' RASHID ALI MIRZA, MEMBER:---By this common judgment we intend to dispose of all the above appeals by a single judgment.. Since the case of the appellant Muhammad Siddiq in Appeal No,338(K)/(CS)/2002 is a leading case and the points involved in all the appeals are similar therefore we would take the case of appellant Muhammad Siddiq first.
2. The facts as narrated in the Memo of Appeal are that appellant Muhammad Siddiq had joined the respondent and was lastly posted as Senior Preventive Officer in "Unaccompanied Baggage section" PIA Grill, Quaid-e-Azam International Airport, Karachi. On December 13,1999, an unaccompanied baggage consignment consisting of two packages, bearing Baggage Declaration Registration No,3186/99 was assigned to him for examination. In this regard it is also pertinent to mention here that the then Deputy Collector of Customs (Preventive), UAB Section, QIAP, had already "suspected" the said Baggage Declaration (BD) and as such the appellant was duly bound to examine the package in presence and under the supervision of Senior Officers of the said Baggage Section. He accordingly examined two packages covered under BD No,3186/99, in presence of and under the supervision of Mr. Aftab A. Kazi, Inspector Preventive Service, UAB Section PIA Grill, on 13-12-1999. The goods recovered from the two packages were correctly endorsed on the face of the BD both by virtue of quality and quantity. The appellant deduced his examination report on the reverse of the BD and submitted it for perusal and approval of the senior Custom Officer of the UAB Section, Mr. Aftab A. Kazi, Inspector Preventive Service, the immediate senior officer being in conformity with the appellant's examination report, forwarded the same to the Superintendent Preventive Service (SPS), UAB PIA Grill on the same date. Since the BD had been "suspected" by the Deputy Collector of Customs (Preventive), UAB/QIAP, the SPS forwarded the same to the Deputy Collector for perusal and approval. The learned Deputy Collector, being satisfied with the whole exercise, approved the examination report. Subsequent to the perusal and approval, Customs Duty and taxes amounting to US$ 45 were paid. After this exercise the BD was declared "Out of Charge" by Mr. M.A. Baloch, Inspector Preventive Service, UAB Section on 13-12-2001. It is stated that after a lapse of about 24 days after the first examination, the said two packages were re-examined by another Customs team on January 7, 2000. Although the appellant had been the first and original examining officer in this case, he was neither informed about this exercise nor associated with the re-examination exercise. It is further stated that at the time of re-examining the goods, no efforts were made to verify the originality of the packages. Subsequently, the Appellant was placed under suspension vide Office Order No,83/2000-ESST(P), dated April 21 March, 2000. It was on the basis of above discussed re-examination exercise that a Charge Sheet vis-a-vis Statement of Allegation bearing Reference No,SG-09-10-11/99-BDCon-17/2000-CB(P), dated April 14, 2000 was issued to the appellant. Accordingly, the appellant submitted a reply to the said Charge Sheet to the Inquiry Officer Mr. Abdul Majid Yousfani, Deputy Collector of Customs, Jinnah Terminal Complex, QIAP, Karachi. In the reply to the said Charge Sheet vis-a-vis Statement of Allegation, the appellant justifiably and logically refuted all the charges and allegation framed and levelled against him. It is further stated that prior to the suspension of the appellant from service, the Investigation and Prosecution Branch of the Custom House, Karachi, had also investigated the subject case. The appellant joined all the inquiry proceedings during which his statement was also recorded by the Investigating Officer who submitted an Investigation Report" to the SPS/I&P Branch on 9-3-2000. It is stated that perusal of this "Investigation Report" will clearly show that the Investigating Officer has pointed out the dubious role of the custodian agency and has also recommended for the cancellation of the Clearing Agents' Licenses. It is further stated that it is also evident from "Investigation Report" that no irregularity, misconduct and negligence etc, was established against the appellant. It is further stated that the Inquiry Report of Enquiry Officer Mr. Abdul Majid Yousfani will reveal that although nothing specific was proved and established against the appellant, he was declared guilty of "misconduct" in an illogical manner. It is further stated that subsequent to the Inquiry Report of Mr. Abdul Majid Yousfani, a Show-Cause Notice No,Com/17/2000-CB(P) dated the 26th September, 2000, was issued to the appellant based on the previously discussed Charge Sheet and Statement of Allegations. However, the appellant submitted another comprehensive reply to the said show-cause notice. It is further stated that on the basis of above facts of the case and repeated inquiry proceedings the competent authorities were finally pleased to decide the case. The appellant was reinstated into service vide office Order. No,196/2001-CB(P) dated the 5th July, 2001. The competent authorities while ordering reinstatement of the appellant into service were pleased to impose a major penalty of reduction to lower stage in time scale by three stages as per Government Servants (E&D) Rules 1973.
3. The Respondent filed their Parawise Comments stating therein that appellant was assigned consignment-consisting of package bearing BD 3186/99 but the goods recovered from the packages were not correctly endorsed on the face of B.D which upon re-examination on 7th January, 2000, excess goods amounting US$ 316 as any/Taxes were found. The respondents have admitted in their Parawise Comments that prior to the suspension of the appellant, Investigation Prosecution Branch of the Custom House Karachi had conducted the investigation of the subject case. It is also true that the appellant joined the inquiry proceedings but it is not admitted that the charges of misconduct and negligence had not been established by the Investigating Officer. In fact the I.O. Elaborated in his report that on re-examination, excess goods amounting US$ 316 as duty and Taxes were found. The appellant failed to detect excess quantity and evasion of duty and taxed at the time of examination and report the same to the supervisory staff to take the necessary action. Thus the appellant failed to discharge his duties assigned to him They have further stated that the Enquiry Officer conducted the inquiry and submitted his report wherein he pointed out that B.D. No,3186 was re-examined which led to the recovery of excess goods. The Inquiry Officer concluded his report with the remarks that it was the duty of the appellant to examine, assess and intercepted the suspected baggage and to take immediate and effective remedial measure to appraise the higher authorities.
4. We have heard the learned counsel for the parties and perused the record.
5. In nutshell the case of the appellant Muhammad Siddiq is that on December 13,1999, an unaccompanied baggage consignment consisting of two packages, bearing Baggage Declaration Registration No,316/99 was assigned to the appellant for examination. It is pertinent to mention here that the then Deputy Collector of Customs (Preventive), UAB Sections, QIAP, had already "suspected" the said Baggage Declaration (BD) and as such the appellant was duty bound to examine the package in presence and under the supervision of Senior Officer. He accordingly examined two packages covered under BD No,3186/99, in presence of and under the supervision of Mr. Aftab A. Kazi Inspector. The goods recovered from the two packages were correctly endorsed and appellant deduced his examination report on the reverse of the BD and submitted it for perusal and approval of the senior Customs Officer Mr. Aftab A. Kazi, Inspector and forwarded the same to the Superintendent Preventive Service (SPS), on the same date. The SPS forwarded the same to the Deputy Collector for perusal and approval. The learned Deputy Collector, being satisfied with the whole exercise, approved the examination report and taxes amounting to US$ 45 were paid. After this exercise the BD was declared "Out of Charge' by Mr. M.A. Baloch, Inspector on 13-12-2001. It is stated that after a lapse of about 24 days after the first examination, the said two packages were re-examined by another Custom team on January 7, 2000. Although the appellant had been the first and original examining officer in this case, he was neither informed about this exercise nor associated with the re-examination exercise. At the time of re-examining the goods, no efforts were made to verify the originality of the packages and the appellant was placed under suspension vide Officer Order dated April 14, 2000, was issued to the appellant. Appellant submitted a reply to the said Charge Sheet to the Inquiry Officer Mr. Abdul Majid Yousfani. In the reply to the said Charge Sheet appellant refuted all the charges and allegation levelled against him. Appellant joined all the inquiry proceedings. A perusal of this "Investigation Report" will clearly show that the Investigating Officer has pointed out the dubious role of the custodian agency and has recommended for cancellation of Clearing Agents' Licenses. It is also evident from "Investigation Report" that no irregularity, misconduct and negligence etc. Was established against the appellant.
It is also evident from Inquiry Report of Inquiry Officer Mr. Abdul Majid Yousfani that nothing specific was proved and established against the appellant, but in spite of that appellant was declared guilty of "misconduct" in an illogical manner. Subsequent to the Inquiry Report of Mr. Abdul Majid Yousfani, a Show-cause notice dated the 26th September, 2000, was issued to the appellant .On the previous Charge Sheet and Statement of Allegations. The appellant submitted another reply to the said show-cause notice. On the basis of above facts of the case and repeated inquiry proceedings that the competent authorities were finally pleased to decide the case and appellant was reinstated into service vide Office Order dated the 5th july, 2001. The competent authorities while ordering reinstatement of the appellant into service and treating suspension period as on leave were further pleased to impose a major penalty of reduction to lower stage in time scale by three stages as per Government Servants (E&D) Rules 1973.
6. We have come to the conclusion that the appellant cannot be held responsible for the difference of items, so called excess because the goods remained in the custody of the PIA Cargo Staff (Custodian) and the 34 Kgs. Difference of weight was found less than actual one which is indicative of the fact that some secret instruments of the Custodian might have played a role to malign the Custom Staff. This fact has come in the Enquiry Report. The re-examination of BD No,3181/99 was conducted without presence of the appellant which is clear-cut violation of natural justice. The goods were re-examined by an unauthorized Officer in terms of Standing Order No,3/1995 since exercise is illegal and void ab initio and the findings of both the Enquiry Officer and conclusion drawn is contradictory. The Enquiry Officer has admitted the fact that individual BDs cannot be treated as commercial in quality or in nature. The appellant had performed his duty to examine and assess the relevant BD under the supervision of the Supervisory Staff and BD was out of charge after the approval of the then Deputy Collector. We have also come to the conclusion that not a single piece of evidence has been brought on record to substantiate the Statement of Allegations of misconduct. The Enquiry Officer had conducted Fact-finding Enquiry instead of regular enquiry and therefore major punishment cannot be imposed on the basis A of Fact-finding Enquiry Report.
Reliance is placed on 2003 PLC (C.S.) 353. The enquiry is derective and improper and no punishment is warranted on the basis of such type of enquiry. The impugned order dated 5-7-2001 and Rejection Order dated 29-6-2002/19-7-2002 are non- B speaking orders and passed in mechanical manner. Reliance is placed on 1985 PLC (C.S.) 519, 2003 PLC (C.S) 365, PLD 2004 SC 441, and 2003 TD (Service) 247 and 410. The Enquiry Officer had conducted the enquiry in question and answer from which is not permissible in law. Reliance is placed on 1993 SCMR 1440. The Respondents in the impugned order dated 5-7-2001 did not mention and state the period for which the said punishment would be effective and it was mandatory and not directory under FR-29.
Reliance is placed on 1995 PLC (C.S.) 462, PLD 1982 Peshawar 165, 2004 PLC (C.S) 157.
7. We find that the principles of natural justice have also been violated and as such, we set aside the impugned order dated 5-7-2001 and restore the appellant to his original position prior to the date of impugned order with all back-benefits. No order as to costs.
8. The above judgment shall, mutatis-mutandis, apply to Appeals Nos.349(K)(CS)/2002, 350(K)
(CS)/2002, 351(K)(CS)/2002 and .52(K) (CS)/2002 filed by Talib Hussain, SPO, Khalid Mehmood Tabbassum, Ziaul Haque, IPS and Muhammad Ibrahim SPO. No order as to costs.
9. Copies of the judgment be sent to the parties (under register cover) and to the relevant quarters under Rule-21 of Service Tribunal (Procedure) Rules, 1974.