RASHID ALI MIRZA, MEMBER. - While the appellant was serving with the respondents, he was issued the following Statement of Allegations: Whereas, during the month of December, 1999, you Mr. Talat Qamar, SPO where present at the time of examination of 22 suspected B.Ds as stated by M. Sadiq Khan Alvi. Talib Hussain ancj K.M.
Tabassum. You failed to discharge your duties and function of prevention smuggling' and plugging the leakage of revenue for which purpose you were specifically posted. Thus, you defrauded the Government.Of its legitimate revenue.
Whereas, it was your duty to examine/assess and intercept the suspected baggage and to make immediate and effective efforts/measures in this regard. Instead you failed to take effective steps to . Intercept the suspected baggage and passenger."
2. The appellant submitted his reply to the aforesaid Statement of Alfegations denying as incorrect, baseless, mala fide, discriminatory and totally false. He stated that BDs were already cleared and there is no evidence that there was any loss of revenue to the respondents. He stated that 19 BDs do not bear his signature as'they were hot marked to him, as such, he was not responsible as he as a member of Special Checking Squad Team (SPO) was assigned duties with Mr. Rees-e- Azam SPO, on 13.12.1999 for hearing of a case of huge gold seizure, Mr. Daved Akhtar Mughal (SPO) gold seizure case of 40000 tolas on 14.12.1999/15/12. 1999. Regarding three BDs, he stated that these were not cleared as yet as such there was no question of any loss of revenue.
3 The case of the appellant in brief is that he joined as Preventive Officer on 17.7.1980 m Preventive Collectorate of Pakistan Customs. He had a meritorious record of service ancfwas promoted from time to time and at present he is serving as a Senior Preventive Officer (SPO). He worked with full devotion zeal and dedication with the best of his ability which was appreciated by the then FinanceMinister. The Collector was also happy and issued letter of cqmmendation to the appellant on 27.3.1999. According to the departmental practice, the appellant became entitled for one step promotion. He submitted letters of request for his promotion and Member (Custom) CBR recommended his case on merits, but respondent No.1 instead of considering his request for promotion issued Officer Order (Annexure-'E\ at page 35 of the file) alleging that "there exists prima-facie case of misconduct & negligence of duty against Mr. Tallat Qamar, Preventive Officer Grade 12), the competent authority is pleased to place him under suspension with immediate effect and till further orders" and vide order dated 5.7.2001 a major penaIty of reduction to a lower stage in time scale by three (03) stages was awarded to the appellant against which he filed departmental appeal to the Collector Preventive Customs which was not responded to, hence he filed the present Appeal with the following prayer:-
(i) the impugned order awarding penaIty of reduction of lower stage in time scale by three stages to be bad in law, void ab initio and of no legal effect;
(ii) set aside the impugned order;
(iii) direct the respondents to put the appellant back of the same position, rank ahd allow him to enjoy 4tee same terms and conditions to which he was entitled prior to the passing of the impugned order;
(iV) allow the appellant back benefits ensuing for the period between passing of the impugned order and till he is put back Jp4iis original position as prayed above; and
(v) allow any other consequential or other relief/compensation as deemed appropriate in the circumstances of the case.
4. We have heard the learned counsel for the parties and have also perused the record.
5. The learned counsel for the appellants has contended that the impugned Order dated 5.7.2001 is unlawful, without jurisdiction, void ab-initio and of no legal effect which violates section 24-A of the General Clauses Act, He contended that all subsequent proceedings against the appellant i.e. Of suspending and charge sheeting him are based on mala tides. He contended that the allegation against the appellant that the appellant examined the BDs in question is totally false and concocted as no examination of any kind was brought on record. He contended that the appellant was not present at the time of alleged incident.. He contended that the appellant being officer of the Special Checking Squad was not required to do any of above acts as he was not present there as on 13.12.1999 he was summoned by Mr. Raees-e-Azam Officer SPO for hearing on 15.12.1999 before the Collector (P) Mr. Pervaiz Iqbal Kasi and he spent whole day with SPO. He contended that on 14.12.1999 the appellant was summoned in I & P by Mr. Javed Akhtar Mughal, the Investigating Officer who also discussed in respect of the above gold case. He contended that all the three BDs No. 3185/99,3186/99 and 3188/99 were examined and processed in absence of the appellant. He has relied pages 5 and 6 of Inquiry Report wherein following admission is made by the investigating Officer, Mr. Bashir A. Bhutto:
(i) that the appellant was officially summoned and present in the Customs House on 13.12.1999;
(ii) that all those BDs were suspected by Additional Collector and Deputy Collector-UAB tjut SCS was not assigned;
(iii) that there was no concrete evidence against the appellant.
6. The Learned counsel for the appellant contended that without adverting to the above very vital findings and admissions by the Inquiry Officer he without any application of mind held the appellant guiIty of misconduct. He contended that after admissions/findings by the Inquiry Officer there was no legal basis for continuing proceedings and imposing a major penaIty on the appellant. He contended that impugned action by respondent No.'1 is not only mala. Fide but is discriminatory. He contended that appellant who had put in meritorious service of more than two decades has to face such .Disrepute situation. H6 contended that respondents have violated Articles 2-A, 4, 14 and 25 of the Constitution.
8. The learned counsel for the respondents contended that the Office Order dated 05.07.2001 was issued to the appellant after considering the recommendation of Inquiry Officer. He contended that Inquiry Officer had no enmity with the appellant as such disciplinary proceedings were in fair and transparent mqnner and there was no mala fide on the part, of the respondents.
9. We have considered the above arguments of both the learned counsel for the parties.
10. . Before reaching any conclusion, it would be proper to reproduce-relevant portion of the Inquiry Report of Abdul Majid Yousfani, Deputy Collector/ Inquiry Officer:
(2) With regard to filing and clearance of 19 BDs the following may kindly be noted;-
(a) It is now only a matter of assumption and presumption as to what the consignment relatable to the said BDs may have contained since the same have already been cleared and accordingly it is absolutely conjectural to assume that the same contained any thing other than the goods declared. There is thus a case of no evidence and the allegation of loss of revenue is nothing but a conjectural and whimsical allegation.11. During cross-examination by the appellant Talat Qamar, the appellant put the questions-from Bashir A. Bhutto P.O. To which he replied as follows: Q.1.(i). You investigated the case and recorded my statement as well as the statement of SPO Mr. Raees-e-Azam Khan. Do you confirm on the basis of your investigation that I was officially summoned and present in Custom House on 13.12.1999 in connection with preparation of hearing of the gold case?
Ans: Yes.
(ii) When I was not present at PIA Grill UAB on the 13th and 14th December, 1999 then how do you say that I supervise the examination of alleged three BDs.
Ans: I had mentioned in my investigation report at page No.14 that your presence at the time of examination of impugned BDs was doubtful.
Q.2. During the course of investigation you might have scrutinized the impugned 19 B.D. Do you confirm that the said B.Ds do not be my examination in my presence or signed by me on any of the B DS.
Ans. No. Q.3. During the course of investigation, you might have come across various I.G Ms showing all particulars of each consignment. Some of the consignments used to be suspected by the high ups.
Did any of the B.D. Out of the said 19 B.Ds was suspected by the high ups and who was assigned to discharge the functions of examinations and submission of report whether SGS staff, shed staff or any other section like DEC and R&P.
Ans. All those B.Ds were suspected by Additional Collector and Deputy Collector/UAB, but SCS was not assigned.
Q.4. You have concluded your investigation report at the end with the observation. "However an element of doubt does exist in respect of Mr. Talat Qamar". This is going to indicate that you are not in possession of any concrete evidence leading to establish the charges levelled against me.
Ans. Yes there is no concrete evidence against you.
Whether the goods/consignments covered by the 22 BDs were bona fide or otherwise, the Inquiry Officer held as under: "A perusal of the 22 B.Ds reveals that similar kind and nature of goods were brought as unaccompanied. Baggage in the PIA Grill /QIAP Karachi. All items were new but no Art No./Part No. Have been mentioned in the Examination Report endorsed by the officer in the B.Ds therefore, In case of foodstuff, no details are mentioned as to whether the same was milk, oil, honey etc. Each of these items has a different value and cannot be assessed at a flat rate. A comparison of these BDs with those being presently brought in the UAB Section leads to the fact that some unscrupulous elements were involved in managing the Khaip/commercial goods by splitting the same in the.
Name of various passengers so that they could exploit the definition of "baggage" as laid down in rule 2 (c) of the Passenger's Baggage (Import) Rule, 1998 notified vide SRO 570(1 )/98, dated 12.06.1998. This khaip management system has earned a bad repute for this Collectorate.
Despite the fact that the individual B.Ds cannot be termed as commercial in quantity or nature in view of the definition of baggage mentioned above. However, the overall perusal of said B.Ds 'reveals a technical misuse of the Baggage Rules and import of commercial goods under the cover of Passenger's baggage in connivance with the Mafia of clearing agents and Customs officials.
"Further 03 out of the above said 22 B.Ds were reexamined which led to the recovery of excess goods amounting to US$1223/- involving connivance for defrauding the national exchequer of US$623 at duties and taxes."
From the above, it is thus clear/evident that no irregularity miscpnduct and negligence etc. Was established against the appellant, It is also evident from Inquiry Report that nothing specific was proved and established against the appellant, but inspite of that appellant was declared guiIty of "misconduct". Subsequent to the charge sheet a show cause notice Statement of Allegations was issued to the appellant. 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 Officer Order dated the July 5, 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 penaIty of reduction to lower stage in time scale by three stages as per Government Servants (Efficiency & Discipline) Rules 1973.
12 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 P.I.A Cargo Staff (Custodian).. The reexamination of BDs was conducted in absence of appellant which is clear cut violation of natural justice. The Inquiry Officer has admitted that individual BDs cannot be treated as commercial in quality or in nature. The Inquiry Officer had conducted a fact-finding inquiry instead of regular inquiry, therefore no punishment can be imposed on the basis of fact-finding inquiry report. Reliance is placed on 2003 RLC (CS) 353. The inquiry is defective and improper and impugned order dated 5.7.2001 is non-speaking order. Reliance is placed bn 1985 PLC (CS) 519, 2003 PLC (CS), 365 PLD 2004 SC 441 and 2003 TD.(Service) 247 and 410. The Inquiry Officer had conducted the inquiry in-question and answer form 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 mandatpry and not directory, under FR-29. Reliance is placed on 1995 (CS) 462. PLD 1982 Peshawar 165, 2004 PLC
(CS) 157.
13. We find that the principles of natural justice have also been violated and as such, were set aside the impugned order dated 5.7.2001 and restore the appellant to his original position from the date of impugned order with all back benefits. No order as to costs.
14. Copied of the judgment be sent to the parties and to the relevant quarters under rule 21. Of Service Tribunal.