ABDUL HAMEED KHAN KHATTAK (MEMBER).--This appeal is directed against Notification dated 18- 7-1998 whereby appellant was removed from service with immediate effect.
2. Appellant was appointed in F.I.A. in 1976 as Inspector and in due course earned promotions and lastly when working as Deputy Director during the year 1997 (Crime Circle, F.I.A. Quetta Zone) he was placed under suspension on 15-4-1997, he received a letter dated 28-5-1997 from the Director, F.I.A. Quetta Zone along with a charge sheet and statement of allegations (Annexures A/2 & 3) and the relevant portions of the said charge sheet and statement of allegations are reproduced as under: "4. Now therefore, you Mr. Ali Qaswa r Bokhari, Deputy Director (under suspension) BS-18, F.I.A. are hereby charged as under: That while posted as Assistant Dirzctor/Deputy Director, F.I.A., you committed the following acts of misconduct and corruption:
(i) failed to submit the declaration of assets for the period of your service prior to 1988. The assets declared from 1988 to 1996 are disproportionate to your known sources of income.
(ii) facilitated passengers at Karachi Airport for illegal Customs clearance and involved in the smuggling of contraband items.
(iii)were reported and enquired against for charges of illegal gratification, harassment, extortion, committing fraud etc. (iv)have been living beyond ostensible means and have a persistent reputation for corruption and womanising.
5. By reasons of the above you appear to be:
(a) Guilty of misconduct within the meaning of rules 2(4) and 3(b) of the Government Servants (Efficiency & Discipline) Rules, 1973.
(b) corrupt or may reasonably be considered as corrupt within the meaning of rule 3(c) of the Government Servants (Efficiency & Discipline) Rules, 1973 "
STATEMENT OF ALLEGATIONS That while posted as Assistant Director/Deputy Director F.I.A. you:
(i) failed to file the Declaration of Assets for the period of your service prior to 1988.
(ii) the Assets both movable and immovable declared by you for the years 1988 to 1996 are disproportionate to your known source of income.
(iii) were allegedly involved in the smuggling of contraband items and their clearance through Karachi Airport. Personally visited Karachi Airport and telephonically directed the I&AS staff to get some passengers illegally cleared through the Customs two or three times a week.
(iv) were reported against by Director General, F.I.A. vide his report dated 12-12-1985 submitted to the then Minister for Interior which contains a number of allegations and need to be enquired into.
(v) demanded illegal gratification and harassed one Mr. Riaz Ahmed who reported the matter to the local authorities and who in turn reported to the Director General F.I.A.; record of which is available.
(vi)failed to properly investigate case F.I.R. No, 14 of 1982 of F.I.A. Sukkur. A lenient view was taken and the minor penalty of "Censure" was awarded on 27-6-1985.
(viii) One Mr. Tasleem Pervaiz sent a telegram on 27-7-1993 alleging illegal, detention, torture and extortion of Rs,30,000.
(ix) Mr. Zaheer Ahmed, Assistant, Project Wing, P&D Division made a complaint alleging mental torture and committing fraud with him.
(x) Reside in Posh area of Defence Housing Authority Karachi in Bungalow No, 99/2, Street No,21, Phase-VI, Khayaban-e-Sehar, maintaining three cars, mobile telephone, hold city Bank Gold Card and found of hoteling in Five Star Hotels. Also reputed to be a womanizer."
Usual inquiry was conducted and the Inquiry Officer submitted his report (Annexure A/7) to the Authorised Officer on 4-7-1997. The Authorized Officer served final show-cause notice (Annexure A/5) upon the appellant on 14-7-1997 and vide impugned order dated 18-7-1998, he was removed from service where after he preferred a departmental appeal on 5-8-1998 which remained unresponded hence this appeal on 27-11-1998 (the appellant had been duly making written replies to the show-cause notice, charge-sheet and final show-cause notice, wherein he denied all the above allegations).
3. The respondents contested the appeal by controverting the stand taken by the appellant in his replies and they rather supported the impugned order for the reasons recorded therein.
4. Arguments heard, record perused.
5. It is pertinent to note that although in the statement of allegations the numerical number of the allegations is shown as (x) but as a matter of fact the total number of such allegations is (ix) as allegation No,(vii) is not figuring at all anywhere. The Inquiry Officer after conducting the inquiry, concluded that out of above nine allegations, the respondent's side failed to prove allegations Nos.
(iv), (v), (vi), (viii), (ix) and (x) whereas allegation Nos. (i) and (iii) were held to be partly proved and partly not proved and only allegation No,(ii) was fully proved.
6. Firstly by taking up charge No, 1, given in the charge-sheet relating to failure of the appellant to submit the declaration of Assets for the period prior to 1988 and his such assets being disproportionate to his known sources of income relating to the period from 1988 to 1996, we have scanned the record as well as the Inquiry Report but we do not feel any hesitation in concluding that the findings of the Inquiry Officer to the effect that the same was partly proved is not tenable from the record nor the reasons given by the Inquiry Officer are worth consideration rather the same seems to be whimsical and imaginative. There is clear cut finding of the Inquiry Officer that the assets statements of the appellant from 1976 to 1980 and 1987 were not available on file. It was the case of the appellant that he did file the same during the relevant period whereas the departmental representative denied the same. Legally speaking, it was for the departmental representative concerned to explain as to why such assets statements were missing as the appellant is not the custodian of the same. We are holding so in view of the provisions of SI.No,22- A(v) ESTACODE 1989 Edition at page 453 wherein it is given that: "(v) It will be the responsibility of Ministries/Divisions/ Departments/Corporations/autonomous bodies to obtain the declaration of assets in respect of persons serving under them, and take disciplinary action against the defaulting officers/officials who do not submit each declaration by the prescribed date or within fifteen days thereof."
It is further given as per instructions contained at SI. No,23-B(i) at page 453 of ESTACODE 1989 that: "(i) The declaration of assets will be opened by the concerned Secretaries of the Ministries and Divisions/Heads of the Attached Departments or by the persons authorised by them."
7. From the record it is quite manifest that throughout his service career, the appellant was never issued any notice for his alleged failure to have furnished annual assets statements for the missing period, thus, the presumption would be that he had been regularly submitting such statements and the fault lies with the departmental officials for not keeping the same in safe custody but the Inquiry Officer, on the contrary, has drawn adverse presumption in this regard against the appellant which is certainly against the legal norms as accused is stated to be a favoured child of law and he is presumed to be innocent unless proved otherwise and the benefit of doubt always goes to the accused and not to the prosecution as it is for the prosecution to stand on its own legs by proving all the allegations to the hilt against the accused. It is also well-settled that every Controlling Officer is required to submit a certificate to the Head of the Department before 30th March of every year that the staff members had submitted such declarations well within time. As already given above, the appellant was not proceeded against for his alleged failure to furnish such declaration during the required period nor any of the relevant Controlling Officer was departmentally proceeded against in that respect, thus, how could the Inquiry Officer jump to an unreasonable conclusion that it was the appellant who doctored/manoeuvered to cover up for the discrepancies in his said declaration by way of documented stratagem. It transpires that even the Inquiry Officer was as a matter of fact not feeling convinced with the so-called evidence collected against the appellant as he at page No, 6 of his report in sub-para. (a) stated in clear cut words that: "(a) Departmental representative has been negligent in projecting the case of his department in respect of the instant charge against the accused officer."
Further observations made in sub-para. (b) (supra) by the Inquiry Officer to the effect that: "(b) O.S. (Supdt. Secret Cell) Mr. Samin Abbas has an axe to grind in the matter by not coming forth as a P.W. and has apparently connived with the accused officer by trying to mislead the Inquiry Officer through furnishing a solitary open 1988 assets declaration of the accused officer which relates back to 12 years; have been strangely used favoring the respondent-department although its benefit must have gone to the accused officer but here the boot seems to be on the other foot. If the prosecution failed to produce an important official as a witness against the appellant, the Inquiry Officer too seems to be negligent as he was having all powers under C.P.C. of summoning of such a witness by himself in order to arrive at just decision of the crucial matter. One thing is, however, clear from such an observation of the Inquiry Officer that he was at pains to lay his hands upon any solid incriminatory evidence against the appellant, thus, safest and legal course in such an eventuality would have been to record findings in favor of the accused officer and against the prosecution but for <the reasons best known to the Inquiry Officer, he observed otherwise.
8. The findings of the Inquiry Officer that the assets statements available were disproportionate to the known sources of income of the appellant also seems to be contrary to the record as no documentary proof had been furnished or placed before him nor appellant was confronted with the same for arriving at just conclusion. As per observations of Inquiry Officer, the assets statements of accused prior to 1988 were not available then how could he make comparison of his property and assets with such missing record in order to arrive at a decision as to whether such statements were tallying with each other 'or were disproportionate inter se. Lastly, the conclusion of the Inquiry Officer that assets statement of 1988 was not found in sealed form rather it was available in open form with the wording that "details of all the properties were declared at the time of initial appointment and after that regularly till 1987" and that only accused officer could benefit from this and that he had, thus, sought to cover up for the discrepancies by way of aforesaid misconduct and documentary stratagem also does not seem to be convincing at all. It is the responsibility of the official of department concerned to maintain and keep in safe custody all such annual statements in sealed from and if that relating to 1988 was available in open from, how could the accused officer be made responsible scape goat for the same, as he was not its custodian. If the same was submitted by him at the relevant time in the concerned department, the blunder or fault committed by departmental official seems to have been wrongly attributed to the appellant with renal fide intention of returning verdict against the appellant in order to oust him from service.
9. Now coming to charge d (he facilitated passengers at Karachi Airport for illegal customs clearance and was involved in.the smuggling of contraband items) here again we feel constrained to remark that the Inquiry Officer has based his findings simply on presumption and inadmissible evidence. The Inquiry Officer seems to return his such findings against the appellant on a report being result of Inquiry proceedings conducted in 1994 by the then Director, F.I.A., Karachi against the present appellant for this very allegation but at the fag end of para. No,8 of present Inquiry Report, it is given in clear cut words that departmental representative confirmed that the discreet probe against the accused officer in 1994 has as yet not taken any final shape against the accused officer per record. This being the latest position with regard to the old pending inquiry relating to 1994 how could the opinion of the said Inquiry Officer ever be made use of against the appellant in the present inquiry proceedings, specially when the appellant was not got confronted with that opinion of Inquiry Officer which was still pending adjudication. This modus operandi adopted by the Inquiry Officer seems to be against natural justice and the legal norms, thus, it was wholly unwarranted on the part of the Inquiry Officer to hold that the appellant was having a nexus with a Recruiting Agent (his brother-in-law and a "khaipiyas" Abid, friend of the brother-in-law, and that the accused officer has been frequently using his good offices with Karachi Airport, F.I.A., and Customs staff to facilitate passengers.
10.It transpires that even the previous record of aforementioned inquiry was abruptly taken hold of and used against the appellant as the instant inquiry seems to have been conducted in hot haste as it started on 27-6-1997 and was concluded on 28-6-1997 i,e, within 24 hours and statement of not a single P.W. was recorded in support of the above allegations.
11.The mere factum of taking in hand inquiry proceedings under E&D Rules against a civil servant by issuance of show-cause notice/charge-sheet coupled with statement of allegations and final show-cause notice, cannot warrant for imposition of a major penalty, rather there must be ample convincing and reliable evidence placed on the record which could safely go to prove the charges levelled against the appellant and only then findings could be recorded against the accused officer. Alleged non-submission of assets statements much earlier could not provide fresh cause of action as now it seems to be a past and closed chapter. Strangely enough for one of such allegations the appellant was earlier 'censured' but the Inquiry Officer has once again used such allegation against the appellant which certainly tantamount to penalizing/vexing twice an accused which is not warranted in law. The report of Inquiry Officer seems to be based on presumptions and whims and it is well-settled that mere conjectures and presumptions, howsoever strong the same may be, cannot be made a ground for removal from service. Even the Inquiry Officer seems to be not feeling satisfied with the evidence produced before him and it was perhaps for this reason that at page 10 of the report, he halfheartedly observed that the "F.I.A. official responsible for framing this loose charge, which the departmental representative has been unable to substantiate owes an explanation for wasting the time of the Inquiry Officer and the Authorized Officer. It is against the principles of equity and justice to level a charge that is lacking either in basis or in substance. Under the circumstances of a weak prosecution, for whatever reason, the benefit accrues to the accused". Despite such unfavorable observation qua the prosecution, made by the Inquiry Officer, finally the appellant was removed from service by the competent Authority which is nothing but injustice done to the appellant.
12.It is pertinent to bring on the record the hard fact that appellant was earlier issued show- cause notice on 22-7-1984 upon the allegations that he had raided the premises of M/s Phularwan Industrial and Trading Corporation, Karachi unauthorisedly, he had taken into possession two files without properly making inventory and after seizure of those files, he failed to bring the same into notice of his seniors and he threatened the Proprietor of the Corporation and had demanded Rs, 50,000 from him as illegal gratification. He was issued yet another show-cause notice on 5-2-1985 upon allegations that his style of living was beyond ostensible means of income and he had accumulated assets over and above his sources of income, he was running a Travel Agency through his borther-in-law in the name of 'Shahadullah Travels having its office at Imperial Hotel, Maulvi Tamizuddin Khan Road, Karachi, that he used to reside with one Farooq who was a black- listed recruiting agent, that he had purchased some landed property at Sheikhupura and Lahore in the name of his wife in addition to property acquired by him at Multan, and lastly the appellant had acquired a notoriety for corruption and bribery.
13.The aforementioned allegations contained in both the show-cause notices were duly gone into and Mr. Javed Hasan Aly, the Authorized Officer vide his order dated 9-7-1986, exonerated the appellant of all those charges and the said show-cause notices issued to him were vacated and the proceedings were dropped.
14.We fail to understand as to under what provisions of law, such allegations were once again forming part of the present charge-sheet leveled against the appellant resulting in his removal from service as the same were duly inquired into and were found to be non-existent/not established. An accused could not be vexed twice for the same allegation/offence.
15.For all the aforesaid reasons, the appeal succeeds which is accepted, the impugned order is set aside and the respondents are directed to reinstate the appellant into service from the date of his removal with all back benefits. No order as to costs.
16. Copies of this judgment be sent to all the concerned through registered post.