' RASHID ALI MIRZA (MEMBER).--- The facts as narrated in the memo. Of appeal are that the appellant was serving the respondent-department as Sub-Inspector for more than two decades and had unblemished record of service. On the night of 22-8-1998 while he was performing his duties as Inspector/Incharge Shift-D, F.I.A. Immigration (Arrival) Quaid-e-Azam International Airport
(QIAP) Karachi, Inspector Mohsin, Incharge Shift-D (Arrival) received information through a source that the appellant had smuggled 10 bottles of whisky and 7 bottles were lying in the record room.
When Inspector Muhammad Mohsin asked for the keys of the record room from Head Moharrar, he informed that the keys had been taken by the appellant. The said Inspector sealed the record room and deputed F.C. Ghulam Dastagir for watch. The record room was opened on 24-8-1998 after desealing the store and 7 bottles of whisky were found lying in the store. The goods recovered duly sealed as per seizure memo. Dated 24-8-1998. Was prepared and submitted to the Assistant Director, F.I.A. Immigration (Arrival) QIAP, Karachi for onward submission to the Deputy Director, F.I.A., Immigration, Karachi. Inspector, Azizullah Sheikh, F.I.A. Immigration, Karachi was detailed for investigation of the alleged incident and for fixing the responsibility in that regard, Inspector Azizullah Sheikh carried out detailed investigation and gave findings that there was no evidence to connect the appellant with the alleged incident. He recommended that the matter be closed and the recovery items be handed over to Customs Authorities for further necessary action at their end.
Inspector, Azizullah Sheikh was told that the findings of his inquiry report was premature and needed further necessary discrete inquiry. In compliance to the order for re-inquiry. Inspector Azizullah Sheikh conducted the inquiry and found nothing new in that regard. The matter was referred to the Legal Cell of F.I.A., Karachi who declined to give comments in view of the legal lapses and lacunas in the matter. The seizure memo. In respect of whisky seized was prepared and sent to Customs Authorities on 28-2-2000 but due to some inadvertent mistake it was sent on 2-3-2000.
Despite the fact that the matter became past and closed transaction after the investigation and re-investigation by Inspector, Azizuliah Sheikh vide his reports, dated 20-9-1998 and 26-11-1998, after 4 years from the said report submitted by the Inspector Legal, a charge-sheet on the same charges was issued to the appellant without statement of allegations, alleging therein that the appellant kept 7 bottles of whisky in the store room on 22-8-1998 at 2240 hours. Appellant replied the charge-sheet, but it seems that reply of the appellant was not found satisfactory and an inquiry was ordered and Mr. Khalid Iqbal, Deputy Director/Crime F.I.A. Was appointed as Inquiry Officer who after conducting inquiry, recommended for minor punishment of stoppage of two annual increments but inspite of that a show-cause notice, dated 26-6-2003 was issued to the appellant to which he submitted his reply clearly stating that he did not deserve for any punishment in the wake of the inquiry report. On 23-8-2003 a major penalty of removal from service with immediate effect was imposed upon the appellant, against which the appellant made representation to the appellate/competent authority which was not responded to within 60 days as required under Removal from Service (Special Powers) Ordinance, 2000, hence this appeal under section 10 of the Removal from Service (Special Powers) Ordinance, 2000.
2. The learned counsel for the respondents has supported the impugned order and prayed for dismissal of appeal.
3. We have heard both the learned counsel for the parties and have also perused the record.
4. The contention of the learned counsel for the appellant was that the appellant had not opened the store room and there was no evidence to show that he had opened the store room and kept 7 bottles of Whisky there in the store room. He further contended that the Inquiry Officer had held the appellant to be a suspected person and recommended minor penalty of withholding of 2 increments, but the Director-General F.I.A. Imposed the major penalty of removal from service of the appellant which punishment was too harsh.
5. The learned Standing Counsel for the respondents strongly supported the departmental action against the appellant.
6. The learned counsel for the appellant has argued that this is a case of misapplication of law as the incident pertains to the year 1998. The explanation of the appellant was called under Efficiency and Discipline Rules. The appellant had submitted reply to the explanation and no action was taken against the appellant under Removal from Service (Special Powers) Ordinance, 2000 which had been promulgated in the meantime. The appellant was then charge-sheeted under Removal from Service (Special Powers) Ordinance, 2000 on 27-4-2002. He replied the charge-sheet. Inquiry was held against him. Show-cause notice was given to him on 26-6-2003 and he was penalized under Removal from Service (Special Powers) Ordinance, 2000. The learned State counsel conceded to the position that this is a case of misapplication of law. In fact the charge-sheet was issued to the appellant on 27-4-2002 under Removal from Service (Special Powers) Ordinance, 2000. The contention of the learned counsel for the appellant is that there is misapplication of the provisions of Removal from Service (Special Powers) Ordinance, 2000, as according to him, the alleged act has taken place before the promulgation of the said Ordinance, 2000. Such a contention is devoid of any substance as the Removal from Service (Special Powers) Ordinance, 2000 was promulgated on 27-5-2000. The respondents authorities were quite within the powers to have invoked the jurisdiction under the said Ordinance, 2000. In the circumstances this contention of the learned counsel for the appellant is repealed.
7. From the perusal of the inquiry report it appears that no evidence is available to connect the appellant with the alleged charge. The prosecution failed to produce a single witness who had seen the appellant carrying/placing the bottles of whisky in the store. The Inquiry Officer had given the following recommendations:-- "In view of the facts explained above, it is recommended that Sub-Inspector Muhammad Akbar Sirki may be awarded minor punishment of stoppage of two annual increments for his suspicious act as explained above."
8. The competent authority in utter disregard to the recommendations of the Inquiry Officer enhanced the penalty to removal from service simply by stating that:--- "Keeping in view the gravity of charge/misconduct by virtue of his being member of law enforcing agency, the penalty recommended by the Inquiry Officer was not commensurate with the guilt of the defaulter S.-I. The undersigned, therefore, in his capacity of authority under the Removal from Service (Special Powers) Ordinance, 2000 award him major penalty of removal from service with immediate effect."
' It was held in 2002 T.D. (Service) 358 that:- "Finding of guilt against accused civil servant recorded by the Inquiry Officer on the basis of surmises and conjectures without any legal evidence in support of such findings cannot be made basis of punishment."
' It was also held in 2003 PLC (C.S.) 1496(c) that:- "Administrative authorities are free from observing the fetters and technicalities of judicial trial, because in such-like matters they are not acting judicially, nevertheless, their decisions are required to be based on relevant consideration and material and not on suspicion and speculation alone."
' The investigation and re-investigation conducted by Inspector Azizullah Sheikh clearly established that the appellant could not be connected with the alleged offence. The Investigating Officer clearly stated in para.4 of his report dated 20-9-1998 that there was no evidence which came up on record against the appellant to prove the charge of stocking liquor in the record room and therefore, there was no option except to close the matter and forward the recovery to Customs Authorities for further necessary action at their end. In such circumstances, when the seizure memo. Had been prepared and the stock was handed over to the Customs authorities, the opening of the same would amount to great injustice, as the incident had become a past and closed transaction. Opening up of the matter at such a belated stage with the lapse of 4 years speaks volumes of mala fides on the part of the respondents. It was a simple matter which should have been resolved within a very short span of time on the basis of available evidence but for some reasons the matter was kept pending for 5 years when a major penalty of removal from service was imposed on the appellant in such a slipshod and unjust manner. It is settled law that the benefit of doubt goes to the accused, It was held in 1983 PLC (C.S.) 790 as under:-- "Charge to be proved beyond reasonable doubt. Prosecution failing to prove allegations beyond doubt in departmental inquiry. Impugned penalty order of dismissal from service, in circumstances, set aside."
9. The appellant was held guilty only on suspicion. The assumptions/presumptions however, strong cannot take place of the proof. Even the Inquiry Officer was not justified to recommend minor penalty unless it was proved beyond any reasonable doubt that the appellant was guilty of the commission of the offence. Moreso the infliction of a major penalty of removal from service by the competent authority without recording any plausible and cogent reasons is totally against the law.
It was held in 2002 SCMR 1034 as under:-- "Court/Tribunal seized of the matter was competent to interpret the law liberally with the object to extend its benefits largely to aggrieved person, provided such interpretation would not violate the spirit of law."
10. The incident took place as far back as 4 years. It was incumbent on the authorities to issue charge-sheet along with statement of allegations. No statement of allegations was provided to the appellant as required under section 5(a) of the Removal from Service (Special Powers) Ordinance, 2000 which was not only a legal infirmity but also against the principles of nature justice. It was held in 1987 PLC (C.S.) 844 as under:-- "Charge-sheet must be accompanied by a statement of allegations explaining charges and other relevant circumstances ."
11. The charge against the appellant was initiated on the basis of a source report. It was necessary for the prosecution to disclose the name of the informer to prove the allegation. Having not done so, the prosecution miserably failed to establish the charge. It was held in a case reported as 2001 PLC (C.S.) 329 as under:-- "Proceedings would be volatile of rules 4 and 6 when neither the name of informer was mentioned nor said informer was examined by the Inquiry Officer."
12. The competent authority does not have unfettered powers. It cannot enhance penalty at its own whims without giving due regard to the rules. Principle of audi alteram partem impliedly form a part of the law. Such principles are to be observed not only by the courts but also by executive and administrative authorities. The accused civil servant deserves to be exonerated of the charge if not proved beyond doubt. The dictates of justice demand that the appellant in such circumstances should have been exonerated rather than imposing a major penalty like removal from service. It was held in 1986. PLC (C.S.) 20 as under:-- "Second inquiry against civil servant' after his exoneration in earlier inquiry. Not warranted."
Reference is also made to ESTACODE 2000 Sl. No,100, page 584. Reference is also made to ESTACODE 2000 at Sl.No,101, para.2 page 586 which specifically provides that:--- "If a penalty is enhanced, show-cause notice should invariably be issued and the accused/appellant be provided an opportunity of being heard."
13 Audi alteram partem is a mandatory provision of law. Nobody should be condemned unheard is a principle which plays a significant role in deciding all disputed matters whether before judicial or quasi-judicial forums. We, therefore, hold that there was no evidence against the appellant to prove his guilt. Even the Inquiry Officer was not justified to recommend minor penalty unless it was proved beyond any reasonable doubt that the appellant was guilty of the commission of the offence. Moreso, the infliction of major penalty of removal from service by the competent authority without recording any plausible and cogent reason is illegal and unlawful.
14. We, therefore, allow the appeal, set aside the impugned order dated 28-8-2003 and direct the respondents to reinstate the appellant from the date of his removal from service. The intervening period shall be treated as leave of any kind that may due to him.
15. Copies of this judgment be sent to the parties under registered cover and to the relevant quarters as per Rule 21 of the Service Tribunals (Procedure) Rules, 1974.