GULBAZ KHAN (CHAIRMAN.)---This judgment would dispose of two Appeals bearings Nos.653(R) of 1997 and 673(R) of 1997, filed by Mumtaz Ali Changezi and Ali Ahmad Baluch, respectively.
2. Mumtaz Ali Changezi appellant (Ex-Assistant Collector of Customs) was dismissed from service vide order, dated 11-4-1997. He submitted departmental appeal, on 8-5-1997, which was not responded to for 90 days. Mumtaz Ali Changezi preferred appeal before this Tribunal, on 4-9-1997, which is within the period of limitation.
3. Ali Ahmad Baluch appellant, (Ex-Deputy Superintendent, Customs and Central Excise), was dismissed from service vide order, dated 26-4-1997. He filed departmental appeal on 24-5-1997.
Having not received any reply to his departmental appeal, he filed the present, appeal before the Tribunal, on 10-9-1997,' which is also within time.
4. Messrs Concord Export House, Karachi, and Messrs Charly Enterprises, Karachi, (both based in Karachi) exported Polyester Fabrics (Jacquard) valued US $ 2,91,36,500 (Over Rupees Seventy Crores), from Customs House, Gwadar to Dubai. They claimed rebate and Import Licence Fee over Rupees Sixteen Crores. They received Rs.11,77,92,323 as rebate and Rs.1,28,66,662 as Import Licence Fee (80% of the total amount) and filed two Constitutional Petitions Nos.27 and 28 in Balochistan High Court, Quetta, through their Chief Executive Imptiaz, Ali Taj, for the payment of balance (20 % ).
Messrs Concord Export House, Karachi and Messrs Charly Enterprises, Karachi had entered into an agreement with Messrs Sangeeta Traders for the supply of 1,53,35,000 meters of Polyester Fabrics (Jacquard) to Dubai. Instead of supplying the said Polyester Fabrics from Karachi, which was the base of the said two firms, they exported 733 bales and 12 wooden cases, on 15-6-1991; 799 bales and 12 wooden cases on 11-7-1991, through Country Craft Al-Ameeni, and 1533 bales and 16 wooden cases on 28-7-1991, through Country Craft Al-Anwari.
5. An information was received in the Directorate-General of Inspection and Training (Inspection Wing), South Zone, Karachi, that a fraud had been committed at Customs House, Gwadar; that not even a single meter of Polyester Fabric had been exported by the said two firms by means of the two Country Crafts, mentioned above, on the dates indicated hereinbefore, to Messrs Sangeeta Traders, Dubai; that fictitious documents had been prepared and the exporters had claimed rebate illegally and received the same in connivance with the Customs Staff and others- In February, 1992, Muhammad Saleem, Principal Appraiser of the Directorate of Customs Inspection, got five cases registered against Messrs Charly Enterprises and Messrs Concord Export House, the Clearing Agents and Customs Staff and others under provisions of Customs Act, 1969. After completion of the investigation, challans had been submitted in those cases against the appellants and others, which are still pending.
6. Muhammad Nawaz, Collector of Customs, Quetta, who had sanctioned rebate amounting to Rs.11,70,41,396 to the two Exporters, was dismissed from service. Khalid Aziz, Inspector, who also played major role in preparing false documents was also dismissed from service. Both of them did not challenge the orders of dismissal. This fact has not been disputed and it had been admitted before us by the learned counsel for the appellants during the hearing of appeals.
7. The execution of 48 shipping bills brought on record of this case is not denied. These shipping bills bear the signatures of Mumtaz Ali Changezi, Assistant Collector appellant, Ali Ahmed Baluch, appellant Deputy Superintendent, Superintendent and Khalid Aziz, Inspector, all from Customs House, Gwadar. The signatures on these shipping bills are admitted by the two appellants. Through these shipping bills, the Polyester Fabrics (Jacquard) were shown to have been exported through Gwadar by the two Country Crafts Al-Ameeni and Al-Anwari, on the dates referred to above. The Polyester Fabrics were sent by means of bales.
8. Mr. S.T.R. Zaidi, Director-General, Inspection and Training (Customs, Excise and Sales Tax)
Customs House, Karachi, conducted preliminary inquiry and submitted a detailed report comprising of 48 pages (pages 142 to 190 of Appeal No.653(R) of 1997). He concluded the inquiry by stating that Customs officials of various grades were fund involved in the fraud who were inter- linked and had colluded and. connived to perpetrate the fraud. He recommended to the competent Authority that inquiry should be held against the Customs officials under the Government Servants (Efficiency and Discipline) Rules, 1973. Various Annexures had also been appended with the file starting from pages 292 to 488.
9. Mumtaz Ali Changezi, appellant, was charge-sheeted on 0-10-1993. The charge-sheet reads as under:--- "Whereas it has been reported that you Mr. Mumtaz Ali Changezi, Assistant Director (under suspension), Directorate-General of Inspection and Training (Customs and Excise), Karachi while posted as Assistant Collector of Customs at Gwadar Port in the jurisdiction of the Collectorate of Customs and Central Excise, Quetta had failed to discharge your official duties in protecting Government revenues by processing export documentation in respect of fake and fraudulent exports of polyester fabrics (Jacquard) by M/s. Concord Export House, Karachi and M/s. Charly Enterprises, Karachi as a `, consequence of which you enabled the aforesaid firms to obtain illegal/inadmissible and fraudulent draw-back of Customs Duties and Sales Tax and refund of import Licence fee, as per the Statement of allegations enclosed. Your role in the processing of the documents under reference point to your having connived, abetted and collaborated with the above said exporters in these fraudulent transactions.
(2) And whereas the said irregularities amount to gross misconduct and inefficiency on your part and render you liable to disciplinary action under the Government Servants (Efficiency and Discipline) Rules, 1973.
(3) And whereas it has been decided to hold inquiry into the said charges and allegations against you under the Government Servants (Efficiency and Discipline) Rules, 1973
(4) And whereas I am of the opinion that the aforesaid charges if established, would call for major penalty of dismissal from Government service as specified in Rules 4(1)(y)(iv) of the Rules (ibid).
(5) And whereas Mr, S.N.H. Zaidi, Director-General (Inquiries), CBR, Islamabad, has been appointed as Inquiry Officer, under Rule 5 read with Rule 6 of the Rules (ibid), to conduct inquiry into the aforesaid charges.
(6) Now, therefore, you Mr. Mumtaz Ali Changezi, Assistant Director, Directorate-General of Inspection and Training (Customs and Excise), Karachi are required under sub-rule (2) of Rule 6 of, the aforesaid Rules to put in your written defence to Inquiry Officer viz. Mr. S.N.H. Zaidi within 14 days of the date of communication of the charge-sheet. In case you fail to put in your written defence within the stipulated period, it shall be deemed that you have nothing to say in your defence and the action against you shall be taken ex parte. "
Alongwith the charge-sheet, the statement of allegations was supplied to the appellant. The statement of allegations is reproduced herein below: "It has been reported that you Mr. Mumtaz Ali Changezi, Assistant Director (under suspension) while serving as Assistant Collector of Customs, Gwadar in the Collectorate of Customs and Central Excise, Quetta happened to cause injury to the Government revenues through collusion, abetment and, connivance in the fake export of Polyester Fabrics (Jacquard) from Gwadar to Dubai by Karachi based exporters and their Chief Executive, namely:---
(i) Haroon Rashid, Proprietor of M/s. Charly Enterprises, Karachi.
(ii) Qurban Khan, Proprietor of M/s., Concord Export House, Karachi.
(iii) Imtiaz Ali Taj, Chief Executive of both the exporting firms which enabled the aforesaid firms to obtain illegal drawback of Customs duty and Sales Tax (Rs.11,77,92,323 and refund of Import Licence Fee (Rs.1,28,66,662).
(2) A thorough investigation conducted into the fraudulent export by the aforementioned firms has revealed that 48 Shipping Bills pertaining to shipment of 1,53,45,000 meters of Polyester Fabrics (Jacquard) from Gwadar to Dubai were filed at Gwadar from 1-6-1991 to 31-7-1991 on behalf of the aforesaid firms by M/s. Abdul Majeed Askani and Abdul Ghani Askani, Customs and Excise Clearing and Forwarding Agents, Gwadar. The exported Polyester Fabrics (Jacquard) cloth being a high rebateable item warranted its examination under your personal supervision in your capacity as Assistant Collector, Gwadar which you failed to do; rather you alongwith Shahid Hussain, Superintendent of Customs, Gwadar, Ali Ahmed Baluch, Deputy Superintendent of Customs, Gwadar, Khalid Aziz, Inspector of Custorns, Gwadar and M/s. Abdul Majeed and Abdul Ghani Askani, Customs and Excise Clearing and Forwarding Agents, Gwadar, in collusion and connivance with each other completed/certified false Customs documents relating to the alleged export whereas in fact no Polyester Fabrics (Jacquard) was exported against these documents.
(3) That the documentary evidence regarding your involvement, besides other officers posted at the relevant time at Gwadar .in the completion and certification of false shipping documents is available in the form of examination report of alleged export consignments recorded on the Shipping Bills by Khalid Aziz, Inspector, Gwadar of who also endorsed loading of goods in the launches (Al-Ameeni & Al-Anwari) and the date of their sailing for Dubai U.A.E and you certified the correctness of these reports. Moreover, Export General Manifest (E.G.M.) Nos.19 of 1991, dated 15-6- 1991, 22 of 1991, dated 11-7-1991 and 23 of 1991, dated 28-7-1991 carry certification of Khalid Aziz, Inspector of Customs Gwadar 'Loaded in full; and signature of Ali Ahmad Baluch, Deputy Superintendent of Customs, Gwadar and Shahid Hussain, Superintendent of Customs, Gwadar and the same were certified to be true by yourself in your capacity as Assistant Collector of Customs, Gwadar.
(4) Detailed probe into the case and documentary and circumstantial evidence obtained have conclusively established that:
(i) No Polyester Fabrics (Jacquard) was procured by the exportingfirms;
(ii) No Polyester Fabrics (Jacquard) was transported to Gwadar;
(iii) No Polyester Fabrics was exported from Gwadar to Dubai;
(iv) Your unauthorised visit to Dubai in 1991 was part of the planning of the fraudulent scheme of fictitious export by the' Proprietors of M/s. Charly Enterprises, Karachi and M/s. Concord Export House, Karachi, respectively (the exporters).
(v) Your close acquaintance with Haroon Rashid and Qurban Khanpaved and accelerated the pace of fraudulent export exercise;
(5) From the foregoing facts it is prima facie established that -you, by misusing your official position, facilitated the commission of the fraud of fictitious export of Polyester Fabrics (Jacquard) from Gwadar to Dubai, resulting in fraudulent drawal of drawback of Customs Duty and Sales Tax and refund of Import Licence Fee which resulted in heavy loss to the Government exchequer. This criminal and irresponsible action on your part constitute misconduct under the Government Servants (Efficiency and Discipline) Rules, 1973."
10. Mr. S.N.H. Ziaid, Inquiry Officer, conducted inquiry and submitted report, dated 17-5-1994.
Secretary, Revenue Division/Chairman, Central Board of Revenue, in his capacity as Authorised Officer, gave personal hearing to Mumtz Ali Changezi. After receipt of inquiry report, submitted by Mr. S.N.H. Zaidi, the Authorised Officer decided to conduct a de novo inquiry. He constituted an Inquiry Committee comprising of M/s. Riaz Ahmed Malik and Muhammad Suleman. The inquiry was conducted by the Inquiry Committee which submitted its report, dated 29-12-1994, to the Authorised Officer. The Inquiry Committee came to the' conclusion that no Polyester Fabric (Jacquard) was procured by the exporting firm; that no Polyester Fabrics (Jacquard) was transported to Gwadar and that no Polyester Fabrics (Jacquard) was exported from Gwadar to Dubai. It was observed by the Inquiry Committee that there was no conclusive proof that Mumtaz Ali Changezi had visited Dubai in 1991, for planning the fraudulent and fictitious export of Polyester Fabrics (Jacquard) by Proprietors of Messrs Charly Enterprises and Messrs Concord Export House, Karachi. It further observed that there was no proof of friendship between Mumtaz Ali Changezi, appellant, and the proprietors of two exporter-firms. On receiving the report, submitted by the Inquiry Committee, the Authorised Officer issued show-cause Notice, dated 26-2-1995, to Mumtz Ali Changezi, appellant, with reference to charge-sheet, dated 20-10-1993. It was disclosed in the show-cause notice that the Inquiry Committee had given the finding that the charges levelled against the appellant stood proved. The appellant, Mumtaz Ali Changezi, was called upon to show- cause in writing within fourteen days of the receipt of the notice as to why major penalty of dismissal from service should not be imposed upon him. He was also asked if he desired to be heard in person by the Apthorised Officer. Alongwith the show-cause notice, copy of the inquiry report and annexures were attached.
11. After the finalization of disciplinary proceedings by the Authorised Officer against Mumtaz Ali Changezi, appellant, the Authority Was pleased to impose major penalty of dismissal from service under Rule 4(1)(b)(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973 vide order, dated 11-4-1997.
APPEAL No.673(R).OF 1997 FILED BY ALI AHMED BALOCH.
12. Ali Ahmad Baloch was posted as Deputy Superintendent, Custom and Central Excise at Camp.
Office, Customs House, Gwadar, in the month; of June-July, 1991. It came to light that Messrs Concord Export House, Karachi, and Messrs Charly Enterprises, Karachi, had fraudulently shown to have exported Polyester Fabrics (Jacquard) from Gwadar to Dubai, measuring over 1,53,00,000 meters, valued at over Rs.70,00,00,000 by means of Country Crafts, Al-Ameeni and Al-Anwari, whereas in fact not even a single meter of Polyester Fabric (Jacquard) was exported to Dubai from Gwadar. The exporters claimed rebate of Rs.11,77,92,323 and refund of Import Licence Fee amounting to Rs.1,23,66,662 and succeeded in getting 80% of the said amount. On detection of this fraud, Sahibzada Tahir Zaman, Authorised Officer, served charge sheet on Ali Ahmed Baluch, appellant, on 7-3-1996. The charge-sheet reads as under:--- "Whereas, it has been reported that you Mr. Ali Ahmed Baloch, Deputy Superintendent of Customs (under suspension), while posted at Gwadar Port in the jurisdiction of the Collectorate of Customs and Central Excise, Quetta had failed to discharge your official duties in protecting Government Revenues by processing export documents (shipping bills and connected documents) without proper and scrutiny, verification of facts and application of mind in respect of fake and fraudulent exports of Polyester Fabrics (Jacquard) by M/s. Concord Export House, Karachi and M/s. Charly Enterprises, Karachi as a consequence of which you enabled the aforesaid firms to obtain illegal, inadmissible and fraudulent draw back of Customs duties and Sales Tax and refund of import licence fee, as per the statement of allegations enclosed. Your role in the processing of the documents under reference point to your negligence, indifference and failing and also indicate your having connived, abetted and collaborated with the above said exporters in these fraudulent transactions, by writing false examination reports on the aforesaid documents.
(2) And whereas, the said irregularities amount to gross misconduct and inefficiency on your part and render you liable to disciplinary action under the Government Servants (Efficiency and Discipline) Rules, 1973.
(3) And whereas, it has been decided to hold inquiry into the said charges and allegations against you under the Government Servants (Efficiency and Discipline) Rules, 1973.
(4) find whereas, I am of the opinion that the aforesaid charges if established, would call for major penalty of dismissal from service as specified in Rule 4(1)(b)(iv) of the Rules (ibid).
(5) And whereas, Mr. Syed Aqeel Zafar-ul-Hassan, Director Enquiry Wing, Islamabad, has been appointed as Enquiry Officer, under Rule 5 read with Rule 6 of the Rules ibid, to conduct inquiry into the aforesaid charges.
Now, therefore, you, Mr. Ali Ahmed Baloch, Deputy Superintendent (Under Suspension) are required under sub-rule (2) of Rule 6 of the aforesaid Rules to put in your written defence to Inquiry Officer viz. Mr. Syed Aqeel Zafar-ul-Hassan, Director Enquiry Wing, Islamabad, within 14 days .of the date of communication of the, charge-sheet. In case you fail to put in your written defence within the stipulated period, it shall be deemed that you have nothing to say in your defence and the action against you shall be taken ex parte. " alongwith the charge-sheet, Statement of allegations was also supplied to the nt. It would be advantage to reproduce the Statement of allegations: "It has been reported that you Mr, Ali Ahmed Baloch, Deputy Superintendent of Customs, Gwadar, between the period from 13-6-1991 to 27-7-1991 did not perform your duties as a Customs Officer by ensuring the compliance of prescribed procedures and the provisions of Customs Act, 1969, in respect of filing of Shipping Bills, presentation of export goods, examination of the goods and then actual loading on the ships well as the preparation of proper record correctly and truthfully and, thus, collaborated and connived with the exporters, M/s. Concord Export House, Karachi and M/s. Charly Enterprises, Karachi, owned by Haroon Rashid and Qurban Khan respectively, together with the Chief .Executive of both the firms, Mr. Imtiaz Ali Taj, wilfully and intentionally to being (sic) the party in the preparation/completion of Shipping Bills numbering 48 purportedly covering a total quantity of 1,53,00,000 meters of Polyester Fabrics (Jacquard) packed in 3067 bales, filed at Customs House, Gwadar for purported export of the said fabrics from Gwadar to Dubai.
The examination report on each of the Shipping Bills was written by Mr. Khalid Aziz, Inspector of Customs, Gwadar and was endorsed amongst other Customs Officials by Mr. Ali Ahmed Baloch, Deputy Superintendent of Customs, (Gwadar) to verify that the consignments of Polyester Fabrics (Jacquard) as declared on each Shipping Bill were actually and physically presented for examination whereas the fact has emerged after in-depth investigation by the Directorate of Inspection (Customs Central Excise and Sales Tax), Karachi, that the consignment said to be containing Polyester Fabrics (Jacquard) as declared on the Shipping Bills were not presented for examination to Customs and-the endorsement on the Shipping Bills by Mr. Ali Ahmed Baloch, Deputy Superintendent of Customs, Gwadar was patently false.
(3) Mr. Ali Ahmed Baloch, Deputy Superintendent of Customs, Gwadar falsely endorsed the Export General Manifests (EGM) Nos. 19 of 1991, dated 15-6-1991, 22 of 1991, dated 11-7-1991 and 23 of 1991, dated 26-7-1991 which carried the false certification of Mr. Khalid Aziz Inspector of Customs Gwadar in token of loading of Polyester Fabrics (Jacquard) in the Country Crafts 'Al---Ameeni/Al-Anwari" for export from Gwadar to Dubai, U.A.E. whereas investigation carried out by the Directorate of Inspection (Customs, Central Excise and Sales Tax) Karachi conclusively established that no Polyester Fabrics (Jacquard) were loaded/exported in the relevant Country Crafts from Gwadar to Dubai.
(4) Mr. Shahid Hussain did not take into consideration the full facts while endorsing shipping bills and other documents.
(a) Each Bill of the shipped consignment was declared of so many Kgs./Weight. The question was how could bales of such weight be loaded on the small boats for carrying the same to the Country Craft which was anchoring in the high seas because Gwadar Port was not operational due to on- going construction.
(b) How much time was required to carry such a large number of bales for loading of the same on the Country Crafts mentioned on the shipping bills and whether it was possible to be done at Gwadar Port in a short time as indicated in the record.
(c) Whether the huge quantity of fabrics covered by shipping bills under reference could be exported to Dubai by the Country Crafts in three voyages. How could such a big quantity be transported from Karachi to Gwadar and where could such huge consignment be stored in reasonably secured place in Gwadar in view of the lack of sheds, godowns, warehouses and other such buildings in Gwadar town.
(5) By being a party to the fraudulent exports, Mr. Ali Ahmed Baloch, Deputy Superintendent, Gwadar enabled the exporters M/s. Concord Export House, Karachi /Charly Enterprises, Karachi to obtain export rebate amounting to Rs.11,77,92,323 as well as refund of Import Licence Fee amounting to Rs.1,23,66,662 fraudulently and unlawfully.
(6) The aforesaid criminal and irresponsible action on the part of Mr. Ali Ahmed Baloch Deputy Superintendent of Customs, Gwadar as well as collusion, connivance and abetment on his part in the fake export of Polyester Fabrics (Jacquard) by M/s. Concord Export House, Karachi and M/s. Charly Enterprises, Karachi and fraudulent drawl of export rebate/refund of Import Licence Fee by the aforesaid firm amounts to misconduct under the Government Servants (Efficiency and Discipline) Rules, 1973. "
13. The appellant denied the allegations in his reply to the charge--sheet, through Annexure-III, dated 20-3-1996 (Pages 19 to 21): The appellant had requested for the supply of relevant documents which were intended to be used as evidence during the enquiry proceedings. He also asked for the list of prosecution witnesses for enabling him to prepare the defence. The Authorised Officer supplied copies of the documents as mentioned in Annexure-IV (Pages 23 and 24). The appellant used delaying tactics in order to prolong departmental inquiry. He was issued letter of warning, dated t5-8-1996 (Annexure-V, Page 25). Syed Aqeel Zafar-ul---Hasan, Inquiry Officer, after completing the inquiry, forwarded detailed inquiry report, dated 15-4-1997 (Pages 31 to 69) to the Authorised Officer. The Inquiry Officer found the appellant guilty of failure to discharge his duties in protecting Government revenues; responsible for faulty processing of export documents and his conduct facilitated fraudulent export transactions through connivance, collaboration and abetment. The appellant was found guilty of the charges framed against him. The Authorised Officer, on going through the report of the Inquiry Officer, reached the conclusion that the charge of misconduct stood established against the appellant. He issued show-cause notice, dated 16-4- 1997 (Annexure-VI, Pages 26 and 27). He called upon the appellant to show-cause as to why major penalty of dismissal from service may not be imposed upon him. The appellant submitted reply (Annexure-VII), pages 70 to 88), dated 24-4-1997 to the show-cause notice. After examining all the relevant record and giving personal hearing to the appellant, Ali Ahmed Baluch, the Authority passed the impugned order of dismissal from service, on 26-4-1997. Dissatisfied with the order of dismissal, Ali Ahmed Baluch submitted departmental appeal, dated 23-5-1997 (Pages 95 to 144), to the competent authority. The departmental appeal was not responded to. After waiting for the statutory period of 90 days, the appellant, Ali Ahmed Baluch, filed the present appeal on 10-9-1997.
14. Mr. Abdul Ghafoor Mangi, Advocate, who represented Mumtaz Ali Changezi appellant, contended that since a criminal case on the same allegations was pending against the appellant in the Court of Special Judge Customs, Karachi, the departmental proceedings should have been deferred as the decision of the departmental enquiry was likely to influence Special Judge Customs; that the appellant had made request for the supply of copies of statements of witnesses and documents which were to be relied upon by the prosecution, but the appellant was not provided with those copies; that the- Inquiry Committee based its finding on the report of the Investigating Officer and the Inquiry Committee did not apply its independent mind; that the complainant was not examined in the presence of the appellant and, thus, the appellant was deprived of the right of cross-examination; that the appellant made request to the Inquiry Committee for summoning those witnesses whose statements had been recorded behind his back but his request was not granted; that it was not the responsibility of the appellant to prove the purchase of Polyester Fabrics (Jacquard) from various firms and to further prove payments to those firms; that the receipts of the transport companies had been brought on record but the same were not duly considered; that the, appellant was not the Appropriate Officer' under the Customs Act and it was not his duty to check the documents; that the provisions of sections 13 to 19 of the Public Servants (Enquiries) Act, 1850, had been violated; that under section 2(b) of the Customs Act-all functions were to be performed/conducted by the Appropriate Officer and vide SRO No.806, dated 20-9-1984, Inspectors had been declared as Appropriate Officers, hence, it was not the- responsibility of the appellant to check the goods and prepare documents; that any instructions or notifications having no backing of law were not required to be followed and the general office orders could not override the provisions of Act; that notification which is not published in the Gazette and nor supported by any Act, has no legal value; that in this case burden of proof was shifted to the appellant which was contrary to law; that Saeed Ahmed Baluch, Sa'adat, Zafar Ali, Qaiser Baig and Naseer Baluch stated in their affidavits that the Inquiry Committee never called them and similarly Abdul Ghafoor, Incharge, CIA, stated that he never contacted the Inquiry Committee; that the appellant was not permitted to examine his witnesses although he had made such a request to the Inquiry Committee; that jurisdiction of the appellant was spread over a vast area, having various stations, and, thus; it was not possible for the appellant to remain stationed at Gwadar Port all the times; that the appellant had seen the Shipping Bills in routine which were brought to him by other Customs officials duly filled in; that there were that the charge on the basis of which the appellant was dismissed- from service was not mentioned in the charge-sheet; that there was no direct or circumstantial evidence' to prove that the appellant had abetted .the commission of fraud; that the departmental brief was not supplied to the appellant which caused prejudice to the appellant in his defence; that the report which had not been shown to the appellant could not legally be used against him; that the appellant did not know that Khalid Aziz, Inspector, was on leave during the relevant dates as he was not the leave sanctioning authority; that the appellant had pointed out serious irregularities while processing the case but those were not taken notice of; that Standing Order No. l of 1987 was confined to goods sent by bail or NLC; that the appellant was in a junior position and in the hierarchy of Department there were Collector, Deputy Collector, Assistant Collector, Superintendents, Deputy. Superintendents and Inspectors and it was the Collector who could pass an order for the payment of rebate and in the instant case the Collector had passed such an order who had ignored the directions of the Director-General, Customs (Inspection and Training) and the CBR; that there was no oral or documentary evidence against the appellant to show that he had aided or abetted in the preparation of false Shipping Bills in this case. The learned counsel also drew our attention to sections 25 and 107 of the Pakistan Penal Code containing definitions of "fraudulently" and "Abetment" and argued that the case of appellant was not covered under those definitions.
16. Mr. Javaid Aziz Sindhu, learned counsel for the respondents explained the procedure, which was to be adopted by the Customs Authorities. According to him, Deputy Superintendent marks the case to the Inspector for checking the documents, registration number etc rebatable percentage and, after checking, the documents are handed-over to the shipper and thereafter, the goods are brought. It was also stated that the Deputy Superintendent deputes an Inspector for physical checking of the goods and if the rebate is 14 % a senior officer of the rank of the Assistant Collector signs the documents after the goods are physically checked under his personal supervision. He stated that opportunity of cross-examination was given to the appel4ants who denied the same.
The, learned counsel contended that there was overwhelming documentary evidence and the appellants were rightly dismissed from service. He also referred page 19, Annexure 11. It was lastly stated by him that the Standing Order No. l of 1987 was relevant and not Standing Order . No. l l of 1988. The learned counsel referred to various documents, brought on record of this case and submitted that the charges stood proved against the appellants. According to him, the cars had been unloaded at Gwadar Port for which special permission had been obtained. He further stated that Gwadar Port was not operational on the relevant dates and the country crafts had been brought in the open sea and not at the Gwadar Port. He also referred to Annexure 23; (FIA's letters) and other documents like Annexure 4 and certificate of the Construction Company stating that they did not extend the facility to bring any country crafts to the Fish Harbour. The learned counsel further submitted that the facility for export was available at Karachi Port but the export had been purposely shown 'at Gwadar Port.
17. We have considered the contentions of the teamed counsel for the parties and have examined the record carefully.
An enquiry into the conduct of a public servant is neither a criminal indictment nor even a quasi- criminal proceeding but it is mainly an administrative proceeding conducted by a domestic forum to examine the fitness of the civil servant for service. The subject-matter of these proceedings is not civil rights and duties for criminal liabilities. It is simply the conduct of a civil servant which is to be properly reviewed in the interest of, the purity and honour of public service. The criminal trial and the departmental enquiry proceedings are independent of each other. Different standard of evidence is required in the criminal trial and departmental inquiry proceedings. The result of one cannot influence the proceedings of the other. The holding of departmental enquiry did not have the effect of prejudicing the criminal trial. An acquittal from a criminal case may be on technical ground or on the ground that all the ingredients of the offence are not proved by the evidence produced in Court. But in the departmental proceedings even one of the ingredients, if proved, may be sufficient to reach a conclusion that A the accused has mis-conducted himself or acted in grossly negligent way or has shown inefficiency in the discharge of his official duty. An instance was quoted under serial No. 118(2)(ii) of the ESTACODE (page 543) Edition 1989, where an Officer in the Registry of Supreme Court was charged and tried for embezzlement but acquitted in appeal by High Court but subsequently dismissed on the same allegations which were found proved inDepartmental inquiry. Thus, the departmental proceedings on same facts may be started even if the person concerned has been acquitted in criminal proceedings. In some cases, a Government servant cannot be criminally prosecuted on technical grounds but this does not bar the Government from enquiring him into the truth of the charge against a Government servant by means of a Departmental inquiry. Hence, there is no bar to proceed against a Government servant departmentally when he cannot be criminally prosecuted in a Court of law for some reason or the other. The objection of the defence, that inquiry proceedings should have been kept pending till the decision of the criminal case as it was likely to influence the mind of the Presiding Officer of the criminal case, is repelled.
18. The answer to the other objection, that the appellant Mumtaz Ali Changezi was not the Appropriate Officer and he was not supposed to check the goods physically, can be found from section 4 of the Customs Act, 1969, where it is provided that an officer of Customs appointed under section 3 shall exercise such powers and discharge such duties as are conferred or imposed on him by or under this Act and he shall also be competent to exercise all powers and discharge all duties conferred or imposed upon an officer subordinate 'to him. Without any specific order of the higher authority, the Assistant Collector, of his own, under this section, is competent to exercise all powers and discharge all duties conferred or imposed upon an Inspector who is subordinate to him. The Board may, however, under section 5, by a Notification in the official Gazette and subject to such limitations or conditions, if any, as may be specified therein, empower by name or designation:
(a) any Additional Collector of Customs or Assistant Collector or Deputy Collector of Customs to exercise any of the powers of a Collector of Customs under this Act;
(b) any Assistant Collector or Deputy Collector of Customs to exercise any of the powers of Additional Collector of Customs under this Act;
(c) any other Officer of Customs to exercise any of the powers of any Assistant Collector or Deputy Collector of Customs under this Act.
Where a Junior Officer is asked to perform the functions of a Senior Officer, the Board has to issue a Notification in the Official Gazette under section 5, empowering a subordinate Officer by name or designation for the performance of such duties of Senior Officer as specified in the -Gazette Notification. The provisions of section 5 are not attracted in the instant case as the Assistant Collector was to exercise powers and duties of a subordinate Officer, which under the law (section 4) he could do so. The administrative order passed by the Chairman, Central Board of Revenue, dated 20-3-1988 (Annexure 18) was in accordance with section 4 of the Act. Directions were given by the Chairman, Central Board of Revenue in order to have the rebatable goods checked by a Senior Officer where the amount of rebate exceeds 14%. The defence objection in this context is devoid of any force.
19. Before any departmental action is taken, the Department collects some evidence to come to the conclusion whether or not regular inquiry was required to be initiated. Such proceedings may be termed as initial 'inquiry/preliminary inquiry/fact finding inquiry. In such an inquiry, the civil servant is not associated/joined. After the evidence is collected during such initial inquiry/preliminary inquiry/fact finding inquiry, the same is placed before the Authorised Officer who, on examining the material, takes up the decision under Rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973. He may drop the inquiry if sufficient evidence is not collected.
The defence contention that the appellant was not joined in the initial inquiry/preliminary inquiry/fact finding inquiry has no backing of law/rules. There was no such requirement under the Rules. Inquiry starts against the Government servant when the Authorised officer under section 5(1)
(ii) of the Government Servants (Efficiency and Discipline) Rules, 1973, decides in the light of the facts and circumstances of the case, that inquiry should be conducted. From that stage onward, the Government servant is associated in the inquiry.
20. The present and cafe is mainly based on the documentary circumstantial evidence. To start with; two firms known as 1,41s. Concord Export House, and M/s. Charly Enterprises were based at Karachi but; in the present case, the export was shown through Gwadar Port, for the first time, which was several hundred kilometers away from Karachi. It was easy for the two firms to Export Polyester Fabrics from Karachi rather than Gwadar Port which had not yet become operational.
Besides, more expenditure and inconvenience was involved in sending goods from Karachi to Gwadar Port The two firms had no office in Quetta and they had temporarily set up an office in one room, in the house of the father-in-law of Imtiaz Ali Taj, Chief Executive of the two firms, situated at 25-4/29 Abdullah Street, Prince Road, Quetta. The owners of the two firms are Pakistani Nationals named Qurban Khan and Haroon Rasheed respectively. Foreign names had been given to the firms to influence the Authorities concerned and to show that the firms had contacts abroad.
21. The agreements of the two firms, referred to above, with M/s. Sangeeta Traders, Dubai (UAE) were signed by Proprietor Sangeeta. Habib Bank Limited, Karachi, gave the names of the partners of M/s. Sangeeta Traders as Sumir Abdullah Ali Ahmed Budibas (U.A.E. National) and MI /s Khatanhar Ramesh Ganga Ram and Khatanhar Sunail Ganga Ram (both Indian Nationals). These names were provided to Habib Bank Limited,. Karachi, by Habib Bank A.G. Zurich, Diena, Dubai. No evidence was brought on the record to show that Sangeeta had been authorised to sign the agreement on behalf of the Sangeeta. Traders, Dubai. It casts doubt on the agreement signed between the parties.
22. We find on record the replies of the two firms at pages 297 and 301 stating that the entire shipping goods were procured by the representative of the Dubai Importers himself during his visit to Pakistan and, therefore, the names and addresses, of the parties from whom the goods were purchased, were not known to them and that they had acted only an export house from Quetta.
This explanation does not fit in with the agreement deeds which are placed on record at pages 292 and 293. M/s. Sangeeta Traders entered into an agreement with M/s. Concord Export House for the supply of:
(i) Polyester Fabrics (Jacquard) Dyed Self Designed Super Finished width 43/44", 1,28,40,000 meters at the rate of U.S. $ 1.90 per meter C&F Dubai.
(ii) 39,00,000 pieces Glass Marbles at the rate of U.S. $ 0.0017 per piece C&F Dubai. while the agreement with M/s. Charly Enterprises was for the supply of Polyester Fabrics (Jacquard) Dyed Self Designed Super Finished width 43/44" 24,95,000 meters and 1,00,000 pieces Glass Marbles at the rate quoted above. The agreements were made on 1-1-1990. The goods were to be supplied till 30-12-1991 at Dubai. Now the stand of the two firms taken in their written replies, dated 15-1-1992 is that the entire shipped goods were procured by the representative of the Dubai Importers himself and the names of the parties and addresses from whom the goods were purchased were not known to them and that they only acted as an export house from Quetta, cannot be taken as factually correct. The stand is against the very spirit of agreement entered upon between the parties and it clearly points out towards the fake agreement between the parties. The execution of the two contracts was admitted by the two firms in their replies, dated 15- 1-1992.
The owners of the two firms further stated in para.4 of their letters that they did not make any payment to any party for the local purchase of the goods prior to the export but they, however, admitted that under instructions from the representative of M/s. Sangeeta Traders, Dubai, they had been required to pay to different parties in Pakistan total sum of ks.71,35,69,000 out of which major part had already been paid. Under instructions from M/s. Sangeeta Traders the two firms admitted to have trade payments to the different suppliers in Pakistan. Both the firms, replying to the query made by M.W. Warsi, Assistant Collector (Rebate), dated 22-1-1992., further admitted in para.(2) of their letters, dated 26-1-1992 (pages 308 and 310): "the payments have, however, been made by us to different parties in Pakistan, after receipt by us of the invoiced export proceeds through normal banking channels, under the instructions from Dubai Importers, whose representative had himself made the bargains. "
In para.3 of the same letter, the two firms stated: "the exported goods were neither manufactured by us nor any raw material was imported by us.
Since the exported goods were procured from Pakistani sources by Dubai Importers' representative, it is obvious that the exported goods were manufactured in Pakistan and also the raw material needed for the manufacture must necessarily have been imported from abroad by the concerned manufacturer, whose identity is, however, not known to us." (underling by us) up inconsistent pleas. On the one hand, they say that they did not know the names of the persons from whom the goods were procured while, on the other hand, they say that under instructions from the representative of the Importers, they were required to pay to different parties in Pakistan a total amount of Rs.71,35,69,000 out of which a major portion has already been paid. The two firms admitted that the export proceeds had been received by them through normal banking channel.
The two firms, at no stage, disclosed the names and addresses of the persons to whom the payments had been made by them. It is another material factor which proves the false and fake transactions.
23. It was alleged that the goods were transported from Karachi to Gwadar Port by means of trucks.
The numbers of trucks given in the bilties were investigated and it was discovered that out of 127 trucks allegedly used, 25 % were found to have fake registration numbers and those numbers were of motorcycles, tractors, oil tankers etc. It has been so certified by the Excise and Taxation Department, Quetta and Lasbella at Hub. This factor also points towards the fake transaction.
Ashraf admitted that he was a partner of Sahil-e-Baluchistan Goods Transport Company, Karachi, and Octroi Contractor Gwadar, for the year 1990-91 under the title of M/s. Ashraf & Brothers and for the year 1991-92 under the title of M/s. Najeeb & Company, that on the request of Khalid Aziz Inspector, Customs, for the supply of blank bilties and octroi receipts, he had supplied the same to him; and that the certificates on the letter pads were neither written by him nor they carried his or his brother's signatures. We would not take it into consideration being statement under section 161, Cr.P.C. Statements of all the witnesses recorded under section 161, Cr.P.C. are being kept out of consideration.
24. One of the most important question is whether or not Gwadar Port was operational on the relevant dates. In this context, letter, dated 10-4-1992, issued by the Ministry of Communications, (Port and Shipping Wing), Government of Pakistan, (Annexure 25, page 338) is referred, which reads:--- "Gwadar Port Construction is not complete and the Port has not yet started any activities on cargo handling or berthing the boats or any other vessels or crafts. It is expected that Gwadar Port might start its operation in the month of July, 1992, for which a proper Notification will be issued."
Para.2 of the letter reads:- "Loading of country crafts Al-Ameeni and Al-Anwari in the Port premises is out of question."
There existed two Jetties; Naval Jetty and Fish Harbour Jetty. It was certified by the Judge Advocate-General vide letter, dated 8-6-1992 (Annexure 26, page 339) that the facility of Naval Jetty had never been extended to any personal organization for any commercial/private use except by the Belgium firm working on Mini Port Project. Similar answer was given by LES Enterprises S.B.B.M. ET SIX CONSTRUCT on 14-6-1992 that they never extended any facility to third parry for loading of commercial cargo from Gwadar Fish Harbour Jetty and that the firm used two cranes which had the capacity to lift load of 500 K.G., for handling its own machinery and material. Some evidence has been brought on record to show that certain goods were brought on Gwadar Port and unloaded. On this basis, it was argued that Gwadar Port was operational. As certified by the Judge Advocate-General, they had allowed the Belgium firm which was working on Mini Port Project, the facility of using Naval Jetty for bringing the goods. Principal Officer Mercantile Marine Department, Ministry of Communications, Government of Pakistan, stated in letter, dated 13-4-1992 (Annexure 22, page 334) that Gwadar Port commenced accepting country crafts for loading and discharging at Jetty since last one and a half month only. According to him, AI-Ameeni and Al- Anwari could carry 185 and 345 bales respectively and in case some bales were loaded on deck, which was not generally done, those could carry additional load of 60 and 115 bales respectively.
The maximum number of bales 245 and 460 could be loaded on Al-Ameeni and Al-Anwari. The loading of 733 and 799 bales on Al-Ameeni on 15-6-1991 and 11-7-1991 and 1535 bales on AI-Anwari on 27-7-1991 was an impossibility. Document (Annexure-K, page 578) brought on the record by Mumtaz Ali Changezi appellant, would show that 29 tons of steel was brought on container for LES Enterprises S.B.B.M. ET SIX CONSTRUCT, Fish Harbour and Mini Port Project, on 5-5-1991. One thousand tons of cement had been brought to Gwadar on 25-11-1989, for the said Belgium firm (Annexure L).
Shipping Bills (Annexures M and N, pages 580-581) show activity of one crane weighing about 30 tons, and equipments for wick drain driving weight about 14 tons. For these articles, permission had been given to the Belgium firm for the use of Naval Jetty. Documents (Annexure--, pages 545 to 577) (32 in number) indicate that Toyota Cars and Pick-up had been unloaded at Gwadar on different dates in the year 1990 by different individuals during the period when there was craze for the import of second hand Japanese Cars, for the purpose of saving custom duty and then making profits by sale of those cars. Port of shipment has been mentioned as Dubai. Those small cars could be brought even in the boats, which could be unloaded without Jetty. There is no indication from the Bills of Entry that the cars had been brought on different dates by different persons on vessels/country crafts. It would not show that the Gwadar Port was operational on the dates relevant to this case.
According to the Incahrge of Immigration FIA/I&AS/Check Post Gwadar, Al-Ameeni remained in open sea on 6-2-1991, 15-6-1991, 11-7-1991 while Al-Anwari remained in open sea on 27-7-1991. There exists overwhelming documentary evidence on record to prove that the Gwadar Port was not operational on the relevant dates.
25. Weight of the bales has been mentioned in the Shipping Bills. It has been worked out and weight of each bale comes to about 450 K.G. Investor Chamber of Commerce and Industry Measurement Department issued Certificate of Measurement showing weight of bale as 450 K.G. Principal Officer, Ministry of Communications (Port and Shipping Wing) vide letter, dated 13-4-1992 conveyed that Al-Ameeni and Al-Anwari could carry 185 and 345 bales respectively with additional load of 60 and 115 bales respectively on the deck but in practice valuable cargo was not generally carried on deck.
Landing Certificates (Annexures 30, 29, 31) brought on the record indicate that Al-Ameeni arrived in Dubai on 18-6-1991 with a load of 745 bales and 12 cases of Glass Marble, on 15-7-1991, with 797 bales and 12 cases of Glass Marble while Al-Anwari arrived at Dubai on 30-7-1991 with 1535 bales and 16 cases of Glass Marble. Gwadar Port started accepting commercial loading on country crafts at Jetty since last 1-1/2 month only i.e., early March, 1992. The letter further stated that it was manually impossible to handle the bale keeping in view its weight and without being alongside on the Jetty. In another letter, dated 19-4-1992 (page 335), the same Officer stated that prior to the commissioning of Jetty at Gwadar, country crafts used to anchor at a distance of 1/2 or 3/4 mile from the shore and for loading of country craft, cargo was brought alongside in small boats and those small boats were loaded manually close to shore while standing in water of depth of 3 to 4 feet by carrying the cargo on head of manual labour and it was not possible to load bales on country crafts in the manner described. The above-referred documentary evidence proved that the bales could not be loaded manually on the country crafts which anchored in open sea at a distance of 1/2 or 3/4 mile.
26. According to Landing Certificate (Annexure 30) Al-Ameeni arrived at Dubai from. Gwadar Port on 18-6-1991, carrying 745 bales and 12 cases but Bill of Entry No.76164 (Annexure 29-A) shows that Al-Ameeni arrived at Dubai from Karachi on 17-6-1991 carrying Glass Marbles and garments weighing nine tons. Landing Certificate (Annexure 29) shows the Al--Ameeni arrived at Dubai from Gwadar on 15-7-1991 carrying 797 bales and 12 cafes but it is evident from the Bill of Entry No.77750 (Annexure 30, page 350) that AI-Ameeni arrived at Dubai from Karachi on 15-7-1991 carrying cloth and Glass Marbles weighing ten tons. Landing Certificate (Annexure 31, page 347) indicates that Al- Anwari arrived at Dubai Port from Gwadar, on 30-7-1991, with 1535 bales and 16 cases while Bill of Entry on 78306 (at page 136 of Appeal No.653(R) of 1997) shows that it brought polyester cloth and Glass Marbles weighing 15 tons. Documents, referred to above, are, enough to prove the fraud an preparation of false documents. These circumstances indicate that the export of Polyester Fabrics (Jacquard) as shown in the Shipping Bills is false and fake. -
27. The procedure for the preparation of the Custom documents is as under:---
(a) A Shipping Bill whether covering dutiable products or not is first registered in the Export Section of the Custom House and then presented to the Export Trade Control Clerk in Export Group of the Appraising Department. The Clerk, after completing formalities with regard to the Export Trade Control Regulation, distributes the Shipping Bills to Scrutinising Appraisers of the Group. These Appraisers would complete the Shipping Bills and endorse triplicate copies for examination and weighment to the Appraising of Preventive Officer. In case of doubt, the Appraiser will have the goods examined and weighed before the completion of Shipping Bills. When weight is the basis of assessm ent, the Weighing Officer has to attest the quantity on the face of the duplicate and triplicate Shipping Bills as well as give a full record of the examination and weighment etc. carried out on the reverse of the documents. A minimum of 10% from each consignment entered for export shall be examined. If duty is chargeable on weight, the value is determined on such basis, 5 % shall also be check weighed."
28. Khalid Aziz, Inspector, Customs and Central Excise, Quetta, was Incharge of Import and Export to and from Gwadar. Notwithstanding the fact that Khalid Aziz, Inspector, was on leave on the relevant dates i.e., 15-6-1991, from 11-7-1991 to 22-7-1991, he had prepared- all the documents and examined the consignments. On the face of the Shipping Bills, number of bills, description of goods, origin of goods, claim of rebate, name of vessels, F.C.E. Value, freight etc. are recorded which bear the signatures and seals of Superintendent Custom House, Assistant Collector Mumtz Ali Changezi appellant, and Abdul Majeed Askari, Clearing and Forwarding Custom House Agent, Gwadar. The appellant averred in Memo of appeal at page 14 para.6.42(A) in the middle that from his personal knowledge, he could say it with confidence that the Clearing and Forwarding Agent Mr. Abdul Majeed Askari was out of Pakistan during the period of the instant disputed export. The appellant would feel himself helpless in explaining the signatures and seals of Mr. Abdul Majeed Askari Clearing and Forwarding Agent on all the Shipping Bills. On the reverse of the Shipping Bills (marked by us as C1 with red pencil), we find the following entries:--- "Examined 57 bales A/S Cloth/Polyester Fabrics being exported to Dubai. Examined 10% of the lot i.e., bale Nos.5, 13, 30, 47 and 55 as asked by the D.S. and A.C. and found tally with the packing list and S/documents. Samples drawn from bale Nos.13, 19 and 55 in the presence of the D.S., Superintendent and A.C. and sealed in lead seal. The goods are of Pakistan origin as per declaration of the exporter but the C.O. origin is not attested by the Chamber of Commerce.
Submitted for orders and if approved, export may be allowed. "
The above entries are signed by the Inspector Deputy Superintendent and 'Superintendent. It also contains a note of Asistant Collector (Mumtaz Ali Changezi appellant) that the Secretary, Chamber of Commerce, may attest the certificate of origin before filing of rebate claim. Similar entries appear in all the Shipping Bills. Both the appellants have admitted their signatures on the Shipping Bills. We find on the record (page 368), hand-written statement of Mumtaz Ali Changezi. He made mentisori of the direction given to him by Muhammad Nawz Collector, Quetta, to help Haroon Rasheed in the export of goods. He admitted in the said statement, dated 10-5-1992 that he was informed that the goods were ready for examination, whereupon he proceeded to Jetty where the goods were lying and under his direction, some specified bales were opened for examination and samples drawn and afterwards sealed. He admitted to have signed the documents. In the presence of the details given on the reverse of all the Shipping Bills and the statement of Mumtaz Ali Changezi appellant, dated 10-5-1992, we cannot accept his (Mumtaz Ali Changezi's) plea that he had signed all the Shipping Bills in routine. At the same time we cannot accept the explanation of Mumtaz Ali Changezi appellant; that his statement, dated 10-5-1992 was obtained under duress.
He did not complain of it to any authority. The stand of the appellant that he was incharge of Customs in the entire Mekran Division which consisted of about 25,000 SQ. KM with 300 KM international border with Iran and 500 KM on coast with Arabian Sea and that he had signed the documents in routine, which was practice in vogue since long, is negated by his own hand written statements, dated 10-5-1992. All the Officers, 'who prepared and had made entries and attested the 'Shipping Bills, are involved in the preparation of false documents.
29. The appellant was charge-sheeted on 20-12-1993. He was served with the charge-sheet and statement of allegations. The appellant was advised to put in his written defence to the Inquiry Officer Mr. S.N.H. Zaidi within fourteen days of the date of communication of the charge-sheet and in case he failed to put in written defence within the stipulated period, it shall be deemed that he had nothing to say in his defence and the action against him shall be taken ex parte. The appellant demanded copies of charge-sheets against Muhammad Nawaz Collector, Shahid Hussain Superintendent Customs, Ali Ahmed Baluch Deputy Superintendent Customs and Khalid Aziz Inspector Customs and also documentary evidence on which allegations were based. The appellant was advised by the Enquiry Wing, on 10-1-1994, to contact DG, I&T and Collector Customs, Quetta, to obtain copies of the relevant record. The appellant sent some other letters for the purpose of delaying enquiry proceedings. Despite various letters issued by the Inquiry Officer, the appellant did not send reply to the charge-sheet for four (4) months. He was provided copies of certain documents as demanded vide letter, dated 24-2-1994. The appellant was asked to appear on 4-4-1994 vide letter, dated 22-3-1994. Instead of appearing, he sent another letter, dated 2-4- 1994 making request for postponement of enquiry. His request was granted and the enquiry was postponed to 10-4-1994. He sent another letter stating that he had no confidence in the enquiry proceedings, being biased. The appellant did not - submit written defence to the charge-sheet.
The Authorised Officer was apprised of this situation by the Inquiry Officer who allowed the Inquiry Officer to take up proceedings ex pane against the appellant. The appellant did not appear on 10- 4-1994. He was again informed that the witnesses had been called from Karachi and Quetta for 27- 4--1994 and that he should come for the cross-examination of the witnesses. The appellant did not avail of this opportunity. Owners of exporting firms were summoned but they went underground.
The enquiry was completed by S.N.H. Zaidi, Inquiry Officer on 17-5-1994 and he found the appellant guilty. The appellant was served with a show-cause notice to which he replied. He was given personal hearing by the Authorised Officer, who vide his order dated 13-9-1994 ordered de novo enquiry on the ground that the Inquiry Officer did not give warning to the appellant that he was hampering or attempting to hamper the progress of the enquiry and also did not record finding. in that regard as required under sub-fine (5) of Rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1973.
Charge-sheet had not been quashed. Further, enquiry, was to be conducted on the same charge- sheet. The Authorised Officer appointed Inquiry Committee comprising. of Riaz Ahmed Malik and Muhammad Sulaiman. The appellant appeared before the Inquiry, Committee and was supplied with the report of DG I&T comprising of 49 pages and 62 Annexures (total 246 pages). Thus, the objection of the appellant regarding non-supply of the preliminary enquiry report and documents had been removed.
The appellant appeared before the Inquiry. Committee on 17-11-1994 but did not submit reply to the charge-sheet and statement of allegations. He sent letter on 19-11-1994 and promised to send his reply on 2-12-1994 which was received by the Inquiry Committee on 2-12-1994. The Inquiry Committee gave personal hearing to the appellant on 12-12-1994. The argument of the appellant that the Inquiry Committee based its finding on the report of the Investigating Officer and that it did not apply its independent mind, has been answered by the Inquiry Committee in para.6 of the report at page 46 in thes following words:--- "The view of this E.C. (Enquiry Committee) is that it is the responsibility of the EC to ascertain whether M.A.C. (Mumtaz Ali Changezi) is guilty of the charges and allegations. In doing so, this E.C. would use the factual and circumstantial picture, recorded in the DG I&T report after M.A.C. has been given a chance to rebut the same. Any facts, which are disproved by M.A.C., would be ignored. This E.C. would subsequently draw its own conclusions from the emergent picture without being prejudiced by any opinion/findings of the DG T report & dated 16-11-1992, I. All this was explained by E.C. to M.A.C. at length on 17-11-1994:"
The appellant has desired the Inquiry Committee to summon 13 persons in his defence, namely,
(i) Naseer Ahmed Baluch, Executive Engineer, Gwadar Port Harbour--cum-Mini Port Project, Gwadar.
(ii) Ghulam Rasool, Inspector Customs.
(iii) Saadat Ali Changezi, Inspector Customs,
(iv) Saeed Baluch, Inspector Customs.
(v) Mohsin Ali, Constable Customs.
(vi) Riaz Gil, UDC Customs.
(vii) Abdul Ghafoor, Constable FIA.
(viii) Nazar Abbas Shah, Clerk of Octroi.
(ix) Haji Shambey.
(x) Bakhshi.
(xi) Haji Muhammad Ishaq, Chairman., Town Committee, Gwadar.
(xii) Muhammad Sabir, Commandar Navy, and
(xiii) Lt. Col. Ghulam Rasool Sahi, Pakistan Coast Guard, Karachi.
He had produced affidavits of Naseer Ahmed Baluch, Syed Nazar Abbas Shah, Saeed Baluch Inspector, Sa'adat Ali Changezi Inspector, Haji Shambey, Bakshi and Abdul Ghafoor Constable. The Inquiry Committee did not summon the said witnesses. It is provided under sub-rule (3) of Rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1973, that the Inquiry Officer or the Inquiry Committee, as the case may be, shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary. The affidavits of the above defence witnesses had been brought on record.
The Inquiry Committee was competent under sub-rule 1(c) of Rule 7 to receive evidence on affidavit. The reason for not summoning all the witnesses appears to be the view of the Inquiry Committee that the appellant wanted to prolong the proceedings indefinitely. The Inquiry Committee in para.30 of the report has expressed this view. Due to overwhelming documentary evidence brought on the record, the Inquiry Committee did not consider it expedient to examine all the witnesses mentioned in the list. The Inquiry Committee had the discretion to do so as the word may has been used in sub-rule (3) of Rule 6 of the said Rules. The Inquiry Committee considered it unnecessary because of affidavits to record the statements of those witnesses whose affidavits had been brought on the record. Five witnesses of the Customs Department were under the influence of the appellant who was Assistant Collector Customs. The case of the appellant was not prejudiced in not examining the witnesses other than those whose ` affidavits were nlaced on the record. We have examined the affidavits of Naseer Ahmed Baluch, Abdul Ghafoor Constable, FIA Immigration, Sa'adat Ali Changezi, Saeed Baluch Inspector Customs. Naseer Ahmed Baluch stated that he did not make any statement before Muhammad Saleem Investigating Officer. Abdul Ghafoor Constable stated that he checked the crew at Gwadar and country crafts Al-Ameeni and Al-Anwari were brought to Fish Harbour Jetty. This statement stood belied by documentary evidence in the shape of certificates (at pages 183, 184 and 185) showing that Al-Ameeni and AI-- Anwari anchored in open sea on the relevant dates. The affidavits of Sa'adat Ali Changezi and Saeed Baluch Inspectors Customs were with regard to the seizure of launches and unloading of goods at shore and Fish Harbour Jetty. This aspect of the case has already been dealt with exhaustively. All the employees of the Customs Department were under the influence of the appellant. They made affidavits on 18-3-1995 long after the completion of enquiry by the Inquiry Committee. The case of the appellant has not been prejudiced due to the. non-examination of witnesses other than those affidavits had been brought on the record. The evidence furnished through affidavits has already been discussed above.
30. The inquiry had been conducted under the Government Servants (Efficiency and Discipline)
Rules, 1973. Hence provisions of sections 13 to 19 of the Public Servants (Enquiries) Act, 1850 had no relevancy. The Inquiry Committee had, not recorded statement of Muhammad Saleem Principal Appraiser. Thus, the question of his cross-examination did not arise.
31. The handwritten statement of the appellant, dated 10-5-1992 (at pages 363 to 367), which was answer to questionnaire and another hand--written statement, dated 10-5-1992 (pages 368 to 372) are of a great importance and significance. These are very relevant for the decision of this appeal. The appellant had given all the details as to how Haroon Rasheed, Proprietor of Chaily Enterprises was introduced to him by Muhammad Nawaz, Collector Customs. The appellant categorically stated that the exported goods were brought in his presence, checked and samples drawn and documents prepared in his presence, which he signed. Previous performance of the appellant was not relevant for the decision of this appeal, which is to be decided on the evidence collected in this case. The appellant' had admitted to have gone to Dubai in 1991. It is relevant as the fake documents had been prepared in the months of June/July, 1991. There was no direct evidence regarding connection of the appellant with the Importers or friendship with the two Exporters for which the last two charges were held as not proved but the exoneration of the appellant from the last two charges would have no bearing on the result of the other charges. We cannot agree with the contention of the learned counsel for the appellant that at the most it was a case of negligence, which did not warrant dismissal from service. The facts of the case have been discussed above. It was a pre--planned affair. Fake and forged documents were prepared. Export of Polyester Fabrics (Jacquard) worth over seventy crores rupees was shown by means of country crafts AI-Ameeni and Al-Anwari through Gwadar Port which was non-operational on the relevant dates. The said country crafts had not the capacity of carrying the load of the bales as shown in the Shipping Bills. The appellant and his accomplices succeeded in getting rupees over thirteen crores as rebate and refund of Import Licence Fee.
32. The other employees of the Customs Department involved in this case, namely, Muhammad Nawaz Collector Customs, and Khalid Aziz Inspector Customs, were dismissed from service but they did not file appeals, very' rightly, because of huge amount of over Rs.13,00,00,000 involved in this appeal, which according to the Department, had been misappropriated by the officers of Customs Department involved in this case alongwith some others like Exporters, Importers, Forwarding and Clearing Agents etc. CASE AGAINST ALI AHMED BALUCH:
33. The facts of the case against Ali Ahmed Baluch appellant; have already been given in para. 12 of the judgment. The contentions of the learned counsel for the parties have already been met. The demand of the appellant for the supply of relevant documents, which were to be used against him, was fulfilled on 30-7-1996. He was provided all the relevant documents. He' had no grievance about it. In a statement before the Inquiry Officer, dated 27-8-1996, the appellant when asked, if there was any record or evidence upon which the present proceedings hinged that he needed to consult but had not, been shown to him or denied otherwise, the appellant replied: "No, I have no such objections."
To another question, if he was satisfied with the proceedings conducted in the case so far, he replied; "Yes, I am satisfied and have no complaint against the enquiry ' proceedings."
He was asked if he wanted to produce evidence or witnesses in support of his case, he replied; "I do not want to produce any witness. However, documents as separately listed are hereby produced as defence evidence. "
These answers clearly indicate that the appellant was satisfied with the enquiry proceedings and had no grievance about it. 'To say at this stage that the relevant documents were not provided, is against the hard facts, to which no importance can be attached.
34. It was urged that the charge-sheet was vague and it did not contain the material which was required to be mentioned. We do not find any force in this argument. Charge is framed for the purpose of informing the accused as to what were the allegations against him, which he was required to meet. Every minor detail is not given in the charge. It is enough to mention the main allegations as had been done in the present case. As mentioned earlier, five F.I.Rs had been registered at the instance of Principal Appraiser in 1992 regarding the fake and fraudulent transactions and after investigation, challans had been submitted against the appellant. It was improper for the appellant to urge after four years of registration of cases that the charge was vague and he did not know as to what exactly the allegations were against him.
35. It is correct that no evidence was recorded in this case. This aspect has already been discussed in the earlier portion of the judgment. The whole case hinges on documentary as well as circumstantial evidence.
36. The appellant had made entries in the duty register. Photo copies of those entries had been placed on record and marked by us as C3, C3/A, C3/B and C3/C. Khalid Aziz, Inspector Customs (co-accused of the appellant) was marked as on leave on the relevant dates i.e., 15-6-1991 and 11- 7-1991, by the appellant. We cannot accept the word of the appellant that he did not know that Khalid Aziz was on leave when the Shipping Bills were prepared on the aforesaid dates. The appellant was unable to explain over--writing in Export General Manifest (EGM) C2 (marked by us) whereby the date originally written as " 10-7-1991 " was converted to "28-7-1991 " by overwriting, which was clearly discernible at C2/A and also at C2/B, which entry was signed by the Superintendent Customs. It is a pointer towards the bogus and fake preparation of documents.
37. Standing Order No. l of 1987 was issued by the Federal Government in order to facilitate the public of Balochistan Region in dealing with foreign trade declaring Quetta to be Inland Custom Station for the purpose of trade goods to be exported imported by the Rail/NLC Container Service from and to foreign countries. Procedure was prescribed for filing and processing shipping document, examination, processing and disposal of documents, place of examination and loading of goods etc. Standing Order No.11 of 1988 was issued regarding streamlining of procedure for the examination and clearance of export eligible for export rebate. In paia.2 of the said order, it was made clear that the procedure out lined would also be adopted in case of Custom House Chaman, and Custom House Gwadar and a care would be taken that examination of goods and processing of documents shall be done by independent officials, the duties of whom should be prescribed by the Assistant Collector Incharge and got noted. The procedures prescribed in Orders Nos. l of 1987 and 11 of 1988 were followed at Gwadar Port.
38. The appellant was using delaying tactics in order to hamper the enquiry proceedings. He was issued warning by the Inquiry Officer under rule 6(5) of the Government Servants (Efficiency and Discipline) Rules, 1973.
39. The case of the appellant is covered under clause (iii) of section 107, P.P.C. as he had intentionally aided by his act of signing all the Shipping Bills and other relevant documents, thereby facilitating the commission of offence and fraud by preparing false documents. The documents had been prepared in this case with intent to defraud. Thus, the act of the appellant was fraudulent.
40. The learned counsel for the appellants cited following authorities in support of their contentions:--
(i) PLD 1980 SC A1&K 1: (a)Instructions contained inOrder of Chairman, CBR (Page Notification meant for162) has the backing of section guidance of District4 of the Customs Act. It has Magistrates, Circular andbeen explained in para. 19 of Administrative order the judgment.
Containing instructions cannot be equated with law or rules having force of law.
(b)Circular and letter having neither any statutory backing nor capable of being of termed as rules deriving authority from any enactment and consequently not creating any vested right in any person infringement of such instructions, held, cannot be made basis of writ petition.
(ii) 1984 PLC (CS) 176 (a)Disciplinary proceedings- Not applicable. Findings of inquiry were Findings of enquiry madenot kept secretly Copy had been supplied. secretly at the back of civil servant, no instrinsic legal value as evidence against
(iii) 1984 PLC (CS) 465 Enquiry by Commission---Not applicable Inquiry Conducted in the absence ofwas not conducted in the absence of the accused---Probe conductedappellants. by an Enquiry Commission, in circumstances, held, could not be treated as evidence of proof and could not be read against accused for the purpose of arriving at any conclusion on charges and could at best form basis for commencing disciplinary action.
(iv) 1981 SCMR 1160 Contention that officer con-Not applicable. Officer, who ducting preliminary enquiryconducted preliminary enquiry, could not be appointedwas not appointed as Inquiry Enquiry Officer to holdOfficer during the regular formal enquiry as he hadenquiry. made up his mind during the course of preliminaryResult of enquiry was to be enquiry and could- not begiven by the Officer who held treated as an unbiased per-the preliminary enquiry. Mr. son held, submission basedS.N.H.Zaidi had not been on misunderstanding thatgiven any finding in his Enquiry Officer holdingpreliminary enquiry report. preliminary enquiry has to give a finding - Such Officer not required to give a finding but required only to take downevidence connected with the charge and forward it to the competent authority and such authority has to decide whether on the basis of evi--- dence so recorded a formal enquiry and a charge-sheet called for or not.
(v) 1994 SCMR 962 Constitution of PakistanNot applicable. Inquiry was not (1973)--- conducted in the absence of the Article212(3)---Impositionappellant. of minor penalty - Leave to appeal was granted to examine whether Enquiry Officer had conducted, Enquiry in the absence of civil servant without associating him therewith and based his finding on personal enquiries without giving him opportunity to refute them and that no punishment could be based on his finding.
(vi) 1995 SCMR 1025 Government Servants (Effi-Copyof the charge-sheet was ciency and Discipline)provided.
Rules, 1973---No witness was examined, Rules 5 and 6--Consti-hence, question of cross-- Tution of Pakistan Articleexamination did not arise.
212 (3)---Misconduct---Re-Affidavit of the witnesses had moval from service---Leavebeen brought on record. Ali to appeal was granted toAhmed Baluch appellant, consider whether civildeclined to produce evidence in servantwas not provideddefence. either charge-sheet or State--- ments of Allegations to enable him to explain his Position; whether witnessesProper procedure had been were not examined in hisadopted.
Presence nor he was pro--- vided opportunity of cross--- examining them; whether he was not allowed to produce any witness in support of his defence nor he was heard in person; whether he being civil servant was required to be proceeded against under the provisions of the Govern-- ment Servants (Efficiency and Discipline) Rules, 1973 and whether major penalty of removal from service could not havebeen imposed without following procedure prescribed under relevant rules.
(vii)1997 SCMR 1073 Appellants were associated in Constitution of Pakistanthe inquiry proceedings. Since 1973----no witness was examined, Article 212(3) - Dismissalquestion of cross-examination from service - Enquirydid not arise.
Proceedings against civil servant - Person facing enquiry had right to be associated with its proceedings and entitled to impeach credit of witnesses produced against him through cross-examination- Where neither civil servant was associated with inquiry Proceedings nor he was allowed opportunity to cross-examine witnesses Produced against him, enquiry proceedings and consequential order regarding his dismissal suffered from inherent legal defects - In view of the situation that inefficiency and total ignorance of person appointed as EnquiryOfficer entailed Unnecessary litigation between the parties---- Supreme Court directed that Department should make sure that a person being appointed as Enquiry Officer is fully conversant with relevant rules so that Unwarranted harassm ent could be averted - Petition for leave to appeal against the order of Service Tribunal reinstating the civil servant was dismissed in circumstances.
(viii) 1984 PLC (C.S.) 1401 It was not a caseof
(a) Rules 3 and 4 - Charge andcarelessness or inefficiency.
All allegations being of serious Quantum of penaltynature where Government had Charge of carelessness andto pay over Rupees Thirteen lack of caution shown whileCrores. It was a case of major processing cases (relating topenality. import of cars under Gift Scheme) by accused (Assistant Collector of Import and Exports) - No Suggestion that alleged charge resulted in loss to Government or gain to any individual or that alleged carelessness or lack of caution was in return for any consideration - Such mistake, in circumstances, held, do not call for a major penalty not to speak of extreme penalty of dismissal from service.
(ix) AIR 1961 SC 1623 Principle of natural justice had Reasonable opportunity tonot been violated. defendat the stage ofCopies of relevant documents departmentalenquiry had been supplied.
Principle of natural justice- Violation ofDenial of opportunity to public servantto cross-examine witnesseswho give evidence against him Copiesof documents to Which public servant was entitled not supplied Enquiry not m accordance with the principles of natural justice.
(x) 1980 PLC (C.S.) 401 It was not a case of negligence.
(b) Disciplinary action -Punishment Quanatum Accused charged with allegations of corruption and negligence Charge of negligence only proved---Penalty of dismissalin circumstances, held, not justified and penalty reduced to reduction of pay by two stages.
(xi) 1984 PLC (C.S.) 455: Disciplinary action - BonaNot applicable. fide of charge-sheet served and Enquiry Officer appointed - Enquiry Officer holding one sitting and then enquiry not further progressingAnother improved charge-sheet on same facts served and other Enquiry Officer appointed Loss of original case file stated to be ground of service of second Charge Sheet - No evidence except tape-recorded conversation allegedly amongst accused and another official produced during enquiry Tribunal, in circumstances, feeling doubt as to bona fide of Department Penalty of dismissal from service on basis of such dubious tape-recorded conversation without corroborative, establishing guilt of accusedin circumstances, held, not sustainable.
(xii) PLD 1973 Note 36 at n. 46 NaturaljusticePrinciples of natural justice Requirement of principle of were not violated. natural justice has two opportunities of making defence -- Not complied with by merely asking an explanation -- Opportunity of defence -- Includes right to cross-examine persons making adverse reports and to produce defence witnesses as indicated in explanation -- Petitioner, examinee, charged for using unfair means in Examination Hall -- Neither shown adverse reports made against him to controvert them nor given opportunity to cross-examine persons making adverse reports against him nor allowed to produce witnesses as indicated in the explanation.
Order punishing petitioner, held, passed without lawful authority and of no legal effect.
(xiii) 1980 SCMR 850
(c) Dismissal from service --The appellants had joined Cross-examination ofenquiry proceedings. The Witnesses----Enquiryreports of enquiry proceedings Committee's report part ofhad been supplied to the material forming basis ofappellants. appellant's dismissal Officials concerned never Participating in such enquiry and thus never confronted with such report---Author of report being not available for cross-examinationview taken by Tribunal, held, illegal.
(xiv) AIR 1958 Calcutta 49 Departmental enquiryNot relevant. against public servant --- Enquiry Officer obtaining Opinion of Public Prosecutor-Report Containing reference to Unspecified records which Enquiring Officer had lookedinto without reference to delinquent - ---- Defect whether fatal to Proceedings in a Departmental enquiry againsta Government Servant --Enquiry Officer who is not the punishing authority is not justified in obtaining opinion of the Public Prosecutor or relyingupon the same without reference to the delinquent---Further he would not be justified in looking into the records which are unspecified and relying upon them in his report without intimating to the delinquent as to what records he had looked into.
The fact that the petitioner had not. turned up at the enquiry and so the matter was decided ex pane, makes it all the more necessary that the Enquiring Officer should not loose something which would prejudice the petitioner's case. By looking into unspecified documents behind his back and not disclosing in the report what documents he had looked into.
The defect wouldbe fatal to proceedings and the order, of dismissal passed on the basis of such report cannot stand. "
41.The Inquiry Committee in the case of Mumtaz Ali Changezi and Inquiry Officer in the case of Ali Ahmed Baluch had applied their mind independently. Both the enquiry reports had been prepared with great labour. We find every minor detail in the two reports and the objections had been clearly answered. We cannot agree with the contentions of the learned counsel for the appellants that the two reports had been based on the report furnished by Mr. S.N.H. Zaidi.
42. The maxim that "witnesses may tell lie but the circumstances do not", is applicable to the facts of this case. There is overwhelming unrebutable and inrrefutable documentary evidence, which had not been disputed by the appellants, and other circumstances, which clearly prove the charge against them to the hilt.
42-A. For the reasons stated above, we find no merit in the two appeals and dismiss both the appeals with costs.
43. Five criminal cases had been registered in February, 1992, with regard to the fraudulent transaction based on forged documents. We were informed during the arguments that the criminal cases have not been decided so far. We were surprised to note this state of affairs as the criminal cases had not been decided by the trial Court during the period of more than six years.
Due to such delays the Prime Minister as well as the public is raising loud voice and demanding early disposal of the cases.
44. We consider it our duty to bring it on record that there is a flaw in the Government Servants.
(Efficiency and Discipline) Rules, 1973. The Government suffered a loss of rupees over thirteen crores but not even a single rupee could be recovered from the cheaters due to the weakness in the Rules. It is provided in sub-rule (1)(iv) of rule 4 of the Government Servants (Efficiency and Discipline) Rules, 1973, under the heading "Minor "recovery from pay of the whole or any part of any pecuniary loss caused to Government by negligence or breach of orders" but no such corresponding provision has been incorporated under sub-rule (1)(b) i.e. "Major Penalties". It is essential to insert sub-rule (v) under their heading "Major Penalties.." i.e.. 'recovery of whole or any part of any pecuniary loss caused to the Government from the moveable or immovable property of the accused or from, the benami transactions."
After insertion of this provision the competent Authority will be able to recover pecuniary loss caused to the Government. Absence of such provision is source of encouragement to dishonest civil servants where millions of rupees are involved.
45. Delay in the disposal of the appeal is regretted which was due to the disposal of lengthy case of Hameed Akhtar Niazi v. Secretary, Establishment Division (Appeal No. 124(L) of 1980) which was remanded by the Honourable Supreme Court of Pakistan, shortage of Members and heavy institution due to insertion of section 2-A in the Service Tribunals Act, 1973.