JUDGMENT.
A. RAHMAN KHAN (MEMBER).------The appellant, Syed Tanveer Hassan, Ex-U.D.C. Custom House, Chairman, has come in appeal before this Tribunal against his removal from service, vide appellate authority's impugned order, dated 10-11-1983.
2. The facts of the case which resulted in removal of the appellant from service are that while he was serving as transit clerk at Custom house Chaman, he received Afghan Transit Trade Invoice (A.T.T.I.) No. 211, dated 27-1-1981, which he is alleged to have omitted to enter in the record register on 22-2-1981. He was charge-sheeted, vide charge-sheet No. CB/DP-TH-UDC/81/12-14, dated 6-1- 1982 alongwith the statement of allegations. The extract of which is given below:-- CHARGE-SHEET You, Mr. Tanveer Hassan, son of Ibney Hassan, are hereby charged with 'Misconduct' on your part on account of forged entry of A.T.T.I. No. 211, dated 27-1-1981 (received from Customs House, Karachi) made by you in the Transit Invoice Register of Customs House, Chaman while you were performing the duty as Transit Clerk in the said Customs House.
"A statement of allegations brought against you is enclosed.
It has been held by the Collector, C.E. s L.C. Quetta that an Inquiry into the case should be initiated by virtue of Rule 5(2) of the E & D Rules, 1973.
You are called upon to explain as to why a may penalty should not be imposed on you on account of 'Misconduct' in the performance of your routine.
Your written defence as required above should reach within 14 days of the receipt hereof to Mr. Akhtar Hussain, Superintendent, Land Customs (Prev.) Sariab Road, Quetta, under intimation to the undersigned, who has been appointed to be the "Inquiry Officer" in your case.
STATEMENT OF ALLEGATIONS It has been alleged that Mr. Tanveer Hassan, Upper Division Clerk in the performance of his official duties as Transit Clerk, Customs House Chaman, intentionally omitted to enter and record A.T.T.I.
No. 211, dated 27-1-1981 in the register maintained for the purpose on 22-2-1981 along with other invoices which were received from Principal Appraiser, Afthan Transit Shed Customs House, Karachi under his forwarding letter No. 51/Misc/ 2/81, dated 16-2-1981, meaning thereby as if the said A.T.T.I.
Was not received from the Custom House, Karachi. Thus, he had the design to facilitate the smugglers to remove the goods in clandestine manner from the Transit Shed, Chaman. It is further alleged that after the seizure of the consignment cover under the said A.T.T.I. Which was effected, on 18-8-1981, Mr. Tanveer Hassan made a forged entry at serial number 2787 while the same number had already been shown against A.T.T.I. No. 198 entered at page 149 of the Register."
The appellant submitted reply to the charge-sheet, on 31-1-1982. Enquiry was conducted by Mr. Akhtar Hussain, Superintendent, Land Customs (Prev) Sariab Road, Quetta. On the recommendation of the enquiry report the competent authority decided to remove the appellant from service with immediate effect.
3. The learned counsel for the appellant made the submission that both during conduct of the enquiry as well as the processing of the case, the procedure as laid down in the Government Servants (Efficiency and Discipline) Rules, 1973 were not followed correctly. The appellant was not provided an opportunity to cross-examine any prosecution witnesses. He was also not provided the copy of the enquiry report although very clear instructions are laid down in this respect, vide Establishment Division O.M. No.4/10/82-RI, dated 20-7-1982. This matter has also been discussed before the Supreme Court. In the case of Syed Mir Muhammad v. N.-W.F.P. PLD 1981 SC 225. The judgment in this respect is unambiguous. According to the existing procedure after the enquiry the appellant should have been given a show-cause notice. The final order of the competent authority was passed without following the relevant rules.
4. It was further submitted that on account of such serious omissions on the part of the competent authority the order passed in this case should be considered illegal, ultra vires and, therefore, liable to be set aside. The appellant has unconditionally admitted the omission for not entering the said A.T.T.I. But this was purely an unintentional act on his part and was mainly due to his inexperience.
The fact that A.T.T.I. Was not entered in the register did not in any way authorise the other members of the staff to allow the removal of goods who were otherwise charged with the safety of the goods in the Custom Shed. It could not have been removed by the smugglers without their connivance.
The negligence on the part of the appellant in this case does not go to prove the charge of abetment on his part as envisaged in the statement of allegations because it was indeed not intentional but merely incidental for which the appellant deserves sympathetic consideration.
5. The learned counsel for the State contended that in view of the admission of his guilt by the appellant for not entering the said A.T.T.I. In the register and also the fact that a proper enquiry was held, the charge of abetment on the part of the appellant stands proved without any shadow of doubt. It was further argued that since the appellant during the course of enquiry did not incline to cross-examine the prosecution witness, Mr. Yousuf, it goes to prove that proper opportunity was provided to the appellant to defend himself. It was, however, submitted that if the competent authority had failed to follow the correct procedure to some extent ft was mainly because the charge of abetment against the appellant was so clearly proved by his own admission as well as the evidence available in the record. It can, however, be safely presumed that no prejudice has been cast and no extraneous change has been made in the allegations against him. It was further contended by the learned counsel for the State that non-compliance of the Establishment Division's O.M. 410/82-R.I. Dated 20-7-1982 by the authorized officer and also by not serving a show- cause notice to the appellant as required under the Government Servants (Efficiency 3 Discipline)
Rules, 1973 do not in any way go to disprove the charge of abetment with the smugglers levelled against the appellant. The competent authority, it was contended, has passed the impugned order with a fair mind with due consideration to the circumstances of the case which were brought before him by the enquiry report as well as by the examination of the Office record. The Supreme Court has held a similar view in the judgment in the case of Dawood Cotton Mills Ltd. v. Guftar Shah PLD 1981 SC 225.
6. In view of the submissions made in the preceding paras. We area constrained to observe that the competent authority in this case has not followed the correct procedure as laid down in the Government Servants (Efficiency and Discipline) Rules, 1973. It is also evident, without any doubt that the instructions given in the Establishment Division O.M. 4/10/82-RI, dated 20-7-1982 have not been followed at all. In our opinion the judgment given in the case of Daud Cotton Mills Ltd. v. Guftar Shah PLD 1981 SC 225 relates to Industrial Relations Ordinance and is, therefore, not applicable under the Government Servants Eefficieny and Discipline) Rules, 1973. We agree, however, that whereas prima facie, there is a case of abetment against the appellant which can be proved but, because the legal procedure has not been followed, we cannot go by the verdict of the competent authority. In our opinion it is incumbent upon the respondent to ensure that the appellant is provided sufficient opportunity to defend himself by following the legal procedure even when the charges, on the face of it, may be more than proved. The Government Servants (Efficiency and Discipline) Rules, 1973 provide alternative procedures under Rules 5 to 8 which, if followed correctly, could eliminate the chances of unnecessary wastage of time and energy for both the parties. Any deviation in this respect, to say the lest, in our opinion, is undesirable, in the interest of justice and fair play. We hope that the respondents would ensure compliance of the relevant rules and instructions in future.
7. In view of the foregoing arguments, we have no option but to, reach the irresistable conclusion to accept the appeal. The impugned order is set aside. The appellant shall accordingly be re-instated in service. The period he remained out of job shall be treated as extra-'g ordinary leave without pay. It may, however, be clarified that since the appeal is being allowed on technical grounds, it shall be open for the concerned authorities of the department to proceed afresh against the appellant in accordance with the law. Ordered accordingly.
8. No order as to costs.