Abdul Hameed Dogar, CJ.--Through this order, we intend to dispose of Civil Petitions No, 332, 333, 334 and 335 of 2008 involving . common question of law and fact against common judgment dated 12.12.2007 passed by learned Federal Service Tribunal, Lahore whereby Appeals No, 223(L)CS, 239(L)CS, 240(L)CS and 241(L)CS filed by respondents were disposed of while modifying the penalty awarded to them.
2. Briefly stated, facts giving rise to the filing of these petitions are that respondents, namely, Muhammad Ashraf as Superintendent, Shahid Mahmood as Deputy Superintendent, Dilawar Hussain and Mushtaq Ahmed as Inspectors were working with the petitioners/department. On 13.4.2000, they were charge sheeted separately with the following statement of allegations:-- Respondents, Mushtaq Ahmed and Dilawar Hussain, Inspectors "1. You failed to detect the huge quantity of cotton jean cloth valuing Rs, 91,49,866/- which was cleared on 28.1.1999 from the Dryport in the garb of cotton/yarn waste vide bills of Entry Nos, 623 and 624 both dated 27.12.99 and No, 610 dated 23.12.99.
2. You were required under Standing Order No, 01/99 dated 01.4.99 to examine the above referred consignments along with the other members of the examination team but you intentionally avoided this requirement in violation of the said Standing Order.
3. You carried out 10% examination of the consignment stated to be done in the presence of examination team but without mentioning the name of the examination team which shows that the examination was done in the absence of the team constituted under Standing Order No, 1/99.
The examination report endorsed on the bill of entry does not show the presence of the Superintendent (Imports) and Assistant Collector (Imports) at the time of examination.
4. You examined the consignment of bill of entry without totally destuffing the container. Thus you intentionally carried out this examination without observing the requirements of Examination Manual and Standing. Order No, 1/00 dated 01.4.99 to help clandestine clearance of cotton jean cloth in the garb of cotton/yarn waste.
5. You did not observe the duties as prescribed in the import Examination Manual which led to the clandestine, removal of cotton jean cloth in the garb of cotton wastes.
6. You endorsed examination report on the bill of entry without destuffing the container completely and without carrying out 100% examination of the goods. On account of wrong examination of the consignment on your part due to above factors, cotton jean cloth worth millions of rupees was cleared in the garb of cotton waste.
7. You connived with the importer to clear the aforesaid quantity of cotton jean cloth clandestinely under the garb of cotton/yarn waste.
Respondent Shahid Mahmood "1. You failed to detect the huge quantity of cotton jean cloth valuing Rs, 91,49,866/- which was cleared on 28.1.1999 from the Dryport in the garb of cotton/yearn waste vide bills of Entry Nos, 623 and 624 both dated 27.12.99 and No, 610 dated 23.12.99.
2. You were required under Standing Order No, 01/99 dated 01.4.99 to examine the above referred consignments along with the other members of the examination team but you intentionally avoided this requirement in violation of the said Standing Order.
You completed the assessm ent of these bills of entry and ordered out of charge without pointing out that the requirement of joint examination under Standing Order No, 01/00 has not been met.
This shows your connivance in this.
4. You failed to initiate/take penal action against the importer because of availability of excess weight in violation of SRO-1374(11)98 dated 18.12.99.
5. You carried out 10% examination of the consignment stated to be done in the presence of examination team but without mentioning the name of the examination team which shows that the examination was done in the absence of the team constituted under Standing Order No, 1/99.
The examination report endorsed on the bill of entry does not show the presence of the Superintendent (Imports) and Assistant Collector (Imports) at the time of examination.
6. You examined the consignment of bill of entry without totally destuffing the container. Thus you intentionally carried out this examination without observing the requirements of Examination Manual and Standing Order No, 1/00 dated 01.4.99 to help clandestine clearance of cotton jean cloth in the garb of cotton/yarn waste.
7. You did not observe the duties as prescribed in the import Examination Manual which led to the clandestine, removal of cotton jean cloth in the garb of cotton wastes.
8. You endorsed examination report on the bill of entry without destuffing the container completely and without carrying out 100% examination of the goods. On account of wrong examination of the consignment on your part due to above factors, cotton jean cloth worth millions of rupees was cleared in the garb of cotton waste.
9. You connived with the importer to clear the aforesaid quantity of cotton jean cloth clandestinely under the garb of cotton/yarn waste.
Respondent Muhammad Ashraf "1. You failed to detect cotton jean cloth valuing Rs, 91,49,866/-which was cleared on 28.1.1999 from the Dryport in the garb of cotton/yarn waste vide bills of Entry Nos, 623 and 624 both dated 27.12.99 and No, 610 dated 23.12.99 and was subsequently seized by Customs Intelligence, Faisalabad.
2. You intentionally endorsed 10% examination of three consignments of B/E No, 0610 dated 23.12.99 and No, 623 dated 27.12.99 and No, 62] dated 27.12.99 despite the fact that the consignments of waste ought to be examined 100%.
3. You were required under Standing Order No, 01/99 dated 01.4.99 to examine the above referred consignments along with the other members of the examination team but you intentionally avoided this requirement in violation of the said Standing Order.
4. You completed the assessm ent of these bills of entry and ordered out of charge without pointing out that the requirement of joint examination under Standing Order No, 01/99 has not been met.
This shows your connivance in this clandestine clearance.
5. You failed to initiate/take penal action against the importer because of availability of excess weight in violation of SRO-1374(I)/98 dated 18.12.99.
6. You did not observe the duties as prescribed in the import Examination Manual which led to the clandestine, removal of cotton jean cloth in the garb of cotton wastes.
7. You connived with the importer to clear the aforesaid quantity of cotton jean cloth clandestinely under the garb of cotton/yarn waste.
They submitted their written replies and denied the charges leveled against them. The Inquiry Officer, on the conclusion of inquiry held them guilty of causal and negligent attitude, procedural lapses and violation of instruction of Standing Order No, 01/99. In pursuance whereof show-cause notices were issued to respondents, which were also replied. The Authority after going through the report of Inquiry Officer and defence of respondents vide order dated 24.4.2001 imposed major penalty under Section 4(1)(b)(i) of the Government Servants (Efficiency and Discipline) Rules, 1973 to the extent of reduction to five stages in time scale upon respondent Muhammad Ashraf, Superintendent and respondent Dilawar Hussain, Inspector. Whereas respondent Mushtaq Ahmed, Inspector was reverted to Head Clerk and respondent Shahid Mahmood, Deputy Superintendent was reverted to Inspector. Feeling aggrieved, they filed departmental appeals, which were rejected On 28.2.2002. The said orders were assailed in appeal before learned Federal Service Tribunal, Lahore, -which were disposed of vide impugned judgment in the following terms:--
(a) The penalty awarded to Mr. Muhammad Ashraf and Mr. Dilawar Hussain was modified and reduced to two stages in time scale for a period of two years.
(b) The penalty awarded to Mr. Mush Ahmed and Mr. Shahid Mahmood was ordered to be effective only for a period of two years whereafter they shall stand restored to their original ranks.
3. We have heard Raja Muhammad Bashir, learned ASC appearing on behalf of petitioners at length and have gone through the record and proceedings of the case in minute particulars.
4. It is mainly contended by learned counsel for the petitioners that learned Tribunal has erred in modifying the penalties imposed upon respondents. According to him, it was established on record that respondents were found guilty of intentional and purposeful dereliction while performing their duties. He further contended that penalties imposed by Authority may be maintained as the same commensurate with the facts and circumstances of the case.
5. These petitions are barred by 6 days for which no plausible explanation has been furnished.
However, we have heard learned counsel for the petitioners on merits. It was urged by the respondents that they would not press the appeals on merit but prayed for modification in the penalties as the same were harsh and they had been facing the agony of departmental proceedings for more than seven years, which factor was considered as a mitigating circumstance to lessen the punishment by the learned Tribunal. Much stress was made upon examining the competency of impugned orders of the Authority on the touchstone of Fundamental Rule 29 (Applicable to members of services under the rule-making control of the President) wherein it is mentioned that if a government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post, or to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent. This Court in the case of Auditor General of Pakistan & others u. Muhammad Ali and others (2006 SCM R 60) has held as under:- The element of bad faith and willfulness may bring an act of negligence within the purview of misconduct but lack of proper care and vigilance may not always be willful to make it a case of grave negligence inviting severe punishment. The philosophy of punishment is based on the concept of retribution, which may be either through the method of deterrence or reformation. The purpose of deterrent punishment is not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society, whereas the concept of minor punishment in the law is to make an attempt to reform the individual wrong doer. In service matters, the extreme penalty for minor acts depriving a person from right of earning would definitely defeat the reformatory concept of punishment in administration of justice."
Admittedly, the penalties imposed by the Authority upon respondents do not specify the length of time and thus is in clear violation of Fundamental Rule 29. The penalty for indefinite period is not provided in law as such the impugned judgment whereby penalties awarded to the respondents were modified and reduced to time as mentioned above was the proper approach in law.
Accordingly, we do not find any illegality or impropriety in the impugned judgment, which is maintained. The petitions being devoid of force are dismissed and leave to appeal refused.