Asim Akram, Member. Through this appeal, the appellant has challenged the original order dated 01.12.2019 whereby a minor [Federal Service Tribunal, Islamabad] penalty of withholding of four increments with cumulative effect were imposed upon the appellant and the appellate order dated 22.09.2020 whereby the departmental appeal of the appellant was rejected.
2. The appellant was issued a charge sheet and statement of allegations on 18.04.2017 wherein it was alleged that the appellant created a fake invoice and blackmailed the importer for taking illegal gratification thereof. In the inquiry report, the inquiry officer was of the view that the fake invoice was not created by the appellant but he used the same without verifying its originality, when the same was denied by the importer. The appellant was found guilty of inefficiency in the inquiry upon which a minor penalty of withholding of four increments with cumulative effect was imposed on him vide the impugned order referred to above.
3. The learned counsel for the appellant has assailed the impugned original order inter alia on the ground that the penalty imposed upon the appellant does not commensurate with the guilt of the appellant. Further the learned counsel for the appellant has contended that the appellant was receiving performance allowance @ Rs. 18000/- per month and he was not paid the same for the suspension period. Stoppage of allowance and increments amounts to a double jeopardy which is not permissible under the law. It is further argued that as per Rule 4(1)(a)(ii) of Government Servants (E&D) Rules, 1973 (Rule) only one increment could be stopped whereas there is no concept of accumulative effect. The counsel further states that as per the inquiry report only inefficiency was established whereas in the Show Cause Notice as well as the impugned order dated 07.08.2019, the appellant was written as found guilty of inefficiency and misconduct. Through this appellant it is prayed by the appellant, that the impugned punishment may be declared as illegal and unlawful.
4. The learned counsel for the respondents has vehemently opposed the appeal inter alia on the grounds that the appellant was rightly punished as per his guilty for committing inefficiency and misconduct for using the fake invoice. The counsel states that inefficiency amounts to misconduct and the same has been justly mentioned in the SCN and the impugned orders. The counsel further contends that performance allowance is given for the period for which an employee worked and not for the period an employee is out of work. Also, the stoppage of increments is according to law and rules. Through this the counsel for the respondents prayed for dismissal of the appeal as the same being deficient of law and merits.
5. Arguments heard; record perused.
6. The controversy involved in the appeal at hand is that M/s. Prime Computer imported a consignment of laptops from Australia and filed Good Declaration (GD) No. LPAF HC-35610 dated 28.01.2017. The GD was presented to the appellant, Nawab Ali, Inspector, Manifest Clearance Department (MCD) for verification of declaration/retrieval of any invoice. The appellant cleared the GD but when the goods arrived at gate on 30.01.2017 the consignment was stopped upon the instructions of MCD Inspector, the appellant, on the ground that a higher value invoice valuing Australian Dollar (AUD) 1042000/- have been detected whereas the declared value as per GD was AUD 29500/-. When the retrieved invoice was confronted to the owner of M/s. Prime Computers he insisted that the invoice reported by the appellant was never sent by the consigner. He further contended that the invoice is fake/forged. M/s. Prime Computer filed a complaint dated 03.02.2017 alleging therein that forged/fake invoice has been used against him to blackmail and get illegal gratification. A fact finding inquiry was conducted wherein the invoice valuing the consignment as AUD 1042000/- was found to be forged and upon its recommendation the appellant was charge sheeted of the allegations that the appellant has made a forged invoice and with the intention to blackmail the importer and extort bribe stopped the clearance of the consignment at the gate.
7. An inquiry was conducted wherein the inquiry officer concluded that creation of fake invoice is not established upon the appellant but he is guilty of 'inefficiency' as the appellant failed to carry out his official duties in verifying the invoice as neither the documents was received by him nor did he mention IGM/Airway Bill on them himself.
8. In the reply to the statement of allegations the appellant has admitted that unfortunately he over sighted the question invoice and resultantly stopped the clearance of consignment at the gate. It is admitted fact that when there is no invoice attached with the consignment the same has to be evaluated as per Goods Declaration according to Section 25 of the Customs Act. The appellant has alleged that he found the questioned invoice in the pouch but when the same was denied by the importer he failed to verify the originality of the invoice and from where it entered the 'pouch' which amounts to inefficiency in performing his duties on part of the appellant.
9. While dealing with the issue of number of increments we are of the considered view that the counsel for the appellant has erred in emphasizing that as per Rule 4(1)(a)(ii) E&D Rules, 1973 only one increment can be stopped as in the Rule the word use is "Increment" and not the "Increments".
For due consideration, the relevant rule is reproduced as under: 4(1)(a)(ii) Withholding, for a specific period, promotion or increment, otherwise than for unfitness for promotion or financial advancement in accordance with the rules or orders pertaining to the service or post: From the perusal of the Rule it is vibrant that increment or promotion can be withheld for a specific period. There is one increment given in one year so the word used is increment and when period is stretched to more than one year, increments for all those years shall be stopped. If the legislature intended to use one increment it was not at all difficult for the law-maker to use the word 'one increment' instead of 'increment'. The usage of word 'increment' denotes the word 'any' and not one. Similar stance was upheld by Hon'ble Supreme Court of Pakistan in case titled Government of NWFP verses Farman Ali (2005 SCMR 774) wherein it was held that word 'a' used in S.4(1)(b)(i) of North West Frontier Province Service Tribunal Act, 1974 means any and not one.
10. Stoppage of one increment for two years with cumulative effect would mean that two increments to be earned by the employee would be cut off as a measure of penalty forever in his upward march on earning higher scale of pay. In other words, the clock is put back to a lower stage in the time scale of pay and on expiry of two years the clock starts working from that stage afresh.
11. Regarding the issue of cumulative effect of stoppage of increment we are not convinced with the stance of the learned counsel for the appellant on the ground that "The Rule" is silent about the effect of stoppage of the increment. As referred above if the law makers had intention that the stoppage of increment/increments should not have cumulative effect, they could have mentioned the same in the Rule. In the Civil Servants (E&D) Rules, 2020 the Rule 4(ii)(b) clearly mentioned the maximum number of increments which can be stopped and it is also clearly mentioned that the stoppage of increments shall not have cumulative effect. However, the Rule 4(1)(a)(ii) of the E&D Rules, 1973 does not contain such bar.
12. Under the above circumstances, keeping in view the gravity of the charge proved against the appellant, we find no reason to interfere with the impugned orders assailed in the appeal.
Resultantly, the appeal stands dismissed.
13. There shall be no order as to costs. Parties be informed in accordance with rules.