' SABIHUDDIN AHMED, J.--- This appeal by leave of the Court arises from a judgment of the Federal Services Tribunal, Islamabad dated 10-6-2003 dismissing the Service Appeal No,221(K)(CS)/2001 against an order dated 17-4-2001 imposing the penalty of stoppage of promotion for five years.
2. In the facts as stated in the charge-sheet along with the statement of allegation dated 8-5-1995 appears to that Messsrs I.B.I Industries (Pvt.) Ltd. (Importers) had imported water treatment plant equipment in 1995 and sought its release at concessionary rate of customs duty through their Clearing Agent. It was alleged that the appellant who was an Appraiser in the Customs Collectorate had raised certain verbal objections, but subsequently upon the importer having explained the position to the Assistant Collector, the consignment was released on payment of duty at concessionary rate. It was alleged that before the release of the consignment the importer had made an extra payment of Rs,300,000 through cheque to clearing agent, who had claimed that customs officials were demanding illegal gratification.
3. The complaint of the importer was referred to the Director, Customs Intelligence for a preliminary fact-finding, who reported that certain facts "lent credence" to the allegation levelled, by the complainant. Thereafter a proper charge-sheet was issued along with statement of allegations and one Mr. Umer Mehdi, Assistant Collector was appointed Enquiry Officer, who after issuing show- cause notices and not receiving any reply, recorded his ex parte enquiry report. He found the appellant "guilty of misconduct and corruption under Rule 3(b)(c) and (d) of the Civil Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the "Rules)."
4. The appellant however, upon learning of the existence of the inquiry report represented to the authorized officer that no further action upon the aforesaid report be taken as he had been suspended and no notice of inquiry proceeding had been served at his residential address. His plea was accepted by the authorized officer, who ordered a de novo inquiry, by the same officer after supply of documents to him and granting full opportunity of hearing to the appellant. The appellant submitted a reply, denying the allegations. However, the Enquiry Officer was subsequently/transferred and thereupon one Mr. Barkat Ali Bukhari, Deputy Collector was appointed enquiry officer.
5. The newIy-appointed Enquiry Officer thereafter conducted an inquiry in the presence of the appellant and by his report, dated 10-2-1997 found allegations not proved and exonerated him.
Apparently, the findings of the Enquiry Officer were approved by ,the, authorized officer. However, appellant received a show-cause notice dated 7-4-1997 from respondent No,1 (Collector of Customs, Appraisement), being the "Authority" under the rules, stating that, he was tentatively of the view that the charges against the appellant stood established as he had not processed the bill of entry till payment of Rs,300,000 was made by the importer to the clearing agent. It was mentioned in the notice that whereas the first Enquiry Officer had concluded vide report dated 3- 9-1995 that the charges of misconduct and corruption stood proved, the second Enquiry Officer came to a contrary conclusion due to the statement of the clearing agent before him that the amount in question was returned to the importer and had not been paid to the appellant. The appellant was required to show cause why the major penalty from dismissal of service should not be imposed.
6. The appellant submitted a reply to the notice and by Office Order dated 17-4-2001 he was informed that a minor penalty of stoppage of promotion for the period of five years has been imposed on him. At the same time however, apart from being reinstated, he was also informed that in pursuance of the letter from the FBR dated 13-3-2001, his name had been excluded from the list of inefficient/corrupt officials. The appellant after submitting a Departmental Appeal and waiting for the statutory period during which he received no response preferred an appeal before the Federal Service Tribunal, Islamabad.
7. Parawise comments were filed on behalf of the respondents wherein it was inter alia averred that the first inquiry report of Khawaja Umer Mehdi dated 3-9-1995 was never set aside, though it was simultaneously urged that at the request of the appellant dated 22-4-1996 re-inquiry was ordered and thereafter upon the transfer of Khawaja Umer Mehdi, Mr. Barkat Ali Bukhari was appointed Enquiry Officer. In attempting to dispute the appellant's contention as to his record of dedicated performance of duties, the respondents contended that his name was included in the list of officials suspended as being "Corrupt and Inefficient", whereas the impugned order expressedly records that his name was to be excluded from such list in terms of the respondent No,2's letter dated 29-3-2001 While the impugned order imposing penalty does not, contain any substantive reason for discarding the evidence of the Enquiry Officer. It is stated in the comments that the following reasons were recorded on the case file:-- "Due to my personal knowledge regarding involvement of clearing agent and appraiser on the basis of complaint received from a foreign investor, I am not inclined to accept the latest inquiry reports.",
8. The learned Service Tribunal however, vide its impugned judgment dismissed the appeal and declined to interfere with the order imposing penalty. Leave to appeal against the aforesaid judgment was granted to consider a number of contentions raised on behalf of the appellant.
9. We have heard Mr. M.M. Aqil Awan, learned counsel for the appellant and Mr. Shakeel Ahmed on behalf of respondent No,1 at quite some length and have carefully gone through the record.
10. Learned counsel for the appellant at the outset argued that the impugned order imposing minor penalty passed by the respondent No,1 in his capacity as authority in the face of an inquiry report exonerating the appellant which was duly approved by the authorized officer was coram non judice. Indeed the inquiry report admittedly exonerates the appellant and though no order of the authorized officer has been placed on record, the appellant categorically asserted both in the memo of petition before this Court and the memo of Appeal before the Service Tribunal on oath that the authorized officer had agreed with the findings of the Enquiry Officer and found the charges not proved. However, in the parawise comments not so verified the respondent attempted to deny the contention and alleged that the minor penalty was imposed by the authorized officer and the case was submitted to the competent authority for approval. Such contention however, clearly appears to be false and untenable; it was never mentioned in the show-cause notice and the learned counsel appearing for the respondents himself conceded as is evident from para No,3 of the impugned judgment that the authorized officer had also proposed exoneration of the appellant. We must at this juncture strongly deprecate the tendency on the part of responsible public officers to mislead the Court on facts merely to suit their whims.
11. On the legal aspects of the matter Mr. M. M. Aqil Awan, learned counsel for the appellant argued that under Rule 6(6) of the Rules, the Enquiry Officer has to submit his findings and reason thereof to the authorized officer. Under Rule 5(iv), the latter on the receipt of the report of the finding is to determine whether the charges have been proved; if he proposes to impose a minor penalty he could do so himself and only if a major penalty is to be imposed the matter is required to be referred to the authority. Learned counsel argued that even if it is assumed that the authorized officer disagreed with the findings of the enquiry officer, he for good and proper reasons could impose a minor penalty after giving a notice of hearing to the appellant, in accordance with the principles of natural justice. In the circumstances, there was no occasion to seek the intervention of the authority for doing so.
12. Indeed, Mr. M. M. Aqil Awan, learned counsel for the appellant appears to be correct so far as requirements of Rule 5 are concerned, however, Mr. Shakeel Ahmed, learned counsel for respondent No,1 argued that the order was passed by the respondent No,1 in exercise of his plenary powers conferred by rule 6-A of the Rules. The aforesaid rule confers wide jurisdiction upon the authority to call for the record and pass any order that deems fit both in respect of a case pending or disposed of by the authorized officer. Therefore; even if the authorized officer had passed a final order exonerating the appellant, the respondent No,1 was not divested of his powers under Rule 6-A of the Rules. In view of the aforesaid legal position, we are unable to subscribe to Mr. Awan's contention that the order imposing minor penalty was ex facie without jurisdiction.
13. Nevertheless we find greater force in learned counsel's alternate contentions that for exercise of revisional powers under Rule 6-A of the Rules if the respondent No,1 was minded to disagree with the conclusion of the Enquiry Officer or the authorized officer, proper reasons for doing so ought to have been assigned. Learned counsel, in this context relied upon the judgment of this Court in Chief Director, Central Directorate of National Savings, Islamabad and another v. Rahat Ali Shewani reported in (1996 SCM R 248). In the above case the Enquiry Officer had reported that the allegations against the accused officer were not proved and the authorized officers on the basis of the above findings exonerated him. About eight months thereafter, the authority issued a show- cause notice, stating that in the exercise of powers contained in Rule 6-A of the Rules, he had examined the case and being dissatisfied with the decision of the authorized officer, he was of the view that the charges had not been cleared beyond doubt and therefore, setting aside the order, he had decided to reconsider the case. After considering the reply to the notice minor penalty of censure and recovery of the amount of pecuniary loss caused was passed. Interpreting Rule 6-A of the Rules, their Lordships held that the revisional powers conferred thereby were not hedged by any pre-conditions, such as those in section 115, C.P.C. Nevertheless, they could not be exercised arbitrarily and the cast which was expected from the authority was to mention the grounds in the show-cause notice on the basis of which it was inclined to take a view contrary to that of the Enquiry Officer or the authorized officer. Accordingly, the order passed by the Service Tribunal, setting aside the penalty imposed was upheld.
14. Applying the principles of law laid down in the above case we found that the show-cause notice dated 7-4-1997 hardly contains any cogent reason for invoking the provision of Rule 6-A of the Rules. Evidently action had been initiated on the complaint of the Importer, who has stated that his clearing agent had obtained Rs,300,000 from him to be paid-to customs officials by way of illegal gratification and had never alleged that any amount was received by the appellant from him. At the same time it was acknowledged in the notice itself that the clearing agent deposed before the Enquiry Officer that no payment was made to the appellant and the amount was eventually returned to the importer. In the circumstances the Enquiry Officer could not conceivably arrive at any conclusion except that the charges could not be proved, Yet to create a pretext for exercise of power the respondent No,1 chose to rely upon the report in an earlier ex parte inquiry dated 3-9- 1995, which stood vitiated when the authorized officer accepted the appellant's representation dated 22-4-1996 and directed the holding of inquiry afresh.
15. We need to make it clear that Rule 5(1) (ii) of the Rules only contemplates holding of "an inquiry" and does not enable to holding of multiple inquiries and leave it to the whims of the authorized officer/authority to choose the result of anyone of them. It is well-settled that all public powers are to be exercised honestly, fairly and judiciously. When the authorized officer accepting the appellant's representation dated 22-4-1996, directed the Enquiry Officer to hold the inquiry afresh after hearing the appellant, the findings of the Enquiry Officer in the ex parte inquiry dated 3-9-1995 stood completely wiped out and only the conclusions recorded in the subsequent inquiry dated 16- 2-1997 were liable to be considered. Indeed the authorized officer under Rule 5(4) or the authority under Rule 6-A of the Rules for valid and proper reason could disagree with the findings of the Enquiry Officer after giving notice to the accused officer, but certainly no reliance could be placed upon the findings of the earlier ex parte inquiry which stood annulled. In the instant case no reason whatsoever has been assigned either in the show-cause notice dated 17-4-2001 or in the order imposing penalty. Learned counsel has also rightly asserted that the latter order does not contain any reasons and is violative of section 24-A of the General Clauses Act, 1897 (hereinafter referred to as the "Act").
16. Mr. Shakeel Ahmed, learned counsel for the respondent faced with this situation drew our attention to para No,10 of the parawise comments filed before the Service Tribunal and urged that the real ground for imposing penalty was recorded by respondent No, 1 on the case file quoted in para No,7 above. In this context we must reiterate that while exercising quasi-judicial powers in disciplinary matters the respondent No,1 had no business to import his personal knowledge to the facts of the case as has been observed in the recent judgment of this Court in the case of Amin-e- Ajam v. Board of Revenue and another reported in (2007 SCM R 1581) cited by Mr. M.M. Aqil Awan, learned counsel for the appellant. We are also mindful of the classical observation of the Hon'ble Chief Justice (R) A.R. Cornelius in the case of Muhammad Mohsin Siddiqi v. Government of West Pakistan reported in (PLD 1964 SC 64) to the effect that in such inquiries an officer cannot act as a judge, prosecutor and witness at the same time. The revisional powers under rule 6-A of the Rules are of quasi-judicial nature and ought to be exercised with circumspection and restraint and should not have been exercised in the circumstances.
17. In any event if respondent No,1 had any personal knowledge, he could have caused the relevant evidence in that respect to be adduced before the Enquiry Officer to enable the latter to arrive at a proper conclusion instead of making a mockery of the whole legal process by allowing the enquiry to proceed and waiting to exercise his powers under Rule 6-A on the basis of his "personal knowledge" irrespective of the outcome of the proceedings. Moreover, the least he could do was to apprise the appellant of the facts alleged to be in his personal knowledge in compliance with the elementary principles of natural justice. The mere fact that matters alleged to be within his personal knowledge were neither communicated to the appellant in the show-cause notice dated 7-4-1997 nor in the impugned order imposing penalty but only recorded in the secrecy of his files renders the order not merely illegal but also tainted with bias and as such mala fide.
18. Apart from the legal flaws, we are constrained to observe that the learned Members of the Service Tribunal also approached the matter in a highly unjudicious manner. They not only took into consideration "reports" which had no legal worth but also failed to consider that the material referred to therein never conclusively established the guilt of the appellant. In the first place, they exhaustively referred to the report of the Director Customs Intelligence who was required to conduct a preliminary fact-finding inquiry on the complaint forwarded to him and not any inquiry into allegations against the appellant. The extract from this report quoted in para No,5 of the impugned order, at the outset shows that this officer had merely spoken of prima fade correctness of certain allegations and evidently the report could only be treated as suggestion for holding a proper inquiry against certain customs officials. As regards specific findings of facts, the officer found that documentary evidence had been furnished regarding payment of Rs,300,000 to the clearing agent. He also found that the latter initially denied receiving the amount but when confronted with evidence of payment he committed to return the amount to the complainant. The only evidence against the appellant and other customs officials adduced before him was in the form of a paper indicating payments, break-up furnished by one Mr. Muhammad Bashir, a representative of the complainant, stated to have been provided by the clearing agent. The officer also recorded that the customs officials had contended that in the meeting dated 10-1-1995 they had accepted the viewpoint of the importer/complainant regarding the admissibility of the concessionary rate of duty and accordingly the consignment was released on 11-1-1995. The complainant however denied it and stated that the Assistant Collector had asked him to cooperate with the clearing agent and the consignment was released after the amount was paid to the latter. However, considered that the files did not record the minutes of the meeting of 10th January, 1995 and the fact of the consignment being withheld for about a week and subsequently released on the day following payment to the clearing agent "lent credence to the allegations" and "smacked of ulterior motives" on the part of customs officials. Obviously, he felt suspicious of the conduct of the appellant and other customs officials but never recorded a conclusive finding against any of them. The report indeed justified holding of a proper inquiry but it is incomprehensible that how the learned Tribunal treated it as evidence against the appellant when only his statement was recorded and neither other statements were recorded in his presence nor was he given a chance to cross-examine witnesses or produce evidence in defence.
19. The Tribunal then proceeded to rely upon the report of the ex parte inquiry conducted by Khawaja Umer Mehdi, Assistant Collector which as mentioned earlier had been set aside. A perusal of this inquiry report shows that upon the alleged persistent failure of the appellant to furnish reply and appear for heafing, in the opinion of Enquiry Officer signified his acceptance of charges, as observed in para No,3 of the inquiry report. Though this officer has observed he was constrained to finalize the inquiry ex parte on merits, it is not indicated whether any witness was examined and only the shows records were examined. The conclusions on facts appear to be based on the statements recorded in the earlier report of the Director Customs Intelligence or were at least not inconsistent therewith. The officer also specifically recorded that the clearing agent had categorically denied making any payment to the appellant or any Customs Officer. Nevertheless, premising his conclusion on the basis of conjectures and inferences which could only be a cause of suspicion, this officer convinced himself that not only charges of misconduct and corruption under rule 3(b) and 3(c) but even under 3(d) of the Rules of being involved in subversive activities making his retention in service prejudicial to national security were established against the appellant.
20. The learned Members of the Service Tribunal however proceeded to treat these two reports as substantive evidence against the appellant. On the other hand, they never bothered to carefully consider the contents of the only admissible inquiry report wherein the controversy relating to admissibility of benefit of concessionary duty, the delay in the processing of the case file and the extent of appellant's responsibility for the same, the absence of any material to show that any. Part of the amount received by the clearing agent was ever paid to the appellant, the effect of the unsigned and undated paper allegedly containing the break-up of payments made by the clearing agent stated to have been given to the representative of importer who failed to appear in the inquiry despite notices were thoroughly discussed. The findings of the inquiry were dismissively commented upon through a one-line observation to the following effect:--- "The report of the Enquiry Officer Mr. Barkat Ali Bukharl has strangely enough denied the facts without irrefutably substantiating his findings."
21. It is also evident from the impugned judgment of the Service Tribunal that whereas the provisions of section 24-A of the Act as well as the law declared by the Court in the case of Chief Director Central Directorate of National Savings, Islamabad and another (supra) was duly cited before them in support of the contention that an order passed under rule 6-A of the Rules must contain valid reasons. The Members of the Tribunal (whom we are reluctant to call learned) in their unwarranted anxiety to uphold a patently illegal order, brushed aside a statutory requirement and a binding principle of law by simply stating that failure to record reasons was merely "a technical lapse". We are, therefore, constrained to observe that the order impugned before us is not merely illegal but also perverse.
22. For the foregoing reasons we would allow this appeal with costs and set aside the penalty awarded to the appellant. We would further hold that since the appellant was not superseded on the ground of fitness in case the officers junior to him have been promoted in the meantime, the appellant would be entitled to the benefit of Rule 3(c) of the Civil Servants (Seniority) Rules, 1993 and all consequential benefits arising therefrom.
23. A copy of this judgment may be sent to the Chairman, Federal Service Tribunal and the Member (Judicial) Federal Board of Revenue for appropriate action in view of the observations contained in paras Nos.17 and 21 hereinabove.