' NAIMUDDIN, J.--Leave was granted to consider inter alia the following submissions: "that. There was no direct evidence to show that the petitioner had accepted any illegal gratification and the order of removal was based on presumptions and suppositions and the question is whether proceedings under the Government Servants (Efficiency & Discipline) Rules, 1973 are in the nature of quasi-criminal proceedings requiring the establishment of the misconduct on the basis of positive evidence beyond reasonable doubt."
2. Relevant facts giving rise to this appeal briefly stated are that the appellant was, at the relevant time, working as Preventive Officer of the Customs, Karachi. He was performing his duty as such at the Karachi airport on Terminal-I. On 13-6-1983 he was performing his duty as such, when he was requested by his colleague Inspector (Preventive) to assist him in clearing the baggage of an incoming passenger Abdul Waheed of SUPARCO. During the search, some contraband spare parts were found in the baggage which were detained by the appellant against a receipt issued by him.
On that day the appellant did not check the baggage of any other passenger.
3. On the same day at about 1 P.M. The Assistant Collector (Preventive) Customs and the Deputy Collector (Preventive) Customs visited the place where the appellant was on duty. The appellant's duty was at the grill room where the detained goods are kept. The Assistant Collector and the Deputy Collector found in the carton a bottle of whisky lying inside the grill, and there were also 36 currency notes of Rs,50 each total amounting to Rs,1,800. Therefore, a charge sheet was issued to the appellant on 1-9-1983 alongwith the statement of allegations. The statement of allegations reads as follows:- "On 30-6-1983 at 1300 hours ACP/KAP-I and DCP/KAP inspected the Detention Grill and found 36 currency notes of Rs,50 denomination each, kept with a whisky bottle inside the cover of the said bottle lying in that grill. The currency notes were recovered in presence of the Detention Officer P.O.
Mr. Samiuddin Qureshi who was asked to explain as to how these currency notes found place in the whisky bottle. He replied that he has no knowledge of it. It is pertinent to point out that no officer or Sepoy other than the Detention Officer or the Sepoy posted in the Detention Grill is supposed to enter the Detention Grill and the on-the-spot enquiries also revealed that nobody had entered the Grill. Even the Detention Officer, P.O. Mr. Samiuddin Qureshi could not name any officer who might have entered the Grill for such unauthorised and unlawful act. The currency was, therefore, detained under D.R. No,P.P.8366/83.1 dated 30-6-1983.
' From the above facts, it is obvious that P.O. Mr. Samiuddin Qureshi is involved in keeping unauthorised currency concealed in the carton of a whisky bottle. This money obviously was extorted from the passengers and forms the illegal gratification concealed in the abovesaid manner. Mr. Samiuddin Qureshi P.O. Is, therefore, guilty of gross misconduct and is charge-sheeted for the reasons mentioned above, under the Government Servants (E&D) Rules, 1973."
4. Khawaja Tan weer A hmad , Assistant Collector of Customs (Terminal-2) Karachi was appointed as Enquiry Officer. He conducted the enquiry and after examining several witnesses and considering the statement of the appellant he came to the following conclusions: "However, there is no eye-witness to the fact that Detention Officer Samiuddin Qureshi was found keeping the currency notes inside the carton of whisky bottle and the circumstantial evidences examined above are also not sufficient to prove that the currency notes were actually kept by Mr. Samiuddin.
' Moreover, the whisky bottle under reference was shifted to the Detention Grill of Terminal-I from Terminal-II as it was a case of pending departure and so there is a possibility that the currency notes were already in the cover of whisky bottle when it was shifted from there and someone who kept the money, could not get a chance to take it out.
' It is also important to mention that the bottle was not received by D.O. Samiuddin. in view of the above-stated finding and grounds thereof benefit of doubt can be given to Mr. Samiuddin Qureshi, Preventive Officer (under suspension)."
5. The Enquiry Officer submitted his report accordingly. But he was directed by order; dated 13-12- 1983 to reconsider his finding. On this, the Enquiry Officer submitted fresh report on 17-1?-1983 whereby he found as follows: "The first of the findings is that on 30-6-1983 no one other than the staff posted or the staff which was asked to perform duty entered inside the detention grill, and so in this way, there is no possibility for any one of the Customs staff working outside the grill for having kept .Currency notes in the whisky bottle cover at least on 30-6-1983. Moreover, q D.O. Mr. Samiuddin has accepted that on 30-6-1983 he examined the baggage of a passenger of a flight which was under clearance at the time he resumed his duty. After the examination of the baggage of the passenger, he went to the detention grill and started his routine working as detention officer."
' On receipt of this report the Authorised Officer dismissed the appellant from service.
6. After availing of the departmental remedies and failing the appellant filed an appeal bearing No,95/K/1984 with the Federal Service Tribunal which was dismissed by the learned Tribunal. While dismissing the appeal, the Tribunal observed as follows: "In these circumstances, there is strong presumption against the appellant that it was he who had,himself or in collaboration with his staff, received the amount of Rs,1,800 and kept it in the cover of the bottle for taking it away at the close of the duty hours. This is the finding of the Inquiry Officer, the Authorised Officer and the Authority, with which we entirely agree."
' The aforesaid order of the learned Tribunal led to the filing of the present appeal for which leave was granted, as stated above.
7. We have heard Mr. Muhammad Naseem, Advocate for the appellant and Mr. Shahoodul Haque, Advocate for the respondent. It was submitted by Mr. Naseem that in the first Enquiry Report the Enquiry Officer had given the appellant the benefit of doubt but he was directed by the Authorised Officer to submit fresh report which was virtually a direction to him not to exonerate the appellant, and, therefore, this direction to submit fresh report, was against law. He also submitted that the order of removal of the appellant from service is based on no evidence, whatsoever and it is rather based on presumption or inference drawn but not warranted by facts proved. The learned counsel also submitted that the appellant had requested the Enquiry Officer to summon Mr. Abdul Waheed of SUPARCO and examine him as a witness but his application was refused.
' Taking up the second submission, first, the learned counsel for the appellant submitted that in his reply to the charge-sheet, the appellant has stated that there are four shifts, and each shift has its own detention officer: one sepoy and one Hammal. In addition, one Senior Preventive Officer is also posted in the day shift only to deal with the pending detained cases. At the time of taking charge from a shift, the cases and boxes lying in the grill room are not physically checked because it is not possible for the detention officer to check the same. They are checked on two occasions i.e, first, while receiving them and then, at the time of their delivery. The whisky bottle was received in the grill on 31-1-1983 by the Chief Detention Officer vide P.D. No,5827 of 1983-second. The bottle was transferred from Terminal-2 where it was detained pending departure of the passenger.
8. Now, from the material on record it is clear that nobody had seen the appellant receiving the money from anybody or keeping the same in the carton of whisky bottle. It was suspected that the appellant had received the money from Abdul Waheed of SUPARCO but his contraband goods were detained by the appellant, and therefore, there was no reason for Abdul Waheed to give bribe to the appellant. He made no complaint in this regard. Nobody else said that he had given the money to the appellant. The finding is based on conjecture or suspicion. Conjecture or suspicion can never take the place of proof of a fact. The carton was lying for more than three months in the grill room. In fact the carton was received by transfer from Terminal-2. There are no facts on the record from which even an inference could be drawn that the appellant had received the money as bribe from Abdul Waheed or any other passenger. The appellant had dealt with only one passenger on the day of incident namely, Abdul Waheed whose part of luggage was detained under proper Detention Receipt; nor could it be inferred that he had kept the money in the carton.
Moreover, there is material on record that four persons per shift used to work in the grill room and in all 16 persons were there each day. This is, therefore, a case of no evidence whatsoever.
' There is also no explanation as to why and at whose instance or information the Assistant Collector and the Deputy Collector searched the carton of whisky bottle and found out the money there when there was no report about it, and a large number of articles were kept in the grill room.
Indeed, the appellant wanted to summon Abdul Waheed of SUPARCO but his request was unduly declined in view of the assumpion that he would not give evidence against the appellant because that, would be self-incriminating. It is common experience that people who are aggrieved by the demand of bribe do come forward and report the matter to the concerned authorities and give the evidence.
9. Further, the Enquiry Officer also in first instance, had given the appellant benefit of doubt though he 'ought to have, on evidence before him, found that the charge against the appellant was not proved as there was 'no evidence.
10. To dismiss a civil servant or for that matter, any employee on a charge of taking bribe or misconduct is as serious a matter as convicting a person for a crime because his whole career is ruined. Therefore, the order of dismissal must be based on some evidence. In support we may refer to a passage from "Principles of Administrative Law" by M.P. Jain and S.N. Jain Second Edition) which at page 375 reads as follows: "Relief may also be available to an individual if the tribunal has erroneously refused to admit admissible and material evidence or has erroneously admitted inadmissible evidence which has influenced 'the impugned findings of fact. A finding is said to be based on no evidence when it is solely based on conjecture, surmise or suspicion. Since. This happens exceptionally there are not many cases where a finding is quashed because of no evidence. One such exceptional case is India v. H.C. Goel (AIR 1964 SC 364). Here the question was whether the petitioner had attempted to bribe his senior officer. The only evidence was that the petitioner had gone to the house of the official and brought out from his wallet a piece of folded paper which appeared to be a hundred- rupee note from the colour and size of the paper but had kept it back on being reprimanded. There was evidence that the eyesight of the official was not perfect. It was held that the 'finding of attempted bribe by the disciplinary authority was based on mere suspicion. The Court did not find any evidence in support of the finding. In another case Tribhuban Prakash v. India (AIR 1970 SC 540) the Supreme Court quashed the finding of the administrative authority on the ground of no legal evidence as it was based purely on conjectures and surmises." (Underlining is ours for emphasis).
' In view of the above it is not necessary to go into the first submission.
11. For all these reasons we allow this appeal, set aside the order of dismissal and reinstate the appellant to his post. The parties are-left to bear their own costs.