Justice (R) Tanvir Bashir Ansari, Chairman.--The appeal is directed 'against the order dated 11.09.2004 whereby major penalty of compulsory retirement from service was imposed upon the appellant. The appellant preferred a departmental appeal which was rejected on 10.11.2004. The appeal before the Tribunal was filed on 06.12.2004.
2. Briefly, the facts are that an Order of Enquiry dated 07.01.2004 under the Removal From Service (Special Powers) Ordinance, 2000 was made by the competent authority. Thereafter, charge sheet and statement of allegations dated 17.01.2004 was served upon the appellant by the Enquiry Officer. The statement of allegations is as under: "STATEMENT OF ALLEGATIONS Constable Wahid Ali, FIA, Immigration Karachi Airport is accused of inefficiency/misconduct/corruption arising out of the following acts of omission and commission as defined in the Removal From Service (Special Powers) Ordinance, 2000:
(i) Consequent upon raid report dated 13.12.2003 of Inspector Nizam-ud-Din Sheikh to the effect that "on receipt of credible information that Naseeb Ali Khan, Abdul Sattar of Lahore fake agents involved in sending people abroad particularly to Saudi Arabia on the basis of fake/forged employment visas, Protector clearance and agreement etc. with active connivance of their co- agent Rizwan Ali working in M/s. Fazal-e-Rabi Enterprises/Travel Agency Gul Plaza M.A.Jinnah Road, Karachi including officials of Government functionaries, airlines staff etc. through JIA Karachi. After obtaining necessary approval a raiding party headed by Inspector Nizam-ud-Din Sheikh along with other members conducted search of his counter in presence of his own witnesses, which resulted into recovery of seven (7) Pakistani Passports (1) Passport No, KC-190099 dated 09.07.2003, issued at Lahore in the name of Iqbal Hussain (2) Passport No, J-450312 dated 02.11.2000 issued from Gujranwala in the name of Muhammad Faryad, (3) Passport No, KC-318717 dated 15.08.2003 issued from Bahawalpur in the name of Khalid Farooq (4) Passport No, KC-162709 dated 07.07.2003 issued from Multan in the name of Muhammad Afzal (5) Passport No, K-801669 dated 17.10.2003 issued from Sialkot in the name of Amjad All (6) Passport No, KB-43100 dated 09.05.2003 issued from Sialkot in the name of Ijaz Ahmad and (7) Passport No, KA-685502 dated 15.07.2003 issued from Gujranwala in the name of Sajid Ali, all these passports contained Saudi Employment Visas KT stamps and Protector clearance, foreign service agreements, state life insurance receipts, all suspected to be forged/fake plus NICs etc. On spot enquiry Rizwan All failed to produce any lawful authority for keeping passports/documents hence Case FIR No, 268/2003, dated 13.12.2003 was registered at Police Station FIA Passport Circle, Karachi against the accused who was accordingly arrested.
(ii) On disclosure and pointation of accused Rizwan Ali, Co-agent Asim Irfan was intercepted and as a result of his personal search different documents including passports were recovered from him. During interrogation he disclosed that Passport Numbers 2 & 3 pertain to passenger who were deported back from Saudi Arabia by Flight No, EK-604 dated 11.12.2003, while there were four passenger& got boarded on the instructions of Naseeb Ali through Wahid Ali and Ahmed Khan Mirani of FIA Immigration on 07.12.2003 by Flight No, EK-603, he further disclosed that as per telephonic instructions of Naseeb Ali. Khan he paid Rs, 1,50,000/- to Wahid Ali of FIA Immigration in order to release them from airport authorities, on their deportation Wahid Ali after releasing them out handed over the passports to him which were the same recovered from his possession, whereas documents regarding release of deportees and payment made for COD charges were lying with Wahid Ali.
(iii)Constable Wahid Ali, FIA, Immigration, Karachi was arrested in Case FIR No, 268/2003 of FIA Passport Circle, Karachi for his involvement in human trafficking. During search of Constable Wahid Ali following documents/articles were recovered from his possession:-- (a)Inadmissible/deportee passengers report of Emirates Airline in respect of Muhammad Akhtar Passport No, KA-348041 (deported from Damam Saudi Arabia) due to forged visa and one way Ticket No, 1764011598881 dated 11.12.2003 (in original).
(b)Inadmissible/deportee passengers report of Emirates Airline in respect of Toqueer Ahmad Passport No, KC-481171 (deported from Damam Saudi Arabia) due to forged visa and one way Ticket No, 1764011598880 dated 11.12.2003 (in original).
(c) One note book (35 pages) containing various entries regarding transaction of money shift wise, showing departure of more than 100 of passengers during last about one month i,e, November/December, 2003.
(iv)On questioning about recovered documents and articles accused Wahid Ali disclosed that on the direction of ASI Ahmad Khan Mirani he got boarded four passengers by Flight No, EK-603 on 7.12.2003 of agent Naseeb Ali Khan, brought by his sub-agent Asim Irfan. Out of them two passengers namely Touqeer and Muhammad Akhtar were deported back by Flight No, EK-604 dated 10/11.12.2003 who were got released after paying charges and fine while their passports were handed over to Asim Irfan and he retained deportation/COD slips for delivery to Naseeb Ali Khan (which have been recovered from him). So far note book is concerned it was a personal diary prepared and maintained by ASI Ahmed Khan Mirani, Reader to AD/Departure, JIA, Karachi who used to deal with the same directly. It contains entry hand written by ASI Mirani in respect of departing illegal emigrants booked by various agents and deported from time to time in different shifts. The amounts shown in the diary are the collection and distribution of money from agents in lieu of immigration clearance.
(v) The facts and circumstances clearly indicate that he was involved in human-trafficking and illegal immigration by virtue of his posting in Immigration Airport Karachi: He has a link between Naseeb and Inspector Zaigham Shakoh. He is in constant touch with Naseeb and his sub-agent Rizwan on telephone.
2. Hence, the above statement of allegations.
Sd/- Muhammad Ashraf Inquiry Officer/Deputy Director F.I.A. Crime Circle-1, Karachi."
The appellant submitted his reply to the charge sheet/statement of allegations on 30.03.2004. The appellant denied all the charges and claimed exoneration from the same.
3. The Enquiry Officer conducted the inquiry proceedings which culminated in the inquiry report dated 30.06.2004. According to the findings of the Enquiry Officer, he found that according to Seizure Memos and evidence on the record, recovery of passport affixed with fake/forge Saudi employment visa and other documents were recovered from the possession of the appellant and the other accused. It was also held that other incriminating evidence was produced during the inquiry proceedings against the appellant to support the statement of allegations. It was recommended that major penalty of compulsory retirement from service be passed against the appellant.
Consequently a show-cause notice dated 29.07.2004 was issued to the appellant wherein imposition of a major penalty including dismissal from service was proposed. The appellant submitted his reply to the show-cause notice on 11.08.2004, wherein it was urged that there was no sufficient evidence before the Enquiry Officer to uphold the charges against the appellant and requested for setting aside of the departmental proceedings against him. The appellant also requested for personal hearing.
After providing an opportunity of personal hearing to the appellant, the competent authority proceeded to pass the impugned order of compulsory retirement dated 11.09.2004.
4. Mr. Abdur Rahim Bhatti, learned Counsel for the appellant in support of the appeal has contended that the disciplinary proceedings were not initiated against the appellant by the competent authority as the Order of Enquiry, the appointment of the Enquiry Officer, the show- cause notice and the impugned order of major penalty were not passed by the competent authority. It is submitted that the Order of Enquiry as well as the show-cause notice has been issued by Director Immigration, FIA (Respondent No, 3) while the major penalty, has been imposed upon him by the Additional Director-General, FIA (Respondent No, 2).
5. On merits it is submitted that the Enquiry Officer did not conduct the inquiry in accordance with law and principles of natural justice and that in any event the prosecution failed to produce convincing evidence before the Enquiry Officer by virtue of which the allegations could be substantiated against the appellant. It is urged that the inquiry report is perverse as it is not based on any positive evidence against the appellant. The learned Counsel referred to the statements of the prosecution witnesses such as Inspector Anwar-ul-Haq Qureshi, S.I. Abdul Wahab, S.I. Ahmed Ali, ASI Muhammad Zubair Siddiqui, Inspector Rana Ghulam Shabbir, S.I. Muhammad Dawood, ASI Akhtar Shaheen and Head Clerk Qaisar Imam, all of whom in cross-examination stated that the appellant had neither asked for clearance of the two passengers namely Muhammad Akhtar and Tauqeer Ahmed by Flight No, EK 603 nor the appellant contacted the said prosecution witnesses for release of the said deportees. It is further submitted that no reliance upon Seizure Memo dated 12.12.2003 could be placed for proving the charges against the appellant as the evidence regarding the preparation of the relevant Seizure Memo before the Enquiry Officer was discrepant. It is further submitted that even the statement of Inspector Nizam-ud-Din Sheikh, who had filed the report dated 13.12.2003 was not confidence inspiring and that most of the questions put to him in cross- examination were responded to with evasive replies. It is submitted that in any event the statement of Inspector Nizam-ud-Din Sheikh was inconsistent with that recorded by other prosecution witnesses such as S.I. Javed-ul-Haq, S.I. Muhammad Shah, Inspector Ali Hassan Zardari, Mr. Hasan Mashood, Mr. Ayaz Atique Usmani, and Syed Arsalan Tanvir. It is finally contended that the Enquiry Officer did not appreciate the evidence produced in defence and came to an erroneous findings of guilt against the appellant.
6. Mr. Abdur Rahim Bhatti, learned Counsel for the appellant further assailed the disciplinary action on the ground that the same is based on mala fide and discrimination. It is further averred that as the case before the Criminal Court did not culminate in the conviction of the appellant, the departmental action upon the same charges was not warranted at law.
7. On the other hand, the departmental representative vehemently argued that the entire proceedings initiated from the issuance of the Order of Enquiry and concluding with the impugned order of major penalty were strictly in accordance with law and principles of natural justice. It is contended that the appellant was given appropriate opportunity of defence at each and every stage. A charge sheet containing specific statement of allegations was duly served upon the appellant who submitted a detailed reply to the same. The inquiry proceeding that ensued was fully participated by the appellant. As many as 17 relevant witnesses were produced in support of the charges against the appellant. The appellant was given an opportunity of cross-examining each witness which he proceeded to do. After the conclusion of the prosecution evidence the appellant produced as many as six defence witnesses. He referred to the statements of the prosecution witnesses to submit that all the witnesses were consistent and were able to establish the charges against the appellant. It is further submitted that according to oral evidence and the Seizure Memos produced before the Enquiry Officer, the involvement of the appellant was fully established. He further referred to the Seizure Memos to submit that according to raid conducted at the spot documents mentioned in the Seizure Memo dated 12.12.2003 were taken in possession from Rizwan Ali, accused and it was on the pointation of the said Rizwan Ali that one Asif Irfan was apprehended from whose possession incriminating articles Were recovered. It was on the basis of statement made by the above said Rizwan and Asif Irfan, that the raiding party proceeded to the residence of Wahid Ali, appellant and documents showing the involvement of the appellant were seized. It is submitted that all the Seizure Memos were duly attested by the Inspector Nizam-ud-Din in presence of the witnesses. Regarding the objection that the proceedings were not initiated by the competent authority or that the impugned order of compulsory retirement was also not validly made, reference was made to Notification SRO 411(I)/2000, dated 17.06.2000 to show that in respect of holders of posts in BS- 1 to 15, an officer not below the appointing authority who is given the Authority by the Head of the Department or Head of Subordinate officer would exercise the power of competent authority. It is submitted that in the instant case as per Notification dated 07.08.2000, read with Notification dated 12.06.2004 and Notification dated 23.08.2004, the Director or Additional Director-General in case when there is no Director, in respect of employees in BS-3 to 10 or the Deputy Director or Director in case there is no Deputy Director, in respect of BS-1 & BS-2, would exercise the powers of the competent authority.
7A. It is also urged that the entire case is based upon a bona fide exercise of jurisdiction and no malice in conducting the same are either alleged or proved.
8. We have heard the arguments and perused the record.
9. A perusal of the order of inquiry as well as the charge sheet/statement of allegations would show that upon receiving a report that some fake Travel Agents were involved in illegally sending people abroad in league with some employees of the Federal Investigation Agency (FIA), Inspector Nizam-ud-Din headed a raiding party and in the first place conducted the search of the counter of Rizwan Ali working in M/s. Fazle Rabbi Enterprises/Travel Agency, Gul Plaza, M.A Jinnah Road, Karachi and recovered as many as seven Pakistani Passports, Saudi Employment Visas and other necessary documents from his possession. Case FIR No, 268/2003 was registered at Police Station, FIA Passport Circle Karachi on 13.12.2003 against the said Rizwan Ali. Upon, the pointation of the accused Rizwan Ali, one Asif Irfan was also incriminated. He then implicated Nasib Ali, Ahmed Khan and Wahid Ali, appellant who had connived with them to send four passengers to Saudi Arabia who were later on deported. Thereafter, the appellant was arrested in case FIR 268/03 mentioned hereinbefore and the documents recovered from his possession were as under:--
(a) Inadmissible/deportee passengers report of Emirates Airline in respect of Muhammad Akhtar Passport No, KA348041 (deported from Damam Saudi Arabia) due to forged visa and one way Ticket No, 1764011598881 dated 11.12.2003 (in original).
(b) Inadmissible/deportee passengers report of Emirates Airline in respect of Touqueer Ahmad Passport No, KC-481171 (deported from Damam Saudi Arabia) due to forged visa and one way Ticket No, 1764011598880 dated 11.12.2003 (in original).
(c) One note book (35 pages) containing various entries regarding transaction of money shift wise, showing departure of more than 100 of passengers during last about one month i,e, November/December, 2003.
It is pertinent to point out that inadmissible/deportee passengers, report of the Emirates Airlines in respect of the concerned deportees namely Muhammad Akhtar and Tauqir Ahmed were recovered from his possession. The Note Book comprising of 35 pages containing various entries regarding transaction of money, shift-wise showing departure of passengers during the one month were also recovered. The Seizure Memo dated 12.12.2003 which was produced before the Enquiry Officer was duly proved by the statement of Nizam-ud-Din Shaikh, Inspector, Hasan Mashood, S.I.
Javed and S.I. Muhammad Shafi. We have minutely examined the evidence recorded before the Enquiry Officer and are of the view that there is sufficient evidence whereby the charges against the appellant stand established. There are four witnesses of the seizer memo dated 12.12.2003 who have consistently made statement of, having recovered the incriminating articles as hereinbefore mentioned from the possession of the appellant. Any minor discrepancy as alleged by the appellant would not take away the credibility of the inquiry proceedings as the said "inconsistency" does not appear material to a prudent mind.
10.There is also no denying the fact that the afore-named passengers were in fact cleared for boarding a flight for Saudi Arabia on the date of occurrence on the basis of the documents which were ultimately found to be fake/forged. All the said passengers were deported. The inadmissible deportee reports of the Emirate Airlines in respect of two passengers; namely Muhammad Akhtar and Touqeer Ahmad were recovered from the possession of the appellant.
11.The findings of the Enquiry Officer in the light of the evidence produced before him. does not suffer from any illegality or material irregularity or of mis-appreciation of the evidence on the record.
As per the inquiry report itself, although Enquiry Officer found the appellant to be liable for the punishment of removal from service yet in view of his length of service he took a lenient view and recommended the imposition of major penalty of compulsory retirement which the competent authority then proceeded to pass against the appellant.
12.The appellant was an employee of FIA Immigration, Karachi in BS-5. His appointing authority under the rules is the Director-General or the Additional Director General or any officer not below the rank of a Director of FIA (Grade-19) to whom the powers are delegated by the Director-General.
Under the Notification dated 17.06.2000 read with Notification dated 07.08.2000, Notification dated 12.06.2004 and Notification dated 23.08.2004, the officer in respect of the appellant authorized to exercise the powers of competent authority is the Director or Additional Director-General in case where there is no Director. The Order of Enquiry was issued by Director, Immigration while the show- cause notice was also issued by Director, Immigration and the impugned order of compulsory retirement was passed by the Additional Director-General. The disciplinary proceedings have thus been taken by the competent authority.
13.We are convinced that the charges against the appellant stood established on the basis of the evidence recorded before the Enquiry Officer and that the same does not suffer from any material irregularity, mis-appreciation of evidence or being violative of any principle of natural justice. The departmental action initiated and culminated in a lawful manner would be unexceptionable despite the failure of the criminal proceedings before a criminal court of law.
14.Mala fides have not been established either against any authority or in the proceedings themselves. As stated hereinbefore the charges which are grave in nature have been adequately proved in a properly conducted disciplinary action and mala fides cannot be readily inferred in the absence of any cogent material on the record.
15.We are also of the view that the punishment awarded to the appellant is commensurate with the charges proved against him and that no discrimination could be spelt out from the record.
16.In view of the above we find no merit in the appeal which is hereby dismissed.
17.No order as to costs.
18.Parties be informed.