' MUHAMMAD JAVED ASHRAF HUSSAIN (MEMBER).---This is an appeal under section 4 of the Service Tribunals Act, 1973 against the impugned order dated 17-5-2006 despatched from the office of the Director, F.I.A., Karachi Zone, Karachi, vide letter, dated 29-5-2006 and received by the appellant on 3-6-2006 whereby the major penalty of compulsory retirement has been imposed upon the appellant under the Removal from Service (Special Powers) Ordinance, 2000. The appellant preferred a departmental appeal. Dated 16-6-2006 which having remained unresponded despite the lapse of statutory period, this appeal, dated 12-9-2006 has been filed before this Tribunal.
2. Briefly, the facts of the case are that the appellant was appointed as Assistant Sub-Inspector (A.S-I.) in the Federal Investigation Agency (F.I.A.) in 1976 and was prompted as Sub-Inspector (S.- I.) in 1987. On 26-7-2005 passenger namely Rahim Khan was allowed by the immigration staff at Jinnah International Airport, Karachi to board the P.I.A. Flight PK-213 bound for Abu Dhabi on Passport No,KE-514783 holder of which was actually Abid Hussain son of Ellahi Bux. Again on 27-7- 2005 passengers namely Syed Farhan Ali Rizvi carrying Passport No,AE-9895941 and Muhammad Naeem Alvi carrying Passport No,KE636681 were allowed to board P.I.A. Flight PK-731 bound for Sauui Arabia on forged visas. In both the cases of travel on wrong passport in one instance and forged visas in the second instance, the passengers were deported back by the authorities in Abu Dhabi and Saudi Arabia respectively. The incidents of the alleged illegalities took place on 26-7-2005 and 27-7-2005 when the appellant was on duty at Jinnah International Airport, Karachi as Group Incharge/Re-checking Officer at the Immigration Counter.
3. The appellant was charge-sheeted and an order of inquiry was issued by the Director-General, F.I.A., Islamabad, vide No,Z/3769/Admn-II/2005/2653-54, dated 31-10-2005 addressed to Syed Israr Ali, Deputy Director, Law, F.I.A., Karachi Zone/Inquiry Officer and received by the latter under covering letter of Deputy Director Admn-I, F.I.A., dated 11-11-2005. The Inquiry Officer has stated in his inquiry report that charge-sheet was communicated to the appellant by him. The charges/ allegations were as under:---
(i) That Syed Farhan Ali Rizvi carrying Passport No,AE-9895941, travelled to Saudi Arabia by PK-731 on 27-7-2005. He was deported back to Pakistan on the charges of carrying "forged visa". Airline incurred a fine of SAR-3000.
(ii) That Muhammad Naeem Alvi son of Abdul Karim carrying Passport No,KE-636681 issued from Multan travelled to Saudi Arabia by PK-731 on 27-7-2005. He was deported back to Pakistan on the charges of carrying "forged visa".
(iii) That Abid Hussain son of Ellahi Bux carrying Pakistani Passport No,KE-514783 issued at Abu Dhabi travelled by PK-213 from Karachi on 26-7-2005 and was deported back with reason "forged passport". On preliminary enquiry the pax disclosed he was not lawful holder of said passport and his real name was Rahim Khan son of Samad Khan. He obtained this passport from Abid Hussain.
(iv) That record shows that travel documents of the above three paxes were finally checked and cleared by S.-I. Ghulam Rasool while performing duty as Group Incharge for Gulf Departures in connivance with Stamping Officer A.S-I. Muhammad Hanif and S.-I. Ghazanfar Hussain Ghangazi with ulterior motive."
' The Inquiry Officer formulated the following questions for determining the charges against the appellant:--- "(i) Whether on 26-7-2005 delinquent Officer was on duty in capacity of Rechecking Officer when accused Abid Hussain son of Illahi Bux left Pakistan by P.I.A. Flight No,PK-213 booked for Karachi- Dubai?
(ii) Whether on 27-7-2005 delinquent Officer S.-I. Ghulam Rasool Panhwar was also in his capacity of Rechecking Officer when accused persons namely Syed Farhan Ali and Muhammad Naeem Alvi have departed by P.I.A. Flight No,731 for Saudi Arabia?
(iii) Whether the, travel documents of the aforesaid three passengers were rechecked by the delinquent Officer at International Departure JIAP Karachi in capacity of Group Incharge/ Rechecking Officer?
(iv) Whether the aforesaid three passengers were subsequently deported back to Pakistan on account of forged visa/forged passport etc.?
(v) Whether Delinquent Officer S.-I. Ghulam Rasool Panhwar being Group Incharge/Rechecking Officer had knowingly and dishonestly cleared them on the strength of forged visas and forged passport?
(vi) Whether his act amounts to misconduct within the meaning of Removal from Service (Special.
Powers) Ordinance, 2000?"
' The findings of the Inquiry Officer as reproduced verbatim with respect to the above questions formulated by him were as under:- "As regards points (i) to (iv), the delinquent Officer has not denied the factual position mentioned in the above paras., hence the facts stand proved beyond any shadow of reasonable doubt.
' As regards point (v), it is an admitted position that accused persons namely Syed Farhan Ali Rizvi and Muhammad Naeem Alvi have succeeded to travel on the basis of forged Saudi Visa, whereas, accused/pax Rahim Khan son of Samad Khan had travelled on the passport issued to one Abid Hussain son of Ellahi Bux, it was a man change case. During departmental Inquiry, it is observed that neither the forgery of Visa could be detected nor a man change case could be checked even by the Group Incharge/Rechecking Officer with the result the passengers have succeeded to travel abroad. In reply to the charge-sheet, the Delinquent Officer has taken the plea that the forgery of visa could not be detected even with the help of UV light. All security features were found intact in the Saudi Visa affixed on the Passport. Besides, both the passengers left for Jeddah were holding Foreign Service Agreements etc Similarly the "man change" case was a good match which could not be detected and was cleared in good faith. The explanation of Delinquent Officer S.-I. Ghulam Rasool Panhwar does not find plausible. Being Group Incharge and Rechecking Officer, he was supposed to be vigilant while performing duty at the Exit Gate. During inquiry, none of the witnesses has deposed regarding ulterior motive or monetary benefit while allowing Immigration Clearance on the part of Delinquent Officer S.-I. Ghulam Rasool Panhwar, therefore, at best his act can be considered as negligence/inefficiency on his part for want of mens rea.
' As regards point (vi), it is concluded that the act of Delinquent Officer warrants a minor punishment under Rule 4(1) of the Government Servants (Efficiency & Discipline) Rules, 1973 reference with section 3 of the Removal from Service (Special Powers) Ordinance, 2000."
' The recommendations of the Inquiry Officer were as follows:-- "It is, therefore, proposed that keeping in view the gravity of charges of negligence/inefficiency and non-availability of mens rea/mala fide/ulterior motive one of major penalties may be awarded to the Delinquent Officer S.I. Ghulam Rasool Panhwar in accordance with the Provisions of Removal from Service (Special Powers) Ordinance, 2000 reference with Rule 4(1) of the Government Servants (Efficiency and Discipline) Rules, 1973."
4. On receiving the above report/findings/recommendations of the inquiry, a show-cause notice vide Director-General, F.I.A., Islamabad No,Z/3769/Admn-II/2006/449-50, dated 11-3-2006 was issued to the appellant. The appellant as recorded in the impugned order replied to the show- cause notice vide his letter dated 25-3-2006 and he was also afforded the opportunity of personal hearing by the Director-General, F.I.A., on 9-5-2006. Having found the reply to the show-cause notice unsatisfactory, the Director-General, F.I.A./competent authority imposed the major penalty of compulsory retirement from service upon the appellant vide Office Order No,Z/3769(D)/Admn- II/2006/717-19, dated 17-5-2006. The appellant filed departmental appeal dated 16-6-2006 which having remained unresponded, the appellant filed this appeal before this Tribunal on 12-9-2006.
5. The learned counsel for the appellant argued that the appellant while on duty at Jhinah International Airport, Immigration Counter, on 27-7-2007 had cleared passengers Syed Farhan Ali Rizvi carrying Passport No,AE-9895941 and Muhammad Naeem Alvi carrying Passport No,KE-636681 who were bound for Saudi Arabia on the basis of clearance given by the Stamping Officer. It was further argued that the visa tampering could not be detected even with the help of UV light.
6. The learned counsel also argued that none of the witnesses examined by the Inquiry Officer had attributed any ulterior motive to the appellant or acceptance of monetary benefit on his part. It was further stated that opportunity of cross-examination of the prosecution witnesses was not afforded to the appellant during the inquiry proceedings. It was also contended that the Inquiry Officer did not record the statements of the three defaulting passengers. It was further contended that these passengers were the main witnesses and having failed to record their statements, the Inquiry Officer had violated the provisions of section 5 of the Removal from Service (Special Powers) Ordinance, 2000 besides not strictly following the procedures as laid down in the Ordinance.
7. It was also argued on behalf of the appellant that the impersonating passenger Rahim Khan had a beard and the photograph of the real passport holder i,e, Abid Hussain also showed a beard.
Therefore, it was difficult to distinguish the impersonating passenger from the real holder of the passport.
8. It was further contended that on both dates i,e, 26-7-2005 and 27-7-2005 when the three passengers were cleared there was a big rush at the Airport when at about the same time nine flights of various Airlines had to be cleared by the immigration staff. It was also argued that P.I.A.
Airlines staff while issuing the tickets had failed to detect the forged visas and the wrong passport on the basis of which the passengers were able to travel and were ultimately deported by the authorities at the Airports of destinations in Saudi Arabia and U.A.E.
9. The learned counsel argued that the Inquiry Officer had recommended the imposition of a minor penalty on account of negligence only on the part of the appellant while the authority had enhanced the punishment and imposed the major penalty of compulsory retirement from service.
It was stated that the major penalty was not justified as no mala fide or corruption on the part of the appellant was established. The learned counsel for the appellant concluded his arguments by stating that in view of the foregoing, the penalty of compulsory retirement from service is liable to be set aside and the appellant reinstated in service with all back-benefits.
10. The learned Standing Counsel argued that the appellant did not have a clear record of service as he was earlier awarded minor penalties of censure and stoppage of increment for one year vide', orders, dated 3-5-2001 and 22-1-2002 respectively. He further argued that appellant had allowed passengers Syed Farhan Ali Rizvi and Muhammad Naeem Alvi to travel abroad on the basis of forged Saudi visas and passenger Rahim Khan on the passport of Abid Hussain with mala fide intentions. It was also contended that the appellant had rich experience in immigration matters and that with the availability of detection equipment there was no way the passengers could have travelled on forged visas and wrong passport without the active involvement of the immigration staff including the appellant who was Group Incharge/Rechecking Officer on the dates that the incidents had taken place. It was also argued that the rush of flights at Karachi Airport on the dates of the incidents was not abnormal and such excuse cannot be resorted to by the appellant. It was further argued that the appellant had tried to shift the blame on the airline staff and it was contended that if the irregularity were to be detected by the airline staff only there would be no justification to have immigration staff of the F.I.A. At the airport. The learned Standing Counsel also maintained that full opportunity of cross-examination etc. Was extended to the appellant during the inquiry proceedings. It was further contended that considering the gravity of the offence the authority was fully competent to enhance the punishment over and above the recommendation of the Inquiry Officer.
11. The learned Standing Counsel summed up his arguments by dilating that the passengers who had travelled on valid documents could not have done so without active involvement of the appellant and other immigration staff with mala fide intentions and therefore the major penalty of compulsory retirement on the appellant is liable to be upheld.
12. Heard the learned counsel for the appellant as well as the learned Standing Counsel and also perused the record.
13. The findings of the Inquiry Officer have been carefully examined by us. The Inquiry Officer has held the appellant negligent in the performance of his duties on the dates that the incidents of illegal immigration took place. He further held that the accused officer (appellant in the present case) was required to be vigilant and .That he had failed to come up to the requirements of such vigilance. The Inquiry Officer has also mentioned that none of the witnesses had attributed any ulterior motive on the part of the accused officer (appellant in the present case) or that the appellant had made any financial gain. The Inquiry Officer has clearly mentioned in his findings that the accused officer could be held responsible for negligence and inefficiency and that there is no mens rea on his part. The Inquiry Officer therefore recommended to the competent authority that the appellant may be awarded any of the minor penalties under the Removal from Service (Special Powers) Ordinance, 2000.
14. In view of the fact that none of the prosecution witnesses have attributed ulterior motive or any motive of obtaining monetary benefit on the psrt of the appellant and in view of the fact that the Inquiry Officer has established only negligence and inefficiency on the part of the appellant and also has specifically mentioned that there is no mens rea on the part of the appellant, we are inclined to hold that the imposition of major penalty of compulsory retirement from service is rather harsh. We hive also noted that in such cases, the defaulting passengers very often explicitly testify that financial benefit was extended to the immigration staff or agents running such rackets who would be in league with the immigration staff. In the present case, neither the three passengers nor any witness pointed out financial corruption on the part of the appellant owever, we are also mindful of the fact that officials responsible for immigration duties at the airports should be very vigilant and negligence and inefficiency on their part resulting in illegal immigration and subsequent deportation bring bad name to the country and to the national Carrier. In this case the national Carrier i,e, the P.I.A. Was imposed fines by the authorities in the countries of destination i,e, Saudi Arabia and U.A.E. Although we are of the view that the punishment of compulsory retirement is too harsh we nonetheless are of the opinion that the dereliction of duty on the part of the appellant is serious and that the appellant cannot get away with a minor penalty and we hold that a major penalty of reduction in rank would be in order. Therefore, we direct that the punishment of compulsory retirement shall be reduced to that of reduction in rank from Sub- Inspector (S.I.) to Assistant Sub-Inspector (A.S-I.) for a period of three years. The appellant shall accordingly be reinstated in service from the date of compulsory retirement. The period of absence shall be adjusted against leave due to the appellant. No order as to costs.
15. Copies of the judgment be sent to the parties under registered cover and to the relevant quarters under Rule 21 of Service Tribunal (Procedure) Rules, 1974.