' SHAH ABDUR RASHID (CHAIRMAN).-The appellant, as a result of competitive examination held by the Federal Public Service Commission, joined the Federal Government as Assistant Collector of Customs on 1st October, 1951, and in due course, in 1963 he was promoted as Deputy Collector of Customs, a post in the junior administrative grade. In 1969, Martial Law was imposed in the country and Martial Law Regulation No, 37 was promulgated which required the Government servants to furnish the statement of their assets. The appellant also complied with the order. On 2nd December, 1969, M L R 58 was issued with the intention of weeding out corrupt and inefficient officers. The said Regulation laid down a procedure, where under a Military Tribunal was constituted to give hearing to the Government servants against whom there were, prima facie, cases of corruption misconduct, inefficiency, etc. The appellant was one of them, and he was served with a charge sheet under three heads, i. e. Corruption, misconduct and inefficiency.
2. The appellant submitted a detailed reply to the Military Tribunal and from the record; it appears that the appellant was personally heard. The Military Tribunal came to the conclusion that the appellant had failed to disprove the accusation made against him. As a result, the appellant was dismissed from service on 19th May, 1970, by notification dated 25th May, 1970.
3. The appellant challenged the order of his dismissal before the Sind High Court in a Writ Petition, which was dismissed on 12th July, 1974. He filed an appeal before the Supreme Court, but subsequently when the Service Tribunal was constituted under Article 212 of the 1973 Constitution, he withdrew the appeal from the Supreme Court and approached the Service Tribunal under section 4 of the Service Tribunals Act, 1973.
4. This Tribunal twice dismissed the appeal of the appellant; first on 13th April, 1977 on the ground that it had no jurisdiction in the matter, and then on 25th March, 1981 on the ground of limitation.
Both times the orders of the Tribunal were set aside. In the first order, the Supreme Court held that the Tribunal had full jurisdiction to entertain the appeal both on points of law and on merits; while for the second time it held that the appeal was within time and that even if the question of limitation was involved, the Supreme Court impliedly condoned the delay. The Tribunal was, therefore, directed to decide the appeal of the appellant on merits.
5. The appellant has argued his own case. He did not avert to the legal objections regarding the validity of the action taken under M L R 58 and the failure of the Military Tribunal to follow the procedure laid down thereunder; but in his written arguments all these points were discussed and they form part of the record.
6. The written arguments are mainly based on the decisions of this Tribunal in the following cases ' W. A. Shaikh v. Pakistan (Appeal No, 559(L)/74).
' (10 Syed Saeed Jafri v. Federation (Appeal No, 661(K)/74)
' WO M. Yamin Qureshi v. Federation (Appeal No, 567(k)/74.)
7. The aforesaid decisions of our predecessor Tribunal were referred to, before us in the case of Farooq Ahmad Khan v. Pakistan (Appeal No: 652(R)/74), and we have disagreed with that Bench on points of law. It is pertinent to note that M L R 58 was a special law enacted to meet special situation and, therefore, reference to the provisions of Government Servants (Efficiency and Discipline) Rules, 1960, by our predecessor Tribunal, was wholly irrelevant. As regards the constitutional protection under the 1962 Constitution, that too does not extend to cases tried under M L R 58 for the reason that though initially M L R 58 was not a good law, yet the 1973 Constitution enacted by the representatives of the people in Article 270(4) had protected all the actions taken there under.
8. M L R 58 laid down a special procedure which had duly been complied with by the Tribunal constituted thereunder and the summary procedure, if not wholly contrary to the spirit of the said Martial Law Regulation, has to be accepted as valid. It is worthwhile to point out that the Supreme Court has, by order dated 13th March, 1982, granted special leave to appeal in all the cases decided by our predecessor Tribunal, on which reliance has been placed by the appellant.
9. Even if the Military Tribunal has committed some error of procedure contrary to the spirit of M L R 58, this Tribunal would interfere only if the error has caused some prejudice to the civil servant.
Much stress was laid down that the appellant had not been given full opportunity of being heard.
This allegation is not established from the record and there is nothing to show that the Military Tribunal denied any opportunity which the appellant asked. We too have given opportunity to the appellant and have not prevented him to produce such other evidence as he may require to place on record in support of his case. The error of procedure by itself would not demolish the entire proceedings. If the Military Tribunal still existed and we had found that there was some error of procedure, we would have directed the Tribunal to proceed afresh in the matter. However, since the Military Tribunal no longer exists, nor does M L R 58, therefore, that course is not possible. It was, however, open to the appellant to satisfy us that the charges against him had not been established. On legal plane and error procedure, therefore, the appellant cannot succeed.
10. We now avert to the merits of the case. The first charge against the appellant was that while he was holding the post of Deputy Collector of Customs, Karachi, he improperly allowed M/s. H. M. Silk Mills, Karachi to export silk of inferior quality as of superior quality, and thus enabled the said firm to evade the actual duty leviable on the goods and that in return for the said favour, he accepted illegal gratification at the rate of 25 paisa's per yard, and thus he was guilty of corruption.
11. The appellant explained before the Military Tribunal in his written statement and has also reiterated that, as far as the evasion of duty is concerned, that question did not arise in the case of export of goods. He has alleged, and we have satisfied ourselves that there was no export duty leviable on finished goods of silk at the relevant time. Thus the question of evasion of duty is wholly irrelevant. It appears that the Military Tribunal too was conscious of this fact.
12. However, it is not denied and the appellant admitted before us as well as before the Military Tribunal that in case of export, the exporters were allowed rebate. This rebate is relatable to the duty which an exporter pays on importing material to be used in the finished goods. To boost up export, the Government had allowed rebate on the imported material used in the goods which were exported by the same importer, Apparently, M/s. H. M. Silk Mills must have imported material for the manufacture of finished goods and in case of export, they were entitled to rebate. When the goods of inferior quality were passed as those of superior quality, then the said Mills was definitely entitled to rebate and such rebate when allowed would have necessarily resulted in the loss to the Government.
13. In respect of the above allegation, the stand taken by the appellant before the Military Tribunal as also before us is that he was not at all responsible for passing the goods as of superior quality, instead of their actual quality. He has explained that process of appraisement is solely in the hands of the Examiners, the Appraisers and the Principal Appraisers and that the Assistant Collector and the Deputy Collector come into picture only when there is a dispute between the Appraiser and the exporter on any matter connected with the export. He has contended that no dispute arose in this case, and therefore the matter was neither adjudicated by the Assistant Collector nor by him. In such circumstances, according to him, he was not at all responsible for what happened.
14. The appellant admits that M/s. H. M. Silk Mills did commit illegalities, but his case is that he was not at all responsible therefor, but on the other hand, he came to know of the incident after the ship had sailed. The Military Tribunal was of the view that the appellant was instrumental in the illegality committed by the said Mills. This conclusion was drawn mainly from the fact that a case had been registered by the Special Police Establishment against the Mills and the owners thereof were convicted by the Military Court. It also observed that the cases against the staff of Sea Customs were to come up some time thereafter, and observed that Lt.-Cdr. Muhammad Hamza Hashmi, Deputy Collector of Customs for Preventive, Karachi, has not registered a case against the Collector, the appellant and several others, and the allegations therein were that the appellant had set up an organised gang of subordinates, and was accepting illegal gratification from the aforesaid Mills for allowing illegal exports of the goods under Export Rebate Scheme, causing considerable loss to the Government Exchequer. We have gone through the record, and we have not been able to find out any material placed before the Military Tribunal and made available to us from which we could infer that the appellant was instrumental in the illegalities. Mere lodging of report by an officer against whom the appellant claims mala fides would not suffice to establish a serious charge of corruption. The appellant, on the other hand, wants the credit himself by saying that it was he who reported the matter to the higher authorities when the Assistant Collector brought to his notice the illegalities committed by the said Mills. It is pertinent to say that the charge of corruption is a very serious charge and the material used against the appellant was neither shown to him nor it has been brought to our notice. In these circumstances, we have no option but to hold that the charge of corruption against the appellant was not proved.
15. The second charge against the appellant was that while declaring his statement of assets and liabilities under M L R 37, he undervalued the cost of House No, 52, Bunglore Cooperative Society, Karachi, and this wilful misrepresentation amounted to misconduct.
16. We have gone through the record' of the case and the report of the Military Tribunal in this respect. The value of the house can be split up under two heads : namely cost of construction and cost of plot, The appellant's case is that the cost of construction was Rs, 55,000. The Military Tribunal however, relying on the assessment made by an Engineer of Pak. P. W. D. Came to the conclusion that the cost of construction was Rs, 66,000. There was thus a difference of Rs, 11.000 in the cost of construction. The appellant bad relied in this respect on the report of a private engineering firm, which estimated the cost of construction at Rs, 54,715. This was based on the Pak.
P. W. D. Schedule of rates of 1956. While valuing the cost of construction, the firm added a premium of 35%. It thus arrived at a total cost of construction of Rs, 52,586. The appellant has also placed the estimate based on the M. E. S. Schedule of rates of 1963, according to which cost of construction comes to Rs, 54,715. As far as the cost of construction is concerned, there being different estimates, the benefit of doubt should be given to the appellant. It is worth-pointing out that the same house may be constructed by one party at a lower cost, and by another party at a higher cost. Much depends upon supervision and control and the availability of labour and the labour rates. We would, therefore, ignore this difference of Rs, 11,000 by giving the benefit of doubt to the appellant.
17. However, the appellant has not been able to explain satisfactorily the price of the plot purchased by him in the name of his wife. According to him, the plot was purchased for Rs, 4,300.
The Military Tribunal obtained information from the Chief Engineer, Karachi Co-operative Housing Societies Union Ltd., and according to it, the selling price in 1962 of the plot in Bunglore Society was Rs, 35 per square yard. The appellant's plot measured 500 sq. Yard and on the basis of information, thus referred to, the total value of the plot comes to Rs, 17,500. There is thus a difference of Rs, 13,200. The appellant was asked to explain as to how he could purchase a plot worth Rs, 17,500 for Rs, 4,300 only, but he could not give any satisfactory explanation. He did not even produce the sale deed before us. The record of the Military Tribunal also does not show that the sale deed was brought to their notice, instead of having full opportunity to produce the sale deed or other evidence. In this respect, we are in agreement with the Military Tribunal that the appellant was guilty of misconduct in under-assessing the value of the plot while submitting the statement of assets and liabilities under M L R 37. The charge of misconduct thus stands proved.
18. The last charge is that the appellant earned adverse remarks in his Annual Confidential Reports pertaining to the following periods:
(i) Period ending 31st March, 1959.
(ii) Period ending 31st December, 1959.
(iii) Period ending 16th June, 1962.
(iv) Period ending 30th June, 1963; and
(v) Period ending 31st December, 1966.
' We have gone through the A C Rs, of the appellant. The A C R for the period ending 31st March, 1959 is not available on the record. The other three reports, referred to by the Tribunal, do contain adverse remarks against the appellant, some of which were expunged, but these when read as a whole, in our opinion, do not establish inefficiency on the part of the appellant. These reports when read along with the subsequent reports would show that the appellant was an officer, who could be rated between "Average" and "Good." In the last report pertaining to the period 1st January, 1968 to 1st September, 1968 the appellant was throughout rated as "Good" and the reporting officer remarked that he was "A very pleasant young officer with good knowledge of Customs and Excise laws and procedure." In the report for the period ending 19th November, 1967, though he was overall rated as "Average" officer, he was shown "To be fit for promotion". The pen picture is to the effect that the appellant was "An officer of average abilities. Well-behaved and of amiable disposition".
Taking the entire record into consideration, we would rate the officer, as already observed, between "Average" and "Good", and we do not think that the charge of inefficiency against the appellant is established.
19. The only charge of under-valuing the cost of plot having been established, the appellant was liable to penalty. Had the charge of corruption been established, we would have not hesitated in upholding the recommendations of the Military Tribunal, that the officer deserves dismissal. The only charge proved against him is that he under-valued the cost of the plot purchased by him. It is not established that by so under-valuing, the appellant has not been able satisfactorily to explain his assets and the Military Tribunal too has not given that finding. The appellant entered the service in 1951 and the order of dismissal was passed on the 19th May, 1970, after he had rendered about 19 years' service. In the circumstances, we think that the punishment is rather harsh and not commensurate with the charge which has been proved against the appellant. We, therefore, by modifying the order of dismissal of the appellant from service, direct that he shall stand compulsorily retired from service with effect from 19th May, 1970.
20. There shall be no order as to costs.