' SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Mr. Abdul Ghaffar Qureshi has preferred this appeal against the order of his dismissal from service as Assistant Controller of Imports & Exports, vide notification dated 10th June, 1980 issued from the Ministry of Commerce, Government of Pakistan. It was filed on 6-10-1980. It was heard on 1st & 2nd June, 1983 by a Bench of this Tribunal comprising Mr. A.O. Raziur Rehman and Brig Abdur Rashid, SI(M) (Retd.) Judgment in appeal was initiated by Mr. A.O. Raziur Rehman, Member. By his judgment dated 3-11-1983, he allowed the appeal and set aside the impugned order and ordered reinstatement of the appellant in service with all consequential benefits from the date of the impugned order. The other Member, Brig. Abdur Rashid wrote dissenting judgment dated 26-1-1984, whereby he dismissed the appeal and upheld the impugned order. The appeal was, therefore, heard by the then Chairman of the Tribunal, Mr. Justice Shah Abdur Rashid, under the provisions of section 3-A(2)(b) of the Service Tribunals Act, 1973 (LXX of 1973). By his judgment dated 14-6-1984, he accepted the appeal and set aside the order of dismissal of the appellant and directed that the proceedings should start afresh from the stage where the lacuna had occurred in the departmental proceedings, as pointed out in the judgment. The appellant went in appeal before the Supreme Court against the judgment of the learned Chairman. By judgment dated 19-4-1988, the Supreme Court allowed the appeal , and remanded the case for its fresh decision by the Chairman in terms of the provisions of section 3-A of the Service Tribunals Act, 1973. The appeal has, accordingly, been heard by me.
2. The appellant was an Assistant Controller of Imports and Exports, Hyderabad. Departmental proceedings were taken against him on the charge-sheet dated 14th May, 1979, reproduced below:-- "CHARGE-SHEET ' WHEREAS, you Mr. Abdul Ghaffar Qureshi, Assistant Controller of Imports and Exports, in the Office of the Deputy Controller of Imports and Exports, Hyderabad ordered issue of import permits for cars under Gift Scheme against forged and fake documents without ensuring the genuineness of the documents produced by the applicants and have acted in most irresponsible and careless manner in discharge of your duties which led to your involvement in the scandal of import of cars under the Gift Scheme. You, Mr. Abdul Ghaffar Qureshi, have deliberately committed the following serious irregularities and acts of commission and omission amounting to misconduct:-
(1) Although in most of the cases of import of cars under the Gift Scheme (163 cases) purchase receipts, invoices and Bills of Lading were of the same date i,e, 22-12-1978 which is not possible, yet you passed orders to issue import permits against these forged/fake documents without scrutinising these documents properly. You should have noticed, at the time of examining these papers/applications that how it could be possible to make payment on 22-12-1978 for these 163 cars and arrange shipment on the same date.
(2) You passed orders to issue import permits in cases where date of purchase receipt and invoice was the same i,e, 5-12-1978 which is not possible in the normal course.
(3) Almost in all the cases, stamped papers on which attorney had been appointed by the applicants were not in order, i,e, name of purchaser and seller was not indicated on the stamped paper and you did not care to see the discrepancy in the stamped paper and ordered for issue of import permits to Attorney holders who were fake.
(4) In many cases, purchase receipts did not bear the date but the import permits were issued under your orders. The date on purchase receipt was the vital factor to determine whether payment was made on or before 28th December, 1978, since in cases where payment had been made after 28th December, 1978 import permits for cars under the Gift Scheme were not to be issued.
(5) Purchase receipts showing payments received through Bank Draft, were without date and number.
(6) Signature of applicants differ in various documents signed by the applicants.
(7) Import permits were delivered to unauthorised persons.
(8) You were expected to scrutinise all documents received with applications for issue of import permits for cars carefully and follow the procedure laid down for the issue of import permits under the Gift Scheme before ordering to issue import permits for re-conditioned cars;
(2) Your deliberate action in committing the above irregularities not only amounts to gross negligence in the discharge of your duties but also makes it clear that import permits were issued deliberately against forged/fake and incomplete documents;
(3) AND WHEREAS the above action amounts to gross negligence, lack of supervision, carelessness constituting the offence of misconduct, inefficiency and corruption as defined in Government Servants (Efficiency and Discipline) Rules, 1973 which, if established, would call for a major penalty under the Government Servants (Efficiency and Discipline) Rules, 1973;
(4) AND WHEREAS, Mr. Wazir Farman Ali, Deputy Secretary, (Inquiries), Establishment Division, Islamabad has been appointed as an Inquiry Officer under Rule 5 read with Rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1973 to conduct an inquiry into the aforesaid charges.
(5) NOW THEREFORE, you Mr. Abdul Ghaffar Qureshi, are hereby required under Rule 6 (2) of the Government Servants (Efficiency and Discipline) Rules, 1973 to submit your explanation in writing to Mr. Wazir Farman All within 14 days of the receipt of this charge-sheet. You may also indicate whether you desire to be heard in person.
(6) A statement of allegations is enclosed.
(Sd. )
IZHARUL HAQUE Secretary Commerce."
' The appellant denied the allegations in reply to the charge sheet. Inquiry into the charge sheet was made by Mr. Wazir Farman Ali, Deputy Secretary (Inquiries), Establishment Division. He, by his report dated 11-10-1979, held that the charge No,1 was proved against the appellant to the extent that he had manifested lack of care and caution in processing the documents in all the 163 cases and exonerated the appellant of the other charges. Finally, a summary was submitted to the President who was pleased to order dismissal of the appellant. The notification of dismissal of the appellant was, accordingly, issued on 10th June, 1980, as aforesaid.
3. The impugned notification of dismissal of appellant from service reads as under:-- "GOVERNMENT OF PAKISTAN MINISTRY OF COMMERCE Islamabad, the 10th June, 1980.
NOTIFICATION ' No, 1(20)/79-Admn. IV.-Consequent upon the disciplinary action taken against Mr. Abdul Ghaffar Qureshi, Assistant Controller of Imports and Exports, Hyderabad (under suspension), the President has been pleased under Rule 3 of the Government Servants (Efficiency and Discipline) Rules, 1973 to dismiss him from service with immediate effect.
(Sd. ) S.K.H. ZAIDI Deputy Secretary to the Government of Pakistan."
The disciplinary action referred to in the notification seems to have reference to the disciplinary proceedings which were initiated by way of charge sheet dated 14th May, 1979, reproduced above.
As mentioned above, the charges were inquired into at a regular inquiry held by an inquiry officer, Mr. Wazir Farman Ali, Deputy Secretary, (Inquiries), Establishment Division. Out of eight charges, the inquiry officer held the appellant guilty of only charge No,1 to the extent that he had manifested lack of care and caution in processing the documents in all the 163 cases of issuance of permits under Gift Scheme. The inquiry officer arrived at that conclusion on the basis that the purchase receipts, invoices and bills of lading in all the 163 cases of issuance of import permits by the appellant issued in different countries were of the same date viz. 22-12-1978 and, therefore, the documents were manifestly fake documents and had the appellant exercised, due care and caution in their scrutiny, the import permits would not have been issued. He dealt with this aspect of the case in paragraph 9 of his report, reproduced below:-- "It is also worth considering that three different parties namely the purchaser, the supplier and the shipper are involved in the whole process of completion of documentation formalities. It, therefore, sounds improbable that all the three parties could have harmoniously coordinated their activities on one and the same date. Such a possibility could be conceived of under circumstances where all the parties happen to reside at one and the same station. In the instant cases, most of the purchasers had booked purchase order in Japan from different countries and in such circumstances a man of ordinary prudence exercising some degree of care and caution could have made some searching efforts to ascertain the genuineness of these documents.
' I, therefore, hold that charge No, 1 has been proved to the extent that the accused officer had manifested lack of care and caution in processing the documents in all the 163 cases."
4. The inquiry officer did not hold the appellant guilty of other charges. Apparently, the impugned order was passed on the basis of the report of the inquiry officer.
5. The findings of the inquiry officer were assailed before the Bench of this Tribunal comprising Mr. A.O. Raziur Rehman and Brig. Abdur Rashid, SI (M) (Retd.), Members. Mr. A.O. Raziur Rahman did not approve of the findings of the inquiry officer by recording following observations at paragraph 6 of the judgment proposed to be pronounced by him; reading as under:- "As for the correctness of the finding itself, we find that the main charge against the Appellant was that he had ordered issue of import permits for cars under Gift Scheme against forged/fake documents without ensuring the genuineness of the documents and that in doing so, he had acted in a most irresponsible and careless manner as evidenced by the fact that, in spite of the date of purchase receipts, invoices and bills of lading being the same i,e, 22-2-1978, in as many as 163 cases, which was not possible the Appellant had passed orders for the issue of import permits against forged/fake documents 'without scrutinizing them properly. The report of the Enquiry Officer does not clarify whether all the 163 cases to which reference was made in the charge-sheet were cases of forged or fake documents and whether the Appellant could have detected that these were so, merely because, in all these cases the three documents mentioned were of the same date. He has, however, worked on the assumption that all the three documents could not have been prepared on the same date and since in these cases, they had been prepared on the same date, the accused officer should have refused to pass orders without verifying about the authenticity of the documents in question. It is difficult to agree with the reasoning adopted by the Enquiry Officer. There is no merit at all in his assumption that all the three documents cannot be prepared on the same date and even some of the prosecution witnesses had deposed that it was possible for all the three documents to be prepared on the same date. In fact, the Deputy Controller of Imports and Exports, Hyderabad, admitted that his office had been accepting applications for the issue of import permits for cars in which all the three documents, purchase receipts, invoices and bills of lading bore the same date. The Deputy Controller of Imports and Exports, Karachi also stated that there existed no hard and fast restrictions against the documents bearing the same date. He also deposed that no application had ever been rejected on the ground that the invoices, purchase receipts and bills of lading bore the same date. In the face of these clear statements by prosecution witnesses themselves, it passes one's understanding how the Enquiry Officer could hold that merely because the applications in question had all the three documents bearing the same date, the Appellant should have treated them as forged/fake or bogus documents. He had no justification for making such an assumption and on the basis of that to treat the officer as having been guilty of carelessness and lack of caution. Since the very major premise, on which the Enquiry Officer has based his finding against the Appellant, is not true as borne out by the evidence on record, we do not see, any reason for accepting the finding that the appellant showed carelessness or lack of caution in dealing with the cases in question."
6. The other Member, Brig. Abdur Rashid, recorded following observations at paragraphs 15, 16 and 17 of the judgment proposed to be pronounced by him, on the examination of 275 case files and recorded his reasons at paragraphs 18, 19 and 21 of his judgment for arriving at the conclusion that the appellant was guilty of the charges 1, 2 and 8. The relevant paragraphs of his proposed judgment, referred to above, are reproduced below:- "15. The perusal of 275 case files shows that Annexures I and III as per rules have been filed. Even a cursory analysis reveals the following infirmities in cases of which I am quoting only two:
(1) IP-424734 was issued to Mst. Alam Bibi on 4-2-1979. In this case, the bank draft No, 916372, dated 5-12-1978 has been quoted at para. 9(4)(i)(b) of Annexure I but the name of the bank has not been mentioned. The sum of US dollars 3200 was remitted from UK on 5-12-1978 (because this is the date of the bank draft). The receipt issued by SARGA International Limited, Tokyo is also dated 5-12-1978.
(2) IP-424735 was issued to Mst. Qasim Bibi on 4-2-1979. Bank draft No, 710663 dated 5-12-1978 was remitted for 1700 US dollars from UK without mentioning the name of the bank. SAGRA International Ltd. Tokyo receipt is also dated 5-12-1978.
' There are a few cases of the above type where the bank draft is dated 5-12-1978 which originated in UK and the receipt for the amount was issued on the same date from TOKYO.
(16) There are 163 cases in which the purchase receipt, invoice and bill of lading are of one and the same date viz., 22-12-1978.
(17) There are a number of cases, where the mode of remittance of amount has been left bank. In some cases bank draft numbers have been given (with and without date) but the name of the bank has been left blank.
(18) With the above background, and in order to be brief, I shall deal with one aspect of this case, i,e, whether or not it is possible that the bank draft, originating in UK and its receipt issued in Tokyo could be of the same date. I would say that it is not possible. However, in my opinion it is not impossible that the purchase receipt, invoice and bill of lading are of the same date though it would be a rare phenomenon and would be feasible only if the exporters had readily available ships. Even with the most modern means of communications, it would be impossible that the bank draft and its receipts could be of one date unless, of course, a gang of racketeers was operating in close collaboration and coordination with one another at two places, viz. UK and Pakistan and this is what is doubtlessly the case. Whoever conceived the scheme would be someone working in the Import and Export Organisation of the Government of Pakistan. If not so employed, then he is well versed with the working of the said Government organisation. In Pakistan if it was a Pakistani working for the Japanese exporters then it was also the office of the Deputy Controller of Import and Exports, Hyderabad who were willing hands for the issuance of a large number of import permits. When we look at 163 cases for which import permits were issued in two days on 78 February 1979, the involvement of DCI & E's office at Hyderabad becomes obvious. Even if we give the said staff a credit for speed, for which they are certainly not known, no one could dispose of all these cases in two days unless they had some extra incentive awaiting them.
(19) I have stated that it is not possible that the bank draft originating in UK and its receipt being given in Tokyo could bear the same date. Going through the enquiry and other record, I find that opinions have differed on this vital issue. Apparently, no one has cared to identify the time zones in which UK and Tokyo are situated. Tokyo being in the East, is nine hours ahead of UK in terms of time and hence the date. Even if money is remitted from UK at 1000 hours on 5-12-1978 it would already be 1900 hours in Tokyo, by which time their business would have closed. They would be in no hurry to issue the receipt the same day even if open, because this could be very easily and more appropriately done the next morning. The purchase receipt, invoice and bill of lading of the same date, in the circumstances of difference of time zone, would be dubious. I think the racketeers had to hurry up their activities because the Government of Pakistan had imposed a ban on the import of reconditioned cars w,e,f, 28-12-1978 unless they had been shipped on or before the said date.
(21) I would say without hesitation that charges Nos.1 and 2 stand established beyond any reasonable doubt. Due to the fact that the said two charges stand proved, charge No, 8, which is, actually, a blanket charge also stands proved. It is not merely a case of lack of diligence or care on the part of the appellant. It is a case of his proven involvement in the scandal. Had he acted in an honest manner he would have discovered what was happening around him. For him to raise hue and cry just as the cat was coming out of the bag and after he had issued large scale permits, could be of no avail later on."
7. The learned Chairman, who heard the appeal under section 3-A (2) (b) of the Service Tribunals Act, 1973, to resolve the difference of opinion between the two learned Members, made the following observations on the factual merits of the case:- "My brother, Mr. A.O. Raziur Rahman has opined that charge No,1 has not been established. On the other hand, my brother Brig. Abdur Rashid is of the view that the charge is fully established. Brig.
Abdur ' Rashid has given reasons which it is difficult to rebut in the absence of explanation from the appellant that the charge has not been proved."
' The learned Chairman did not record his decision on factual merits of the case but he accepted the appeal and set aside the impugned order on the legal grounds that the appellant was seriously prejudiced as the copy of the inquiry report was not supplied to him, nor final show-cause notice was served on him for imposing on him the penalty of dismissal from service and reliance in that respect was placed on a case of Syed Mir Muhammad v. Government of N.-W.F.P. PLD 1981 SC 176.
8. The appellant was held guilty at the inquiry under the Government Servants (Efficiency and Discipline) Rules, for having issued import permits under the Gift Scheme of 163 cars on the basis of purchase receipts, invoices and bills of lading issued on one and the same date viz. 22-12-1978 in different countries. The allegations were not controverted by him but his defence plea was that there was nothing wrong in accepting those documents as genuine and issuance of import permits on the basis of those documents. This aspect of the case was summed up by the inquiry officer in paragraph 9 of his report reproduced above. The learned Member, Mr. A.O. Raziur Rahman did not agree with the reasoning given by the inquiry officer and observed that the relevant documents could be prepared on the same date and no suspicion was brought out about the genuineness of the documents on the basis of which the import permits were issued by the appellant. The other learned Member, Brig. Abdur Rashid, held the view that it was virtually not possible, although not impossible, that purchase receipts, invoices and bills of lading could be issued on one and the same day as it was, according to him, a case of scandal or import of cars by a gang of racketeers. The learned Member held the appellant guilty not only of charge No,1, but also of charges Nos.2 and 8, in addition. With due consideration for the view adopted by the learned Member, Brig. Abdur Rashid, SI (M), I am of the opinion that this Tribunal, being an appellate forum for a civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service, including disciplinary matters, cannot adopt role of a prosecutor and hold the appellant guilty of a charge he stands exonerated of in the departmental proceedings. Of course, the Tribunal can take into consideration the evidence and circumstances which stand for or against the charge the appellant has been punished for. The appellant was exonerated of the charges Nos. 2 to 8 and the Tribunal would be exceeding its jurisdiction in holding the appellant guilty of those charges. The situation visualised by the learned Member Brig. Abdur Rashid would have been relevant had it transpired that those documents or any of them were not genuine papers. The inquiry officer does not seem to have gone into that aspect of the case. The learned Member MrA.O. Raziur Rahman did consider this fact that the report of the inquiry officer did not clarify whether all the 163 cases to which reference was made in the charge sheet were cases of forged or fake documents. It was brought in evidence before the inquiry officer that those were not the only cases in which receipts, invoices and bills of lading issued in different countries on the same date were accepted as genuine documents' for issuing import permits under Gift Scheme but permits were actually issued on the basis of such documents not only at Hyderabad station but also at Karachi. I would also agree with the observations made by the learned Member Mr. A.O. Raziur Rahman that there was no evidence that any loss was caused to the Government or any gain (I would rather say 'wrongful gain') was derived by any individual or individuals in issuance of import permits in those cases. No doubt, thrust of large number of applications of import permits under Gift Scheme at one and the same time would have drawn attention of any body and the concerned officers should have been alert against any conceivable mischief or even fraud, but since no mischief or fraud was brought to light and there was practice in the department accepting such documents, as pointed out above, no contributory negligence and/or carelessness was attributable to the appellant on the evidence made available before the inquiry officer. During the course of the hearing of appeal before me, it transpired that the appellant was proceeded against and imposed punishment of dismissal from service not only on the report of the inquiry officer but also on taking other two grounds into consideration viz., the report of the Inquiry Commission appointed under MLO-19 that the appellant was responsible for issue of import permits on the basis of forged and incomplete documents in those 163 cases, and also that the appellant's integrity did not appear to have been above board, as borne out by the Summary submitted to the President by the Ministry of Commerce through the Establishment Division. The appellant was proceeded against and imposed punishment under the provisions of the Government Servants (Efficiency and Discipline) Rules, 1973. However, surprisingly, he was neither charge sheeted nor served a show-cause notice of the adverse reports against him by the Inquiry Commission and that his integrity was not above board. This treatment denied to him the fundamental right of getting natural justice of hearing before being condemned to punishment.
9. Agreeing, in substance, with the views formed by the learned Member Mr. A.O. Raziur Rahman that no charge was proved against the appellant, and taking into consideration that the appellant was not given opportunity of meeting the charges that there was adverse report against him by the Inquiry Commission and that his integrity was not above board, I would allow the appeal and set aside the impugned order with no order as to costs.
10. The appellant shall be entitled to all the consequential benefits including his reinstatement in service.