' SYED ALLY MADAD SHAH (CHAIRMAN).---Appellant Mr. Mustafa Khan, who was Appraiser, Customs House, Karachi, was dismissed from service under the provisions of the Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the E&D Rules), vide office order dated 27-7-1989. His departmental appeal filed before the Central Board of Revenue on 5-9-1989 remained unresponded to until he preferred this appeal on 1-1-1990 for setting aside the order of his dismissal from service.
2. The appellant was proceeded against under the E&D Rules on the following charges contained in the statement of allegations dated 8-1-1987 alongwith the charge-sheet of the same date : STATEMENT OF ALLEGATIONS "On the basis of the facts stated in the charge-sheet the following allegations are made against you.
(i) On receipt of a credible information by one Mr. Arif Munir that you, Mr. Mustafa Khan alongwith other five persons had been engaged in the smuggling of foreign whisky and VCR's at the residence of one Mr. Muhammad Younus Chohan at 6-A, Sunset Street Phase-II, Defence Housing Society, Karachi is being used as a storing place and the delivery of contraband goods was made to various places in Pickups.
(ii) In pursuance of the above information the staff of Drug Enforcement Cell raided the residence of Mr. Muhammad Younis Chohan which resulted in the recovery of 4,704 bottles of foreign whisky and one VCR. You, Mr. Mustafa Khan were also present in the said premises.
(iii) The spot investigation revealed that you were their partner in the said illicit trade and you had already delivered 117 VCRs to one Akbar All which were later on recovered from his residence at 66- 8/2, Kashmir Road, PECHS, Karachi.
(iv) Investigations carried out in this connection revealed that you, Mustafa Khan with other accused persons conspired to smuggle in contraband whisky and VCRs under the guise of Agricultural machinery and Mill works.
(v) You managed to procure an Import Licence No,B-324660, dated 17-2-1986 issued in the name of Sajjad & Co. From the local market. One Muhammad Rafiq of Sajjad & Co. Executed a power of attorney in your favour. You opened a Letter of Credit No,600/LC/3578/86, dated 5-3-1986 in United Bank Limited MA. Jinnah Road, Karachi. After which you went to Singapore alongwith one Asil Khan for shipment of whisky and VCRs, When the consignment was reached at Karachi Port, you managed to get it cleared through Ammar Bkhar of Ahbab Associates and Asim International and the container of the said contraband goods was removed to Shirin Jinnah Colony in a Trailer No,LS- 2496 after which you alongwith your helpers managed to destuff the container at a plot at Shirin Jinnah Colony from where VCRs were removed to the residence of Akbar by you in your car while wooden carates of foreign whisky were removed to the residence of Muhammad Younis Chohan.
' You are charged with `misconduct'."
3. The appellant submitted his reply to the charge-sheet denying charges at S.Nos. (i),(iii) (iv) and (v), and furnished explanation in respect of the charge at S.No, (ii) and some of the facts stated in charge at S.No, (v). .A regular inquiry into the charges was conducted by the Inquiry Officer Mr. Muhammad Abdul Latif, Principal Appraiser. He held the appellant guilty of the charges. The appellant was then served a show-cause notice dated 21-12-1987 alongwith a copy of the inquiry report. He submitted reply to the show-cause notice on 6-2-1988, wherein he ' proclaimed his innocence. However, he could not escape punishment and order of his dismissal from service was made on 27-7-1989, as aforesaid.
4. The appellant has assailed the impugned order on the following grounds :
(i) the inquiry proceedings were conducted ex parte.
(ii) the inquiry report was based on the evidence of only the Investigating Officer and the statements recorded by him at the preliminary stage.
(iii) there was no evidence against the appellant for holding him guilty of the charges.
(iv) Whatever the charges were against him they pertained to the period when the appellant was not in the Government service.
5. The respondents have resisted the appeal contending that the appellant was in the Government service at the time the raid was made and his association with Sajjad & Co. Involved in the smuggling of whisky and VCRs was admitted and there was no way out for him to escape the punishment.
6. The appellant was represented at the hearing of the appeal by Mr. Kanwar Mukhtar Ahmad, Advocate, while the respondents were represented by the learned Standing Counsel Mr. Niaz Ahmad Khan. They reiterated the grounds put forth in the pleadings of the parties.
7. Before adverting to the factual merits of the case, it would be worthwhile to examine the legal plea advanced by the appellant that the charges against him pertained to the period when he was not in Government service. He had taken this plea at the outset when he submitted reply to the charge-sheet. He stated that he had been removed from service about six years before and he had preferred an appeal which was accepted on 3-4-1986 and thereafter he was reinstated in service and he had reported for duty on 19-5-1986, whereas the charges contained in the statement of allegations pertains to that intervening period as having remained out of the job. His plea could not be satisfactorily controverted by the respondents. It would appear from the charges, reproduced above, that the charge at S.No, (i) is indefinite about the period it pertained to.
Similarly, the charge No, (ii), as put in the statement of allegations, too is indefinite as regards the point of time. The charges at S.Nos. (iii) and (iv) are related to the charges at S.Nos. (i) and (ii).
' The charge at S.No, (v) pertains to the months of February and March, 1986. Thus, the charges contained in the statement of allegations do not bear out that they pertained to the period when the appellant was actually in service. Of course, there is mention in the inquiry report only that the raid mentioned in the charge at S.No, (ii) was conducted on 21-5-1986 by which time the appellant had re-entered service on reinstatement only two days earlier. It follows that all the charges except charge at S.No, (ii) pertain to the period when the appellant was not a civil servant as he was out of the job consequent to the order of his removal from service and, therefore, he could not be awarded any punishment under the provisions of the E&D Rules in respect of those charges even if held to have been proved. There remains only one charge of his presence at the suspected premises on 21-5-1986 by which time he had actually been reinstated in service on acceptance of his appeal.
8. As regards the merits of the case, the charge at S.No, (ii) is to be discussed first as it pertains to the time when the appellant had rejoined service. It is alleged that the appellant was present at the residence of Mr. Muhammad Younis Chohan when the staff of Drug Enforcement Cell raided his house and recovered 4,700 bottles of foreign whisky and one VCR. The appellant did admit in his written reply to the charge-sheet that he was present at the site but took the plea that he had gone there on invitation to a dinner. This was the day when he was in active service of the Government and was a civil servant. His admission is to be considered in view of his reply to the other charges which have link with the charge No, (ii). Those charges are at S.Nos. (iii), (iv) and (v).
The charge No, (iii) was that the appellant was a partner in the alleged illicit trade of smuggling of foreign whisky and VCRs by one Mr. Muhammad Younis Chohan and the appellant admitted his association as an agent and not as a partner as he had sought employment with them for earning livelihood during the period he was out of the job on account of his removal from service. Of course, he denied his participation in the smuggling of the goods. The charge at S.No, (iv) is of general nature and the inquiry report does not indicate that there was much evidence of the involvement of the appellant in the smuggling of the goods, although it was an admitted fact that the appellant was rendering service to the importers as their agent. The charge No,(v) was directed against the appellant and he did admit his participation in handling the licence mentioned therein but he denied that he had managed import of whisky and VCRs as against the agricultural machinery and mill works, the import licence was meant for. Be that as it may, the appellant was admittedly associated with the importers M/s. Sajjad and Company who were involved in smuggling in the country of whisky and VCRs under the cover of an import licence obtained for importing agricultural machinery and mill works. With putting all evidence together, the appellant's presence at the premises of Mr. M. Younis Chohan on 21-5-1986, while he had become a civil servant by reinstatement in service, was not so innocent as claimed by him that he had been invited to dinner but it must have been linked with the smuggling of the goods which were detected at the premises and other places. Of course, no substantial evidence involving the appellant was recorded at the inquiry proceedings as the inquiry report bears out that none of the witnesses cited by the prosecution, except the Investigating Officer, had turned up at the inquiry and filed his written statement and the inquiry report reveals that the findings are based on the investigation conducted at the preliminary stags but the appellant could not escape his involvement by virtue of his admissions that he was associated in the trade carried on by the importers M/s. Sajjad & Company and his presence on the occasion of raid made by the Drug Enforcement Cell. The objections of the appellant that the inquiry was held ex parte and the inquiry report was based on the evidence of the Investigating Officer and the statements recorded by him at the investigation did not find him exoneration of his involvement in view of his admissions of his association with M/s. Sajjad & Company found involved in the smuggling of whisky and VCR. No doubt, the evidence of alleged smuggling pertained to the period when the appellant was not in Government service but his presence at the spot was indicative of the fact that he had not declined his association with the aforesaid Company and his presence there was not that of an innocent person as an invitee to a dinner but it was definitely linked with the illicit trade he was associated with until two days before the raid was made. He was, therefore, rightly held guilty of misconduct. The appeal does not have merit for the reasons recorded above. Of course, the quantum of punishment would need consideration. The appellant did not deserve punishment for whatever actions were imputed to him during the period he was out of the job, but at the same time he could not go scot free on account of his continuing the association with his employers when he was out of the job, particularly at the time when a large quantity of smuggling of goods were being handled at the spot where the raid was conducted. In the circumstances, the punishment of removal from service would be sufficient and the order of his dismissal from service is modified to that of his removal from service. The appeal is allowed only to that extent.