1. ' SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Syed Muhammad Aslam Qadri was a Preventive Officer, Customs. He was proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the E&D Rules) Order of his removal from service was passed by the Collector of Customs (Preventive) Karachi on 5-12-1983. On his appeal to the Central Board of Revenue, the Order of his removal from service was modified to that of his reduction to the post of UDC vide letter dated 17-12-1984 communicated to him under letter dated 27-12-1984. He has preferred this appeal against the appellate order.
2. The punitive action was taken against the appellant on the allegations that during the course of posting as a Preventive Officer at Khurkhera Check Post, he and Sepoy by name Muhammad Akbar, harassed-a passenger by name Mr.Achi Memon and his family members, who were, travelling by means of a wagon on the RCD Highway from Quetta to Karachi and seizel some foreign medicines and crockery and also,took- from them:Rs,3,000 in cash and a golden neck chain in lieu of Rs,1,000 falling short of the demand for Rs,4,000, on the pretext that they were carrying smuggled gobds, in the early morning hours of 7-6-1983. The incident was reported to the Assistant Collector of Customs (Preventive). Preliminary, ,inquiry was made, by Mr.Ali Hussain Shah, IPS Anti-Smuggling.
2. I/C Western Sector. He recovered the crockery and the, golden chain from the appellant and the Sepoy Muhammad Akbar on 9-6-1983. He also recorded their statements. The appellant was served a show-cause notice under Rule 5(iii) of the. E&D. Rules dated 13-8-1983. The appellant submitted his reply on 7-9-1983, wherein he denied the allegations of having taken illegal gratification from the passenger and stated that the crockery, foreign medicines and the golden chain were dropped there by the said customers in protest against querry from Rhein About` the possession of snuggled goods. The Collector of Customs (Preventive) formed the opinion from the passenger's complaint, the recovery of crockery and the golden chain from the appellarcand the Sepoy Muhammad Akbar and the appellant's statement before Mr.A I Hussain Shah, IPS and the appellant's reply to the show-cause notice that he was guilty of misconduct as defined under the E&D Rules and passed order of his removal from service under Rule 4(1)(h)(iii) of the E&D Rules.
3. Vide order dated 5-12-1983. The order of appellant's removal from service was modified to that of his reduction to the post of UDC in appeal to the Central Board of Revenue, vide letter dated 17-12- 1984 impugned in, this appeal.
3. The learned counsel for the appellant has contended that the allegations against the appellant were such that a fullfledged inquiry, should have been held in order to determine the liability of the appellant. He has placed relianee in this respect of the cases reported in 1979 PLC (C.S.) 129; 1980 PLC (C.S.) 344; 1984 PLC (C.S.) 550. He . Has next contended that confessional statement reported:by:, the Customs officers at the preliminary stage is not admissible. He has alSo'conterided.That, the: statement of the appellant that the goods and the golden chain were ACC wind > by him but they were dropped there by the passengers in protest against quemes made from them is confirmed by the entry made in the station diary at the Check Post. He has also -advanced other legal pleas that the grounds of action were not supplied to the appellant separately; he was not given opportunity of adducing evidence in defense no copy of the complaint or report was supplied' to him, and he was not afforded .Hearing in person. He has lastly content decipher punishment awarded by the appellate atlthority does not aviation its -duration as required under FR-29.
4. 4: The respondents have opposed the appeal urging that the alleguti9ns against the appellant were almost Admitted and no inquiry was required-to be made. They have stated that the entry in the station diary of the recovery of the goods and the golden chain was a subsequent maneuvering to put up defense plea. They have also stated that all the necessary requirements of law were observed before imposing the departmental punishment on the appellant. The learned counsel appearing on their behalf also has submitted that the departmental action against the appellant was taken in accordance with the E&D Rules and there was no legal lacuna in the proceedings. According to him, discretion rests with the Authorised Officer in adopting the procedure of serving a show-cause notice on the accused official/officer and dispensing with the regular inquiry and he has cited PLD 1985 SC 134 and 1980 SCMR 310 as the supporting authorities. According to him, no personal hearing is required to be given in a case where proceedings are initiated by a show-cause notice and regular inquiry is dispensed with. He has, of course, conceded that FR-29 did apply to the appellant's case when the appellate authority modified the punishment of appellant's removal from service to that of his reduction to the post of UDC and the period for the operation of the order needed to be specified.
5. The departmental proceedings against the appellant and the co-accused Muhammad Akbar, Sepoy were initiated by issuing to them a show-cause notice, reproduced below:- SHOW-CAUSE NOTICE ' While posted at Khurkhera Cheek-post, P.O. Mr.S.M.Aslam Qadri & Sepoy Muhammad Akber, checked the passengers who were coming from Quetta to Karachi on R.C.D. Highway on a wagon on 7-6-1983 at 0400 hours. One passenger Mr.Achi Memon and his family members, resident of Shaukat Ara-Mahal, Ist Floor, Room No,14, Gari Khata, Arambagh, Karachi, was in possession of some foreign medicines and six dozen cups. P.O. Mr.S.M.Aslam Qadri & Sepoy Muhammad Akber harassed the passenger Ache Memon and the members of his family and demanded Rs,4,000 as illegal gratification from the passenger Ache Memon for releasing the said medicines & crockery.
5. The passenger managed an amount of Rs,3,000 by electing as loan from the other passengers seated in the same wagon and paid to the said Customs Officer & Espy, also deposited the gold neck-chain as a security in lieu of the balance illegal gratification of Rs,1,000, P.O. Mr.S.M.Aslam Qadri & Sepoy Muhammad Akber accepted Pak Rs,3,000 took the gold-chain and also detained the six dozen cups saying that gold-chain would be returned to the passenger when the remaining amount of Rs,1,000 is paid to the Sepoy Muhammad Akber and made the passenger free from their custody at Khurkhera Check Post. On 8-6-1983 the passenger Achi Memon again went to the Khurkhera and tried to obtain the gold-chain from the concerned officer & espy but they refused to return the detained goods. At last he reported the matter to the Assistant Collector of Customs (Preventive 11/q) and the case was investigated by IPS Anti-smuggling I/C Western Sector Mr.Ali Hussain Shah, on the same day. On interrogation P.O. Mr.S.M.Aslam Qadri & Sepoy Muhammad Akber confessed of having received such amount the gold-chain and six dozen crockery. They voluntarily surrendered the Pak Rs,3,000 in cash, the gold-chain and the six dozen cups from Khurkhera Check Post to the IPS Mr.Ali Hussain Shah which were later handed over to the complainant Mr.Achi Memon in presence of SPS/ASO.
6. ' P.O. Mr.S.MAslam Qadri failed to maintain the required standard of conduct expected from an officer damaging the departmental image. In spite of repeated instructions issued by the Collector of Customs (P) to he courteous and polite towards the public/passengers the P.O. Mr.S.M.Aslam Qadri extorted Rs,3,000, a gold-chain and six dozen crockery thus flouting the instructions. Such conduct speaks of his utter disregard for the directions issued. Sepoy Muhammad Akber acted in league with P.O. Mr.S.M.Aslam Qadri in the unlawful act.
7. ' The act committed by P.O.Mr.S.M.Aslam Qadri and Sepoy Muhammad Akber are unbecoming of public servants and comes under the purview of misconduct within the meaning of rule 3(b) of the Government Servants (E&D) Rules, 1973, which warrants imposition of major penalty under rule 4(h) of the aforesaid rules.
8. ' P.O. Mr.S.M. Aslam Qadri & Sepoy Muhammad Akbar are, therefore, called upon to show cause why a major penalty of dismissal from service should not be imposed upon them under the aforesaid rules. Their individual written reply should reach the undersigned within 14 days from the date of issue of this notice, failing which ex parte decision may he taken against them on the basis of the evidence available on record. Personal hearing is also fixed for 20-8-1983 at 1500 hours which they are advised to attend to plead their case.
9. ' The reply to the show-cause notice by the appellant is reproduced below:- "To ' The Deputy Collector of Customs, ' Preventive (Headquarters), ' Customs House, ' Karachi.
10. ' Subject: REPLY TO THE SHOW-CAUSE NOTICE.
11. ' Respected Sir, ' In response to the show cause notice No,CON/21/83-CB(P), dated 13th August, 1983, I with utmost reverence and respect beg to state as under:-
(1) That while I was posted at Khurkhera Check Post during the month Of June, 1 happened to be on duty on the night of 6/7th June, 1983. A passenger wagon had arrived from Ouetta through R.C.D.
12. Road, and exercising usual vigil, I directed my Sepoys to check the wagon and as a result of it, he informed me that a passenger was in possession of some medicines and crockery. Accordingly, I boarded the wagon myself and on enquiry the passenger disclosed his name as Achi Memon.
13. Since the wagon had come from Quetta it was very much suspected that the medicine and crockery of the foreign origin have been illicitly acquired. As such I asked the passenger to produce the receipt of the said medicines and crockery. The passenger could not produce any documentary proof and instead tried to create scene and also enlisted the moral support of other passengers sitting in the wagon with the result there was danger of emergency of worst situation. I explained to the passenger that he should not try to dramatise the situation. What I was interested in was only the production of documents to substantiate his lawful possession. Since he did not have any documents, he resorted to aggressive posture and out of anger and ill temper he took out a carton of crockery and also took out the chain from his neck and threw all these things on the road with a threat of dire consequences. After doing the ugly incidents he boarded the wagon and went away from the check post.
(2) That since the passenger had left behind his crockery and chain, I got the same kept at Check Post with a view that whenever the passenger would return, he would be handed over his goods.
14. Endorsement with regard to the occurrence of ugly incident and detention of goods, was made in the daily diary. The Sector Commander on visit also made remarks on the diary which is a matter of record and can be verified.
15. (3)That on 8-6-1983, I was called by Sector Incharge IPS, Ali Hussain Shah and told that a complaint had been lodged by a passenger namely Achi Memon that we have detained his crockery and chain and were allegedly demanding Rs,1,000 being the balance of Rs,4,000. I explained to the IPS, Sector Incharge the entire circumstances under which the goods had been kept at Check Post and denied that there was any illegal transaction in this regard. But IPS did not listen to my explanation and under intimidation and duress extorted a statement which suited to his requirement.
(4) That accordingly I accompanied an officer of ASO to Khurkhera Check Post and there the articles including a golden chain were handed over to ASO officer and he prepared the recovery memo. In which there is mention of the articles and gold chain and there is no mention of any Pak.
16. Currency to have either been handed over or the recovery made thereof. My submission in this regard is that I had told, the Sector In charge very candidly about the presence of the articles which prove my good intention. However, I fail to understand as to from where the theory of alleged amounts of Rs,3,000 to have been accepted by us has been brought. Had there been anything of this sort, the recovery memo. Should have detailed on this subject, which aspect is not there in the recovery memo.
17. (5)That the aforesaid circumstances are self-evident that the entire case of the alleged demand of illegal gratification has been fabricated and over zeal, and spirit has been misinterpreted and torn out context. If I had any bad intention I would have not let the articles and gold chain remain at Check Post. No sane person would ever be naive to keep the articles and force the illegal gratification in such a clumsy manner.
18. ' It is, therefore, requested that in view of my explanation my reply may kindly be accepted and I may be exonerated from all the allegations contained in the above-referred show-cause notice, for which I shall be highly grateful. If for any reason my reply is not found satisfactory, I may kindly he afforded an opportunity to be heard in person, so that I may be able to explain my point of view in detail.
19. ' Thanking you, Sir, ' Yours obediently, ' Sd/- ' S.MAslam Quadri, ' Preventive Officer, (Under suspension)."
6. It would appear that the show-cause notice served on the appellant was almost comprehensive and reply by the appellant thereto amounted to virtual admission of the allegations. The appellant admitted the incident of seizure of the crockery and the golden chain of the passengers. The variation in the two versions was that the passenger Achi Memon alleged that the crockery and the golden chain were seized from him by the appellant and his accomplice on the pretext that the rockery was smuggled and a demand was made for illegal gratification of Rs,4,000 and he could collect a sum of Rs,3,000 and paid that much amount to the appellant and he was forced to leave the crockery and also surrender a golden chain until he could pay the balance of Rs,1,000, whereas the appellant's plea was that the passenger had got annoyed on his interrogation regarding source of the crockery and he dropped the crockery and also left a golden chain under protest and the crockery and the chain were taken into possession and kept at the Check Post in anticipation of the passenger's coming hack to collect them. Reading the two versions together, it is apparent that the appellant's version could not be true as the passenger had no reason to have left the crockery and the golden chain voluntarily or under protest but he must have parted with them under compulsion. The entry in the station diary is obviously a subsequent maneuvering. That being the case, no regular inquiry was called for and the Authorised Officer was not unjustified in dispensing with the regular inquiry in view of the circumstances of the case. It may, however, be mentioned that it is a misconceived idea that an Authorised Officer has absolute discretion to dispense with the regular inquiry and initiate the proceedings by simply issuing show-cause notice but the discretion has to be exercised fairly and not arbitrarily, and the derision has to be taken considering the facts of the particular case. As observed above, the facts in the instant case were such that the involvement of the appellant was indisputable and, therefore, no regular inquiry was necessary. It is apparent from the show-cause notice, reproduced above, that it was sufficiently comprehensive and it mentioned almost all the facts and the grounds and it furnished full opportunity to the appellant of submitting his reply and also availing personal hearing. It appears from the order of the Collector of Customs (Preventive) dated 5-12-1983 that the appellant was afforded hearing in person and his defense witnesses were heard on 14-9-1983 and 20-9-1983.
20. Thus, the requirements of law of disclosure of the facts and the grounds of the accusation and the opportunity of personal hearing and producing defence witnesses were substantially complied with. The appellant was rightly held guilty of the charge of misconduct. He deserved the punishment of removal from service imposed on him by the Collector of Customs (Preventive) vide order dated 5-12-1983 and the appellate authority seems to have adopted lenient view and modified the punishment of removal of the appellant from service to that of his reduction to the post of UDC. The appellate order, of course, suffers from the lacuna that the period for which the appellant stood reduced to the post of UDC has not been specified as required under FR-29 and that lacuna can be remedied by the Tribunal by specifying the period for operation of the appellate order.
7. For the reasons recorded above, the appellate order is maintained with the modification that it shall remain operative for only three years and the appeal stands dismissed otherwise. No order is made for costs.