful possession thereof. He also mis-declared the contents of his luggage in the Crew Declaration Form. The aforementioned cigarettes were seized in the presence of witnesses under proper documents after serving upon him the notice under the Customs Act, 1969 read with the Imports and Exports (Control) Act, 1950 and S.R.O. 450(1)/2001, dated 18-6-2001. The relevant papers were also submitted for adjudication to the Deputy Collector who decided the matter on 21-9-2002 that the cigarettes be confiscated outright without option of redemption, with the direction that PIAC may conduct its own inquiry regarding the involvement of the appellant who had admitted the responsibility of the property (i,e, cigarettes) on behalf of some other passenger and had signed the recovery memo. The appellant, challenged the said order and Show-Cause Notice dated 22-8-2002 before the Collector, Customs, Sales Tax and Central Excise (Adjudication/ Appeals). The appeal was accepted and the appellant was acquitted honourably vide judgment dated 21-4-2003, issued on 22-4-2003. During the course of the pendency of the aforesaid proceedings, the respondent-department issued Charge-Sheet on 23- 9-2002, which was replied by the appellant, denying the allegations. The inquiry was held and, on the recommendations of Inquiry Officer, the appellant was imposed penalty of demotion from Pay Group V to IV, as Flight Steward vide order dated 24-1-2003, where against he submitted departmental representation dated 8-5-2003 and the same was declined vide letter dated 19-6- 2003.
3. Learned counsel for the appellant contended that the impugned order of demotion dated 24-1- 2003 was unjust and unlawful. He further contended that the appellant had been proceeded under Removal from Service (Special Powers) Ordinance, 2000 but the requirements of the said Ordinance had not been complied with as neither Show-Cause Notice was issued to the appellant nor any order for dispensing with the inquiry. Giving reasons therefor, was passed by the competent authority. He submitted that since the appellant specifically denied the allegations levelled against him in the charge-sheet, it was incumbent upon the respondent to hold regular inquiry in the case. He also submitted that when the respondent had the knowledge that the case was pending before the Collectorate of Customs for adjudication, the concerned Authorities were required to wait for the final outcome thereof but the departmental proceedings were initiated and completed in haste. He argued that the so-called inquiry was held on the back of the appellant, without his association therewith and he was condemned unheard. He next argued that the appellant was acquitted by the Collector Appeals, collectorate of Customs, Sales and Central Excise vide judgment dated 22-4-2003 on the same allegations as contained in the charge-sheet which formed the basis of departmental proceedings resulting in the punishment of appellant's demotion vide impugned order dated 24-1-2003. He prayed that the appeal may be accepted, the impugned order be set aside and the appellant be restored to his original Pay Grade-V, with all back-benefits.
4. Learned counsel for the respondent vehemently opposed the appeal. He argued that the appeal was time-barred, incompetent and misconceived. He contended that, after the recovery of smuggled cigarettes from the appellant and confiscation thereof, the respondent conducted the inquiry, strictly, in accordance with law. According to him, all the requirements/formalities, as laid down in the Removal from Service (Special Powers) Ordinance, 2000, were complied with during the course of inquiry and the appellant was associated with the proceedings. He submitted that the appellant was also communicated statement of allegations along with inquiry report and recovery memo. But he did not agitate the same in his departmental representation. He further contended that it was not binding on the respondent to wait for the result of the judicial proceedings, 'pending adjudication with the collectorate of Customs, stating that the departmental proceedings were initiated independently against the appellant and proper inquiry was held, granting him fair chance of defence, including opportunity of personal hearing. He next contended that the Inquiry Officer found the appellant guilty of the charges/allegations, recommended for his demotion and the competent Authority, agreeing with the Inquiry Officer, imposed penalty of demotion on him. The learned counsel prayed that the appeal may be dismissed.
5. We heard learned counsel for the parties and perused the record, with their assistance.
6. Keeping in view the memo. Of appeal, written comments, pleadings of the parties and relevant documents, we may analyse the issues involved in the matter, as under:--
(i) It may be observed from the preceding paragraphs that departmental proceedings against the appellant were conducted and penalty of demotion from Pay Group-V to IV was imposed upon him vide impugned order dated 24-1-2003, after the Deputy Collector's decision dated 21-9-2002, holding the appellant guilty of the charges with the direction that the PIAC may hold its own inquiry regarding the involvement of the appellant in the case. Meanwhile, the appellant had preferred an appeal against the said decision of the Deputy Collector to the Collector (Appeals) who acquitted him vide order dated 22-4-2003. Whereas the contention of the appellant is that the respondent proceeded against him without waiting for the result of the case pending adjudication with the Customs Authorities, the respondent's argument to this effect is that the departmental proceedings were in line with the said decision of the Deputy Collector. We feel that though there was no bar on the respondent to proceed departmentally against the appellant during pendency of the case yet it was in the interest of justice that the respondent should have waited for the final adjudication thereof.
(ii) Admittedly, the penalty of demotion from Pay Group-V to IV has been imposed on 24-1-2003 prior to appellant's honourable acquittal by the Collector (Appeals) vide decision dated 24-4-2003, pertaining to the same charges. The former order was passed by the competent authority in consequence of departmental proceedings whereas the latter decision was the C result of acceptance of appeal against the said order of Deputy Collector. Thus imposition of the penalty as a consequence of determination of guilt on the same charges of which the appellant had been acquitted honourably by the forum of competent jurisdiction would hardly be justifiable, in view of the law laid down by the Hon'ble superior Courts in 1998 PLC (CS) 143, 2000 SCMR 269 and 1989 PLC (C.S) 393.
(iii) The respondent side has not been able to rebut the argument of the appellant that departmental proceedings were not conducted as per provisions of Removal from Service (Special Powers) Ordinance, 2000. Thus we feel that the same were not free from legal flaw.
(iv) As regards evidence, the version of the appellant that he did not own the cigarettes had been supported by the statement/affidavit of passenger, Muhammad Hussain during proceedings before Deputy Collector and the departmental inquiry. The appellant appeared before the Inquiry Officer on 12-11-2002 and provided a copy of the affidavit of Muhammad Hussain addressed to Deputy Collector, stating that he was not the owner of cigarettes and he was only authorized by Muhammad Hussain, on the direction of Customs Staff, to keep the same under safe custody and deliver at the residence of Muhammad Hussain. This position has also not been rebutted by the respondent, which amounts to concede.
7. The upshot of the above discussion is that the appeal is accepted, the impugned order dated 24-1-2003 is set aside and the appellant is restored to his original Pay Group-V, with consequential benefits.
8. No order as to costs. Parties are informed.