' CH. A. RAHMAN KHAN (MEMBER).--Mr. Moeen Jan Naeem, exirector, Ministry of Foreign Affairs, Islamabad has preferred this peal against the impugned order dated 7-10-1987 whereby he was removed 3m service. His departmental appeal dated 4-11-1987 remained unreplied ever ice.
2. Briefly, the facts of the case are that while serving as Director in the inistry of Foreign Affairs, Islamabad, the appellant was served with a charge net dated 22-1-1986 which contained 16 charges. He submitted his reply to the Large-sheet denying the allegations vide his written statement dated 2-2-1986. As result of the regular enquiry conducted by the respondent- department the )pellant was cleared of all the charges except the following:--
(a) Mr. Moeen Jan Naeem was guitly of currency racketeering in Kathmandu.
(b) Mr. Moeen Jan Naeem engaged in some highly suspicious activities which would be related to smuggling or worse.
(c) Mr. Moeen Jan Naeem has acquired property in Canberra without seeking Government's approval. He has also contravened foreign exchange regulations in this process. Presumably he has not declared the income that he secured from his house and is, therefore, also guilty of income tax evasion.
3. In consequence, it was contended by the learned counsel for the Tenant that the show-cause notice was served on 9-2-1987 to which he ibmitted his reply dated 19-2-1987, once again denying the allegations levelled ;ainst him. It was submitted that in spite of the total denial of the allegations yelled against him the impugned order of his removal from service was issued 7-10- 1987.
4. It was strongly urged by the learned counsel for the appellant that close amination of the charge-sheet which contained 16 charges and the resultant :quintal by the enquiry officer from 13 charges would reveal that basically the iarges were framed with personal malice and did not contain any solid proof against him. These charges were framed only to harass and intimidate the appellant. This situation, it was contended, was in fact, the natural corollary of di circumstances which now form the part of the record. Suffice it to say, that it only proved the apprehensions expressed by the elder brother of the appellant, M Amin Jan Naeem, in his D.O. Letter, dated 7th September, 1983. It was strong] argued by the learned counsel for the appellant that if there was even an iota proof available, the enquiry officer would not have cleared him of these otherwise serious looking charges. It, therefore, goes to prove that the entire case was cooked up and false evidence was initially brought in to convince the aiithoritie to initiate the disciplinary proceedings against the appellant. This in the back ground of the contents of the D.O. Letter, dated 7-9-1983, would further prove th genuineness of the request made therein to say the least.
5. It was submitted that the enquiry was not conducted on day to day basic as envisaged under rule 6(4) (9) of the E&D Rules, 1973 but was spread, a1most over two years. The appellant was not provided the copies of the statements c Ambassador Abdul Fazl and others which were recorded through] correspondence and referred to in the enquiry report. This lapse, therefore prejudiced the appellant's case because he was not given the opportunity to cross-examine the individual witnesses on which the enquiry officer place( reliance to reach his conclusions. Furthermore, the enquiry officer held th( appellant guilty of the three irregularities mentioned above which did not form part of the original charge-sheet dated 22-1-1986. In this regard it was strongly: contended that the first two charges could be termed only imaginary without concrete proof based on surmises and the third charge is merely relevant to th( extent of acquiring property in Canberra without seeking Government's approval The appellant, it was contended, had submitted an affidavit to the enquiry office: in which Dr. Anwar Ali, appellant's uncle had categorically confirmed that the( money in lieu of appellant's share of the family's property in Mardan was transferred directly from abroad by his sons who lived permanently in U.S.A These facts were neither enquired into nor controverted at any stage by providing any evidence during the enquiry by anyone. It was, therefore, totally unfair to conclude that the appellant was involved in violation of any foreign exchange( regulations. And, no specific foreign exchange regulation was quoted in thi regard.
6. It was submitted that the purchase of the property in Canberra could no be notified to the Government in time because of the pending non transfer o property in his name. The transfer remained incomplete till the payment of th( final instalment two years later. Meanwhile, the disciplinary proceedings hac started against the appellant and so the information regarding this purchase o the property could not be notified to the authorities concerned.
7. An regards the charge of being guilty of currency racketeering the conlusion of the enquiry officer is equally ambiguous. It was a solitary case it which the appellant had confessed helping his Nepalese friend to transfer the sun of US $ 6,000 to Hong Kong. This amount belonged to the Nepali citizen and was eeded by him for the treatment of his ailing daughter. It was done purely on umanitarian grounds. It is well-known that the transfer of foreign exchange trough Nepali Banks by a local citizen is almost impossible. This contention was irther proved by the fact that this amount was transferred as a result of single ay transaction. Since there was no other transaction of this nature throughout is stay in Nepal, it was not fair to conclude that the appellant was involved in urrency racketeering. No additional evidence in this regard was produced to Lake the charge look reasonable. The conclusion of the enquiry officer in this respect is based on mere presumptions and conjectures based on inaccurate and iconclusive evidence.
8. In the case of second charge that the appellant was engaged in some highly suspicious activities', it was submitted that no solid proof whatsoever has been produced to prove this allegation by the enquiry officer. All visits abroad of he appellant were duly sanctioned by the Ambassador concerned and he had totified his visits well in advance to all concerned. This contention of the appellant has been accepted by the enquiry officer without any reservation while xonerating him on charges 1 to 9 of charge-sheet dated 22-1-1986.
9. It was strongly contended that the antecedents of the appellant's family [re well-known. He does not have to brag about it. He has sufficient means of ncome available over and above his salary without any shadow of doubt. He did tot allow his children to be educated in the school run by the Indian Embassy vhich his senior colleague preferred for reasons of his own. For him it was a :hoice between saving money at the cost of better education. Obviously he tccepted the better of the two in the interest of his children.
10. In view of the above facts it was strongly contended by the learned :ounsel for the appellant that the penalty imposed on him of removal from service vide the impugned order is not merely too harsh but entirely unjustified. It vas, therefore, requested that in the interest of fairpiay and justice the impugned order dated 7-10-1987 may be set aside and the appellant be reinstated in service vith full back benefits.
11. The learned counsel for the State alongwith the representative of the espondents contended that it was rather irrelevant on the part of the appellant to confuse the present disciplinary proceedings against him on the ground of nisconduct by bringing in the so-called unpleasant relations that existed in the tast between his brother Amin Jan Naeem, the Minister and Ambassador Abdul azl. In his case the charge-sheet containing 16 charges was served on him as a esult of the evidence that was available in the Embassy of Pakistan in Kathmandu against him. It was to meet the ends of justice that a regular enquiry vas ordered which eventually found him guilty of three charges only. The appellant was issued a show-cause notice and was given personal hearing under he existing rules. The reply submitted by the appellant to the show-cause notice vas duly considered by the authorised officer who recommended his removal rom service, which was approved by the competent authority i,e, the Prime Minister. It was argued by the learned counsel for the State that the acquisition of the house by appellant and his wife in Canberra without the permission of the Government was in violaion of the existing rules. The appellant was obliged to inform the Government in such a case which he failed to do so. The fact that he accepted payment abroad for sale of his property in Pakistan contravened the Pakistan Foreign Exchange Regulation. In this case too the appellant failed to apprise the Government about the exact state of circumstances under which this transaction in foreign exchange was accepted abroad. It was further submitted that the transaction of US $ 6,000 to one Mr. D.P. Kumar in Hong Kong was against the deposits of US $ 5,623 and $ 700 in personal account of the appellant. This was highly objectionable and created suspicion of smuggling. If anything, such a transaction would point to a rather unacceptable conduct on the part of the appellant. More undesired explanation could be that the appellant had received payment for services rendered and the money was transferred to Mr. D.P. Kumar who was acting as the appellant's agent. The appellant failed to give a satisfactory explanation regarding these transactions and on behalf of whom such transactions were made. Although the other 13 charges out of 16 mentioned in the charge-sheet served on the appellant were not proved yet they did cast doubt on the conduct of the appellant which ought to have been otherwise unstained as a senior civil servant. The practice on the part of the appellant to draw huge amounts in Traveller Cheques was also considered rather unusual because no other person posted in the Pakistan Embassy in Kathmandu followed such a practice.
In view of the above circumstances, it was strongly contended by the learned counsel for the State that the conclusions drawn by the enquiry officer were based on the evidence which reflected direclty on the personal conduct of the appellant which was his own doing. In view of these circumstances it was requested that the impugned order dated 7-10-1987 of removal from service of the appellant be upheld as competent and legal.
12. We have heard the arguments of both the parties and perused the record presented to us very carefully. We are of the firm view that the three charges levelled against the appellant in the show- cause notice dated 9-2-1987 have not been proved beyond doubt. In the case of the first charge that the appellant was involved in currency racketeering in Kathmandu, no evidence of any heavy transaction in foreign exchange have been proved except the withdrawal from the appellant's account of US $ 404, $ 1,818 or $ 1,010 in traveller's cheques. If we really come to convert this amount into Pakistani currency against the US Dollar rate that prevailed in 1983, it comes to approximately Rs,6,464, Rs,28,800 and Rs,16,000 respectively. In our view these amounts cannot be categorised as huge amounts, to say the least.
13. With regard to the transaction of US $ 6,000 in the name of Mr. D.P. Kumar which is alleged to be of very suspicious character, once again, we are of the view that the amount involved comes to Rs,96,000 and the explanation given by the appellant in this regard cannot be entirely disregarded.
Since' this is a solitary transaction during his tenure of duty at Kathmandu which lasted for about two years, we do not subscribe to the view that this could be termed as an act of smuggling on the part of the appellant. It is our considered view that it is not appropriate to draw the conclusion of such serious nature from this single transaction.
14. Regarding the acquisition of the property by the appellant it has been amply established by the appellant that the amount utilized by him in this regard was transferred to him by his uncle and his two sons who lived in USA. He has also submitted the affidavit to this fact which has not been controverted. No specific rule of foreign exchange regulation has been quoted which stands violated. Indeed, the appellant had failed to inform the Government regarding the acquisition of property which he ought to have done without exception.
15. Ordinarily, we were not prepared to consider the unpleasant state of relationship that existed between Ambassador Abdul Fazl and appellant's brother Mr. Amin Jan Naeem, the Minister.
However, in view of the fact that the respondents have failed to provide the Tribunal, the copy of the report which was stated to have been prepared by Dr. Tanveer Ahmad Khan about the state of affairs at Pakistan Embassy at Kathmandu leaves serious doubts in our mind. As contended by the appellant a rather undesirable state of affairs, existed between Ambassador Abdul Fazl and other officers posted there. Under the circumstances, we have no choice but to accept the contention of appellant without expressing our opinion on the subject.
16. In the light of the above discussion we are of the view that the allegations preferred against the appellant in the show-cause notice dated 9-2-1987 which formed the basis of the issuance of the impugned order dated 7-10-1987 of his removal from service are not established beyond doubt.
However, the appellant cannot be exonerated for not informing the Government about the acquisition of the property by him and his wife in Canberra. We think he should have obtained the Government's permission even though the transaction was incomplete and the property was under mortgage.
17. The upshot of the above discussion is that the appeal before us succeeds as indicated above.
The impugned order dated 7-10-1987 of appellant's removal from service is set aside and he is reinstated in service with full back benefits. However, for lapse of withholding informaiton regarding acquisition of property on the part of the appellant we impose upon him the minor penalty of censure.
18. No order as to costs.
19. Parties to be informed.
' MISBAH ULLAH KHAN (MEMBER).---I am in agreement with the conclusion arrived at by my learned brother Maj.-Gen. Ch. A. Rahman Khan, HI (M), that this appeal should be accepted and the appellant be reinstated with a minor penahy of censure to be substituted for that of removal.
21. Although the judgment of my learned brother is fairly detailed, neverthelese in view of the importance of the case I would take the liberty of adding a few words to what my learned brother has said in his judgment.
22. The appellant, who was a member of the Foreign Affairs Group, was transferred from Canberra and posted to Kathmandu in Nepal where he served for a considerable period and was then transferred to the Ministry of Foreign Affairs at Ialamabad. On 22-1-1986, he was served with a charge-sheet containing 6 charges and the first charge was further split up into 11 charges. After receiving his reply, an inquiry was conducted. The finding of the Inquiry Officer in respect of those charges may be summarised as under: ALLEGATIONS FINDINGS Charge No, 1
(i) That in October, 1985 you and your wife travelled separately from Kathmandu to Hong Kong via Bangkok which you failed to report to the authorities.
(ii) That you left Kathmandu on 30th September, 1985 and returned on 7th October, 1985 while your wife departed from Kathmandu on 2nd October, 1985 and returned on 5th October, 1985. During this period both you and your wife undertook short visits to Hong Kong which involved an expenditure of more than $ 1,800 on air ticket alone. It is certainly odd to believe that a person earning US $ 1,300 per month could have afforded to spend nearly twice the amount of his monthly salary on a brief visit to Hong Kong.
(iii) That at the time you and your wife left Kathmandu for Hong Kong via Bangkok, your son was reported to be seriously ill and he was left under the care of the Third Secretary. Therefore, the circumstances under which you and your wife travelled to Bangkok and then clandestinely onward to Hong Kong give Not proved. The appellant did not conceal his visit to Bangkok and Hong Kong.
Information was available with the Embassy. There was no suspicious circumstance. Separate visit was occasioned by family cirucmstances.
' Not proved. Tickets for the journey cost about $ 450 each because it is a well-known practice for airlines to sell discounted tickets covering different sectors. The dis-counted tickets available in Karachi for travel on Arab Airlines to London involve brief stop overs in the country of origin of the airline. In this case since Thai Airlines was employed it was logical that the journey to Hong Kong should be via Bangkok.
' Not proved. The appellant's son was well at the time of his departure and the return of the family on 5th and 7th October, respectively was occasioned by the news received on the 4th October that his son had fallen seriously sick after his departure.
ALLEGATIONS rise to suspicion that these visits by you and your wife were made under some compulsion.
(iv), (v) and (vi) That you and your wife undertook the journeys at the instance of and in collaboration with an Indian businessman Mr. Shakil Ansari who is a known smuggler in gold and jewels and with whom you had developed intimate relationship. That you and your wife assisted him in smuggling currency and precious stones from Nepal and bringing in gold and diamonds from Hong Kong in return for financial gain; that one S. Ansari was also booked to travel on the same flight by which you left Kathmandu for Bangkok on 30th September, 1985, but he dropped out at the last moment and took a Nepal Airlines flight to Bangkok later. However, one Ansari brother, named S. Ahmed, returned to Kathmandu on 7th October, on the same flight as you travelled; that you and your wife had bought three tickets each of two coupons for the journey from Kathmandu to Hong Kong and back one ticket for the Kathmandu-BangkokHong Kong, another for Hong Kong- Bangkok sector and a third for the Bangkok-Kathmandu sector whereas, only one ticket would have been sufficient for each one of you for the whole trip. Therefore, it gives rise to suspicion that the intention was to throw any one watching you off the track.
(vii) That while you were on leave in Pakistan from August to October, 1984, you and your wife are reported to have travelled to U.K. And U.S.A. Without FINDINGS ' Not proved. It is accepted practice in discounted travel to issue seperate tickets for each sector of the journey. No evidence has been produced which would support the allegation that the appellant was working in league with the alleged band of smugglers headed by Shakil Ansari, an Indian businessm an. However, these allegations framed on the basis of observations of our Ambassador in Kathmandu do tend to arouse suspicions when considered in conjunction with the unconvincing explanation received from the Appellant on one particular entry in his bank statement. Not proved.
The Inquiry Officer accepted the appellant's contention that his trip to U.K. And U.S.A. Was not clandestine. The Inquiry Officer ALLEGATIONS information/permission of the authorities concerned.
(viii) That on November 23, 1985 two persons of extremely suspicious character, a woman of about forty and a man of about twenty-six, both looking Indians arrived from Bangkok by Thai Airways and were received and picked up by you from the Airport and driven away by you in your car at a high speed in extremely suspicious circumstances.
(ix) That your wife planned to travel to Hong Kong again on January 2, 1986. Reservation for this journey was made on 27th December, 1985 when the Thai Airlines were requested by telephone to book three seats for an infant K.K. Bhan and for one Mrs. S. Gurung and for Mrs. M.N.J. Naim. Mrs. Gurung is reported to travel frequently to Dubai, Bangkok and Hong Kong and is said to be working for the Ansaris as a carrier of smuggled stones and gold.
(x) That you are reported to have indulged yourself in black marketing of currency. Your Nepal Bank statement for the period July to December, 1985 does not show any drawal of Nepali currency.
Whereas the school fee (NC Rs,13,917) for your daughter was paid in FINDINGS was himself aware of the trip and he was satisfied that the expenses for this trip were paid for by the appellant's sister-in-law who is a doctor in the United States.
Not proved. The appellant had gone to the Airport to receive Mr. Shadani, Director of the Foreign Affairs Office who was proceeding to Dhaka to attend the funeral of his mother. Mr. Shadani however did not arrive as had been intimated to the appellant. The appellant gave lift to two Bangladeshi nationals residents in Kathmandu with whom he had no sinister connection. (Note: The appellant had explained that the lift was given as these two persons were held up due to VVIP movement and were away from their car and that he dropped them where their car was parked).
' Not proved. It was not likely to make reservation on the 27th of December, 1985 to travel to Hong Kong on 2-11986 when the appellant had already been informed on 26-12-1985 about the orders of his recall to Islamabad.
' The charge is proved on the basis of Bank statements.
ALLEGATIONS FINDINGS Nepali currency. Further, before proceeding to Pakistan on 6-1-1986 you left NC Rs,19,000 with the Third Secretary to be utilised by him and to send the lance in US dollars to you through bank draft. Since your bank statements do not show the drawal of equivalent amounts from your account, it creates a strong suspicion that the source of this Nepali currency was outside your legitimate earnings.
(xi) That before proceeding to Pakistan Not proved. In January, 1986 you left your car with Australian Charge `d'Affairs for disposal without permission of the competent authority. Charge Not: ' That you are reputed to be living Not proved. Beyond your means which is evident from the fact:--
(i) That your children were studying in schools where the annual fee was exorbitantly high and beyond the means of an officer of your income.
(ii) That the visits of your wife and yourself involved thousands of dollars whereas your total emoluments were about $ 1,300 per month approx. Charge No3: ' That you sold a TV and VCR brought Not proved. Duty free into Nepal to a Nepali national for an exorbitant price of Rs,45,000.
Charge No,4: ' That you did not enjoy a good Not proved. The appellant never reputation during your posting in travelled outside Australia during his Australia where you are alleged to have period of posting in Canberra.
ALLEGATIONS been associated with smuggling activities for monetary gains. Charge No,5: ' That you acquired/purchased immovable property in Canberra without prior per-mission of the Government and in violation of the rules on the subject and that you are receiving monthly rental for this property through a Real Estate Firm M/s. Bertram Real Estate, Canberra.
FINDINGS ' The appellant and his wife owned a house in Canberra. The house was acquired without the permission of the Government in violation of the Rules. It is however established that $ 50,000 required for part payment of the purchase price of the house was obtained by the appellant from his uncle in lieu of the settlement of joint property claim in Pakistan. Nevertheless the action contravened the Pakistan Foreign Exchange Regulation by accepting payment abroad for properties in Pakistan. There were deposits of $ 5,623 and $ 700. This was followed by the telegraphic transfer of $ 6,000 to Mr. D.P. Kumar in Hong Kong. The explanation of the appellant is that the amount belonged to a Nepalese gentleman on whose request it was deposited and sent to Hong Kong for the treatment of that friend's daughter there. The appellant did not disclose the name of the Nepalese friend. His explanation that the disclosure of the name of his friend would embarrass him is not acceptable. The transaction was highly suspicious and may have been connected with unestablished charge of smuggling. It can be reasonably assumed that the appellant made a profit on this transaction. A more sinister explanation can be that the appellant had received payment for service rendered and the money was transferred to Mr. D.P. Kumar who was acting as the appellant's agent.
23. The allegations made against the appellant and the findings given by the Inquiry Officer clearly show that most of the charges were without any foundation whatsoever. The appellant's case is that he was proceeded against for the reason that Mr. Abul Fazl, the Ambassador in Kathmandu had strained relations with the appellant's brother who was also in the Foreign Service and it was as a result of mala fides. Material was brought on record in the shape of correspondence between the Foreign Office and the appellant's brother showing from the very day of the appointment of the appellant at Kathmandu, there was apprehension that the Ambassador might mar the career of the appellant on account of animosity which existed between the appellant's brother and the aforesaid Ambassador. The case of the appellant, therefore, has to be examined inter alia in that background.
24. As the above reproduction of the allegations and the findings show most of the charges being without foundation, the element of the mala fides cannot be excluded. This conclusion is further strengthened from the fact that the appellant's account with the Bank was not obtained from the appellant but from the Ambassador and it has not been disclosed as to how the Bank statements came into the hands of the Ambassador. The appellant's contention that the Ambassador cooked up the case against him and with that intention he was intercepting his post and holding the accounts statement in order to find something against him cannot be easily brushed aside. It is an admitted law that anything built upon mala fides falls to the grounds as mala tide act is an act without jurisdiction which can in no circumstances be saved. The finding of my learned brother about the appellant's failure to report about the purchase of property in Canberra is not proved by evidence but by his own admission in this respect. His explanation that he had intended to inform the authorities when final bargain is carried out and the entire payment is made cannot be wholly accepted because even acquisition of incumbered property has to be reported to the employee's department. There may be no intention to hide the bargain but the misconduct to that extent is technically established and for that, penalty of Censure only can be awarded as there in no other lesser penalty provided in the Rules. However, we hope that for this technical misconduct the career of the appellant who is being reinstated will not be affected.
25. I now refer to some of the charges which according to the Inquiry Officer have been proved. In this regard reference may first be made to parts (iv), (v) and (vi) of charge I of the Inquiry Officer's report. The Inquiry Officer says that the charge is not proved. However, he makes the following observations while discussing the charge: "Not proved However, these allegations framed on the basis of observations of our Ambassador in Kathmandu do tend to arouse suspicion when considerd in conjunction with the unconvincing explanation received from the appellant on one particular entry in his bank statement."
' The discussion of the Inquiry Officer shows that the adverse finding was on the basis of observations of the Ambassador, Mr. Abul Fazl who was then in Kathmandu. Strange enough neither these observations were brought on record nor the Ambassador was put in the witness-box for cross-examination by the appellant. I cannot, therefore, subscribe to the view expressed by the Inquiry Officer as quoted above. In addition, there is mere suspicion and no charge can be proved on suspicion alone. In other words even the Inquiry Officer thought that the charge was not proved.
However, it is not proved either. In my opinion the observations of the Inquiry Officer in this respect are baseless.
26. Coming to part (x) of first charge, the Inquiry Officer says that the charge is proved on Bank statement. The Inquiry Officer did not accept the explanation of the appellant that he used to draw travellers cheques in bulk and encash them whenever needed by him. The Inquiry Officer wanted to know if similar practice was followed by other employees also but it has not been shown that this practice was not followed. In my opinion it was wrong on the part of the Inquiry Officer to have said that the charge is established.
27. While discussing part (x) of the first charge, the Inquiry Officer himself indirectly admitted that the travellers cheques were drawn by the appellant. This is established from 1% charge by the Bank for issuance of travellers cheques. My learned brother has also discussed that charge in his judgment, and I entirely concur with his views.
28. During the course of arguments, the appellant told us that Dr. Tanveer Ahmad Khan who is at present Secretary to the Foreign Affairs Division went to Kathmandu to enquire into certain irregularities of the Embassy and he made a report in this respect exonerating the appellant completely. We gave sufficient time to the Government to produce that report but despite that, that report was not produced. This gives us an indication that the report supports the appellant's version and was against the facts on which the appellant had been charged.
29. To sum up we are of the view that the proceedings against the appellant were taken mala fide.
There was no material evidence against him. His post was intercepted. No evidence was produced before the Inquiry Officer. Finding was based on observations of the Ambassador, the mala fides on whose part had played the role. The appellant was not given opportunity to cross-examine the witnesses specially the Ambassador on whose observations action had been taken. Even the record of the observations was not made available to the appellant. The only evidence is the statement of the appellant which should have been accepted either as a whole or rejected as a whole.
30. With the above observation I again express my agreement with the proposed judgment and order.