' MUHAMMAD JAVED ASHRAF HUSSAIN (MEMBER).---This is an appeal under section 4 of the Service Tribunals Act, 1973 against the impugned Order No,Z/4890/Admin.-I/2005/85-88, dated 26-4-2005 whereby the major penalty of compulsory retirement from service under Removal from Service (Special Powers) Ordinance, 2000 has been imposed upon the appellant. The appellant filed departmental appeal, dated 16-5-2005 which has remained unresponded and therefore, this appeal before the Tribunal, dated 6-8-2005.
2. The brief facts of the case are that on 8-9-2004 passengers namely Irfan Abbas holding Pakistan Passport No,KB-493078 and Masood Iqbal holding Pakistan Passport No,KD-744704 arrived at Islamabad by PIA Flight No,PK-770 and finally at Karachi by Flight No,PK-301 having been deported from Milan, Italy as Italian Immigration Authorities refused entry to the two passengers for holding stolen Schengen visas. On interrogation, the two deportees disclosed that the Schengen visas and air tickets were provided by an agent namely Hasnat Ahmed Khan alias Hasnat Kiyani of District Jhelum against payment of Rs,17,50,000. As per record of FIA, the two passengers left Pakistan on the night of 2/3-9-2004 from Quaid-e-Azam International Airport (QIAP) by PIA Flight No,747 when shift "A" was on duty at the Airport Immigration Counter. The two passengers were cleared by Stamping Officer A.S.-I. Nazia Saleem and re-checked by Group Incharge S.-I. Muhammad Suleman who were performing duty under the supervision of the appellant. The preliminary inquiry conducted by the PIA revealed that the appellant personally brought the two passengers at the counter of A.S.-I. Nazia Saleem. The preliminary inquiry further alleged that the appellant directed the Stamping Officer to clear the two passengers and accordingly they were cleared. Thereafter, on arrival at Milan Airport in Italy the two passengers on being checked were found in possession of stolen Schengan visas. They were, therefore, deported back to Pakistan by the Immigration Authority at Milan Airport.
3. The appellant was charge-sheeted by the FIA Crime Circle Karachi vide No,FIA/CCC/K/2004/4984-88, dated 26-10-2004 and the Deputy Director, FIA Corporate Civic Circle Karachi was appointed Inquiry Officer. The charges framed were as follows:-- "(i) On 8-9-2004 a pax namely Irfan Abbas holding Pak. Passport No,KB-493078 and pax namely Masood Iqbal son of Muhammaduddin holding Pak Passport No,KD-744704 arrived/deported from Milan/Italy by PIA-770 to Islamabad and finally to Karachi by Flight No,301 under the Deportation charge as "Italian Immigration Authorities refused entry since holding stolen Schengen Visa.
(ii) That on interrogation, both the deportees disclosed that the stolen Schengen Visa and Air Tickets were provided by an agent namely Hasnat Ahmed Khan alias Hasnat Kiyani of District Jhelum against payment of Rs,17,50,000.
(iii) The record shows that pax named above left Pakistan on the night of 2/3-9-2004 for QIAP by PIA Flight No,747 when shift "A" on duty. Both the paxes were cleared by Stamping Officer A.S.-I.
Nazia Saleem, and re-checked by Group Incharge S.-I. Muhammad Suleman who were performing duties under your supervision.
(iv) The preliminary enquiry revealed that you personally brought both the paxes at the Counter of A.S.-I. Nazia Saleem. You directed the Stamping Officer to clear both the paxes. Under your specific instructions, the Stamping Officer A.S.-I. Nazia Saleem cleared both the paxes and affixed departure stamp No,5 allotted to her by using/hiding technique of stamp number with a piece of paper as well as deliberately concealed her computer I.D. And intentionally used secondary mode of data input in the PISCES system, rather than using the primary one. Yet, you (Insp. Azizullah Sheikh) did not take any action.
(v) That on interrogation, deportee Masood Iqbal disclosed that after obtaining Boarding Card, agent Hasnat Kiyani directed him on Mobile Phone to approach Immigration Counter No,5 for clearance, Immigration Counter No,5 was the same where A.S.-I. Nazia Saleem was sitting and both the paxes were taken to the same counter for clearance by you (Inspector Azizullah Sheikh).
(vi) That the above acts on your (Inspector Azizullah Sheikh) part amount -to misconduct."
4. The findings as in the inquiry report, dated 28-1-2005 were as follows:-- "(i) Inspector Azizullah Shaikh in his reply adduced that it is not possible to detain a pax if he is travelling on a genuine but stolen visa without prior intimation at Immigration Counter/PISCES system. Since there was no information regarding stolen visas the Stamping Officer or Group Incharge did not detain any paxes on this pretext.
(ii) The officer has pleaded in his defence that a Shift Incharge is not physically involved in clearance and re-checking of passenger's travel document.
(iii) He has stated that neither the Stamping Officer nor the Group Incharge raised any suspicion about the pax.
(iv) Inspector Azizulalh Shaikh referred the statement of deportee, which discloses the name of the agent but does not implicate him as a facilitator.
(v) A.S.-I. Nazia Saleem, S.-I. Muhammad Suleman and Inspector Azizullah Shaikh were produced before the deportees at FIA, Passport Cell, Karachi for proper identification. The deportees identified A.S.-I. Nazia Saleem as Stamping Officer and S.-I. Muhammad Suleman as re-checking officer.
Whereas the deportees did not identify Inspector. Azizullah Shaikh in connection with their Immigration Clearance or providing any help to them.
(vi) A.S.-I. Nazia Saleem/Stamping Officer appears to be aware about the clearance of both these paxes in illegal manner, since she concealed her stamp number and computer I.D.
(vii) Mr. Ajaz Mazhar, Station Manager PIA, Karachi stated that two passengers namely Wan Abbas holding Pakistan Passport. No,KB-493078 and Masood Iqbal, Pakistan Passport No,KD0744704 travelled Karachi Milan on PK-747 on 3-9-2004 against genuine tickets issued by Messrs Aasi Travel, Deena Jhelum and the visa was endorsed on their passports. He also stated that the airline issues boarding cards to passengers against travel ticket, reservation status and valid passport/visa and as such these requirements in this case were complete. Regarding the stealing of visa stickers he stated that no such information was received by them.
(viii) Mr. Zubair Pachuho, the then Assistant Director, FIA, Immigration, Departure, and presenting posted at FIA, Sukkur, was also examined. He described the duties of Shift Incharge, Group Incharge, and Stamping Officer. He stated that no passenger at departure is cleared by the Shift Incharge at the counter or at the re-checking. He also stated that Group Incharges have to check each and every passport of each flight, and they are fully responsible for each clearance. He further stated that the Stamping Officer has to make sure the genuineness of the travel documents before its feeding and stamping the same if he/she finds some defects in the documents he/she has to refer the passenger to Group Incharge.
(ix) Mr. Muhammad Suleman, S.-I./Group Incharge disclosed in his statement that after completion of the Lmmigration formalities from the Immigration Counter, both the passengers appeared before him for re-checking. He re-checked the travel documents as well as the visas affixed on their passports, which were found to be genuine, and both the paxes were allowed to travel to Milan, Italy.
(x) Lady A.S.-I. Nazia Saleem stated that Inspector Azizullah Sheikh directed both the passengers at her counter for clearance because the Shift Incharge was performing the duty to lin-up the passengers. When both paxes reported at her counter, she cleared the paxes in routine. She stated that the charge of concealing Stamp No,5 is not correct. The impression of the Stamp No,5 is found thick on the other passenger's passport. But it could not be indicated/found on this pax passport due to shortage of ink.
(xi) When questioned during cross-examination, by Inspector Azizullah Shaikh that why did not she make any complaint before the High-ups or make entry in Roznamcha of JIAP (Departure) Karachi regarding force clearance of aforesaid paxes by Inspector Azizullah Shaikh whereas there was sufficient time of 6/7 days between the departure and deportation of passengers, lady A.S.-I. Nazia Saleem gave evasive reply by saying "no comments".
(xii) During cross-examination, A.S.-I. Nazia Saleem also admitted that she did not refer the passengers to Group Incharge for guidance, and cleared them on genuine travel documents.
(xiii) At FIA Passport Circle, Karachi, a case was registered vide F.I.R. No,239 of 2004 under sections 17, 18 Emigration Ordinance, 1979 read with 411, 420, 468, 471, 109, P.P.C. Against accused Irfan Abbas son of Muhammad Nawaz Khan and Masood Iqbal son of Muhammeduddin both deported from Milan (Italy). During the course of Interrogation, both the passengers Irfan Abbas and Masood Iqbal disclosed that the visa for Schengen were provided to them by an agent namely Hasnat Ahmed of Islamabad for Rs,6,00,000 each and they were also directed by him to report on Counter No,5 for their clearance. They turther disclosed that they went to Counter No,5 where they were cleared by lady A.S.-I. Nazia Saleem and were subsequently re-checked by S.-I. Muhammad Suleman and were finally allowed to board on the flight. Both the deportees identified A.S.-I. Nazia Saleem as Clearing Officer whereas S.-I. Muhammad Suleman as Re-checking Officer.
(xiv) During the cross-examination of Inspector Anwarul Haq Qureshi, Investigating Officer of the case at Passport Circle, Karachi, by Inspector Azizullah Shaikh whether any of the deportees disclose his name, on which Inspector Anwarul Haq replied in negative.
(xv) Apart from these paxes, several other inadmissible passengers with fake travelling documents were cleared between 27-8-2004 to 4-9-2004, during the duty hours of Inspector Azizullah Shaikh.
(xvi) It is important to observe that Inspector Azizullah Sheikh was "under transfer" when all the inadmissible paxes were cleared.
(xvii) A.S.-I. Nazia Saleem cleared majority of such inadmissible paxes.
(xviii) During this time inadmissible paxes were cleared back to back without any inhibition and apparently immigration control ceased to exist. This is not merely a coincidence or an act done in good faith. This is intentional facilitation of human smuggling.
(xix) The whole fiasco appears to be teamwork of the intending pax, agent, and the immigration staff. It is too good to believe that a Shift Incharge is clueless about the misdoings of his officers.
Even if his defence is considered it would make him guilty of gross negligence and lack of supervision.
(xx) Since there is no evidence that the said paxes were referred to Inspector Azizullah Shaikh for clearance, it is not possible to recommend major penalty against him.
(xxi) However, the fact remains that during his duty hours as Shift Incharge, more than one inadmissible pax were cleared during a specific period, during which he was also under transfer.
This makes him liable for gross negligence and evinces lack of supervision and effective control over his subordinates."
5. The Inquiry Officer having found the accused official (appellant in the present case) guilty of misconduct, lack of supervision and for having failed to perform his duties efficiently recommended that minor penalty of withholding promotion for three years under the relevant provisions of Removal from Service (Special Powers) Ordinance, 2000 may be awarded against the accused official Inspector Azizullah Shaikh. Accordingly, a Show-Cause Notice vide No,Z/4890/Admin-I/200, dated 20-2-2005 was served upon the appellant by the Competent Authority i,e, Director-General FIA. Having found the reply to the show-cause notice unsatisfactory, the Competent Authority vide Office Order No,Z/4890/Admn-I/2005-85-88, dated 26-4-2005 imposed the major penalty of compulsory retirement from service under the provisions of Removal from Service (Special Powers) Ordinance, 2000 upon the appellant. The Competent Authority held that the recommendation of the Inquiry Officer for awarding minor penalty of withholding of promotion for three years was not commensurate with the gravity of the misconduct established during the proceedings.
6. The learned counsel for the appellant argued that the major punishment of compulsory retirement from service was unwarranted, void, illegal and without any justification. The contention of the appellant was that although he was Incharge, Shift "A" of FIA Immigration QIAP (Departure)
Karachi during the relevant night of 2/3-9-2004, in the absence of prior intimation from the concerned quarters, i,e, the relevant embassy or the concerned office of FIA Immigration regarding stolen Schengen visa, which could be misused, it was not possible for an official in his position to discover such misuse of stolen visas specially as there was great rush of passengers. Besides, Shift Incharge has to attend to various duties including attending to telephone calls from higher officials, attend to diplomats and also to dispose of the routine daily work of official dak etc.
7. The learned counsel for the appellant further argued that no allegations of corruption had been levelled against the appellant and that there was no evidence available on record regarding the appellant's intention to obtain illegal benefit from the deportees.
8. The learned counsel further argued that neither the Stamping Officer, A.S.-I. Nazia Saleem nor the Re-checking Officer Group Incharge, 5.-I. Muhammad Suleman raised any objection regarding stolen visas being misused when the two passengers reported at Exit point. The two passengers were allowed to board the flight bound for Milan, Italy as they could not be detained by FIA in absence of any proof regarding misuse or counterfeiting of visas or any advance information thereof.
9. The learned counsel for the appellant also argued that the Inquiry Officer had recommended the imposition of minor penalty of withholding promotion for three years and therefore, there was no justification on the part of the Competent Authority to enhance the punishment to that of major penalty of compulsory retirement. He also argued that no, cogent reasons were recorded by the Competent Authority for enhancing the penalty.
10. In view of the above, arguments, the learned counsel for the appellant stated that the penalty imposed upon the appellant is liable to be set aside and prayed that the appellant may be reinstated in service:
11. The learned standing counsel for the respondents stated that the appellant was actively involved with the agent Hasnat Ahmed Khan alias Hasnat Kiyani for enabling the illegal immigration of the two passengers on the basis of stolen visas. He further stated that the two passengers were personally brought by the appellant to Immigration Counter No,5 and he asked the Stamping Officer A.S-I. Nazia Saleem to clear the passengers for boarding. He further argued that the agent i,e, Hasnat Ahmed Khan alias Hasnat Kiyani was in contact with the two passengers on mobile phone and had asked them to report specifically to Immigration Counter No,5.
12. The learned standing counsel submitted that the whole episode was part of a racket involving illegal immigration. He averred that the appellant, the agent, Stamping Officer and the Group Incharge were all involved in effecting safe passage to the two passengers on the basis of stolen visas. He further argued that the gravity of the offence is very serious in that the appellant and other officials were involved in the crime of illegal immigration which has brought a bad name to the country and therefore, imposition of major penalty of compulsory retirement from service was justified as opposed to the recommendation of the Inquiry Officer for imposition of the minor penalty of withholding of promotion for 3 years.
13. Heard the learned counsel for the appellant and the learned standing counsel for the respondents and also carefully perused the record. There is no denying the fact that the two passengers who were deported by the Immigration Authorities at Milan airport Italy were travelling on stolen Schengen visas. The two passengers were deported back and during interrogation they admitted that they had paid illegal money to the agent Hasnat Ahmed Khan alias Hasnat Kiyani who arranged stolen visas to enable them to travel to Italy. It would be difficult to believe that only the agent would be involved in the racket of illegal immigration and that the two passengers were able to smoothly board the outbound aircraft without the involvement and active connivance of the staff on duty at the Immigration Counter. The Inquiry Officer has also pointed out that the whole fiasco appears to' be the teamwork of the intending passengers, the agent and the immigration staff.
14. The involvement of the appellant is to the extent that he guided the two passengers to Immigration Counter No,5 from where they were cleared for onward travel to Italy. The fact that the two passengers were able to board the flight bound for Milan, Italy on the basis of stolen visas arranged admittedly on payment of illegal money to the agent Hasnat Ahmed Khan alias Hasnat Kiyani who in return for the payment had guided the two passengers to Counter No,5 and the appellant also asking the two passengers to report to Immigration Counter No,5 could not be considered as innocent coincidence. The Inquiry Officer has convincingly established the involvement of the whole chain including the appellant in the racket on the night of 2/3-9-2004.
The only question that requires careful consideration is whether there was justification on the part of the Competent Authority i,e, Director-General FIA to enhance the minor penalty of withholding promotion for three years against the appellant as recommended by the Inquiry Officer to that of compulsory retirement. We are aware that illegal immigration/human smuggling from the airports in Pakistan is a major scandal which they often subjects not only the relevant local authorities but also the Government of Pakistan to serious embarrassment and even the PIA, the national carrier is brought to disrepute. Facilitating illegal immigration has become a regular racket at the International Airports in Pakistan. Therefore, once the involvement of an official in the transaction of illegal immigration is established through the process of regular inquiry, there is no reason to adopt lenient attitude in the matter. On the basis of evidence placed before us, the involvement of the appellant in the transaction leading to the exit of the two passengers through stolen visas and their eventual deportation from the airport of disembarkation i,e, Milan, Italy has been clearly established. In order to check the menace of illegal immigration, severe penalty is called for once the charge is established through the process of inquiry and therefore, the Competent Authority was justified in taking serious view of the matter and in enhancing the punishment beyond that recommended by the Inquiry Officer.
15. In view of the above, we see no merit in the appeal and therefore, dismiss it.
16. There shall be no order as to costs. Parties be informed.
(Sd.)
Muhammad Javed Ashraf Hussain, Member. .Note of Dissent .
' RASHID Ali MIRZA (MEMBER).--- I had the honour of perusing the judgment in Appeal No,211(K)(CS) of 2005 rendered by my learned brother Mr. Muhammad Javed Ashraf Hussain. With profound respect for him, I find it difficult for me to agree with him on the findings recorded and conclusion drawn by him. In his judgment Mr. Muhammad Javed Ashraf Hussain has reproduced the relevant portion of the inquiry proceedings at pages 2 and 3. I would further like to refer to the findings of the inquiry report at pages 3 to 6 of the judgment. These are reproduced as under:- "(i) On 8-9-2004 a pax namely Irfan Abbas holding Pak. Passport No,KB-493078 and Pax namely Masood Iqbal son of Muhammaduddin holding Pak Passport No,KD-744704 arrived/deported from Milan/Italy by PIA-770 to Islamabad and finally to Karachi by Flight No,301 under the Deportation charge as "Italian Immigration Authorities refused entry since holding stolen Schengen Visa.
(ii) That on interrogation, both the deportees disclosed that the stolen Schengen Visa and Air Tickets were provided by an agent namely Hasnat Ahmed Khan alias Hasnat Kiyani of District Jhelum against payment of Rs,17,50,000.
(iii) The record shows that pax named above left Pakistan on the night of 2/3-9-2004 for QIAP by PIA Flight No,747 when shift "A" on duty. Both the paxes were cleared by Stamping Officer A.S.-I.
Nazia Saleem, and re-checked by Group Incharge S.-I. Muhammad Suleman who were performing duties under your supervision.
(iv) The preliminary enquiry revealed that you personally brought both the paxes at the Counter of A.S.-I. Nazia Saleem. You directed the Stamping Officer to clear both the paxes. Under your specific instructions, the Stamping Officer A.S.-I. Nazia Saleem cleared both the paxes and affixed Departure Stamp No,5 allotted to her by using/hiding technique of stamp number with a piece of paper as well as deliberately concealed her computer I.D. And intentionally used secondary mode of data input in the PISCES system, rather than using the primary one. Yet, you (Inspector Azizullah Sheikh) did not take any action.
(v) That on interrogation, deportee Masood Iqbal disclosed that after obtaining Boarding Card, agent Hasnat Kiyani directed him on Mobile Phone to approach Immigration Counter No,5 for clearance, Immigration Counter No,5 was the same where A.S.-I. Nazia Saleem was sitting and both the paxes were taken to the same counter for clearance by you (Inspector Azizullah Sheikh).
(vi) That the above acts on your (Inspector Azizullah Sheikh) part amount to misconduct."
' The findings as in the inquiry report, dated 28-1-2005 in paras.(i) to (xvi), (xix) and (xx) were as follows:-- "(i) Inspector Azizullah Shaikh in his reply adduced that it is not possible to detain a pax if he is travellling on a genuine but stolen visa without prior intimation at Immigration Counter/ PISCES system. Since there was no information regarding stolen visas the Stamping Officer or Group Incharge did not detain any paxes on this pretext.
(ii) The officer has pleaded in his defence that a Shift Incharge is not physically involved in clearance and re-checking of passenger's travel document.
(iii) He has stated that neither the Stamping Officer nor the Group Incharge raised any suspicion about the pax.
(iv) Inspector Azizulalh Shaikh referred the statement of deportee, which discloses the name of the agent but does not implicate him as a facilitator..
(v) A.S.-I. Nazia Saleem, S.-I. Muhammad Suleman and Inspector Azizullah Shaikh were produced before the deportees at FIA, Passport Cell, Karachi for proper identification. The deportees identified A.S.-I. Nazia Saleem as Stamping Officer and S.-I. Muhammad Suleman as Re-checking Officer.
Whereas the deportees did not identify Inspector Azizullah Shaikh in connection with their Immigration Clearance or providing any help to them.
(vi) A.S.-I. Nazia Saleem/Stamping Officer appears to be aware about the clearance of both these paxes in illegal manner, since she concealed her stamp number and computer I.D.
(vii) Mr. Ajaz Mazhar, Station Manager PIA, Karachi stated that two passengers namely Irfan Abbas holding Pakistan Passport No,KB-493078 and Masood Iqbal, Pakistan Passport No,KD0744704 travelled Karachi Milan on PK-747 on 3-9-2004 against genuine tickets issued by Messrs Aasi Travel, Deena Jhelum and the visa was endorsed on their passports. He also stated that the airline issues boarding cards to passengers against travel ticket, reservation status and valid passport/visa and as such these requirements in this case were complete. Regarding the stealing of visa stickers he stated that no such information was received by them.
(viii) Mr. Zubair Pachuho, the then Assistant Director, FIA, Immigration, Departure, and presenting posted at FIA, Sukkur, was also examined. He described the duties of Shift Incharge, Group Incharge, and Stamping Officer. He stated that no passenger at departure is cleared by the Shift Incharge at the counter or at the re-checking. He also stated that Group Incharges have to check each and every passport of each flight, and they are fully responsible for each clearance. He further stated that the Stamping Officer has to make sure the genuineness of the travel documents before its feeding and stamping the same if he/she finds some defects in the documents he/she has to refer the passenger to Group Incharge.
(ix) Mr. Muhammad Suleman, S.-I./Group Incharge disclosed in his statement that after completion of the Immigration formalities from the Immigration Counter, both the passengers appeared before him for re-checking. He re-checked the travel documents as well as the visas affixed on their passports, which were found to be genuine, and both the paxes were allowed to travel to Milan, Italy.
(x) Lady A.S.-I. Nazia Saleem stated that Inspector Azizullah Sheikh directed both the passengers at her counter for clearance because the Shift Incharge was performing the duty to lin-up the passengers. When both paxes reported at her counter, she cleared the paxes in routine. She stated that the charge of concealing Stamp No,5 is not correct. The impression of the Stamp No,5 is found thick on the other passenger's passport. But it could not be indicated/found on this pax passport due to shortage of ink.
(xi) When questioned during cross-examination, by Inspector Azizullah Shaikh that why did not she make any complaint before the High-ups or make entry in Roznamcha of JIAP (Departure) Karachi regarding force clearance of aforesaid paxes by Inspector Azizullah Shaikh whereas there was sufficient time of 6/7 days between the departure and deportation of passengers, lady A.S.-I. Nazia Saleem gave evasive reply by saying "no comments".
(xii) During cross-examination, A.S.-I. Nazia Saleem also admitted that she did not refer the passengers to Group Incharge for guidance, and cleared them on genuine travel documents.
(xiii) At FIA Passport Circle, Karachi, a case was registered vide F.I.R. No,239 of 2004 under sections 17, 18 Emigration Ordinance, 1979 read with 411, 420, 468, 471, 109, P.P.C. Against accused Irfan Abbas son of Muhammad Nawaz Khan and Masood Iqbal son of Muhammeduddin both deported from Milan (Italy). During the course of Interrogation, both the passengers Irfan Abbas and Masood Iqbal disclosed that the visa for Schengen were provided to them by an agent namely Hasnat Ahmed of Islamabad for Rs,6,00,000 each and they were also cleared by lady A.S.-I. Nazia Saleem and were subsequently rechecked by S.-I. Muhammad Suleman and were finally allowed to board on the flight. Both the deportees identified A.S.-I. Nazia Saleem as Clearing Officer whereas S.-I.
Muhammad Suleman as Re-checking Officer.
(xiv) During the cross-examination of Inspector Anwarul Haq Qureshi, Investigating Officer of the case at Passport Circle, Karachi, by Inspector Azizullah Shaikh whether any of the deportees disclose his name, on which Inspector Anwarul Haq replied in negative---
(xix) The whole fiasco appears to be teamwork of the intending pax, agent, and the immigration staff. It is too good to believe that a Shift Incharge is clueless about the misdoings of his officers.
(xx) Since there is no evidence that the said paxes were referred to Inspector Azizullah Shaikh for clearance, it is not possible to recommend major penalty against him---."
' From the perusal of the report of Inquiry Officer, it appears that not a single evidence had come on record against the appellant. The concerned Immigration Officer/Stamping Officer in her statement and cross-examination before the Inquiry Officer has admitted that she did not refer the questioned paxes to her Incharge Shift and she cleared the said paxes without his consultation. The concerned Group Incharge/Re-checking Officer has also admitted before the Inquiry Officer that he cleared the paxes being genuine and he also did not depose against the appellant regarding his any involvement towards the clearance of said paxes. The deportees paxes were examined on their deportation at FIA, JIAP (Arrival), Karachi but they did not depose anything against the appellant regarding his involvement in their clearance. The paxes as required were referred to Police Station, FIA, Passport Cell, Karachi, where a criminal case was registered against them. They were carefully and thoroughly examined by the Investigating Officer at Passport Cell too. To make still clear and sure, an Inquiry Committee was constituted consisting of three Deputy Directors viz. Mr. Zubair Ashraf Siddiqui, Agha Wasif Abbas and Mr. Iqbal Mehmood. They summoned the appellant being Incharge Shift at Police Station FIA, Passport Cell, Karachi and produced him before the accused deportees. The accused deportees identified by Lady A.S.-I. Nazia Saleem as Stamping Officer and S.-I. Muhammad Suleman as Re-checking Officer but the said accused deportees did not identify the appellant in connection with their Immigration Clearance or providing them any facility. The Inquiry Officer also called the staff of concerned Airline who also did not depose against the appellant. The Inquiry Committee its findings has recommended minor penalty of withholding of promotion for three years, which penalty was converted into compulsory retirement by the Competent Authority which was not sustainable in law.
' In view of the fact and circumstances and for the reasons mentioned above, it cannot be said that the respondents have been successful in bringing home the charge to the appellant but being the Shift Incharge, the appellant should have exercised greater vigilance and alacrity to discharge the official duties honestly and faithfully with sincere devotion as expected from him.
' In any case, according to the finding of Inquiry Officer, appellant has failed to perform his duties efficiently, meaning thereby that the charges of misconduct levelled against the appellant were not provided against him and in that eventuality the appellant at the most should have been awarded minor penalty of withholding of promotion for three years.
' Accordingly, the major penalty of compulsory retirement is modified to that of minor penalty of withholding of promotion for three years of the appellant. With the above modification in the penalty, the appeal stands disposed of, with no order as to costs.
' In view of the division in the judgment of the Bench, let the case be referred to the Honourable Chairman of the Federal Service Tribunal under section 3A(2) of the Service Tribunals Act, 1973 for decision of the Tribunal expressed in terms of his opinion.
(Sd.)
Rashid Ali Mirza, Member ' JUSTICE (R.) TANVIR BASHIR ANSARI (CHAIRMAN).---Aggrieved by order, dated 26-4-2005 whereby major penalty of compulsory retirement from service under Removal from Service (Special Powers)
Ordinance, 2000 was imposed upon the appellant, the above titled appeal was filed before this Tribunal after the departmental appeal dated 16-5-2005 of the appellant remained unresponded.
2. The appeal was heard by a learned Bench of this Tribunal comprising of Mr. Rashid Ali Mirza and Mr. Muhammad Javed Ashraf G Hussain, Members. After hearing the parties the learned Member Mr. Muhammad Javed Ashraf Hussain, vide his detailed judgment, dated 20-1-2007 found that the appellant Azizullah Shaikh was guilty of the allegations made against him and on account of the gravity of the offence according to him, upheld the major penalty of compulsory retirement from service. The other learned Member Mr. Rashid Ali Mirza, also conducted an appreciation of evidence recorded before the Enquiry Officer and after referring to the various aspects of the report was of the view that the charges as alleged were not proved against the appellant and that at the most it can be held that the appellant had failed to perform his duties efficiently which warranted the award of minor penalty of withholding of promotion of 3 years as recommended by the Enquiry Officer.
3. In view of the difference of opinion between the two learned Members the matter was referred to the Chairman under section 3-A (2)(b) of the Service Tribunals Act, 1973. The appellant and learned counsel for the respondents have been heard and record perused.
4. Briefly, the facts of the case are that on 8-9-2004 passengers namely Irfan Abbas and Masood Iqbal were deported from Milan, Italy as Italian Immigration Authorities refused entry to the two passengers for holding stolen Schengen visas. Upon interrogation to two deportees disclosed that the Schengen visas and air tickets were provided by an agent namely Hasnat Ahmed Khan alias Hasnat Kiyani of District Jhelum against payment of Rs,17,50,000. As per record of FIA, the two passengers left Pakistan on the night of 2/3-9-2004 from Quaid-e-Azam International Airport Karachi by PIA Flight No,747 when shift "A" was on duty at the Airport Immigration Counter. The two passengers were cleared by Stamping Officer A.S.-I. Nazia Saleem and re-checked by Group Incharge S.-I. Muhammad Suleman who were performing duties under the supervision of the appellant.
3. The appellant was charge-sheeted by the FIA Crime Circle Karachi 26-10-2004 and the Deputy Director, FIA Corporate Civic Circle Karachi was appointed Inquiry Officer. The charges framed were as follows:--- "(i) On 8-9-2004 a Pax namely Ifran Abbas holding Pak. Passport No,KB-493078 and Pax namely Masood Iqbal son of Muhammaduddin holding Pak Passport No,KD-744704 arrived/deported from Milan/Italy by PIA-770 to Islamabad and finally to Karachi by Flight No,301 under the Deportation charge as "Italian Immigration Authorities refused entry since holding stolen Schengen Visa.
(ii) That on interrogation, both the deportees disclosed' that the stolen Schengen Visa and Air Tickets were provided by an agent namely Hasnat Ahmed Khan alias Hasnat Kiyani of District Jhelum against payment of Rs,17,50,000.
(iii) The record shows that pax named above left Pakistan on the night of 2/3-9-2004 for QIAP by PIA Flight No,747 when shift "A" on duty. Both the paxes were cleared by Stamping. Officer A.S.-I.
Nazia Saleem, and re-checked by Group Incharge S.-I. Muhammad Suleman who were performing duties under your supervision.
(iv) The preliminary enquiry revealed that you personally brought both the paxes at the Counter of A.S.-I. Nazia Saleem. You directed the Stamping Officer to clear both the paxes. Under your specific instructions, the Stamping Officer A.S.-I. Nazia Saleem cleared both the paxes and affixed departure stamp No,5 allotted to her by using/hiding technique of stamp number with a piece of paper as well as deliberately concealed her computer I.D. And intentionally used secondary mode of data input in the PISCES system, rather than using the primary one. Yet, you (Inspector Azizullah Sheikh) did not take any action.
(v) That on interrogation, deportee Masood Iqbal disclosed that after obtaining Boarding Card, agent Hasnat Kiyani directed him on Mobile Phone to approach Immigration Counter No,5 for clearance, Immigration Counter No,5 was the same where A.S.-I. Nazia Saleem was sitting and both the paxes were taken to the same counter for clearance by you (Inspector Azizullah Sheikh).
(vi) That the above acts on your (Inspector Azizullah Sheikh) part amounts to misconduct."
4. The enquiry proceedings were conducted by the Enquiry Officer in which the appellant participated. The Enquiry Officer recorded the statements of Ajaz Mazhar, Station Manager, NA, Karachi Airport, Zubair Ahmed Pechuho, Assistant Director, FIA Crimes, Sukkur, Muhammad Suleman, Sub-Inspector, Lady A.S.-I. Nazia Saleem, Stamping Officer and Anwarul Haq Qureshi, Inspector, FIA, Passport Circle, Karachi. From perusal of the said statements, the Enquiry Officer recorded the following findings:--- "(i) Inspector Azizullah Shaikh in his reply adduced that it is not possible to detain a pax if he is travelling on a genuine but stolen visa without prior intimation at Immigration Counter/PISCES system. Since there was no information regarding stolen visas the Stamping Officer or Group Incharge did not detain any paxes on this pretext.
(ii) The officer has pleaded in his defence that a Shift Incharge is not physically involved in clearance and re-checking of passenger's travel documents.
(iii) He has stated that neither the Stamping Officer nor the group incharge raised any suspicion about the pax.
(iv) Inspector Azizulalh Shaikh referred the statement of deportee, which discloses the name of the agent but does not implicate him as a facilitator.
(v) A.S.-I. Nazia Saleem, S.-I. Muhammad Suleman and Inspector Azizullah Shaikh were produced before the deportees at FIA, passport Cell, Karachi for proper identification. The deportees identified A.S.-I. Nazia Saleem as Stamping Officer and S.-I. Muhammad Suleman as Re-checking Officer.
Whereas the deportees did not identify Inspector Azizullah Shaikh in connection with their Immigration Clearance or providing any help to them.
(vi) A.S.-I. Nazia Saleem/Stamping Officer appears to be aware about the clearance of both these paxes in illegal manner, since she concealed her stamp number and computer I.D.
(vii) Mr. Ajaz Mazhar, Station Manager PIAC, Karachi stated that two passengers namely Irfan Abbas holding Pakistan Passport No,KB-493078 and Masood Iqbal, Pakistan Passport No,KD- 0744704 travelled Karachi Milan on PK-747 on 3-9-2004 against genuine tickets issued by Messrs Aasi Travel, Deena Jhelum and the visa was endorsed on their passports. He also stated that the airline issues boarding cards to passengers against travel ticket, reservation status and valid passport/visa and as such these requirements in this case were complete. Regarding the stealing of visa stickers he stated that no such information was received by them.
(viii) Mr. Zubair Pachuho, the then Assistant Director, FIA, Immigration, Departure, and presenting posted at FIA, Sukkur, was also examined. He described the duties of Shift Incharge, Group Incharge, and Stamping Officer. He stated that no passenger at departure is cleared by the Shift Incharge at the counter or at the re-checking. He also stated that Group Incharges have to check each and every passport of each flight, and they are fully responsible for each clearance. He further stated that the Stamping Officer has to make sure the genuineness of the travel documents before its feeding and stamping the same if he/she finds some defects in the documents he/she has to refer the passenger to Group Incharge.
(ix) Mr. Muhammad Suleman, S.-I./Group Incharge disclosed in his statement that after completion of the Immigration formalities from the Immigration counter, both the passengers appeared before him for re-checking. He re-checked the travel documents as well as the visas affixed on their passports, which were found to be genuine, and both the paxes were allowed to travel to Milan, Italy.
(x) Lady A.S.-I. Nazia Saleem stated that Inspector Azizullah Sheikh directed both the passengers at her counter for clearance because the Shift Incharge was performing the duty to lin-up the passengers. When both paxes reported at her counter, she cleared the paxes in routine. She stated that the charge of concealing Stamp No,5 is not correct. The impression of the Stamp No,5 is found thick on the other passenger's passport. But it could not be indicated/found on this pax passport due to shortage of ink.
(xi) When questioned during cross-examination, by Inspector Azizullah Shaikh that why did not she make any complaint before the High-ups or make entry in Roznamcha of JIAP (Departure) Karachi regarding forced clearance of aforesaid paxes by Inspector Azizullah Shaikh whereas there was sufficient time of 6/7 days between the departure and deportation of passengers, lady A.S.-I. Nazia Saleem gave evasive reply by saying "no comments".
(xii) During cross-examination, A.S.-I. Nazia Saleem also admitted that she did not refer the passengers to Group Incharge for guidance, and cleared them on genuine travel documents.
(xiii)At FIA Passport Circle, Karachi, a case was registered vide F.I.R. No,239 of 2004 under sections 17, 18 Emigration Ordinance, 1979 read with 411, 420, 468, 471, 109, P.P.C. Against accused Irfan Abbas son of Muhammad Nawaz Khan and Masood Iqbal son of Muhammeduddin both deported from Milan (Italy). During the course of Interrogation, both the passengers Irfan Abbas and Masood Iqbal disclosed that the visas for Schengen were provided to them by an agent namely Hasnat Ahmed of Islamabad for Rs,6,00,000 each and they were also directed by him to report on Counter No,5 for their clearance. The further disclosed that they went to Counter No,5 where they were cleared by lady A.S.-I. Nazia Saleem and were subsequently re-checked by S.-I. Muhammad Suleman and were finally allowed to board on the flight. Both the deportees identified A.S.-I. Nazia Saleem as Clearing Officer whereas S.-I. Muhammad Suleman as Rechecking Officer.
(xiv) During the cross-examination of Inspector Anwarul Haq Qureshi, Investigating Officer of the case at Passport Circle, Karachi, by Inspector Azizullah Shaikh whether any of the deportees disclose his name, on which Inspector Anwarul Haq replied in negative.
(xv) Apart from these paxes, several other inadmissible passengers with fake travelling documents were cleared between 27-8-2004 to 4-9-2004, during the duty hours of Inspector Azizullah Shaikh.
(xvi) It is important to observe that Inspector Azizullah Sheikh was "under transfer" when all the inadmissible paxes were cleared.
(xvii) A.S.-I. Nazia Saleem cleared majority of such inadmissible paxes.
(xviii) During this time inadmissible paxes were cleared back to back without any inhibition and apparently immigration control ceased to exist. This is not merely a coincidence or an act done in good faith. This is intentional facilitation of human smuggling.
(xix) The whole fiasco appears to be teamwork of the intending pax, agent, and the immigration staff. It is too good to believe that a Shift Incharge is clueless about the misdoings of his officers.
Even if his defence is considered it would make him guilty of gross negligence and lack of supervision.
(xx) Since there is no evidence that the said paxes were referred to Inspector Azizullah Shaikh for clearance, it is not possible to recommend major penalty against him.
(xxi) However, the fact remains that during his duty hours as Shift Incharge, more than one inadmissible pax were cleared during a specific period, during which he was also under transfer.
This makes him liable for gross negligence and evinces lack of supervision and effective control over his subordinates."
' In view of its findings, the Enquiry Officer made the following recommendations:---A "Recommendations: ' In view of the above findings, I find him guilty for misconduct and lack of supervision as he failed to perform his duties efficiently. It is, therefore, recommended that a minor penalty of withholding promotion for three years (as defined in the said Ordinance) may be awarded to Inspector Azizullah Sheikh."
5. Consequent upon this inquiry report, a show-cause notice, dated 26-2-2005 was issued to the appellant. Thereafter, vide the impugned Office order, dated 26-4-2005 the Authority imposed the major penalty of compulsory retirement from service.
6. I have carefully examined the conclusions recorded by the two learned Members in juxtaposition with the material on the record together with the report of the Enquiry Officer. No direct involvement of the appellant is manifest from the record. The two deported passengers had obtained Schengen visas and air tickets from an agent namely Hasnat Ahmed Khan alias Hasnat Kiyani against payment of Rs,17,50,000. They were cleared at the Airport by Stamping Officer, A.S.-I. Nazia Saleem and re-checked by Group Incharge S.-I. Muhammad Suleman. The deportees had stated that the agent Hasnat Kiayani had directed them on mobile phone to approach Immigration Counter No,5 for clearance where A.S.-I. Nazia Saleem was present. There is no evidence available on the record of any information present with the Immigration Authorities at the Quaid-e-Azam International Airport, Karachi that the Schengen visas held by the deportees were stolen visas. The deportees held valid passports/visas and genuine air tickets and that there was no reason to detain them at the Airport or to disallow their departure. It also transpires from the inquiry report that the deportees did not identify the appellant although it was alleged that he was the person who had escorted the deportees to the counter of A.S.-I. Nazia Saleem for clearance. It is also borne out from the record that a Shift Incharge is not physically involved in clearance and re-checking of a passenger travel documents.
' This being so, the Enquiry Officer seems to have correctly observed that the appellant who was a Shift Incharge at the relevant time was guilty of negligence and lack of supervision and effective control over his subordinates which allowed two passengers to make departure upon documents that were later discovered to be stolen. In this view the matter there appears to be no irregular exercise of authority by the Enquiry Officer when he recommended minor penalty of withholding of promotion of 3 years.
7. To the contrary however, when the inquiry report was received by the Authority, it issued a show- cause notice to the appellant and proposed major penalty including dismissal from service therein. Finding the reply of the appellant to be unsatisfactory, the Competent Authority proceeded to impose the major penalty of compulsory retirement from service with immediate effect vide order, dated 26th April, 2005. The judgment proposed by the learned Member Mr. Muhammad Javed Ashraf Hussain, whereby this penalty of compulsory retirement is proposed to be upheld does not appear to be in consonance with the material on the record.
8. On the other hand, the other learned Member Mr. Rashid Ali Mirza, came to the conclusion that there was no incriminating evidence present on the record which can substantiate the direct involvement of the appellant in the allegations framed against him. The conclusion arrived at by the said learned Member was that although the charges against the appellant have not been proved but being a Shift Incharge, the appellant should have exercised greater vigilance and alacrity in discharge of officials duties. Consequently, The imposition of major penalty of compulsory retirement was modified to that of minor penalty of withholding of promotion for 3 years. This course was also in accordance with the recommendations of the Enquiry Officer.
9. In view of the foregoing I am of the considered view that the punishment awarded by the learned Member, Mr. Rashid Ali Mirza is in accordance with preponderance of evidence on the record and is just and proper in the circumstances of the case. This is also in accordance with the recommendation of the Enquiry Officer. In this view of the matter the imposition of minor penalty of withholding of promotion for three years is upheld and this shall be the final verdict of the Tribunal within the meaning of section 3-A(2)(b) of the Service Tribunals Act, 1973.
10. No order as to costs.
11. Parties be informed accordingly. DECISION OF THE TRIBUNAL ' By virtue of provision (b) to subsection (2) of section 3A of the Service Tribunals Act, 1973, the decision of the Tribunal is that the imposition of minor penalty of withholding of promotion for three years is upheld by opinion of the Chairman.