' MUHAMMAD ISMAIL (MEMBER).---Appellant Mr. Muhammad Jamil Butt, who at the relevant time was Inspector, Customs, in the Export Section, Airport, Lahore, has preferred this appeal under section 4 of the Service Tribunals Act, 1973, against the order dated 2-9-1991, whereby he was dismissed from service. He preferred departmental appeal on 30-9-1991 and getting no response, invoked jurisdiction of this Tribunal by filing the present appeal on 29-1-1992.
2. The disciplinary proceedings were initiated against the appellant with the service of charge- sheet dated 28-2-1988, accompanied by the following statement of allegations:-- "STATEMENT OF ALLEGATIONS ' Mr. Muhammad Jamil Butt, Inspector, Customs while posted in the Export Section, Airport, Lahore examined the following consignments presented by the exporters through Customs Clearing Agents under the following Shipping Bills for exporting the goods to U.SA. Under claim for rebate.
The exporter has declared in the Bill of export and other documents that the said consignments consisted of Surgical instruments etc. As given below. He examined 20% of the goods from each of the consignments as reported on the relevant Shipping Bills. In the relevant Shipping Bills he examined the consignment and gave the following report:-- "Inspected 98 Cartons and examined 20% in the presence of CA. And found to contain Surgical Instruments made of s.s. As per invoice".
' Whereas on enquiry through U.S. Customs it has been revealed that the said consignments consisted Surgical Instruments footballs etc. In muchless quantities as detailed below and even less than 20% quantity which is reported to have been examined by him as per examination report on each shipping bill:-- Sr.
No.Shipping Bill No.Description of goods declared in Pakistan as per invoice and Shipping Bill.Quantity declared in PakistanValue declared in PakistanQuantity of goods cleared in the country of Import i.e. U.S.A.
1.2,473(i) Surgical Instr.
(ii) Footballs23,400 PCs80 PCs$ 77,900.00Arrived at JFK Airport and is presently stored at GO Warehouse.
Exn revealed 25 cases containing only Saucer Balls and Ashtray as per Photo.
2.2,625(i) Surgical Instr,
(ii) Handicrafts valued $10023,400 PCs$ 65,800.00(i) Glass 936 PCs
(ii) Surgical 72 PCs
(iii) Footballs 80 PCs 3.2,600(i) Surgical Instr.
(ii) Footballs23,400 PCs$ 77,900.00(i) Surgical 72 PCs
(ii) Glass 1008 PCs
(iii) Footballs 80 PCs 4.2,547 (i) Surgical Instr. 23,100 PCs$ 65,800.00(i) Surgical
(ii) Glass 864 PCs
(iii) Football 80 PCs ' From the above data it is evident that he committed fraud and acted in a manner prejudicial and detrimental to National Exchequer. He gave a report concerning the consignment which was incorrect and misleading. He was fully aware that the consignment that was brought before him for examination did not in fact contain goods answering the description given in the Invoice/Shipping Bills nor were they in the same quantity that was mentioned in the documents delivered by the exporter. The goods presented to him for examination was different from those were declared by the exporter on the Shipping bills/invoice. His report was fraudulent and misleading, designed to deceive and to promote the dishonest intentions of the exporters. As a result of his wilful collusion and connivance the aforementioned consignments shown to have been exported and thus the party received rebate on the basis of inflated value to which they were not legally entitled. Through this action on his part he had intentionally caused a loss amounting to Rs,6,15,771 to the National Exchequer."
3. The appellant submitted his reply to the charge-sheet on 12-11-1989, whereby he vehemently denied and refuted all the charges contained in the statement of allegations. A regular inquiry into the charges was conducted by the Inquiry Officer Mr. Abdul Rauf Khalid, Assistant Collector, Customs, Dry Port, Moghalpura, Lahore, who held the appellant guilty of the charges levelled against him. The appellant was then served with a final show-cause notice dated 3-9-1990 alongwith a copy of the inquiry report. He submitted reply to the show-cause notice on 15-9-1990 which was found to be unsatisfactory and the impugned order of his dismissal from service was made on 2-9-1991.
4. The learned counsel for the appellant has assailed the impugned order on the following grounds:--
(i) The inquiry was not conducted properly as laid down in rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1973.
(ii) The alleged charge pertains to the year 1986, whereas charge-sheet was given to the appellant in 1988. Delay in initiating the action has not been explained.
(iii) The Inquiry Officer recorded no evidence and submitted his findings only on the basis of American Customs Officer's information, which was not supported by any other evidence.
(iv) No officer from the American Customs was summoned as witness to prove the allegations against the appellant.
(v) The Inquiry Officer acted under the influence and directions of respondent No, 2 (Collector of Customs, Lahore) and it was not an independent inquiry.
(vi) Discrimination has been made between the appellant and the respondents Nos. 4 and 5 who have been exonerated.
(vii) Mr. G.A. Bokhari at whose instance the inquiry was conducted was not called as a witness in the inquiry proceedings.
(viii) Order regarding the appellant's dismissal was issued by an incompetent authority.
(ix) No personal hearing was given to the appellant before taking the final decision.
4. The learned standing counsel for the respondents has opposed the appeal on the following grounds:--
(i) The proceedings were initiated against the appellant, when the fact regarding incorrect and misleading report, given by the appellant, concerning the consignments, came to the knowledge of the authorities, through information/report from the American Customs Officers.
(ii) The charge against the appellant has been proved in a regular inquiry, conducted by an independent Inquiry Officer in accordance with the prescribed procedure and there is no illegality in the proceedings.
(iii) The charges were framed against the appellant on the basis of documentary evidence available on the record and not at the instance of any particular individual.
(iv) Disciplinary action has been taken after following the prescribed procedure. Charge-sheet was issued alongwith statement of allegations. A regular inquiry was held and evidence on record was taken into consideration, while passing the order of appellant's dismissal from service. The appellant failed to produce any evidence in his defence during the inquiry.
(v) Information was received officially from American Customs, which is a very reliable source and their staff had no enmity with the appellant.
(vi) The order regarding dismissal of the appellant was passed by the competent authority and the same was only communicated to him by the Assistant Collector, Customs, Headquarters, Lahore.
(vii) The appellant was called for personal hearing on 16-10-1990 and again on 3-11-1990, 18-11-1990 and 5-8-1991 but he failed to avail of this opportunity.
5. We have gone through the inquiry report submitted by the Inquiry Officer in the matter. His findings/observations recorded at pages 8 and 9 of the report are reproduced below in order to assess the extent of the appellant's involvement in the rebate fraud committed by the exporter:- xxx xxx xxx "The contention of the accused officer that the goods are marked by the Deputy Superintendent to an Inspector for examination who checks certain boxes, cartons, packages and initials them and thereafter those are checked by the Deputy Superintendent, further clarifies the situation. First of all if the examiner marks the only cartons which contain the described goods, the Deputy Superintendent will not be able to know even if the rest are filled with rubbish. His throwing the responsibility is also not covered by law as an Inspector is the appropriate examining officer under SRO No, 806(1)/84, dated 20-9-1984. The accused officer has also contended that the goods might have been stolen, pilfered, exchanged or replaced while in PIA custody. Such an assumption was also considered. It could have been considered had the examining officer not written the weight of the consignments with his own hand. Comparing the number of items with the weight of the consignments in itself are exorbitantly irrational and beyond common sense. The PIA vide their Airway Bills have maintained the same weight, which means that the weight was correct but the quantity was not. His contention that the PIA accepted the quantity and weight is wrong as the normal practice is that the carrier is concerned with weight and not quantity as they are being handed over sealed consignments, which they are not authorised to open. Even the manifest is signed by the Inspector examining goods.
' The accused officer's objection to the enquiry of the U.S. Customs is also not based on any grounds. The accused officer has not considered that some of the consignments are still lying in the J.F. Kenedy Airport as unclaimed. Which clarified that the goods were exported only to get the rebate. It is however, worth consideration as to how did the rebate section process the claim for rebate without considering the weight of the samples drawn with the quantity shown on the shipping bills.
' It is, conclusively proved that the so-called exporters have committed a rebate fraud which was not possible without either the connivance or as sheer inefficiency of the examining officer. The charge levelled against the accused officer, therefore, stands established."
6. We have carefully considered the arguments advanced by the learned counsel for both the parties and also perused the record made available to us at the time of hearing. The main ground on which cancellation of the impugned order is sought, is that it was passed without proper evidence and that the procedure as laid down in the Efficiency and Discipline Rules had not been adopted. We feel no hesitation in saying that there is hardly any substance in the appellant's pleadings. The charge against the appellant has been proved in a regular inquiry conducted by a responsible officer, in which he fully participated. No procedural irregularity appears to have been committed in this case. The Inquiry Officer's report has gone against the appellant. This being so, we see nothing wrong with the impugned order. The contention of the appellant that he was not given personal hearing, is also incorrect as stated by the respondents' counsel at the Bar and also submitted in the written comments filed by them. Under the circumstances, no miscarriage of justice seems to have come about nor can it possibly be said that the appellant was in any manner deprived of the right to defend himself.
7. For the reasons mentioned in preceding paragraphs, we have reached the conclusion that the appellant does not have any case on merits and that his appeal is liable to dismissal. However, we feel that while awarding punishment, lenient view of the matter should have been taken, keeping in view the extent of his involvement in the matter. The impugned order of appellant's dismissal dated 2-9-1991, is therefore set aside, in partial acceptance of the appeal and substituted by an order of removal from service, with effect from that date, with no order as to costs.