1. ' MUNAWAR ALI KHAN (CHAIRMAN).--The appellant S.A. Mukarram was Excise and Taxation Inspector when he was dismissed from service vide order No, S.O.(Admn.) E&T/12 (9(Y)) 78/E & ST, dated 27- 7-1978 of the Secretary to Government of Sind, Excise and Taxation Department. This order was the result of the departmental enquiry held against him by Mr. Salahuddin Qureshi, Director Excise and Taxation. There were as many as six charges leveled against the appellant, the sum and substance of which was that he in collusion with Iqbal Bajwa, S.I. Excise and Taxation and Anisuddin, Inspector, Excise and Taxation intercepted one truck bearing No, KCT-116, in order to foist a false case of smuggling of Charas on Shahid Malik and 4ijaz Malik, two brothers and with this intention they unlawfully detained the said brothers, pressurized Shahid Malik to come out with confession as to the charge of smuggling of Charas and that they demanded illegal gratification of rupees two lakhs for hushing up the said case and ultimately received Rs,45,000 from Shahid Malik. The appellant challenged his dismissal in departmental appeal before the Chief Secretary but as the said appeal remained undisposed within the next 90 days he came to this Tribunal on 27-12-1978 with prayer that the impugned order of his dismissal from service be set aside. By single judgment dated 30th January, 1979, the then Tribunal headed by Mr. Justice (Rtd.) Ghulam Rasool Shaikh summarily dismissed as time-barred not only the appeal filed by the appellant, S.A. Mukarram but also the appeals of two other Excise and Taxation Officers namely lqbal Bajwa and Anisuddin, which too had arisen from the same departmental enquiry.
2. ' The judgment of the Service Tribunal was challenged in appeal before the Supreme Court. During the pendency of that appeal, the departmental appeal preferred by the appellant was decided and he was communicated the order of the Chief Secretary dated 12/14th January, 1980, whereby the penalty of dismissal awarded to appellant was converted into that of compulsory retirement.
3. On receipt of such order the appellant made no fresh move but rather pursued his appeal pending in the Supreme Court. It was after the Supreme Court allowed the appeal and remanded the cases of all the three Excise and Taxation Officers including the appellant back to the Service Tribunal for deciding the same on merits, that the appellant moved the Service Tribunal for amendment of his memo. Of appeal in the wake of conversion of his penalty. However, by judgment dated 8th May, 1983 the Service Tribunal, with Mr. Justice (Rtd.) Mushtaq Ali Kazi as Chairman, dismissed the appellant's appeal on the ground that the order of his dismissal having been vacated the appeal had become infructuous particularly when no fresh appeal was filed within time from the final order of the Chief Secretary converting the appellant's penalty from dismissal to compulsory retirement. Once again the appellant took the matter to Supreme Court calling in question the correctness of the judgment of the Service Tribunal. The Supreme Court by its judgment dated 20- 1-1948 set aside the judgment of the Service Tribunal, allowing the amendment of the memo of appeal with regard to conversion of the penalty from dismissal to compulsory retirement and remanded the case back to the Service Tribunal for decision on merits. After the case was received from the Supreme Cows. Appellant filed amended memo. Of appeal and in response thereof official respondents filed amended written statement.
4. ' We heard lengthy arguments made by the learned counsel for both the parties, Mr. Z.U. Ahmad on behalf of the appellant and Mr. Abdul Ghafoor Mangi, A.A.-G. Assisted by Mr. Lmdad Hussain Kazi, panel lawyer on behalf of official respondents. We also went through all the relevant documents with their assistance.
5. ' The departmental case against the appellant is reflected in the charge-sheet dated 3-4-1978 served on him. It reads as under:-- CHARGE-SHEET "I, Sajjad Hussain, Director-General, Excise, Sind, Karachi, do hereby charge you Mr. S.A. Mukarram, Excise and Taxation Inspector, Malir Division, Excise Wing, for misuse of your official position, misconduct and corruption in connection with the alleged case of smuggling of Charas by Mr. Shahid Malik and Mr. Ejaz Malik through the bundles of tents being manufactured in their factories for export. The charges against you are as under:--
(1) That you, in collusion with Mr. Iqbal Bajwa, Excise and Taxation Sub-Inspector and Mr. Anisuddin, Excise and Taxation Inspector and others conspired to trap Mr. Shahid Malik and Mr. Ejaz Malik in a false case of Charas smuggling in order to extract illegal gratification from them.
(2) That you had apprehended truck No, KCT-116, which was driven to a place close to your house, you then telephoned Mr. Saghir Ahmed Syed, E.T.D. To come there. Mr. Iqbal Bajwa, E.T.S.I. Mr. Anisuddin, E.T.I., Mr. Sharif Hyder, Junior Clerk and others were already present there.
(3) That you and Mr. Iqbal Bajwa and Mr. Anisuddin and others forced Mr. Shahid Malik to give a statement confessing the charge of smuggling of Charas.
(4) That you and your abovementioned colleagues also demanded an amount of Rs,2,00,000 as illegal gratification to hush up this case. In spite of the Mushirnama which was prepared by you at 3-30 p.m. On 5-3-1978 to the effect that nothings incriminating was found on truck No, KCT-116, you with mala fide intentions detained Mr. Shahid Malik and latter also took into wrongful confinement Mr. Ejaz Malik.
(5) That you and your colleagues finally agreed to accept Rs,80,000 out of which you received Rs,45,000 (Cash) from Mr. Ejaz Malik whom you unlawfully arrested the same night.
(6) That you visited Mr. Shahid Malik's house on 10-3-1978 and sent a. Small note in your own handwriting giving the name of Mr. Wahjul Hai S.P./C.IA. To Mr. Shahid Malik through Mr. Anisuddin and Mr. Iqbal Bajwa, threatening that if Mr. Malik does not pay another Rs,20,000 the C.I.A. Will also probe into his affairs.
2. For the above reasons you appear to be guilty of misconduct, misuse of power and corruption in the discharge of official duties and have thus rendered yourself liable for disciplinary action likely to entail major penalties as laid down in the Sind Civil Servants (Efficiency and Discipline) Rules, 1973.
3. You are, therefore, called upon to show cause within fourteen days of the receipt of this charge- sheet as to why disciplinary action as aforesaid should not be taken against you and also to state whether you wish to be heard in person. Your explanation should reach the Inquiry Officer within the aforesaid period failing which it will be presumed that you have no explanation to offer, in which case further necessary action will be initiated against you under the rules.
4. A copy of the statement of allegations is attached. Sd/- (Sajjad Hussain)
6. Director-General, Excise and Taxation (Excises) , Karachi.
7. ' In support of the above allegations several witnesses were produced in evidence in course of the enquiry. But so far the appellant was concerned, reliance has been placed mainly on the evidence of two victim brothers namely Shahid Malik and Ejaz Malik. Before looking into their evidence, we would like to deal with the findings arrived at by Enquiry Officer and the basis of his findings. The enquiry report submitted by the Enquiry Officer is dated 5th July, 1978. On perusal of the report it would appear that the enquiry was held against nine officials of the Excise and Taxation Department including the appellant who was then holding the post of Inspector, Excise and Taxation. The Enquiry Officer has discussed the evidence against each official separately and has based his findings on the assessme nt thereof. As stated in the enquiry report the only charge against the appellant S.A. Mukarram was that the conspired with Mr. Iqbal Bajwa and Mr. Anisuddin to falsely trap Messrs A.D. Shahid Malik and Aijaz Malik, Tent Manufacturers with intention of extracting illegal gratification from them. Thus, according to the Enquiry Officer, the appellant was not involved in the other charges mentioned in the charge-sheet. The Enquiry Officer has recorded his findings against the appellant as under:-- "It is established that the search of truck No, KCT-116 was conducted at about 3-30 p.m. Yielding nothing incriminating and a Mushirnama to that effect was also prepared. The subsequent action of the official in bringing Mr. Shahid Malik to the Excise Office in the evening as also detaining his brother Mr. Aijaz Malik during the process, is a clear indication of ulterior motive on his part. During the cross-examination by Mr. Mukarram, Mr. Shahid Malik admitted that Mr. S.A. Mukarram did not personally demand any illegal gratification from him but he was present when negotiations for bribe were being conducted by Mr. Iqbal Bajwa and Mr. Anisuddin. It is thus proved that Mr. Mukarram was also directly involved in extortion.
8. ' My finding is that Mr.S.A. Mukarram is guilty of misconduct as per statement of allegations against him."
9. ' It would appear from the above findings that the Enquiry Officer held the appellant guilty for three reasons, one, the appellant's action of bringing Shahid Malik to the Excise Office in the evening, two, detaining his brother Aijaz Malik and three, appellant's presence when negotiations for bribe were being conducted by Mr. Iqbal Bajwa and Mr. Anisuddin. In proof of these findings the only evidence available on record is of above two brothers. We have carefully perused their statements. Shahid Malik does not support the finding of the Enquiry Officer in as such as that the appellant was one of those who took the said witness to the Excise Office. It is revealed from his statement that he was lifted from in front of his house by lqbal Bajwa and Anisuddin who were accompanied by two others namely one Constable and one Driver and taken away in Toyota Metallic Green Car to the Excise office. He does not say that appellant S.A. Mukarram was also with the above Excise personnel. As such the finding of the Enquiry Officer in this connection is clearly belied. Despite this in the reply to the appellant's question in cross-examination, Shahid Malik stated that the appellant Mukarram was included in by the personnel who apprehended him on 5th March. Having made a definite statement that Messrs lqbal Bajwa and Anisuddin accompanied by one Constable and one Driver took him away in Toyota car from in front of his residence, his subsequent improvement on such statement in cross-examination involving the appellant as being one of those who apprehended him was obviously the result of his confusion. It was not only contradictory but also afterthought. No credence could be attached to such statement.
10. ' As for the Enquiry Officer's second finding that the appellant played a part in detaining another brother namely Ejaz Malik, that too does not find any support either from Ejaz Malik himself or his brother Shahid Malik. The statement of Ejaz Malik shows that as soon as he accompanied by his friend Ahsan reached Excise Office to look for his brother Shahid Malik, the Excise people surrounded them and made them sit in the motor car and four of them took them a little away in the cover of darkness to one office. They came to know the names of only Iqbal Bajwa and Anisuddin from amongst them.
11. ' The said four persons were responsible for their detention. Nowhere throughout his statement this witness has mentioned the name of the appellant in connection with his detention. Similarly his brother Shahid Malik does not say anything to prove the appellant's linkage with his brother's detention.
12. ' The third finding of the 'Enquiry Officer against the appellant is that he was present when negotiations of bribe were being conducted by Messrs Iqbal Bajwa and Anisuddin. His mere presence, in our opinion, was not enough to prove that the appellant was party to demanding bribe. In support of this finding the Enquiry Officer has referred to the evidence of Shahid Malik. In his statement-in-chief Shahid Malik has not breathed a word about the appellant's presence at the time of the negotiations for bribe. It is only in course of his cross-examination that in reply to appellant's question he has stated that when negotiations were being conducted by Mr. Bajwa and Mr. Anis, the appellant kept coming and going and was within hearing range. But in the same breath the witness has admitted that Mukarram did not maltreat him, that he came a few minutes later in the office, that he did not make any demand from him personally and that he offered him cigarette. All this shows that even if the appellant was present at the time when Shahid Malik was being tackled for bribe, the appellant showed by his conduct as if he was entirely unconcerned about the bribery affair. Admittedly like Mr. Anisuddin he held the position of Inspector at that time and in case he was interested in bribe affair, he would have surely taken part in the negotiations relating to it. His presence there was not difficult to explain. He being Excise and Taxation Inspector concerned or connected with Excise Office was normally expected to be there. In any case as the evidence stands, he is entitled to benefit of doubt. The above view is fortified by the order passed by the Chief Secretary in the departmental appeal. The Chief Secretary while reducing the penalty of dismissal awarded to the appellant expressed his views as under:-- "The evidence brought before the Enquiry Officer of course does not exonerate the official who is also party to the dirty game of extortion. But his is of a passive nature. For example, it is said that he was just present when his other colleagues negotiated with the victims for illegal gratification. He can therefore be regarded only as an accomplice. His presence at the time of committing wrong can be interpreted in both ways, in his favor as well as against him. Keeping in view the official's part played in the whole affair, the penalty imposed on him appears to be too severe. It may also be borne in mind that actually the illegal gratification did not pass on. It was just a case of harassm ent."
13. In the opinion of the Chief Secretary the only part attributed to the appellant was his presence at the time of negotiation about illegal gratification and such presence, he added, could he interpreted in both ways, in his favor as we as against him. On the basis of such views the appellant merited for giving him benefit of doubt particularly when the Chief Secretary did not find the appellant guilty either for bringing Shahid Malik to the Excise Office or for detaining Ejaz Malik.
14. ' In view of above discussion we are of the view that the evidence available on record in support of the charges against the appellant is too weak to be made the basis for inflicting punishment on him. It would therefore not be safe to deprive the appellant of his source of livelihood and bring disgrace to him in the eyes of public on such scanty material.
15. ' Apart from the factual side of the case as discussed above, we have also noticed some legal drawbacks, adversely reflecting on the departmental proceedings. As stated in the foregoing paragraphs, following the conversion of the penalty of dismissal awarded to the appellant into compulsory retirement, his appeal with regard to his dismissal already filed and pending before the Service Tribunal was dismissed as having become infructuous vide judgment of the Service Tribunal, dated 15th May, 1983. By the same judgment the appeals filed by other two Excise Officers Iqbal Bajwa and Anisuddin were accepted and their cases were remanded hack to the Director- General Excise and Taxation for taking action in the light of the observations made by the Tribunal.
16. It was argued in their case that on conclusion of the enquiry neither show-cause notice was given nor a copy of enquiry report was furnished to the said appellants and as such in view of the Supreme Court's authority reported as Syed Mir Muhammad v. N.-W.F.P. Government PLD 1981 SC 176, the proceedings of the departmental enquiry were vitiated. While appreciating this argument the learned Tribunal observed as follows:-- "Regarding this legal plea the learned A.A.-G. Mr. Hassan Akbar frankly concedes that the two appeals of Mr. Anisuddin and Mr. Iqbal Bajwa appellants may be remanded for want of notice and non-furnishing of the report of Mr. Salahuddin to the appellants, before passing the order of dismissal.
17. ' The above judgment of the Supreme Court has already been reproduced and discussed in several appeals and a detailed discussion of the application of these principles would not therefore be necessary. It may be pointed out in nutshell that furnishing of the enquiry report and issue of a show-cause notice were found necessary not only on principle of natural justice but also under the Efficiency and Discipline Rules; the explanation required from the accused at the stage of issue of charge-sheet is only of a preliminary nature and a stage for a proper explanation of the accused officer is reached after the evidence is recorded and the Enquiry Officer formulates his findings. A proper explanation of the accused officer and his comments in regard to the findings and the action proposed to be taken against him on the basis of these findings can only be furnished at that stage, if he is supplied a copy of the enquiry report."
18. ' Basing his arguments on the above observations, the learned counsel for the appellant submitted that the same could be applicable even in the case of appellant, as he and above two Excise Officers were proceeded against in the same departmental enquiry. Clarifying his arguments, the learned counsel stated that like other two Excise Officers (Messrs lqbal Bajwa and Anisuddin) the appellant too was not supplied a copy of enquiry report nor he was given show-cause notice before passing of the impugned order of dismissal against him. This was not denied by the learned counsel for the respondents. Accordingly we are of the view that the dictum laid down by the Humble Supreme Court in the above reported case would apply with full force in the case of the appellant. Consequently for the aforesaid legal lacunas the enquiry proceedings were vitiated. As pointed above as the case of the Department is weak even on facts, no useful purpose would be served in remanding the case on the ground of above legal defects.
19. ' In view of above discussion the appeal is allowed with no order as to costs and the impugned order is set aside.
20. ' However, as we have expressed our view in foregoing paragraphs that the case of the appellant is not free from doubt, he is not entitled to claim the arrears of pay, etc. For the back period he has remained out of service.