' GULBAZ KHAN (CHAIRMAN).---M. Salman Faruqui, ex-Secretary, Ministry of Commerce (BPS-22), feeling aggrieved of Notification No, SCE/1/97, dated 16-1-1998, whereby he was dismissed from service, addressed appeal to the Chairman, Federal Service Tribunal, Islamabad, on 18-5-1998, which was received there through Express Mail International, on 26-5-1998. It was returned to the appellant under objections to be resubmitted on or before 25-6-1998. The objections were removed and the appeal was resubmitted, which was received through post, on 25-6-1998.
2. Before the registration of criminal case against the appellant, F.I.A. Crime Circle I, Karachi received copy of an agreement of sale alongwith a note from F.I.A. Headquarters, Islamabad. It was desired that a thorough inquiry be conducted into the matter. The inquiry was conducted by Assistant Director, F.I.A. It was found by him that M. Salman Faruqui, a senior bureaucrat, while holding important portfolios of the Federal and Provincial Governments, had dishonestly and with criminal intent abused his official position as public servant in connection with the allotment, transfer and commercialisation of Plot No, F-16, Block 5, in K.D.A. Scheme No,5, Clifton, Karachi, and by way of waivement of surcharge and-non-payment of non-utilisation fee, had caused a total loss of Rs,34,59,717 to the K.D.A. And public exchequer, in collusion with Muzaffar Hussain Shah ex- Chief Minister Sindh, Pir Mazharul Haq ex-Minister for Housing and Town Planning Sindh, Sabahat Ali Khan ex-Director-General, K.D.A. And Ahmad Hussain ex-Director-General, K.D.A. Further loss of Rs,4,18,380 was caused to the public exchequer towards registration fee, capital value tax and by preparing and executing a forged sale-deed declaring the plot as residential instead of commercial. On the basis of this report, the Director-General Desired that case of M. Salman Faruqui be referred to Chief Ehtesab Commissioner for perusal and examination.
3. As a consequence of this inquiry, a case under sections 409, 468, 417/34, P.P.C. And section 5 (2) of the Prevention of Corruption Act, 1947 was registered at Police Station F.I.A./S.B.C., Karachi, on 25- 1-1997, at the instance of Ghulam Asghar Jatoi, Sub-Inspector, F.I.A., State Bank Circle, Karachi. It was alleged that M. Salman Faruqui, by abusing his official position as public servant with a pre- conceived planning, got allotted plot No, F-16, Block 5, in K.D.A. Scheme No,5, Clifton, Karachi (Page 552), measuring 2000 sq. Yards, on 12-12-1973, in the name of on S. Saleem Ali son of Abdul Ghaffar, who was not traceable despite best efforts. Subsequently, M. Salman Faruqui got the plot transferred, on 16-8-1974, in favour of his wife's brother, named Zubair Haider and again, on 17-4- 1990, got the plot transferred in favour of his wife Mrs. Shah Taj, by way of gift. Indenture of lease was executed on 9-7-1990, in favour of Mrs. Shah Taj in the Office of Sub-Registrar, T Division, Karachi. It was further alleged that on 21-7-1993, M. Salman Faruqui, in collusion with the then Director-General, K.D.A., Sabahat Ali Khan and the then Chief Minister of Sindh Muzaffar Hussain Shah, got the said plot commercialised in favour of his wife despite the fact that the road Shahrah- e-Saadi, location of plot was not approved for commercialisation. A total amount of Rs,70 lacs was worked out by K.D.A. As commercialisation fee; against which Rs,7 lacs being ten percent of the total amount was paid by Mrs. Shah Taj, on 20-7-1993, and for the balance of Rs,63 lacs, the then Director-General, K.D.A., Sabahat Ali Khan decided to realise it in two years time in four instalments, which was beyond his competency. After commercialisation, it was again re-transferred in the name of Zubair Haider, on 18-10-1993. The instalments were not paid in time and as such an amount of Rs,7,79,625 was worked out as surcharge by the K.D.A., on 10-6-1995. It was also alleged that the appellant, in collusion with the Director-General, K.D.A. And the Minster of Housing and Town Planning Pir Mazharul Haq, got the said amount waived off and after the waiver of the surcharge, the plot was transferred and mutated through registered deed by Zubair Haider to Muhammad Gulrez Mir, on 18-9-1995. As per K.D.A. Record, Zubair Haider paid an amount of Rs,63,04,250 to the K.D.A. Through Pay Order as the balance of commercialisation charges. It was further alleged that the transfer was illegally effected on the verbal orders of the then Director- General, K.D.A., Ahmad Hussain as non-utilisation charges of Rs,26,89,792 had not been paid before the transfer. Due to this transfer, the K.D.A. And public exchequer suffered a loss of Rs,38,87,797, which amount is detailed as under:-- ' Total losses of non-utilisation charges, etc. 26,89,792{{TABLE}} Evasion of Stamp duty. 2,39,640 Evasion of Registration fee. 41,940 Evasion of Capital Value Tax. 1,39,800 Waivement of surcharge. 7,79,625 TOTAL 38,87,797 {{TABLE}} ' The complainant mentioned in the F.I.R. That it was established that M. Salman Faruqui, husband of Mrs. Shah Taj (brother-in-law of Zubair Haider) in clandestine manner asserted his official position and by influencing the above mentioned persons, got the said plot transferred and then disposed it off, and by doing so, he was the beneficiary from the said plot which caused tremendous loss to K.D.A. And public exchequer. It was stated that due to commercialisation of the plot, its value had appreciated to the tune of about Rs, 6 crore. The above mentioned case was investigated.
4. Mr. Javed Burki, Secretary, Economic Affairs Division was appointed as Authorised Officer for taking action against M. Salman Faruqui under Government Servants (Efficiency and Discipline)
Rules, 1973. The Authorised .Officer, after examining the material, issued following show cause notice to M. Salman Faruqui, on 9-5-1997:-- "Whereas you, Mr. Muhammad Salman Faruqui, Officer on Special Duty (under suspension), Establishment Division, Government of Pakistan, Islamabad while posted as an officer of Customs and Excise Group/Secretariat Group, Government of Pakistan, have been accused of having committed the following acts which constitute misconduct and corruption under rules 2 (4), 3(b) and 3(c) of Government Servants (Efficiency and Discipline) Rules, 1973:--
(i) abused your official position as public servant for personal gain and got a Plot No, F-16, Block-5, K.D.A. Scheme No,5, Clifton Karachi measuring 2000 sq. Yds, allotted in favour of S. Saleem Ali son of S. Abdul Ghaffar resident of 887, Gokhla Road, New Town, Karachi. The plot was allotted vide K.D.A.
Lands and Estate Department Letter No, KDA/Clif/F-16/5/73/1956, dated 12-12-1973. Despite efforts of concerned authorities, the allottee Mr. S. Saleem Ali could not be traced. It is learnt that property at the address given for M. S. Saleem Ali belonged then to Dr. Asad Faruqui and Mr. Amjad Faruqui your maternal cousins. The plot was transferred in favour of your brother-in-law Mr. Zubair Haider son of Late Qamaruddin Haider vide K.D.A. Letter No,KDA/Clif/F-16/5/2215, dated 16-8-1974. The plot was again transferred in favour of your wife Mrs. Shah Taj by way of gift vide KDA letter No, KFA/Clif/F-16/BL-5/90/298, dated 17-4-1990. The indenture of lease was made and executed on 9- 7-1990 in favour of Mrs. Shah Taj; ' abused your official position in collusion with the then Chief Minister Sindh Mr. Muzaffar Hussain Shah and then Director General K.D.A. Mr. Sabahat Ali Khan to have the same plot commercialised in favour of Mrs. Shah Taj (your wife) despite the fact that Sharae Saadi where the plot is located was not approved for commercialisation. The plot was commercialised vide K.D.A., letter No .KDA/Com.Cell/F-16/B1-S/Sch 5/1025, dated 21-7-1993; ' abused your official position and in collusion with the then Director-General, K.D.A. And beyond his competency got permission to pay 10% of the commercialisation fee of Rs,7 million with the balance to be paid in four installments in two years. Rs,700,000 equal to 10% commercialisation charges were paid by Mrs. Shah Taj vide challan No,50124/F-2144, Book No,0502, dated 20-7-1993.
Soon after its commercialisation the plot was retransferred in favour of Mrs. Zubair Haider vide, K.D.A's. Letter No,KDA/Com.Cell/1435, dated 18-10-1993; ' abused your official position and in collusion with the then Director-General, K.D.A. And then Minister for Housing and Town Planning Pir Mazharul Haq got waived the sum of Rs,7,79,625 surcharge on account of late payment of the instalments of commercialisation charges. The surcharge leviable at the rate of 18% per annum was waived by the Minister for Housing and Town Planning, Government of Sindh on a Summary from the Director-General, K. D . A . ; ' abused your official position for personal gain and in collusion with the then Director-General K.D.A. Caused loss to K.D.A. By not paying the sum of Rs,2,689,798 on account of non-utilisation fee; ' abused your official position and in collusion with concerned officials evaded payment of Rs,4,18,380 on account of stamp duty, registration fee and capital value tax by having the deed of assignment of leasehold rights in favour of Mr. Muhammad Gulraiz on 21-5-1995 registered at a value of three million rupees. Minimum value for the open commercial plot fixed by the Collector/Chief Inspector of Stamps, Karachi at the time was Rs,2,898 per sq. Yard i,e, Rs,5,796,000 for a plot of 2000 Sq. Yds. In the abovementioned the plot was falsely declared as 'residential'. This amounts to concealment of actual value of the plot; ' caused loss to the public exchequer through evasion of stamp duty, registration fee and capital value tax on the property by registering the value of the abovementioned plot substantially below prevailing market price of the plot and also below the actual charges of Rs,7 million on account of commercialization fee paid. This amounts to concealment of actual value of the plot; ' abused your official position for personal gain to accumulate assets in excess of your known sources of income; ' by reason of the above you appear to be guilty of misconduct and corruption within the meaning of rules 2(4), 3(b) and 3(c) of Government Servants (Efficiency and Discipline) Rules, 1973 in as much as you abused your official position for personal gain to acquire a plot, conceal its ownership and have it converted against existing rules into commercial plot. You caused pecuniary loss to the K.D.A./Govemment of Pakistan by obtaining waiver of surcharge fob late payment of commercialisation charges and evasion of duty, fee and tax by falsely declaring the property as residential plot instead of commercial plot and by registering the value of the plot much below its market value. You have accumulated assets far in excess of your known sources of income.
' And whereas I, the Authorised Officer, have decided in terms of Rules 5(1)(iii) of Government Servants (Efficiency and Discipline) Rules, 1973 that it is not necessary to have an inquiry into the above charges conducted through an Inquiry Officer or Inquiry Committee.
' Now, therefore, you Muhammad Salman Faruqui, OSD (under suspension), Establishment Division, Government of Pakistan, Islamabad are hereby called upon to show cause as to why a major penalty which includes the penalty of dismissal from service, may not be imposed upon you under the provision of the aforesaid Rules, on the above grounds.
' Your written reply to show show-cause notice should reach the undersigned within fourteen days of its receipt by you, failing which it would be presumed that you have no defence to offer, and ex parte decision would be taken.
(5) You may also state whether you want to be heard in person.
(Sd.) JAVED BURKI, SECRETARY, ' AUTORISED OFFICER."
' The appellant submitted reply to the show-cause notice on 24-5-1997. He denied the allegations by stating that he personally never had any concern or connection whatsoever with the plot as he or his wife never paid that price of the plot; that his brother-in-law, Zubair Haider due to ill health, had gifted the plot to his sister Shen. Taj in 1989, to be kept by her as "Amanat", for the protection of interest of his children; that in 1993 Shah Taj gifted the plot back to her brother; that he did not get the plot allotted in favour of S. Saleem Ali by abusing his official position as public servant; that the plot was allotted to S. Saleem Ali by Jam Sadiq Ali Minister for Housing and Town Planning under Minister's quota while he (appellant) was posted as O.S.D. In Islamabad in the year 1973; that S. Saleem Ali got this plot allotted in his favour by using his own influence and connection; that S. Saleem Ali was easily traceable in Defence Housing Society, Karachi; that he was not aware if S. Saleem Ali had used the address at the time of applying for the allotment of plot other than his own; that he did not use his official position in getting the plot commercialised; that the challan for payment of ten per cent. Of commercialisation charges might have been issued in the name of his wife as the name of Zubair Haider had not been entered in the record of K.D.A. As transferee; that had he (appellant) used his influence, the commercialisation charges would not have been paid at the enhanced rate of Rs,3,500. Per sq yard instead of Rs,400 per sq yard; that comments of Zubair Haider would be forwarded as soon as received from him. Undated statement of Zubair Haider was sent to the Authorised Officer by the appellant (Page 451).
5. The Authorised Officer conducted inquiry against the appellant. Document at page 461 shows that S. Saleem Ali vide his application, dated 13-8-1974 transferred Plot No,F-16, Block 5, Scheme No,5, Clifton, Karachi to Zubair Haider. The K.D.A., on 16-8-1974 transferred the plot in the name of Zubair Haider. The plot was sub-divided into two plots and Zubair Haider paid Rs,20,000 to the K.D.A., on 12-7-1980, as sub-division fee of the said plot. Zubair Haider executed an irrevocable general power of attorney in favour of his sister Shahwar Rahim Sattar, on 17-4-1982, regarding the said plot to possess, manage, look after, pay all K.D.A. Dues, other relevant charges, execute and admit execution of any deed, including deed of lease, deed of rectification, surrender and redemption and to present the same for registration, to have the plan prepared, amended and approved, to start construction for residence on the said plot for the purpose of letting it on hire, etc. Zubair Haider, notwithstanding the irrevocable general power of attorney of the said plot in favour of Mrs. Shahwar Rahim Sattar, submitted application for the commercialisation of the said plot which was accepted on 31-10-1982. The said plot was even gifted to Mrs. Shah Taj (wife of the appellant) on 2-10-1989, in the presence of irrevocable general power of attorney in. Favour of Mrs. Shahwar Rahim Sattar. Mrs. Shah Taj accepted the gift with effect from 3-10-1989 and it was stated by the donee that from 3-10-1989 she was the sole owner of the said property without any concern of donor. Document at page 466 issued by Assistant Director, MP and EC Department of K.D.A., dated 31-10-1982, would show that the request of Zubair Haider for the commercialisation of the plot was accepted subject to the payment of commercialistion charges of the plot at the rate of Rs,400 per sq. Yard. Earlier to that, Zubair Haider had submitted application to the K.D.A. For the transfer of the said plot by way of gift in favour of his brother Umer Haider. Letter, on 2-1-1990, he submitted application to Director Land Management, K.D.A., conveying information that his application for the transfer of plot by way of gift to his brother Umer Haider shall be deemed to have been withdrawn. This application contained, the consent of his brother Umer Haider.
Document at page 472 reveals that transfer/mutation by way of gift on Form, dated 18-11-1989 was accepted and the plot stood transferred in the name of Mrs. Shah Taj, wife of the appellant, on 19- 4-1990. The indenture of lease was executed on 30-4-1990 (Page 471) and the name of Mrs. Shah Taj, wife of the appellant, was entered as lessee and an amount of Rs,80,000 was paid by the lessee being the full occupancy value of the plot. Mrs. Shah Taj addressed an application to the Director-General, K.D.A. On 28-6-1993, wherein she conveyed information that she gifted back the said plot to the original donor, Zubair Haider, and that necessary change may be made in the record. On the application of Zubair Haider, carrying direction "Chief Minister desired to process the case", challan for payment of. Rs,7 lacs was issued, on 20-7-1993, being ten per cent.
Commercialisation fee at the rate of Rs,3,500 per sq. Yard, which was paid on 21-7-1993. Zubair Haider, vide his application to the Director-General, K.D.A. Made a request that he was making payment of Rs,7 lacs which may be considered as full payment. He pointed- out in the application that the competent authority had ordered commercialisation charges at the rate of Rs,400 per sq.
Yard, whereas the challan had been prepared at very high rates. This application contained following note at the top of the application:-- "Please process the case as per orders of the Chief Minister passed on the Summary."
' Document at page 490 would show that the said plot was transferred to Zubair Haider, on 18-10- 1993. Zubair Haider sold the said plot to Muhammad Gulrez Mir, for consideration of Rs,30 lacs. The sale-deed was duly registered on 21-5-1995. Under the heading "Schedule of the said Plot", (at page 505), the plot was shown as residential leased over plot. It was not indicated as commercialised plot. The registration fee had been paid at the rate of residential plot and not commercialised plot. Zubair Haider was a signatory to the said document wherein the plot was shown as residential leased over plot.
6. M. Salman Faruqui appellant, addressed a letter, to the Authorised Officer, on 28-5-1997, with reference to para. No,3 of his reply to show-cause notice, conveying information that he had forwarded a copy of the notice to his brother-in-law, Zubair Haider for his comments and brother- in-law Zubair Hiader informed him that F.I.A. Had taken away the file relating to the said plot and he was approaching various Departments for obtaining relevant copies which might take some time.
The appellant stated in the said letter that the comments of Zubair Haider would be forwarded as soon as received and that he may be heard in the matter only after the receipt of comments of Zubair Haider.
' The Authorised Officer sent letter, dated 31-5-1997, to the appellant at his residential address house No,11-A, Street No,15, F-6/3, Islamabad, asking him if he desired to be heard in person and conveyed that the hearing may be held not later than 7-6-1997. The appellant wrote a letter to the Authorised Officer on 2-6-1997, wherein he conveyed that the comments of Zubair Haider had not been received which was expected within a week's time. He conveyed further information that he desired to be heard through his counsel and adequate notice of the date and time may, therefore, be given. With reference to the letter of the appellant, dated 2-6-1997, the Authorised Officer, vide his letter, dated 3-6-1997, informed the appellant that date was fixed for personal hearing of the appellant as 19-6-1997, in his Office. As regards the request to be heard through his counsel, the Authorised Officer informed the appellant that Government Servants (Efficiency and Discipline)
Rules, 1973 did not permit the appearance of counsel. The appellant quoted the judgment as reported in LHC 1983-206 and took up the stand that he had a right to be represented by a counsel.
He asked for the time and date to enable his counsel to be present. The said letter of the appellant was replied by the Authorised Officer, on 10-6-1997, again conveying that the appellant did not have the right to be represented by counsel. The date of his personal hearing was intimated as 19- 6-1997. The appellant again sent a letter to the Authorised Officer, on 12-6-1997, stating that the judgment quoted earlier was binding on the Authorised Officer. He made a request for postponement of the hearing fixed for 19-6-1997, or let him know immediately to enable him to engage a counsel from Karachi. The Authorised Officer, vide his letter, dated 14-6-1997, reiterated that the rules governing the proceedings did not allow the appearance of the counsel. The appellant was, however, allowed to bring a friend or supporter to help him in the case, stating at the same that said person did not have locus standi in the proceedings. The summary sent to the Prime Minister, on 29-7-1997, (Page 308) shows that the appellant was heard in person.
7. The Authorised Officer submitted his report, on 21-7-1997. He mentioned in para. 5 of the report that S. Saleem Ali, the allottee of the plot, gave his, address as a house occupied by M. Salman Faruqui's nephew and within months the plot was transferred to his brother-in-law and this fact suggests the involvement of M. Salaman Faruqui and his family in the plot from the beginning. As regards the allegation that M. Salman Faruqui abused his official position and got the plot commercialised, the Authorised Officer specifically mentioned that K.D.A. Accorded approval on Zubair Haider's application for commercialistion in 1982 and at that time M. Salman Faruqui was posted as Secretary, Housing, Town Planning, Local Government and Rural Development Department, Government of Sindh, therefore, directly incharge of K.D.A. And its Governing Council.
This finding receives support from the Form of Declaration of Assets of M. Salman Faruqui, appellant, for the years ending 31st December, 1982 (Page 556). The plot in question was situated on Shahrah-e-Saadi, which not approved for commercialisation. It was so stated by the Director- General, K.D.A., Sabahat Ali Khan, in his Summary for the Chief Minister Sindh (Page 349). The Director General . Further conveyed information in the said summary that the K.D.A. Had raised the commercialisation charges to Rs,3,500. In spite of this report, the Chief Minister Sindh approved commercialisation and gave direction that challan on old rate of Rs,400 per sq yard may be issued. Anyhow, the challan had been issued at the rate of Rs,3,500 per sq yard and the appellant directed to deposit 10% and balance in four half yearly instalments. Zubair Haider. Had not deposited the instalments in time. Surcharge on account of non-payment of instalments was worked out by K.D.A. As Rs,7,79,625. It is so mentioned in a note for Minister for Housing and Town Nanning (Page 350). In para. 4 of the said note, it is recorded that the allottee had requested not to recover the surcharge as the payment schedule was not communicated to him. It is further recorded that the allottee had, however, consented to pay original amount of Rs,63 lacs in lump sum basis. The note was sent to the Minister for Housing and Town Planning, as desired by him. The Minister accepted the note and approved it being a case of hardship. The Authorised Officer came to the conclusion that attempt had been made by Zubair Haider which was engineered by M.
Salman Faruqui for reducing the commercialisation charges from Rs,3,500 to Rs,400 per sq. Yard. It was also observed by the Authorised Officer that the Director General, K.D.A. Had allowed the balance of Rs,63 lacs to be paid in instalments and it was beyond his competency, which had been passed at the behest of M. Salman Faruqui. The Authorised Officer concluded that M. Salman Faruqui and his family were involved in the said plot from the beginning and they made an attempt to obtain illegal pecuniary gain through Chief Minister Sindh and he found M. Salman Faruqui guilty of misconduct. The Authorised Officer made observation "it is such collusion between the Civil Servants and some of our elected representatives which has brought the country to such a sorry pass and it is time to send a clear signal that such behaviour will not be tolerated any longer". He recommended that M. Salman Faruqui be awarded major punishment of retirement from service. It seems that show-cause notice, dated 9-5-1997 and the recommendation of the Authorised Officer, dated 21-7-1997 escaped the notice of the competent Authority, hence, no order, had been passed with regard to show-cause notice, dated 9-5-1997. Thus, we are not required to touch this notice and the documentary evidence relevant to it.
8. The Authorised Officer received additional material against M. Salman Faruqui, vide Establishment Division under Order No, Secretary/1/97, dated 21-8-1997. After examining the material, the Authorised Officer issued following show-cause notice to the appellant, on 10-9-1997:- - "SUBJECT:SHOW-CAUSE NOTICE ' Whereas, you Mr. M. Salman Faruqui, Officer on Special Duty (under suspension) Establishment Division, Government of Pakistan, Islamabad, while serving as Secretary, Ministry of Commerce accused of having committed the following acts which constitute misconduct and corruption under Rules 2(4), 3(b) and 3(c) of Government Servants (E & D) Rules, 1973:--
(i) That despite your knowledge that Textile Quota Management Directorate (T.Q.M.D.) was wilfully, deliberately and with mala fide intent, issuing Export Visas/Licences/Documents etc. To fake/bogus companies, and bogus entries of textile quota entitlement were being incorporated in Quota Category Pass Books (CPBs) issued by M/s Paksea of Nasir Hussain of Schon Group and PHMA of A.G. Kapadia and authenticated by the TQMD, you did little to prevent such malpractices, irregularities and improprieties as required under Rule 4(2) of the Rules of Business, 1973. Besides, despite being in the knowledge that the whole system was being manipulated with ulterior motives and quotas were being issued to fake companies in order to gain pecuniary advantage and corresponding loss to the public exchequer, you not only failed to prevent but were also party to such happening as evident from the following sub-paras:--
(a) In February, 1996, you called Mr. Nayyai Bari, D.G. TQMD to Islamabad and asked him to deliver Rs,5 crores to the Prime Minister's Secretariat for the party workers from the 25% growth quota for new-comers. You also told him that the rules would be changed to entrust the allocation of 25% growth quota to TQMD. That you again called Mr. Nayyar Bari in February, 1996 to Islamabad and also telephoned Mr. Siraj S. Shamsuddin directly. You and Mr. Siraj Shamsuddin also threatened Mr. Nayyar Bari and advised him that the payment might be made in three instalments which could came from the old arrangements of flexibilities of category 338.
' That consequently Mr. Nayyar Bari came to Islamabad on 1-6-1996 and informed you that he had brought 280 Bearer Certificates of the value of Rs,1,40,00,000. You told Mr. Nayyar Bari to contact Mr. Siraj Shamsuddin and have them delivered to him. You also told Mr. Nayyar Bari that you will also tell. Siraj Shamsuddin to contact him. The certificates were delivered to Mr. Siraj Shamsuddin at his residence on 2-6-1996 at about 8 p.m. By Mr. Nayyar Bari.
' That Mr. Nayyar Bari told you that all this was leading to unmanageable situation as you were not deciding the question of developing arrangement for allocation of 25% growth quota vested in Ministry of Commerce, on the TQMD, while Mr. Siraj Shamsuddin as pressurizing him about next instalment. That Mr. Nayyar Bari on pressure from you and Mr. Siraj Shamsuddin came to Islamabad on 18-94996 with 320 Bearer Certificates of the value of Rs,1,60,00,090 and telephoned you, You told him to contact Mr. Siraj Shamsuddin in the Armed Forces Cardiovascular Hospital (AFIC Rwp) and you gave him the telephone number of Mr. Siraj Shamsuddin in the Hospital and Mr. Bari delivered the certificates to him in the presence of Mr. Anees Alam, DD, TQMD.
' That on 29-10-1996, through your P.S., you sent a message to Mr. Bari to reach Lahore next day to meet Mr. Asif Zardari. As per your instructions, Mr. Nayyar Bari met you at the Governors House, Lahore, on 30-10-1996 and you told him to inform Mr. Zardari that you had delivered Rs,3 crores to Mr. Siraj Shamsuddin. On your and Mr. Nayyar Bari's meeting Mr. Asif Zardari Mr, Nayyar Bari apprised Mr. Zardari of this delivery.
(ii) That it came to your knowledge that RECP was finalizing delivery of 98,000 Mt. Tons of rice at the rate of US Dollars 242 PMT to the Government of Togo and M/s Rustal Trading Limited, Geneva in violation of the Government policy, which was going to cause a loss of US Dollars 36 million approximately. Instead of informing the Prime Minister of the violation of the policy and the loss to the Government and finalization of the deal in accordance with the prescribed policy and rules and regulations, you got these orders confirmed from the Minister on 26th May, 1996. As such, you violated the provision of Rule 4(2) of the Rule of Business, 1973.
(iii) The State Life Insurance Corporation (SLIC) purchased many properties at exorbitant prices during your tenure as Secretary, Commerce without any check by you and without observing the prescribed procedures; these purchases were made with corrupt motives and mala fide intentions for wrongful gain and corresponding loss to the , public exchequer. Details of such purchases are giving below:-
(a) Purchase of People's Media, ground floor, Islamabad, at a cost of Rs,20 million without giving any advertisement under the approved policy. The purchase was made at a price higher than the actual market value of the property (date of purchase March, 1996).
' Purchase of four floors of a building (Hashoo Centre) at Karachi cost of Rs,205.9 million on the grounds of meeting expanding office space requirements of SLIC whereas SLIC already had many commercial buildings in Karachi, portions of which had been rented out. This purchase was not necessary and resulted in huge loss to SLIC (date of purchase May, 1996).
' A 3 Kanal Plot was purchased at Sialkot at a cost of Rs,6.30 million in November 1995 from the sons of Ch. Akhtar Ali, a politician with ulterior motive of favouring the owners as the real value of the plot was much lower.
1000 plots in the New City Islamabad Scheme were purchased in October, 1996 at a cost of Rs,200 million with the mala fide intention to favour the sponsors of the scheme without ascertaining of bona fides of the scheme/sponsors and real worth of the land.
(iv) By reason of above during your tenure as Secretary Commerce, you failed in the efficient administration, and proper conduct of business in accordance with the sanctioned policy in the various organisations under the Ministry as required under Rule 4 (2) of the Rules of Business, 1973.
Consequently, various violations of the sanctioned policy were committed in the conduct of the business by RECP, Textiles Quota Management Directorate and State Life Insurance Corporation with your connivance, collusion, incompetence, indifference and mala fide intentions which resulted in huge fnancial losses in the aforementioned organisations And. Whereas I, the Authorised Officer, have decided in terms of Rule 5(1)(iii) of Government Servants (E&D) Rules, 1973 that it isnot necessary to have an inquiry into the above charges conducted through an Inquiry Officer or Inquiry Committee.
' Now, therefore, you Mr. M. Salman Faruqui, Officer on Special Duty (under suspension), are hereby called upon to show-cause as to why a major penalty which includes the penalty of dismissal from service, may not be imposed upon you under the provisions of the aforesaid Rule, on the above grounds. Your written reply to this show-cause notice should reach the undersigned within fourteen days of its receipt by you, failing which it would be presumed that you have no defence to offer, and ex parte decision would be taken.
' You may also state whether you want to be heard in person.
(Sd.) JAVED BURKI, ' Secretary/ ' Authorised Officer."
' The show-cause notice was sent to M. Salman Faruqui appellant, at his residential address House No,11-A, Street No,15, F-6/3, Islamabad, by special messenger. Nazar Hussain, Despatch Rider recorded two reports, dated 10-9-1997 and 4-10-1997 to the effect that the employee of M. Salman Faruqui refused to receive the letters, stating that M. Salman Faruqui had prohibited him from receiving the letter. Notice was also sent through Registered Post A.D. At the abovementioned address. It had been reported, on 9-10-1997, by Postal Department that the addressee could not meet and the servant refused to receive it. The Authorised Officer finding himself helpless proceeded with the inquiry. He submitted report on 21-10-1997, to the competent Authority. He recommended dismissal of M. Salman Faruqui from service and also observed that he may be proceeded against under Ehtesab Act. The competent Authority was pleased to order that the Authorised Office may be advised to serve the show-cause notice to M. Salman Faruqui on his address given by him in his letters, dated 25-10-1995 and 31-10-1997, addressed to the Secretary, Establishment Division, in order to satisfy the requirement of rules for providing a reasonable opportunity of showing cause against the grounds of action proposed to be taken in regard to him.
On the receipt of direction of the competent Authority, the Authorised Officer re-issued the show- cause notice, dated 10-9-1997, which was received by the appellant, on 1-11-1997 (Page 702), stating that show cause was delivered at his Islamabad address on November 11, 1997. He desired the Authorised Officer to supply complete copies of documents on record on which allegations had been based, in order to enable him to effectively respond to the notice. He accused the Authorised Officer of being instrumental in the crude attempt of accusing him of corruption and misconduct.
He further stated in the reply that the threat of imposition of major penalty of dismissal from service in the notice clearly established that it was a command performance without any objective application of mind. The appellant sent another reply on 22-11-1997 (Page 704) stating that he received notice, dated 10-9-1997 on 16-11-1997. He mentioned in this reply that he had no excess to the relevant record to enable him to submit a comprehensive reply; that he had not been furnished copies of record, statements on which show-cause notice was issued; that statements of Nayyar Bari and Anis Alam had not been supplied; that the Government had alleged defalcation of Rs,.2- 1/2 billions by Nayyar Bari and the said allegation, according to the Press Reports, was admitted by Nayyar Bari but in spite of it, according to Press Report, Nayyar Bari was allowed to leave Pakistan; that Anis Alam was in custody and amenable to Government pressure. The appellant denied the allegations as mentioned in the show-cause notice. He further stated in the reply that it should be treated as an interim reply and the detailed reply would follow after he was provided excess to the relevant record. The Authorised Officer sent letter, dated 25-11-1997 to the appellant with reference to letters, dated 16-11-1997 and 22-11-1997, stating that the documents and the relevant record were being supplied. The appellant sent another letter to the Authorised Officer (page 707) on 30-11-1997, wherein he admitted the receipt of copies of statements of Nayyar Bari and Anis Alam and the three sheets from a file relating to allegation (ii). He made a request in the letter that he may be provided the entire record pertaining to each allegation in order to enable him to submit a comprehensive reply. The Authorised Officer, vide letter, dated 3-12-1997 addressed to Secretary, Ministry of Commerce, asked him to allow full excess to M. Salman Faruqui to the relevant record under the control of the Ministry of Commerce and its associated agencies which M. Salman Faruqui may desire to inspect. Copy of this letter was sent to M. Salman Faruqui appellant. By sending this letter, the Authorised Officer had removed this grievance of the appellant.
9. The Authorised Officer fixed the date for personal hearing on 24-12-1997, vide letter dated 16-12- 1997. The appellant was also informed on telephone about the date of personal hearing. A reply was sent by the appellant to the Authorised Officer, on 18-12-1997, (page 711). He informed the Authorised Officer that he was under treatment at PIMS and advised bed rest till 24-12-1997. He made a request for the postponement of the date of hearing. He sent another letter to the Authorised Officer, on 23-12-1997 stating that he had not received reply to his previous letter, dated 18-12-1997 and he assumed that the hearing has been postponed. The appellant did not appear for personal hearing on 24-12-1997. The appellant addressed a letter to the Authorised Officer, on 29- 12-1997, conveying information that he had been advised to continue bed rest for another 7 days.
He further stated that he would inform the Authorised Officer after he was allowed to appear before him. Appellant sent another letter, on 30-12-1997 conveying information that his Physician at PIMS had allowed him limited movement, therefore, he would desire the Authorised Officer to fix the date of personal hearing, on 31-12-1997, as he had planned to go to Karachi in connection with his blood test. The appellant sent two more letters to the Authorised Officer, on 31-12-1997 and 1-1-1998, wherein he informed the Authorised Officer that he was available for personal hearing and that a date of hearing be fixed at the earliest convenient time. In the letter, dated 1-1-1998, the appellant informed the Authorised Officer that some major tests had been advised and it was decided to go through those tests at Agha Khan Hospital, Karachi. On the receipt of these letters, the Authorised Officer fixed the date as 5-1-1998, for personal hearing vide, letter dated 2-1-1998. He had the said letter for personal hearing delivered to the appellant, on 2-1-1998, as is evident from letter, Sated 7- 1-1998 (page 846) sent to Secretary, Establishment Division. The Authorised Officer further informed that he received letter, dated 7-1-1998 (page 619) from a person purporting to be Mr. Faruqui's brother-in-law stating, "I can only plead with you not to defer the proceedings". In para. 2 of the letter, the Authorised Officer stated that he was convinced that M. Salman Faruqui had no intention of appearing before him and his letters were designed to prepare a ground for some form of legal action. We find on record a Memorandum from the Ministry of Interior, dated 2-1-1998 on the subject "ECL--One time permission to Mr. M. Salman Faruqui, OSD". The said Office Memorandum reads as under:-- "It has been decided with the approval of the competent Authority to allow Mr. M. Salman Faruqui to go abroad on one time basis during the month of January, 1998."
' Letter, dated 3-1-1998, sent by M.Z. Qureshi to the Authorised Officer needs to be reproduced:-- "Mr. Javed Burki, ' Secretary, ' Ministry of Water and Power A-Block, Pakistan Secretariat, ISLAMABAD.
SUBJECT: SHOW-CAUSE NOTICE NO.61/SECY/W&P/97. Sir, ' The Chowkidar at the Islamabad residence of my brother-in-law, Mr. Salman Faruqui, has just informed me that a letter issued by you has been received, asking Mr. Salman to appear before you or. Monday.As you know, my brother-in-law has been extremely unwell for sometime. His condition has deteriorated in the last few days and the Government had permitted him to proceed for immediate medical treatment. It will take sometime before we have the final diagnosis and treatment. My brother-in-law has been extremely disturbed about the proceedings in the subject case and the previous case based on SCN issued by you in May, 1997. I can only plead with you not to defer the proceedings. In case it is not possible for you, please let me know, so that I convey the same to Mr. Salman.
' Yours faithfully, ' SD M.Z. Qureshi, ' 18-A, South Park Avenue, Phase II Extension, ' Defence Housing Authority, KARACHI"
' The appellant left Pakistan on 4-1-1998 as stated by the learned counsel for the appellant at bar.
No personal hearing could be given by the Authorised Officer for the reason that the appellant had left Pakistan against the rules and without his leave ex-Pakistan having been sanctioned.
10. The Authorised Officer sent his report, dated 27-12-1997 to the competent Authority. In para. 4 of the report, the Authorised Officer mentioned that he addressed a letter to the Secretary, Ministry of Commerce, copy to M. Salman Faruqui, requesting him to allow Mr. Faruqui to inspect any record under the control of Ministry of Commerce and its associated agencies, which he might desire to inspect. He further stated that during the period of inquiry, he had been liberally granting extension of time and finally asked M. Salman Faruqui to appear before him on 24-12-1997, for personal hearing, but Mr. Faruqui intimated that he was under treatment at PIMS and was not in a position to move and appear on 24-12-1997 and requested for extension of time. The Authorised Officer also stated that the matter was referred to Executive Director, PIMS who sent report of Dr. Naseer Ahmed, Consultant Cardiologist PIMS, dated 20-12-1997 (page 716). It was stated in the report that M.
Salman Faruqui had earlier been admitted in the hospital, given treatment and the appellant had refused even the basic-chest X-Ray and refused for coronary angiography. He further reported that during Mr. Faruqui's stay in hospital, his blood pressure and other illness were controlled adequately. Appellant was discharged from hospital, on 9-9-1997 but he continued routine out- door patient visits and one of the Medical Specialists gave him a certificate advising him complete rest and further test. The Authorised Officer mentioned in para. 5 of his report, dated .27-12-1997 that it was clear to him that Mr. Faruqui had no intention of availing of his right of personal hearing and, thus, he was constrained to complete the inquiry. In para.6 of the report, the Authorised Officer stated that the first and major allegation against the appellant pertained to misuse of Textile Quota Management to unlawful persons to extort money for payment to a certain politician and this allegation was proved by 40 pages of file noting and written statements of two persons,.
Namely Nayyar Bari, ex-Director General, TQMD and Anis Alam, Assistant Director, which directly implicated the appellant in the implementation of a plan to raise a large sum of money through wrongful allocation of textile quotas with a view to pay off a senior politician. The Authorised Officer had earlier sent his report, dated 21-10-1997. In the last report, dated 27-12-1997, the Authorised Officer stated that he reiterates his earlier opinion and find the appellant guilty of allegations. The report of the Authorised Officer, dated 21-10-1997 in respect of first charge reads as under: -"(2) The first charge in the additional material against Salman Faruqui relates to manipulation of textile quotas with a view to collecting, Rs,30,000,000 for payment to Mr. Asif Ali Zardari. To support this charge there is a written statement available (Annexure-A) of Nayyar Bari the then D.-G. Of the Textile Quota Management Directorate in which he explains that Salman Faruqui, then Secretary Commerce, forced to collect first Rs,14,000,000 and then Rs,16,000,000 from M/s Nasir Hussain and A.G. Kapadia, Chairman respectively of PAKSEA and PHMA. This was done by wrongful allocations of quotas to their firms of categories 338 and 339 and, later, pressurizing them by threatened F.I.A.
Investigations. The money received from them by Nayyar Bari was converted into saving certificates by his Deputy Director Anis Alam. Nayyar Bari in his statement cites occasions and meeting where Salman Faruqui discussed how to manipulate textile quota allocations to raise funds for Mr. Zardari and closes with description of a meeting with Mr. Zardari, in Governor House, Lahore where in Faruqui's presence he informed Mr. Zardari that he had handed over Rs,30,000,000 in saving certificates to Siraj Shamsuddin, Additional Secretary, Prime Minister Secretariat.
' Nayyar Bari's story contained in his statement is supported by copies of the relevant noting on files and by a confessional statement made before a Magistrate by the deputy director in question, - Anis Alam.
' I find Salman Faruqui guilty of the charge of involvement in corrupt practices and manipulation of textile quotas designed to raise Rs,30,000,000 for payment of his political masters."
' It would be of advantage to reproduce two findings, dated 21-10-1997 and 27-10-1997 of the Authorised Officer, regarding charge (ii), dated 10-9-1997:-- Report, dated 21-10-1997:-- "(5) The second charge against Mr. Faruqui relates to sale of rice to the Government of Togo and M/s Rustal Training Company in violation of policy and at a loss to the Government. Specifically Mr. Faruqui was charged with violating Rule 4(2) of the Rules of Business by getting the orders confirmed by the Minister. From the record at Annexure D it is clear that Mr. Faruqui understood that the order passed by the Minister for Commerce was wrong. Instead of taking action to get the order reviewed, revised or overturn, Mr. Faruqui merely noted 'Rather unfortunate!' and proceeded to its implementation.
(6) I find Mr. Salman Faruqui guilty of this charge also." Report dated 27-12-1997:-- "(7) The second allegation related to sale of rice to the Government of Togo and M/s Rustal Trading Company in violation of policy and at loss to Government. Mr. Faruqui had understood that the order passed by Minister for Commerce was wrong and instead of trying to get it reviewed, revised or overturned, Mr. Faruqui merely noted 'Rather unfortunate!' and proceeded to implement it. In his reply Mr. Faruqui alleges that he had earlier been overruled by the Prime Minister in this case and that is why he did not feel it necessary to go back to the Prime Minister against the order of the Minister for Commerce. Mr. Faruqui's explanation is logical and I am willing to accept It."
' As regards the third charge pertaining to the purchase of land by State Life Insurance Corporation (SLIC), the Authorised Officer found him innocent. This charge would be discussed by us later. After examining the entire proceedings before the Authorised Officer and his recommendations, the competent authority was pleased to pass order of dismissal against the appellant, on 16-1-1998.
Against this order, the appellant filed appeal to the President, on 7-2-1998, which was dismissed, on 11-6-1998.
11. The inquiry files comprised documents extending to 872 pages in four Volumes. The respondent department was directed to supply those files (four Volumes) for the examination of the Tribunal and the respondent Department complied with the said direction. Volume-I comprises pages 1 to 307; Volume-H 308 to 590; Volume-III 591 to 822 and Volume-IV 823 to 872. The file of Note portion had also been supplied comprising 21 pages. We have carefully gone through the said files and have considered the contentions of the learned counsel for the parties.
12. The most important point for decision in this appeal is the attitude of the appellant, which he adopted before the Authorised Officer. Show-cause notice was issued to the appellant, on 10-9- 1997. This notice was sent for service through Nazar Hussain, Despatch Rider, at the address of the appellant given in his service record, House No,11-A, Street No,15, F-6/3, Islamabad. The appellant was under suspension and he was supposed to be present at his residence. We find two reports of Nazar Hussain, Despatch Rider, dated 10-9-1997 and 4-10-1997. According to Nazar Hussain, D.R., the servant refused to receive the letter, stating that he had been prohibited by the master not to receive letter. In his second report, dated 4-10-1997, the Despatch Rider made report that he visited the place sometime but the servant refused to receive the said letter. It was clearly under the direction of the appellant to refuse to receive the letter. Notice was again sent through Registered Post A.D. And it was reported by the Postal employee, on 9-10-1997, that the servant refused to receive it. Since the appellant did not contest the inquiry, the Authorised Officer submitted his report, dated 21-10-1997, holding the appellant guilty of the charges and recommended his dismissal from service. He further recommended that the appellant be proceeded against under Ehtesab Act. This report was not accepted by the competent Authority and the Authorised Officer was directed to serve the show-cause notice on the appellant afresh. The Authorised Officer sent show-cause notice, dated 10-9-1997 for the second time. The appellant admitted in his reply, dated 16-114 997, (pages 702), to have received the said notice, on 11-11-1997, at his Islamabad address. In the last para, the appellant stated "I only regret that you are being instrumental in the crude attempt to falsely accuse me of corruption, misconduct, etc. This has been done for the second time in order to fabricate a ground for my dismissal from service. The threat made in the notice for imposition of major penalty of dismissal from service clearly establishes the prejudice and its issuance, no doubt, is a command performance without any objective application of mind". This reply would show that right from the receipt of the show-cause notice, on 11-11-1997, the appellant had accused the Authorised Officer of being instrumental in the crude attempt to falsely accuse him of corruption, misconduct, etc. He further accused the Authorised Officer that the threat of dismissal from service in the notice was a command performance without any objective application of mind. He sent a detailed reply to the show-cause notice, on 22-11-1997 (page 704).
The appellant denied the allegations levelled against him in the show-cause notice. The appellant had desired the Authorised Officer to supply him copies of statement of Nayyar Bail and Anis Alam and also the relevant documents on the basis of which the show-cause notice had been issued.
The Authorised Officer, with reference to the letters of the appellant, dated 16-114997 and 22-11-1997, supplied the documents and the record to him, vide letter, dated 25-11-1997 (page 703). With reference to the said letter of the Authorised Officer, the appellant admitted in his letter, dated 30- 11-1997 (page 707) that he had received copies of statements of Nayyar Bari and Anis Alam and three random sheets of file relating to allegation (ii). The appellant in the said letter asked the Authorised Officer to provide him the entire record pertaining to each of the allegations levelled against him in the show-cause notice. The Authorised Officer addressed a letter, dated 3-12-1997, to Secretary Commerce and directed to allow full excess to the appellant to the relevant record under the control of. The Ministry of Commerce and its associated agencies, which the appellant may desire to inspect. After the issuance of this letter, the grievance of the appellant had been redressed and it was for the appellant to examine the relevant record.
13. The Authorised Officer, vide letter, dated 16-12-1997 fixed the date of personal hearing on 24-12- 1997, (page 23 of appeal file). The appellant admitted in his letter, dated 18-12-1997 (Page 608) that he was informed on telephone that he had to appear before the Authorised Officer for personal hearing, on 24-12-1997. In this letter, the appellant informed the Authorised Officer that he was under treatment of PIMS and had been advised bed rest till 24-12-1997. He made a request in this letter for the postponement of the date of hearing. He sent another letter, to the Authorised Officer, on 23-12-1997, (page 609), stating that since he did not hear from the Authorised Officer, he was assuming that the date of hearing had been postponed. In another letter, dated 29-12-1997 (page 611), the appellant informed the Authorised Officer that he had been advised bed rest for another period of 7 days. In this letter, he informed the Authorised Officer that he was not allowed by the doctor to appear before him The appellant informed the Authorised Officer through letter, dated 30-12-1997 (page 502) that his physician at PIMS had allowed him limited movement. He asked the Authorised Officer to fix the date for personal hearing, preferably on 31-12-1997, which would help him in undergoing a large number of test including blood test to be carried out at Karachi. He sent another letter on 31-12-1997, (page 612), stating that he was available for hearing even on 31-12- 1997. He asked the Authorised Officer to fix a very early hearing. In his letter, dated 1-1-1998, (page 617), the appellant informed the Authorised Officer that it was decided to go through test at Agha Khan Hospital, Karachi and he was allowed to travel to Karachi. He offered to appear before the Authorised Officer on short notice and further conveyed that he was staying in Islamabad for personal hearing. In response to these letters, the Authorised Officer, vide his letter, dated 2-1-1998, fixed the date for personal hearing of the appellant, on 5-1-1998. It was Friday on 2-1-1998.. The Authorised Officer fixed the date of hearing on Monday, 5th January, 1998. It was the earliest possible date. The Authorised Officer, in his D.O. Letter, dated 7-1-1998, (page 610) addressed to Secretary, Establishment Division, Islamabad, admitted to have received letters from the appellant, dated 29-12-1997, 30-12-1997, 31-12-1997 and 1-1-1998. He refuted the allegation of the appellant that his calls remained unanswered. He stated that no such calls were received from the appellant.
The Authorised Officer. Further informed Secretary, Establishment Division that he had a letter delivered to the appellant, on 2-1-1998, asking him to appear on Monday, the January 5, 1998, for personal hearing, but today, on January 7, 1998, received a letter, dated 3-1-1998 from Karachi from a person purporting to be Mr. Faruqui's brother-in-law, stating "I can only plead with you not to defer the proceedings". The Authorised Officer, in para. 2 of the D.O. Letter mentioned that the moment he wrote to Mr. Faruqui asking him to attend, appellant stopped communicating with him and instead appeared to have begun communicating through his brother-in-law.. The Authorised Officer informed Secretary, Establishment' Division about his conviction that Mr. Faruqui had no intention of appearing before him and that his letters were designed to prepare a ground for some form of legal action. Letter, dated 3-1-1998 was sent to the Authorised Officer by M.Z. Qureshi, 18-A, South Park Avenue, Phase II Extension, Defence Housing Authority, Karachi (page 619), stating that Chowkidar of his brother-in-law, M. Salman Faruqui had just informed him that a letter issued by you (the Authorised Officer) had been received asking M. Salman Faruqui to appear before you (Authorised Officer) on Monday. This letter was issued, on 3-1-1998 from Karachi. The appellant was then in Pakistan. According to the appellant, he had left Pakistan on 4-1-1998. The letter of the Authorised Officer, dated 2-1-1998 wherein he asked the appellant to appear before him for personal hearing on 5-1-1998 had been delivered to the appellant, but in spite of it, the appellant did not appear and intentionally left Islamabad. He deliberately avoided to appear before the Authorised Officer. Secretly, the appellant had been making efforts for the deletion of his. Name from the Exit. Control List. He succeeded in his efforts and a letter was issued by the Ministry of Interior, on 2-1-1998 (page 602) stating. "It has been decided with the approval of the competent Authority to allow Mr. M. Salman Faruqui to go abroad on one time basis during the month of January, 098". Letter was issued by the Ministry of Interior, on 2-1-1998; addressed to M. Salman Faruqui at the residential address in Islamabad, (page 40 of appeal file) with reference to his application, dated 25-12-1997, on the subject "Exit Control List--One time permission to Mr. M.
Salman Faruqui,. OSD". In this letter, the appellant was informed that he had been allowed to go abroad on one time basis during the month of January, 1998. The appellant could avail of this facility in the month of January, 1998. He was waiting for this opportunity. Two cases had been registered against the appellant at Police Station FIA/SBC, Karachi and FIA/SIU, Islamabad, on 25-1- 1997 and 10-9-1997, respectively, under Prevention of Corruption Act, 1947.These two cases were being investigated by the F.I.A. The case against the appellant had also been referred to the relevant authority under the Ehtesab Aet. The appellant was facing inquiry before the Authorised Officer on the show-cause notice issued to the appellant on 10-9-1997. There is nothing on the record to show that the appellant had been granted leave ex-Pakistan by the competent Authority: Without sanction of leave ex-Pakistan, the appellant had left the country. Legally, he could not do so. No Government servant can leave his place of duty without sanction of his leave application. It has been clearly mentioned under Serial No,7, Chapter VII, page 699, ESTACODE, Edition 1989, that the officers against whom disciplinary action had been initiated or inquiry had been ordered is not allowed to leave ex-Pakistan. Fundamental Rights 67 provides that leave cannot be claimed as of right and an application for leave should not be anticipated as grant of leave. Where a Government servant applied for grant of leave, he must wait for sanction of leave application and should not leave the place of his duty before the leave applied for is actually granted by the competent Authority. Non-compliance of these instructions warrant action on account of misconduct under 'Serial No,11, at page 721, ESTACODE, Edition 1989. By leaving Pakistan without Sanction of Leave ex-Pakistan by the competent Authority, the appellant was further guilty of misconduct.
14. Out Patient Card, dated 15-12-1997, (page 713) shows that the appellant had a history of Angio- Plastery in 1986. No documentary evidence has been brought on record to show that in between years 1986 and August, 1997, the appellant had been treated for hypertension, Ischemic heart disease and Diabetese Mellitus. The report issued by Dr. Naseer Ahmed, Consultant Cardiologist, PIMS, dated 20-12-1997 (page 716) indicates that M. Salman Faruqui was admitted in PIMS and remained under his care for hypertension, Ischemic heart disease and Diabetese Mellitus. He was given proper treatment. He was considered for investigation including coronary angiography, but he refused even the basic investigation like chest X-Ray and did not agree for coronary angiography. During his stay in the Hospital, his blood pressure and other medical illnesses were controlled adequately. He was examined by a Medical Board and on the recommendation of the Board and on completion of his treatment, he was discharged on medication, on 9-9-1997. The appellant should have continued out-door patient visits in PIMS, but he did not do so. Where a person is suffering from a heart disease, the only sure method of knowing damage to heart is angiography and by this process, doctor can find as to how many arteries are blocked and what is the percentage of blockade. Nothing sure can be made out by ECG or ETT. The appellant was admitted in PIMS and was discharged, on 9-9-1997 as his blood pressure and other diseases were controlled adequately. The report of Dr. Naseer Ahmed shows that the appellant .Did not agree to coronary angiography. The only document brought on record by the appellant was the OPD Card, dated 15-12-1997. At the time of examination, on 16-2-1997, the appellant complained of depression and palpitation. His B.P. Was 150/100. His chest was clear. He was advised home blood glucose Monitor urine etc. He was asked to continue medication. He was examined on 17-12-1997. His B.P.
Was 180/110. He was advised strict dietary control and to continue medication. He was also advised strict bed rest with continuous medication for 7 days with effect from 17-12-1997. He was advised ETT, blood sugar test, ECG. No document has been brought on the record whether the appellant had gone through those tests. On the basis of these reports, the appellant did not appear before the Authorised Officer for personal hearing on 24-12-1997. After examining the report of Dr. Naseer Ahmed and the OPD Card, dated 15-12-1997, we are of the firm view that the appellant could appear before the Authorised Officer for personal hearing, on 24-12-1997. He invented lame excuse of being seriously ill, which according to him, prevented him from appearing before the. Authorised Officer for personal hearing.. His attitude in leaving Pakistan on A-1-1998, after having received intimation from the Authorised Officer for his personal appearance on 5-1-1998, without leave ex- Pakistan, further strengthens our view that the appellant did not want to face the inquiry proceedings and he was intentionally avoiding it. Where a Civil Servant deliberately without sufficient cause does not face departmental inquiry, he must face the consequence.
CASE OF TEXTILE QUOTA MANAGEMENT DIRECTORATE
15. Before taking up the case pertaining to the first allegation in show-cause Notice, dated 10-9- 1997, it would be appropriate to bring on record section 3 of Imports & Exports (Control) Act, 1950 (XXXIX of 1950) and Statutory Notification (S.R.O. 228(1) of 1994) published in the Gazette of Pakistan Extraordinary, on 8-3-1994, and also S.R.O.760(1) of 1994. Section 3(1) of Imports and Exports (Control) Act, 1950 reads as under:-- "(3) Powers to prohibit or restrict imports and exports.--(1) The Central Government may, by order published in the Official Gazette and subject to such conditions and exceptions as may be made by or under the order, prohibit, restrict or otherwise control the import or export of goods of any specified description, or regulate generally all practices (including trade practices) and procedure connected with the import and export of such goods, including the submission of applications, for licences under this Act, the evidence to be attached to such applications and the grant, use, transfer or sale or cancellation of such licences.
' No goods or the specified descriptions shall be imported or exported, except in accordance with the conditions of a licence to be issued by the Chief Controller or any other officer authorised in this behalf by the Central Government.
' All goods to which any order under subsection (1) applies, shall be deemed to be goods of which the import or export has been prohibited or restricted made under section 19 of the Sea Customs Act, 1978, and all the provisions of the Act shall have effect accordingly, except that section 183 thereof shall have effect as if for the word "shall" therein the word 'may' were substituted.
(4) Notwithstanding anything contained in the aforesaid Act the Central Government may, by order published in the Official Gazette, prohibit, restrict or impose conditions on the clearance whether for home consumption or for shipment abroad of any imported goods or class of goods".
S.R.O. 228 (1) OF 1994:-- ' It is laid down in S.R.O. That in exercise of the powers conferred by shbsection (1) of section 3 of the Imports and Exports (Control) Act, 1950 (XXXIX of 1950), and in supersession of this Ministry's S.R.O.
No,166(1)/92, dated the 7th March, 1992, the Federal Government is pleased to prescribe the following procedures for management and allocation of quotas valid up to the 31st December, 1996, namely:-- Management. --(1) The management of textile quotas shall be the responsibility of the Textile Quota Management Directorate.
For the purpose of sub-clause (1), the Textile Quota Management Directorate pursuant to the provisions of this order, shall issue public Notice from time to time.
Basis of entitlement and allocation.--(1) The performance holders will receive allocation of quotas on the basis of performance holders' quantity exported under each category during the preceding year to a specific quota country: ' Provided that the entitlements for the year 1994 will be determined either on the basis of provisions contained in S.R.O. 166(1)/92, dated 7th March, 1992, or on the basis of quantity exported by the performance holders in 1993 if the Associations concerned with a category so opt:- ' Provided further that where non-quota textile product(s) is brought under restraint, the entire ceiling will be allocated to the performance holders on the basis of the quantities (with no premium for value) supported by them in the twelve months preceding the date of issuance of the consultation call:- ' Provided further that in respect of the categories the performance of which is much less than the quota ceiling, necessary amount of quota may be allocated through auction.
' Quantities not lifted in the auction may be disposed of on such terms and conditions as the Textiles Quota Management Directorate may notify: ' Provided that those who have purchased quota in an auction shall not be entitled to any compensation in case it is decided to free i,e, open up a category.
' A new comer for any year, if he makes shipment of the allocated quota, shall become a performance holder in the following year.
' Performance holders include garment manufacturing units in Export Processing Zone (EPZ) having exported cotton, or MMF or merged (cotton as well as MMF) products to any country where such products are brought under restraints.
' Two-third of growth quota for Grey Cloth (viz category 313/226 in USA and category 2 in EEC) shall be allocated to the Pakistan Small Units Power Looms Association for distribution amongst their members.
' Textile Quota Management Directorate may subject export of all or selected categories to Minimum Export Prices as notified through Public Notices.
' Textile Quota Management Directorate may allocate ten per cent of growth quota to newly established manufacturing units in terms of the criteria and procedures to be notified by it through Public Notices.
Explanation:-- ' In this Order, the term 'performance' means export of textile items to quota countries, made on the basis of entitlements determined under the relevant Textile Quota Management Policy, Public Notices issued from time to time, and specifically excludes all exports made under any special allocation not covered by the provision of the policy.
Textile Associations.-- ' Textile Association registered on all Pakistan basis will be associated with the management oftextile quotas as per directions of the Textile Quota Management Directorate.
' The list of Authorised Associations alongwith the products to be dealt with by them, is given at Schedule I. Textile Quota Management Directorate may make suitable changes in Schedule I from time to time.
' For purpose of this policy, an exporter who was registered as a member in the preceding year will not continue as a member of. Association unless he/she is a holder of quota passbook, valid for the year, at least in one of the categories being handled by the Association. ' xx xx xx xx ' Textile Quota Management Directorate reserves the right to withdraw the functions/powers of quota management of an Association if it feels satisfied that such functions are not being performed in accordance with the provisions of this Order, Public Notices issued by the Textile Quota Management directorate or Association's own Articles and Memorandum of Associations.
For this purpose textile Quota Management Directorate shall have the authority to check the membership and working of the Association.
(4) Transfer of quotas.--(1) Subject to provisions of this Order, quotas allocated to performance holders will be trnasferable.
' Garment manufacturing units in Export Processing Zones may purchase quota from the tariff area through foreign exchange encashment certificates.
' Exporters who were allowed transfer in/out of quota but did not make any shipment of textile products in the preceding year shall not be allowed the facility of transfer of quotas in the subsequent year.
' Exporters who have shipped eighty per cent or more of their entitlement in a year, without affecting any transfer out, shall be allowed in the following year an additional quota equivalent to five per cent of their entitlement.
Export visas/certificate.-Export visas/certificates will be issued by the textile Quota Management Directorate on the basis of shipment made. In case where advance licencing is a statutory requirement, the Textile Quota Management Directorate will issue preshipment export visa/licence. ' xx xx xx xx Auction of Textile Quota.--(1) The residual quotas shall be auctioned, preferably only three times during the year, to the registered exporters who are members of an Association, dealing with textile or clothing products in accordance with the procedure as may be notified by the Textile Quota Management Directorate.
' Such quotas shall be offered for allocation to bidders in descending order premia basis the entire quantity is exhausted.
' The garment manufacturing units located in Export Processing Zone shall be eligible to participate in auction of quotas. The premium in such auction shall be paid against foreign exchange encashment certificates.
' Quotas allocated through auction shall be non-transferable during the year.
Explanation:-- ' In this Order, the term "residual" means the quantity which remains available after allocation of one hundred per cent of entitlement to the performance holders.
' The entitlement of an exporter will be determined after adjusting any overshipment/waivers and exports made against swings carryovers, carry forward or any allocations made for one time usage.
(8) Use of flexibilities.---Exporters shall be entitled to the following flexibilities on their authenticated entitlements including quotas obtained through auctions:-- Swing and shift.---Exporters are allowed to avail upto the admissible percentage of their authenticated entitlement in the receiving category by surrendering equivalent quota in permissible categories. This could be availed from the date of 'authentication of their allocation.
Carry over.---Exporters are allowed carry over admissible percentages of their quota entitlement for 'use in the following, year.
' Carry-forward.---Advance use of quotas upto the admissible percentage of authenticated entitlement can be made by exporters from the date of authentication of their allocation.
(NOTE: Total i,e, combined use of flexibilities may not exceed the percentage stipulated in the bilateral agreement).
(.9) xx xx xx xx S.R.O. 760(1) of 1994:--- ' In exercise of the powers conferred by subsection (1) of section 3 of the Imports and Exports (Control) Act, 1950 (XXXIX of 1950), the Federal Government is pleased to direct that the following amendment shall be made in this Ministry's Notification No,S.R.O.228(1)/94, dated 8th March, 1994, namely:-- ' In the aforesaid notification, in paragraph 2, after entry -(8), the, following new entry shall be added, namely:-- "(9) The new entrants from the under-developed regions may be allocated textile quotas as follows:-- ' Twenty-five per cent of the growth rate quota may be earmarked for new entrants from the under-developed regions.
' The quota shall be transferable.
' New-comers belonging to under-developed regions who are registered as exporters and are members of recognized textile associations shall be eligible for allocation of quota, provided they produce firm orders or letters of credit from a foreign buyer, as in the case of other quota holders.
' A Committee headed by Additional Secretary, Ministry of Commerce, Government of Pakistan, comprising representative of Textile Quota Management Directorate and Joint Secretary (Export Textile), Ministry of Commerce, may allocate quotas subject to the approval of the Commerce Minister."
Explanation.---In this Order, the term "under-developed" shall means rural areas, excluding:-- ' area of industrial estate dunian covered under Municipal Committee limit of Pattoki and area of Hub Industrial Estate which falls inside the distance from the concerned Municipal Corporation/Committee limit; ' the Municipal/Cantonment Board limits of Karachi and Lahore and 30 Kilometers areas around these limits; ' the existing limits of Municipal Corporations and their Cantonment Boards and 10 kilometers areas around these limits; and ' areas falling within the limits of all Municipal Committees and Cantonment Boards and Islamabad Capital Territory".
16. Nayyar Bari, ex-Director-General, Textile Quota Management Directorate, was an officer of Sindh Provincial Service in BPS.20. Having no experience and knowledge of Textile Sector and Export Promotion, he was appointed as Director-General, by Mst. Benazir Bhotto, ex-Prime Minister, which post was previously held by a senior officer in BPS.21, who had served as Vice-Chairman Export Promotion Beanie, Chairman State Life Insurance Corporation and Director of Industries in the Punjab Government. It was alleged that Nasir Hussain of Schon Group and A.G. Kapadia had close contacts with Mr. Asif Ali Zardari (husband of ex-Prime Minister). It was alleged that the national exchequer suffered a loss of Rs,90 crores, as 25% growth quota was being misutilised by Nasir Hussain, Chairman Pakistan Knitted Garments and Sweaters Exporters Association (hereinafter to be referred as PAKSEA) and A.G. Kapadia Chairman Pakistan Hosiery Manufacturing Association (hereinafter to be referred as PHMA). It was further alleged that losses were through manipulation by Asif Ali Zardari, Ahmed Mukhtar, Commerce Minister, Nayyar Bari Director-General Akhtar Alam Deputy Director-General and Anis Alam Computer Incharge, and the Chairman of PAKSEA and PHMA. The loss at TQMD was worked out as Rs,220 crores. Under S.R.O.760/94, the new entrants from under-developed regions were to be allocled textile quota at the rate of 25% of the growth rate quota but this quota was being misutilised. (page 74). An arrangement to add 7% swing and 5% shift in the allocation of categories 338 and 339 was in vogue since 1989 for the benefits of Nasir Hussain and A.G. Kapadia, Chairman of PAKSEA and PHMA. Nayyar Bari joined Textile Quota Management Directorate in June, 1994. The record was being computerised. Nayyar Bari noticed that some companies were being assigned the quota from flexibilities of 7% swing and 5% shift. On inquiry, he was informed that the said arrangement had the approval of the competent Authority.
Nayyar Bari summoned the said two Chairmen who informed him that the arrangement had the concurrence of higher authorities and as allocation had already been made, on 5-5-1994, he (Nayyar Bari) should not interfere. Nayyar Bari was informed that the higher authority was Asif Ali Zardari. Nayyar Bari received a telephonic call from Asif Ali Zardari, who directed him not to interfere in the arrangement already approved on 5-5-1994. The question of additional allocation to the abovementioned two Companies cropped up in 1995. Nayyar Bari was summoned by Asif Ali Zardari, on 17-5-1996 and in the presence of Nasir Hussain, directed not to interfere in the arrangement of additional allocation to the above-mentioned two Companies. The performance of two. Companies in the year 1995 was 54,37,838 dozen which was allocated accordingly. The said two Companies had been provided performance from outside allocation. M. Salman Faruqui appellant joined Ministry of Commerce in October 1995 and remained in that position for more than a year. Shahid Nazir of P.P.P., and M.N.A. From Faisalabad, who was also involved in business of export of garments, had interest in the quota. He was emerging as parallel group. Nayyar Bari noticed it. Taking advantage of the situation, he did not allow the additional flexibilities to the said two Companies in 1996. He distributed the quota across the board to all the exporters. Net performance in the year 1996 was 46,11,310 dozen and with built in 7% swing and 5% shift, the total allocation came to 51,64,66 dozen whereas the net availability was 50,56,863 dozen. As such, there was excess allocation of 1,70,801 dozen which was to be distributed across the board to all the exporters. No performance was made by the said two Companies. A Committee headed by Secretary Commerce, Joint Secretary Textile and representative of TQMD had been constituted regarding allocation of 25% of the growth quota to the new-comers. The allocations in the years 1994 and 1995' were not made to the new-comers but to the favourites of PPP and some applications from Prime Minister's Secretariat were also entertained. On account of these allocations, a reference had been made against Commerce Minister, named Ch. Ahmad Mukhtar.
M. Salman Faruqui appellant, informed Nayyar Bari in February, 1996 that Rs,5 crores were required to be delivered to the Prime Minister's Secretariat for party workers. Nayyar Bari asked the appellant from which source this amount was to be provided. Appellant informed him that it should be done from 25% growth quota for the new-comers. Nayyar Bari conveyed to the appellant that it was within his ambit as he was heading the Committees. The appellant told him that the rules would be changed and 25% appellant quota would be entrusted to TQMD. The appellant again called Nayyar Bari to Islamabad and had discussion with him in the presence of Siraj S. Shamsuddin. Nayyar Bari was threatened by the appellant and Siraj S. Shamsuddin, who told him, if he did not provide the amount, he would be treated otherwise. Nayyar Bari ..Was informed that the amount of Rs,5 crores were to be paid in three instalments. Again Nayyar Bari asked the appellant from which source the said amount should be procured. The appellant told him that he could rely on the old arrangement of flexibility of categories of 338 and 339. Nayyar Bari arranged the first instalment of Rs,1,40,00,000 and he asked Anis Alam, Deputy Director to purchase Savings Certificate which were accordingly purchased and the photo copies of those Certificates alongwith numbers were prepared. Nayyar Bari reached Islamabad on 1-6-1996 and conveyed to the appellant that he had brought the Certificates. Nayyar Bari delivered Saving Certificates worth' Rs,1,40,00,000 to Siraj S. Shamsuddin at his residence. Nayyar Bari was again pressurized by the appellant and Siraj S. Shamsuddin to make arrangements for the payment of second instalment as the Prime Minister's Secretariat was urgently in need of the money because of critical situation. Nayyar Bari complained to the appellant that he had not 'fulfilled his commitment to decide the fate of 25% of the growth quota.
Nayyar Bari informed the appellant that he was not in a position to make any additional allocation to the abovementioned two Companies of Nasir Hussain and A.G. Kapadia as all the quota had been distributed to exporter across the board. The appellant told Nayyar Bari not to worry about it.
Nayyar Bari made arrangement of Rs, one crore sixty lacs in the shape of Saving Certificates. Siraj S. Shamsuddin was admitted in Armed Forces Cardiovascular Hospital, Rawalpindi as he suffered heart problem. In spite of being in that situation, Siraj S. Shamsuddin rang up Nayyar Bari and told him to deliver the second instalment. Nayyar Bari accompanied by Anis . Alam met Siraj S. Shamsuddin in Army Cardiovasular Hospital, on 18-91996 and delivered Savings Certificates worth Rs, one crore sixty lacs. Siraj S. Shamsuddin asked Nayyar Bari about the balance of Rs,2 crores.
Nayyar Bari told Siraj S. Shamsuddin that he could arrange that much money.
' A meeting of the Exporters was held at Islamabad on 24-25-9-1996. Commerce Minister asked Nayyar Bari as to what was the development of 25% growth quota and he wanted details of that.
Nayyar Bari gave the details to the Minister who told Nayyar Bari that 25% growth quota should be auctioned. Nayyar Bari met M. Salman Faruqui and informed him about the latest development about 25% growth quota. The appellant started abusing the Minister and stated that he was playing dirty. Nayyar Bari on reaching Karachi received a Fax Message from the Minister of Commerce to give details of 25% growth quota which Nayyar Bari immediately prepared and sent it with the recommendation that it should be auctioned. The growth quota of 25% was accordingly auctioned.
' Nayyar Bari received a telephonic call on 29-10-1996 from Mr. Javed, Private Secretary to Secretary Commerce who asked Nayyar Bari to reach Lahore the next day in order to meet Asif Ali Zardari.
Private Secretary further informed Nayyar Bari that M. Salman Faruqui appellant would contact him at Governor House, Lahore, on 30-10-1996 and would take him to Asif Ali Zardari. Nayyar ,Bai went to Governor House on 30-10-1996 and met the appellant who told him that he should tell Asif Ali Zardari that 25% growth quota had not been auctioned. Nayyar Bari informed the appellant that it was not possible as the said growth quota had already been auctioned and he had conveyed information to, the Ministry of Commerce. Nayyar Bari showed the relevant file to the appellant. The appellant told Nayyar Bari that he should convey to Asif Ali Zardari that he had delivered Rs, three crores to Siraj S. Shamsuddin. It was accordingly conveyed to Asif Ali Zardari who told Nayyar Bari that he could leave.
' Nayyar Bari made statement on 27-1-1997. He sent this statement to Khawar Zaman, Director- General, F.I.A., Islamabad. The final allocation of textile quota of category 338 for the year 1995 can be looked at page 210. Akhtar Alam, Deputy Director-General made the following suggestions (page 217):-- ' Final allocation of categories 338 and 339 may be made at 100% of net performance.
' In addition, the remaining 10% of special shifts as laid down in the Agreement may be allowed to the performance holders on their authenticated entitlement against surrender of equivalent quota in category 638/639. This announcement may be made now or later as decided by D.-G.
' It should be clarified in the alloction letter to be issued to the associations that the phasing-out programme as proposed by the associations will commence from 1996. Thus the allocation for 1996 will be 97.5% of the net performance instead of 100% as in 1995.
' The pace of shipment in category-338 being unusually fast in 1995, the associations may be asked to monitor shipments so that in case of threat of embargo, their members should be able to defer shipments and or agree to self-restraint as proposed by the associations.
' Nayyar Bari observed in para. 31 that category 338 was the only category which had shown performance in the year 1995 and the utilisation of category 338 was 52 to 55% while that of 339 category was 26 to 31% as on 20-3-1995. He further observed that in view of the reason enumerated above, the allocation can be allowed upto 100%. Final allocation of category 338 for the year 1996 can be examined at page 221 onward. The availability of quota and final allocation of category 338 (knit shirts M&B) for the year 1996 can be seen at Pages 231 and 232, which had the approval of the Director-General.
20. Mr. Naseem Qureshi, Joint Secretary, Ministry of Commerce addressed a letter dated 25-9-1996 to Nayyar Bari, Director-General. Minutes of meeting chaired by Minister for Commerce, on 25-9- 1996, to review issues pertaining to quota policy was faxed for information and further action. In para. 2 of the letter, it was conveyed that the Commerce Minister had desired that a detailed break-down individually of residual quota and 25% growth rate quotas which were to be allocated separately, may be furnished. Nayyar Bari, on the receipt of the said letter, provided details of categorywise residual balance and the 25% growth quota. He conveyed information in para. 2 that in categories 338 and 339, a quantity of 34000 dozen and 25600 respectively were put in first auction. (page 236). He proposed not to auction any quantity in these categories because those were to be adjusted against the continous over-shipment to settle the matter once for all, as recommended by Chairman, C.E.C. In his inquiry report. It was further recommended that the total quantities available as residual balance and 25% growth quota may be put to auction as indicated by the Minister for Commerce in the meeting held on 25-9-1996. Nayyar Bari further conveyed that as directed by the Minister, the date for the third auction had been fixed for 5-10-1996 and in case the decision in the matter was delayed, it would not be possible to announce balance quantities in time for the auction. The proposal by Nayyar Bari was approved by the competent Authority and its information conveyed to Nayyar Bari by Naseem Qureshi, Joint Secretary, vide letter dated 30-9- 1996. Nayyar Bari was directed to go ahead with the auction. Nayyar Bari addressed a letter to Secretary Commerce, on 10-11-1996, with reference to his letter dated 20-9-1996 and the Ministry of Commerce letter dated 30-9-1996. In para. 2, he conveyed that as decided, the residual 25% growth quota which was to be allocated separately was put to auction, resultantly the third auction had fetched Rs,13,95,10,502. The, total amount collected from auction was Rs,40,58,27,858. In the last para. Nayyar Bari conveyed that after the fourth auction was finalised, the total amount collected from the auctions would approximately be. Rs, 45 crores, which was unprecedented and was mainly because of decision taken at the appropriate level to auction 25% growth rate quota. Anis Alam made judicial confession, on 16-4-1997, which can be examined at page 244 onward. He corroborated Nayyar Bari, Director-General with variation about the source of procurement of Rs, 3 crores.
21. The Authorised Officer with regard to show-cause notice dated 10-9-1997, pertaining to (i) (a), (b), (c) and (d), came to the conclusion appellant guilty, as reproduced at page 24 of the judgment. In accordance with the direction of the competent Authority, the Authorised Officer served show-cause notice for the second time to the appellant and provided him reasonable opportunity for his defence. The Authorised Officer submitted another report on 27-12-1997 (page 418) regarding the first charge as given in the show-cause notice dated 10-9-1997 and he gave his finding in para. No,6 of his report which reads as under:-- "6. The first and major allegation against him pertained to misuse of the Textile Quota Management Directorate (TQMD) to unlawfully extort money for payment to a certain politician. This allegation was supported by 40 pages of file notings and written statement of the two persons involved, i,e, Nayyar Bari, D.G., TQMD and Anis Alam, Assistant Director, TQMD, the latter in the form of a confessional statement made before a Judicial Magistrate. The 40 pages of documents, the statement of Nayyar Bari, M.D., TQMD is directly implicating Mr. M. Salman Faruqui and the corroborative confession of Anis Alam, proved beyond reasonable doubt that Mr. M. Salman Faruqui was directly involved in the implementation of a plan to raise a large sum of money through wrongful allocation of textile quotas with a view to pay off a senior politician. In his belated reply to the show-cause notice, Mr. M. Salman Faruqui denied the allegation and refuted the statement of M/s. Bari and Alam, saying that the record and cross-examination would prove them to be false. Unfortunately, since Mr. M. Salman Faruqui has consistently refused to avail himself of the opportunity of inspecting the record or of appearing before the undersigned, I, therefore, reiterate my earlier opinion and find him guilty of this allegation."
' The appellant submitted his reply, on 22-11-1997 to the show-cause notice dated 10-9-1997 (page 740). He denied the allegations regarding the first charge. He desired that the statements of Nayyar Bari and Anis Alam may be provided to him. The statements were supplied as admitted by the appellant in his reply dated 30-11-1997. He simply stated that the statements of Nayyar Bari and Anis Alam were not of much worth. He desired that entire record pertaining to the charges may be supplied. The Authorised Officer asked the Secretary Commerce, vide letter dated 3-12-1997, to allow full excess to the appellant to inspect any record under the control of the Ministry of Commerce and its associated agencies, which the appellant may desire to inspect. The appellant did not produce any oral or documentary evidence in his defence. He even did not appear for personal hearing before the Authorised Officer. He made a ground in his letters dated 29-12-1997, 30-12-1997 and 1-1-1998 to show that he had made attempts to appear before the Authorised Officer for personal hearing but he was not provided the said opportunity by the Authorised Officer.
The Authorised Officer fixed the date of hearing as 5-1-1998 and conveyed it to the appellant, on 2- 1-1998. On receiving the said information, instead of appearing before the Authorised Officer on 5- 1-1998, he left the country, on 4-1-1998, intentionally against the rules/instructions, referred to above. We have gone through the record pertaining to the first charge including the examination of statements of Nayyar Bari and confessional statement of Anis Alam. We have no reason to disagree with the finding of the Authorised Officer in respect of the first charge. The T.A. Bills of Nayyar Bari regarding relevant dates 1-1-1996, 13/15-2-1996, 17-5-1996, 1-6-1996, 18-9-1996, 24-9- 1996 and 30-10-1996 had been collected. Those T.A. Bills should have been part of this file but not attached on files of the inquiry proceedings. For the ends of justice, we considered it essential to examine those bills and also the date of admission and discharge of Siraj S.Shamsuddin in Armed Forces Cardiovascular Institute, Rawalpindi. On 10-6-1999, the Establishment Division was directed to provide those documents as early as possible. Copy of the order was sent to the Establishment Division for compliance.. A Fax message was received from Director-General, Export Promotion Bureau Karachi regarding the T.A. Bills of Nayyar Bari, ex-D.G., TQMD. The Director-General, Export Promotion Bureau conveyed information that the T.A. Bills of Nayyar Bari were not readily available as TQMD was emerged into Export Promotion Bureau. It was stated that T.A. Bills of Nayyar Bari for the abdvementioned dates had been collected by F.I.A. During the investigation of the case against M. Salman Faruqui ex-Secretary, Ministry of Commerce. The Director-General, F.I.A. Was directed vide order dated 15-6-1999, to supply copies of T.A. Bills of Nayyar Bari for the dates mentioned above, through special messenger as those were urgently required for the decision of the case. The T.A. Bills, air tickets and hotel bills of Nayyar Bari, ex-D.G., TQMD, of the relevant dates have been furnished to us, on 22-6-1999, by Export Promotion Bureau through Establishment Division. These bills/documents strongly corroborate the statement of Nayyar Bari. The purpose of visit is another corroboration of his statement. Nayyar Bari mentioned in his statement dated 27-1-1997, in para. 21 that as desired by the appellant, he met him on 30-11-1996, in Governor House, Lahore, where they had a meeting with Asif Ali Zardari. We have noticed entry dated 30-10-1996 made in the register provided by Police Guard, Governor House, Lahore. From the entries in the said register, it stood proved that Asif Ali Zardari was present in Governor House on 30-10-1996. It is further proved that the appellant accompanied by another person entered Governor House at 11-6 a.m. It is a corroboration of the statement of Nayyar Bari as given in para.
21. From the material on record, we are convinced that 25% of the growth rate quota earmarked for new entrants from the under-developed regions had been misused/misappropriated by Nasir Hussain and A.G. Kapadia, Chairmen of PAKSEA and PHMA, in connivance with TQMD and also with the blessing of the appellant, who was then. Secretary Commerce. We are also convinced that the appellant had asked Nayyar Bari to pay Rs,5 crores in three instalments and Nayyar Bari complied with the orders of the appellant and paid two instalments of rupees one crore forty lacs and rupees one crore sixty lacs to Siraj S. Shamsuddin, the first at residence and the second in the Armed Forces Cardiovascular Institute, Rawalpindi. We have been supplied date of admission and discharge of Siraj -S. Shamasuddin in Armed Forces Institute of Cardiology, Rawalpindi, as desired by us vide order dated 10-6-1999. It establishes that Siraj S. Shamsuddin was admitted in the Institute on 25-8-1996 and discharged on 20-9-1996: Nayyar Bari had mentioned in para. 18 of his statement dated 27-1-1-997 that he had paid Rs,one crore and sixty lacs to Siraj S. Shamsuddin, on 18-9-1996, in Armed Forces Institute of Cardiology, Rawalpindi where he was admitted. The certificate supplied to us by Armed Forces Institute of Cardiology is a corroboration of the statement of Nayyar Bari, we agree with the finding of the Authorised Officer with regard to misutilisation and misappropriation of 25% of the growth rate quota meant for new entrants of under developled regions. We want to bring another fact on record that Siraj S. Shamsuddin, a BPS- 21 officer of Secretariat Group, posted as Personal Staff Officer (PSO) to the then Prime Minster during the period November/December, 1995.To July, August, 1996, out of mala fide intention and corrupt motives asked Nayyar Bari, D.G., TQMD to deliver rupees five crores out of 25% growth quota for distribution to party workers which he received in two instalments, first being of Rs, one crore and forty lacs in year 1996 at his residence, and second Rs, One crore sixty lacs in Military Hospital, Rawalpindi, where he was admitted for treatment of heart disease. Siraj S. Shamsuddin was dismissed by the competent Authority and he preferred Appeal No, 205 (R) of 1998 before the Federal Service Tribunal, which was dismissed on 4-3-1999.
' RICE EXPORT CORPORATION SALE CONTRACT FOR EXPORT OF IRRI-6.
22. Brig. M. Aslam Hayat Qureshi, Chief Secretary, Punjab, who was also Secretary, Ministry of Commerce chaired a meeting of Board of Directors of Rice Export Corporation on 17-9-1995. He presented two offers of Government of Togo and M/s Rustal Trading Limited for the purchase of five laces metric tons of Irri-6 rice at the rate of US Dollar 221 PMT. He disclosed that he had received those offers from the Prime Minister's House and that the whole was to be done. Ghulam Abbas Soomro, Commercial Director in Rice Export Corporationnbjected to this deal, stating that no rice was available in the store and it would be a void agreement. Secretary Commerce rebuked Mr. Soomro by sitting that it was for the Board of Directors to take the decision. He asked the Chairman Rice Export Corporation to continue meeting all Directors in 'order to negotiate with the buyers.
After negotiation, the buyers agreed to purchase at the price of US Dollar 230 PMT FOB. This was reported to the Ministry of Commerce for approval. Cabinet decided to negotiate the price again which was raised to US Dollar 232 PMT. S. M. Ishaq was then Chairman, RECP. This negotiated price was indicated to the Government, on 3-10-1995 and the Government accorded approval on 5-10- 1995. Agreement was signed between the parties subject to availability of rice., Rice price in the market escalated. Government advised re-negotiation. After negotiation with the buyers, the purchase price was raised to US Dollar 242 PMT FOB. It was indicted to the Government without any recommendation despite pressure of the Chairman and Dr. Zulfiqar Mirza, The then Parliamentary Secretary. Mr. Soomro was conveyed displeasure of the Parliamentary Secretary. Letter from Ministry of Commerce was received- stating that the approval of two deals could be made by the Chairman, RECP and Board of Directors as they were competent to do so, but it was against the previous precedent cases where approval was accorded by the Government. It was decided by the Government that rice shall not be sold 'by the RECP at the subsidised rates. The Ministry of Commerce was intimated that counter offers of US Dollar 260-261 PMT had been received in the Corporation. Message was received by the Chairman from Mr. Waqar that loss should not be caused to RECP in the sale of rice. In spite of clear directive of the Prime Minister that the rice shall not be sold at the subsidised rates and that no loss in the sale of rice shall be caused to RECP, S.M.Ishaq, the then Chairman RECP moved a note on 23-5-1996 (Page 257) for Commerce Minister giving reference to his discussion with the Minister in Islamabad, on 23-5-1996. Since this is an important note, it is being reproduced:-- "Subject: RECP ' I am to refer to my discussions with you in Islamabad today dated the 23rd May, 1996. As per your instructions I am proceeding with the sale of Basmati and Inshallah by the end of June 1996 the entire quantity of about 45,000 tons available from the new crop will be disposed of and the proceeds booked reflected in the current year's export figures.
' As regard Irri-6 rice we have so far procured 154,000 tons out of which a quantity of 19,000 tons is to be shipped as Prime Minister's gift, leaving a balance of about 138,000 tons plus some quantity to be procured upto the end of the season, which is to be disposed of. In compliance with the Cabinet decision the negotiating committee constituted by RECP's Board negotiated the price with the parties M/s Rustel and Government of Togo which was recommended.
' There is a claim of 3/4 parties for supply of about 90,000 tons Irri-6 rice to them against the contracts signed in 1994. The arbitration in this regard is in progress and award is awaited. It might seem advisable that as a precaution we should keep about 1/3rd (40,000 tons) of the total available quantity for supplying to them, should the arbitration case be finally decided in their favour, just to party satisfy the previous contracts. The balance 2/3rd quantity; about 98,000 tons rice will, thus, be available for disposal about which instructions are solicited whether to dispose of this quantity to these two parties M/s Rustel and Government of Togo in terms of Cabinet decision about which the RECP has made recommendations for export at the negotiated price which are again recommended."
' It would be important to note that the last sentence in typed note ended as under: "The balance of 2/3rd quantity, about 98,000 tons rice will, thus, be available for disposal about which instructions are solicited whether to dispose of this quantity to these two parties M/s Rustel and Government of Togo, in terms of Cabinet decision."
' It is of great significance that note comprising four handwritten lines was added after the last word, which reads as under:-- "about which the RECP has made recommendations for export at the negotiated price which are again recommended."
' The recommendation of Chairman RECP was not sent to the Ministry of Commerce. The then Minster for Commerce Ch. Ahmad Mukhtar wrote the following order:-- "I agree."
' The Minister desired that ,the Ministry may issue a covering letter on his behalf. The draft letter was shown to the Minster which he desired that the same be handed over to Chairman RECP who was visiting Islamabad. Letter dated 26-5-1996 was issued by Joint Secretary to S.M. Ishaq Chairman RECP, copy of which was sent to PS to Minister for Commerce in confirmation of the directions of the Minister. The appellant at para. 77 (Page 258) wrote the following remarks:-- "Rather unfortunate!" ' and sent it down to Joint Secretary. It was alleged that due to the said sale, RECP suffered a loss of Rs, eleven crores sixty two lacs and forty thousand. We find on record a letter from S. Farogh Naveed, Joint Secretary (EG/Ins) page 54), addressed to Ministry of Interior, Islamabad, under Ministry of Commerce under Order 1(18)/95-E-VI, dated 16-12-1996,, , covering the subject-matter of Rice Contract. Sale on Government to Government basis was through negotiation by a Committee comprising Chairman RECP and Additional Secretaries of Ministry of Commerce and Finance. This committee had been established on 7-9-1993. The Committee constituted, on 7-9-1993, was disbanded. On 18-7-1994, Economic Coordination Committee of the Cabinet approved a Summary establishing a mechanism which allowed RECP to sell rice by negotiation from Government to Government and private parties in certain circumstances. The Cabinet approved Marketing policy for sale of rice by RECP. It was decided that RECP would float open tenders on weekly basis and the tenders would be for large quantity of 50,000 tons RECP could also negotiate with the lowest bidders who not only match with the price of the highest bid but also to improve it. The Board of Directors of RECP could negotiate deals Government to Government sale. It is recorded in para. 3 of the letter of joint Secretary dated 16-12-1996 that a meeting of the Board of Directors of RECP was held on 17-9-1995, in the office of former Chief Secretary, Punjab, Lahore, who was also Commerce Secretary. The proposal received through Commerce Secretary for sale of rice Irri-6 1996-97 crop to the Government of Togo and M/s Rustal Trading Limited were considered for the first time, Former Secretary Commerce presided over the meeting which was illegal since he was neither Member nor Chairman of the Board of Directors of RECP. Former Commerce Secretary assured that the Federal Government would take steps to make the required quantity of rice available to RECP at support price. A Committee was appointed to negotiate the price with the buyers as it was felt that the offer Of price of US Dollar 221 PMT was on the low side. The Committee negotiated with the parties and recommended the sale at US Dollar 230 PMT. The recommendation of the Ministry of commerce was submitted to the Cabinet which gave direction that the price may be re- negotiated. The price was re-negotiated and RECP sought approval of the deal at the rate of US Dollar 232 PMT, which was on the condition of assured procurement. It was stated that the contract should be made subject to availability of stocks. RECP was unable to purchase the quantity of Irri-6 as the market price was higher than the support price fixed by the Government. RECP entered into agreement for the supply of five lacs metric tons of Irri-6 rice at US Dollar 232 PMT, on 5-10-1995.
Ministry of Commerce took up summary to the cabinet, on 15-11-1995, indicating that the implementation of agreement at the rate of US Dollar 232 PMT would cause loss on account of higher prevailing prices. The Cabinet agreed with the proposal of Ministry of Commerce for re- negotiation of the price. The matter was renegotiated. The Committee entrusted with the job of renegotiation reported that both the parties confirm that they would renegotiate and would not claim contract at US Dollar 232 PMT.
23. RECP was facing difficulty in the procurement of rice as the market price was higher than the contracted price. On 3-1-1996, a meeting was/held in which Special Assistant to Prime Minister, Commerce Secretary and Additional Secretary (P&F) were present. A note was submitted by Prime Minister's Secretariat to the Prime Minister, stating that Minister for Interior was investigating the said deal and he had personally spoken to Minister for Commerce to refrain from implementing the contract. In the said note, it was recommended that as requested by the Ministry of Commerce, RECP should be allowed to initially procure one lac tons of Irri, rice at the market price with the proviso that as directed by the Prime Minister, RECP should only sell that rice at the market and not at the subsidised prices. It was further required that written and a legally valid undertaking should be obtained from the buyers not to press for the delivery of the procured rice at the rate of US Dollar 232 PMT without renegotiating the price . Which should entail no subsidy. The former Prime Minster minuted as under:-- "There is no time to renegotiate the price. The growers will be finished by then. RECP should be given directive to enter market immediately and buy upto 500,000 tons (or whatever was decided).
The price and legal complications can be looked into subsequently. The details sent this morning show a sharp drop for the grower as compared to 1993-94."
' In an earlier note, the former Prime Minister directed as under:-- "There is great discontent amongst Rice Growers over drop in purchase prices of rice. ECC had given first permission to RECP to buy rice and then buy at market related prices. I hope RECP has not ganged up with price buyers to force a drop in prices. Ensure that RECP enters the market at market related prices immediately and report related prices immediately and report compliance.
RECP should sell overseas at market and'not subsidised prices."
' RECP entered into the market in. January, 1996 and purchased one lac fifty five thousand metric tons of Irri-6 at an average price of Rs,285 per 40 kg.S.M. Ishaq, Chairman RECP addressed a note, on 23-5-1995, to the former Commerce Minister and sought instructions for disposal of 98,000 metric tons of rice at the renegotiated price of US Dollar 242 PMT. The former Commerce Minister agreed with the proposal directly at his level without getting the matter examined in the Ministry.
The orders of the former Commerce Minister were got confirmed from him, on 26-5-1995. Secretary Commerce (the appellant) remarked. "Rather unfortunate!" He gave these remarks on 29-5-1995.
The rice deal was finalised despite letter issued by Ministry of Commerce, on 10-3-1996, according to which former Prime Minister had conveyed a message through Additional Secretary, Prime Minister's Secretariat, that there should be no deal of procurement/sale of rice by RECP which causes loss to RECP. The loss to RECP was worked out on the basis of FOB as Rs, 11,60,40,000.
24. The appellant in his reply dated 22-11-1997, in response to show-cause notice dated 10-9-1997, admitted the facts regarding the contract of sale of rice Irri-6 with Government of Togo and M/s Rustal Trading Limited. He stated in para. No, 8 of his reply that he had moved a Summary for the Cabinet recommending that rice may not be procured and the contract may be renegotiated keeping in view the bulliSh tender prices. He further stated that in January, 1996, the Prime Minister overruled his advice and directed that RECP be asked immediately to buy the entire quantity of the contracted rice, further observing that the price and legal consequences should be looked into subsequently. The stand of the appellant was that since his recommendation had been overruled by the former Prime Minister, he was satisfied with his note "Rather unfortunate!".
25. It is clear from the history of the case that on more than one occasion earlier to the note of S.M.
Ishaq, Chairman RECP, dated 23-5-1996 the former Prime Minister had given clear directions that RECP should only sell the said rice at the market and not the subsidised prices. On an earlier occasion, the Prime Minister had directed that RECP should enter the market at the market related prices immediately and to sell overseas at the market and not subsidised prices. It was abundantly clear that the former Prime Minister had directed that no loss should be caused to RECP on the sale of Irri rice and RECP should sell the rice at the market and not subsidised prices. Further direction was that RECP should sell overseas at market and not subsidised prices. The Minister of Interior was investigating the deal and had personally spoken to Ministry of Commerce to refrain from implementing the contract. On the note submitted by the Prime Minster's Secretariat, the former Prime Minister observed that there was no time to renegotiate the price as the grower will be finished by then. The RECP was directed to enter into market immediately and purchased five lacs tons at the market price, further directing that the price and legal complication could be looked into subsequently. S.M. Ishaq, Chairman RECP moved a note to Minister for Commerce on 23-5- 1996 against the clear directions of the former Prime Minister. By putting up the note to the Minister for Commerce, on 23-5-1996, S.M. Ishaq, Chairman RECP clearly knew that the rice was to be sold to Government of Togo and M/s Rustal Trading Limited at the rate of US Dollar 242 PMT and the Government was bound to suffer a loss of more than 11-1/2 crores on the basis of supply FOB, but without any justification and for reason other than valid, he had submitted the note to the Minister for Commerce by further adding his handwritten note about which the RECP had made recommendations for export at the negotiated price which was again recommended." The case was not processed through the Ministry of Commerce. According to the Market Policy for the sale of rice by RECP as approved by the cabinet on 14-7-1995, the Board of Directors of RECP could negotiate deals for Government to Government sales. The note of S. M. Ishaq, Chairman RECP dated 23-5-1996 to which Minister for Commerce agreed was mala fide causing a loss of more than Rs,11-1/2 crores to RECP without the case having been properly examine& in the Ministry of Commerce. The Appellant was guilty of being a party to the said deal in not taking up steps which were required of him under the Rules of Business. He knew about the orders and directives of the former Prime Minister regarding the sale of rice. The directions of the former Prime Minister were that RECP should only sell rice at the market price and not the subsidised price. Further direction was that RECP should sell overseas at market and no subsidised prices. The former Prime Minister had clearly recorded that the price and legal complications could be looked into subsequently. In view of this observation, the price could be renegotiated with the buyers. The appellant was under legal obligation to resist the note of S.M. Ishaq, Chairman RECP to which the Commerce Minister has agreed. Under Rule 4 of the Rules of Business, 1973, the Secretary is the official Head of the Division and responsible for its efficient administration and discipline and for the proper conduct of the business assigned to the Division under Rule 3(3) and for due execution of sanction of Policy.
Rule 5 relates to the transaction of business. It is laid down in Rule 5(1) that no important policy decision shall be taken except with the approval of the Prime Minister and under sub-rule (3) of Rule 5, the Minister is bound to keep the Prime Minister informed of any important case, disposed of by him without reference to the Prime Minister. It is laid down in Rule 5(4) that no decision or policy taken by the Prime Minister shall be varied, reversed or infringed without consulting him. Under Rule 5(9)(g) the Secretary is responsible for the careful observance of the rules and where he.
Considers that there has been matterial departure from them, either in his own or any other Division, he shall bring the matter to the notice of the Minister Incharge, and if necessary, to the notice of the Prime Minster or the cabinet. Under Rule 5(10) where the Secretary feels that the decision of the Minister requires reconsideration, he may state his reasons and resubmit the case to the Minister and if the Minister still adheres to his earlier decision and the Secretary feels that the matter is important enough in the national interest and it requires further reconsideration he shall request the Minister to refer the case to the Prime Minister for orders. In the present case, the appellant clearly knew that the orders of the former Prime Minister were being flouted for corrupt motive. After examining the note of S.M. Ishaq, Chairman RECP dated 23-5-1996, to which the Minister had agreed and according to appellant it was "rather unfortunate", he should have given a note stating that there were clear directions of the Prime Minster that RECP should only sell the rice at the market and not the subsidised prices and RECP should sell overseas at the market and not the subsidised prices. After giving this note, he should have referred the case back to the Minister who would have definitely recalled his order disagreeing with the note of S.M. Ishaq. In case the appellant had performed his duties as required of him under the rules of Business, the RECP would have been saved from suffering a loss of more than Rs,11/1-2 crores. Regarding the allegation against the appellant under para. (ii) of the show-cause notice. No evidence was required to be recorded. The facts were even admitted by the appellant in his written reply dated 22-11-1997
26. In his report dated 21-10-1997, regarding allegation (ii) mentioned in the show-cause notice dated 10-9-1997, the Authorised Officer made observation in para. 5, which has been reproduced already at page 24 of the judgment. The Authorised Officer recorded in para 6 of the report that he found M. Salman -Faruqui guilty of this charge also. Surprisingly, the same Authorised Officer in his report dated 27-12-1997, recorded in para. 7 of the report, the second allegation related to sale of rice to the Government of Togo and M/s. Rustal Trading Limited in violation of policy which had caused loss to Government, M. Salman Faruqui had understood that the order passed by the Minister for Commerce was wrong and instead of trying to get it reviewed, revised or over-ruled, merely nated "Rather unfortunate!" and proceeded' to implement it. In his reply Mr. Faruqui alleges that he had earlier been overruled by the Prime Minister in this case as that is why he did not feel it necessary io go back to the Prime Minister against the order of the Minister for Commerce.
M..Salman Faruqui's explanation is logical and I am willing to accept it." While recording report on 27-12-1997, the situation had not changed in between the period of the first report dated 21-10-1997 and second report dated 27-12-1997. The reply to the show-cause notice dated 22-11-1997 was on record when the Authorised Officer recorded report on 21-10-1997 and had found M. Salman Faruqui guilty on this charge. The former Prime Minister had clearly observed in the direction which has been referred by the appellant in his reply dated 22-11-1997 that the mice and legal complications could be looked into subsequently. In the presence of these directions, the plea of the appellant that his earlier recommendation had been over-ruled, was not acceptable. After considering the material, agreeing with the earlier report of the Authorised Officer dated 21-10-1997, and disagreeing with his second report dated 27-12-1997 with regard to the sale of rice, we hold that this allegation stood proved against the appellant F beyond any doubt.
' SALE AND PURCHASE OF PROPERTY BY STATE LIFE INSURANCE CORPORATION (SLIC)
27. The third charge against the appellant was that State Life Insurance Corporation (hereinafter to be referred as SLIC) purchased many properties at exorbitant prices during the tenure of appellant as Secretary Commerce without any check by him and without observing the prescribed procedure which purchases were made with c rrupt motives and mala fide intent for wrongful gain causing to public exchequer. The details of such properties were given in sub-para. (a)(b)(c) and
(d) of para. 3 of the show-cause notice dated 10-9-1997. As mentioned above, the appellant remained posted as Secretary Commerce from October, 1995 to November, 1996. List of four properties was given in show-cause notice, namely People's Media ground-floor, Islamabad, at a cost of Rs,20 million and this purchase was made at a higher price than the actual market value; purchase of four floors of a building (Hashoo Centre) at Karachi at the cost of Rs, 205.9 million for meeting space requirement of SLIC whereas the Corporation already had many commercial buildings in Karachi; a three Kanal plot at Sialkot at a cost of Rs,6.30 million from the sons of Ch. Akhtar Ali, a politician, with ulterior motive of favouring owner as the real value of the plot was much lower; and one thousand plots in the scandalous New City Scheme, Islamabad, in October, 1996 at a cost of Rs, 200 million with the mala fide intention to favour the sponsors of .The Scheme whereas the real worth of the property was much less. The relevant documents of the purchase of the properties had been brought on the record. We find on record a list of the properties purchased during. 1992-96 by SLIC (Page 768), giving the location, detail of the property, date of purchase, nature of property and cost in millions. The property at Serial Nos, 16,17,18 and 20 (Page 768) had been purchased during the tenure of the appellant as Secretary Commerce. M. Zaheer Khan was then Chairman of SLIC. We have perused the report of S. Farogh Naveed, Joint Secretary (EG/Insc) dated 7-12-1996 (Page 749). One property each was purchased in the. Year 1992-93 while the three properties were purchased in 1994 but to our surprise, twelve properties had been purchased in the year 1995. The total amount spent on these purchases was worked out as Rs,824.339 millions and the financial impropriety was about Rs,82 crores. Ground floor of People's Media at Islamabad had been purchased (S. o. 16 the list), on 8-3-1996 (Pige 799). It had been advertised the source of information too was not recorded. It was purchased, on 8-3-1996. Floor area was 13-500 sq. Ft.
Which was purchased for Rs,20 million, the cost of per square feet being 1482. Final payment was, made on 9-7-1996. Similarly, there was no advertisement or information regarding the purchase of property at Serial No,
17. It was purchased on 19-5-1996 and the location was Hashoo Centre, Plot No, 17 (old No, F-13/14) Preedy Street, Abdullah Haroon Road, Karachi (Page 801). Size of the plot was 3679 sq yards. It was purchased for Rs,205.9 million and the price per sq ft was Rs,1700. Final payment was made on 2-7-1996. The purpose for purchase of this plot was expansion of group and Sales Division of Principal Office. One plot measuring three Kanals was purchased on 23-11- 1995 without any advertisement source of information, for a consideration of Rs,5.4 million (Rs,2,975 per sq yd). Final payment was made in February, 1996. It was purchased for the sons of a politician Ch. Akhtar Ali of Sialkot. One thousand plots were purchased on 15-10-1996 in New City, Islamabad.
This was also not advertised. Payment of Rs,200 million was made in twc instalments There was lot of scandal in the whole of Pakistan about the purchase.Of these plots in the New City, Islamabad.
28. The Director-General, F.I.A., sent a letter dated 28-4-1997, to Additional Secretary, Establishment Division, alongwith the documentary evidence available with the F.I.A., for the preparation of the charge-sheet and statement of allegations against Mr. Zaheer Khan, the then Chairman of S.L.I.C.
We have carefully examined the documents brought on the file of the inquiry proceedings. Nothing has been said as to what part the appellant had played in the aforesaid purchases. We agree with the findings of the Authorised Officer dated 21-10-1997 and 27-12-1997 with regard to the purchases of properties by S.L.I.C. This allegation was not proved.
29. The appeal was put up before Bench comprising Mr. Noor Muhammad Magsi and Mr. Muhammad Ayub Khan, Members on 20-8-1998, who passed order stating that it would be appropriate if the appeal is fixed before Full Bench. It was directed by the Chairman vide order dated 7-9-1998 that the appeal be placed before Chairman, Mr. Noor Muhammad Magsi and Mr., Muhammad Ayub Khan, on 16-10-1998. The appeal was put up before the said Bench, On 16-10- 1998. It was admitted and adjourned to 6-2-1999 for regular hearing. The Members of the Bench were not available as they were on tour to Karachi and Lahore, for the disposal of appeals, and the appeal was adjourned to 3-3-1999 vide order dated 4-2-1999. The order dated 7-9-1998 of placing the appeal before three Members was modified, on 2-3-1999, as one of the members of the Bench, namely Mr. Noor Muhammad Magsi was on tour to Karachi, and it was not known as to when he would come back, and the appeal was required to be placed before the Chairman and Mr. Muhamamd Ayub Khan for disposal, on 3-3-1999. Raja Inam Amin Minhas Advocate appeared on behalf of Mr. Zahid Ibrahim, Advocate who held power of attorney on behalf of the appellant. Raja Inam Amin Minhas, Advocate made request for adjournment on behalf of Mr. Zahid Ibrahim, Advocate, on the ground that the learned counsel was buSy in Sindh High Court. The request was granted and the appeal was adjourned to 20-3-1999. On the request of the appellant through Fax that he wanted to file rejoinder, the appeal was adjourned to 17-4-1999, vide order dated 20-3- 1999. On account of written request of learned counsel for the respondent department that he had to attend the General Body meeting of the Supreme Court Bar Association in Lahore, on 17-4-1999, the appeal was adjourned to 5-6-1999. Notices were sent to the parties. Mr. Faisal Arab, Advocate who held power of attorney on behalf ,of the appellant, and Syed Alamdar Raza, Advocate for the respondent department, appeared on 5-6-1999 and argued the appeal. Judgment was reserved.
For the ends of justice, it was found essential to examine T.A. Bills of Nayyar Bari, ex-Director- General, TQMD dated 1-1-1996, 13-15-2-1996, 17-5-1996, 1-6-1996, 18-9-1996, 24-9-1996 and 30-10- 1996 (the relevant dates) and also date of admission and discharge of Siraj S. Shamsuddin, P.S.O.
To the Prime Minister, who was admitted in. Armed Forces Cardiovascular Institute, Rawalpindi. The aforesaid documents were supplied and placed on the record of this case.
30. Mr. Faisal Arab, Advocate (counsel for the appellant) contended that the appellant had denied all the allegations levelled against him in the show-cause notice on the first opportunity, and due to his denial, the Authorised Officer was required under the rules and the judgments of the Supreme Court to appoint an Inquiry Officer of Inquiry Committee for thorough probe into the allegations levelled against the appellant; that the decision of the Authorised Officer in not entrusting inquiry to inquiry officer or Inquiry Committee, the case of the appellant had been badly prejudiced; that in spite of several applications made by the appellant for supply of relevant documents and excess to the record, the Authorised Officer did not made available all those documents to the appellant, nor did he allow the appellant to examine the relevant record, hence, the appellant was unable to defend his case; that the statements of witnesses were not recorded in the presence of the appellant nor he. Was afforded opportunity of cross-examination and it was a violation of the rules as well as the judgments of the superior Courts; that the statements of Nayyar Bari and Anis Alam were bundle of lies and could not be relied upon; that the Authorised Officer summoned the appellant for the personal hearing on 24-12-1997 but the appellant intimated him through several letters that he was sick and advised bed rest by the doctor, and thus, unable to appear before him on the aforementioned date; that the appellant had made request through various documents for the extension of time for personal hearing, but he was not conveyed any information about the personal hearing, and thus- the appellant was compelled to address letters on 29-12-1997, 30-12-1997, 31-12-1997 and 1-1-1998 to the Authorised Officer asking him to fix the date of personal hearing at the earliest, so that he could appear and for that reason he had stayed in Islamabad against medical advice but the appellant did not receive any reply of his correspondence; that the appellant was permitted by .The Ministry of Interior vide letter dated 2-1-1998 to go abroad on one time basis during the month of January, 1998 and on the receipt of said letter, the appellant due to failing health was forced to leave Pakistan on 4-1-1998 for treatment abroad and by that time he did not receive any intimation for personal hearing; that the Authorised Officer having learnt about the departure of the appellant, on 4-1-1998 fixed the date of personal hearing of the appellant as 5-1-1998, and thus, the appellant was denied the right of personal hearing by the Authorised Officer. The learned counsel for the appellant cited cases 1993 SCMR 607 and NLR 1979 Service 61 in support of his contentions.
31. The learned counsel for respondent Department submitted that the Authorised Officer, after examining all the material produced before him, applied his judicious mind and decided that it was not necessary to have the inquiry conducted through Inquiry Officer or inquiry committee and he was legally competent to do so under Rule 5(1)(iii) of the Government. Servants (Efficiency and Discipline) Rules, 1973; that the Authorised Officer supplied copies of the statements of Nayyar Bari and Anis Alam and also supplied other documents as admitted by the appellant himself in his letters sent to the Authorised Officer and memo. Of appeal; that the Authorised Officer had passed an order and directed Secretary Commerce to allow full excess to the appellant to all the relevant files under his control and the associated agencies, which the appellant may desire to inspect and it was for the appellant to examine the record; that during the inquiry regarding show-cause notice dated 10-9-1997, the appellant was summoned several times for personal hearing, but he had been making lame excuses and in sending letters dated. 29-12-1997, 30-12-1997, 31-12-1997, and 1- 1-1998 he was making ground to take up certain plea; that the appellant was afforded opportunity for personal hearing and summoned for 5-1-1998, through letter, dated 2-1-1998 which was received by him, on 2-1-1998, but he left Islamabad with intent not to appear before the Authorised Officer for personal hearing; that the appellant was not seriously ill and he could conveniently appear before the Authorised Officer for personal hearing; that the report of.Cardiologist would prove that the appellant intentionally did not appear for personal hearing; that the appellant on account of his influence managed to obtain permission from the Ministry of Interior to leave the country for medical treatment abroad, and thus, he himself failed to avail of the opportunity of personal hearing; that after examining all the material on record, the Authorised Officer was justified in holding the appellant guilty of the allegations levelled against him in show-cause notice, dated 10-9-1997 and he was rightly dismissed from service by the competent authority; that the appeal filed by Siraj S. Shamsuddin, bearing No,205(R) of 1998 had been dismissed by the Tribunal vide judgment, dated 4-3-1999.
32. We have considered the contentions of the learned counsel for the parties in the light of voluminous documents (872 pages) as brought on the record of inquiry proceedings.
33. Inquiry procedure has been laid down in Rules 5 and 6 of the Government Servants (Efficiency and Discipline) Rules, 1973. It is provided in Rule 5(1)(ii) that the Authorised Officer shall decide whether in the light of facts of the case or in the interest of justice, an inquiry should be conducted through an Inquiry Officer or Inquiry Committee, and if he so decides the procedure indicated in Rule 6 shall apply. It is laid down in Rule 5 (1)(iii) that if the Authorised Officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall by order in writing inform the accused of the action proposed to be taken in regard to him and the grounds'of action, and given him a reasonable opportunity of showing cause against that action. It lis recorded in Rule 5(1)(iv) that on the receipt of explanation of the accused, if any, the Authorised Officer shall determine whether the charge has been proved, and if it is proposed to impose a minor penalty, he shall pass order accordingly, but if it is proposed to impose a major penalty, he shall forward the case to the Authority alongwith his own recommendation regarding the penalty to be imposed and the Authority shall pass such order as it may deem proper.
34. The Authorised Officer, after examining documents produced before him pertaining to the charge as mentioned in show-cause notice, dated 10-9-1997, decided that in terms of Rule 5(1)(iii) of Government Servants (Efficiency and Discipline) Rules, 1973, it was not necessary to have an inquiry into the charges conducted through an Inquiry Officer or Inquiry Committee. The show- cause notice issued by the Authorised Officer, on 10-9-1997, clearly proves that the Authorised Officer had applied his judicious mind. He narrated all the items in the show-cause notice which is indicative of the fact that all the documentary evidence had been thoroughly gone into by the Authorised Officer and he was justified in deciding that it was not necessary to have the inquiry conducted through an Inquiry Officer or Inquiry Committee. He narrated each item in respect of Textile Quota Management Directorate, Contract of sale of Irri rice to. Government of Togo and M/s Rustal Trading Limited and also the purchase of four plots as at (a), (b), (c) and (d) of (iii). The appellant could not have valid grievance that it was a case for appointment of Inquiry Officer or Inquiry Committee. The stage of decision by the Authorised Officer that it was not necessary to have the inquiry conducted through an Inquiry Officer or Inquiry Committee falls before the show- cause notice is issued to the accused person. The decision of Authorised Officer mainly depends on the documents and other evidence which is produced before him for taking up decision under Rule 5(1)(ii) and (iii). There is no dispute about the proposition that Where the facts are disputed between the parties, the Authorised Officer should normally entrust the inquiry to Inquiry Officer or Enquiry Committee. In the present case, the material mainly based on the documentary evidence which facts were also admitted by the appellant. The appellant did not dispute the execution of those documents. From the documents brought on record, it was to be decided whether the allegations stood proved through those documents or not. As regards show-cause notice, dated 10-9-1997, in support of the allegations, documentary evidence had been brought on the record.
The appellant in his replies, dated 16-11-1997 and 22-11-1997 denied the allegations. He did not produce a single document in rebuttal. He desired that the copies of statements of Nayyar Bari and Anis Alam may be supplied to him and he may be provided other documents on the basis of which the show-cause notice had been issued. The Authorised Officer had supplied him the copies of the statements of Nayyar Bari and Anis Alam and had further provided him three documents. The Authorised Officer sent a letter to Secretary Commerce, directing him to allow full excess to the appellant over the record under the custody of Ministry of Commerce and its associated agencies.
The grievance of the appellant had been redressed due to the issuance of the said direction by the Authorised Officer. It was for the appellant to inspect the record and in case he failed in it, he can have no valid grievance about it. Full opportunity was provided to the appellant for personal hearing in respect of the show-cause notice. The Authorised Officer fixed the date for personal hearing on 24-12-1997. He conveyed information to appellant through letter, dated 16-12-1997. The appellant sought extension of time on the flimsy grounds that he was sick, unable to move and advised bed rest by the doctor. He did not appear for personal hearing on 24-12-1997. By sending letters to the Authorised Officer on 29-12-1997, 30-12-1997, 31-12-1997 and 1-1-1998, the appellant was making ground to urge that he was prepared for the personal hearing which was denied by the Authorised Officer. The Authorised Officer issued letter, on 2-1-1998 which was delivered to the appellant but in spite of it, the appellant left Islamabad and then he left the country on 4-1-1998 after he was permitted by the Ministry of Interior to leave the country. He was waiting for that occasion. The letter of his brother-in-law, Mr. M.Z. Qureshi, dated 3-1-1998 indicates that he had instructions from the appellant to say "I can only plead not to defer the proceedings". The interest of the appellant was to leave the country and not to face the inquiry proceedings before the Authorised Officer. He could conveniently appear before the Authorised Officer for personal hearing on 5-1-1998 as he was not suffering from such a disease that he was unable to appear for personal hearing. He had been going to the doctors in Islamabad. He could conveniently appear before the Authorised Officer. We do not find any force in the contention of the learned counsel for the appellant that the appellant had been denied right of personal hearing.
35. Where the Authorised Officer once decides under Rule 5(1)(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973, that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, it is not final. He can change this view if subsequent circumstances on additional evidence so warrant. Rules do not provide that the decision of Authorised Officer under Rule 5(1)(iii) would be unchangeable. The appellant should have faced inquiry, produced evidence in rebuttal and then urged for entrustment of inquiry to Inquiry Officer or Inquiry Committee. It is provided in Rule 6(3) of Government Servants (Efficiency and Discipline)
Rules, 1973 that the Inquiry Officer or Inquiry Committee, as the case may be, shall inquire into the Charges and may provide such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary, and the accused shall be entitled to cross-examine the witnesses. That stage arises where the Inquiry Officer or Inquiry Committee is appointed and the Charge is framed and communicated to the accused with the statement of allegations, as provided in Rule 6(1). Since the Inquiry Officer had not been appointed and charge had not been framed, the oral evidence was not required to be recorded in this case. The appellant was entitled to right of cross-examination of the witnesses if those had been examined under sub- rule (3) of Rule 6. Where an inquiry under Government Governments (Efficiency and Discipline)
Rules, 1973 is pending against a civil servant, it is in his own interest to contest the inquiry. The attitude of a civil servant in using delaying tactics by sending medical certificate or showing no- confidence in the Authorised Officer or Inquiry Officer would not be in the interest of the accused.
He should contest the inquiry tooth and nail and produce evidence in rebuttal, In case he adopts attitude of non-cooperation, one-sided evidence is collected which is detrimental to the interest of the civil servant. In the present case, the appellant did not bring any oral or documentary evidence in rebuttal of the allegations levelled against him. He did not even appear for personal hearing, stating that he was unwell and advised bed rest. The report of the Cardiologist was against the medical certificate produced by the appellant. The Authorised Officer was liberal in granting adjournments. At the mine time, he was very respectful in his correspondence addressed to the appellant. Rules require the completion of inquiry proceedings in the shortest possible time, which is in the interest of the civil servant and Government both. The appellant being a responsible officer, who claims to be senior most in BPS.22, adopted unreasonable attitude during the inquiry.
The Authorised Officer was correct in making observations that the appellant in sending various letters for adjournment on the grounds of non-availability of record and sickness was, in fact, preparing a ground for raising the plea before the Court of Law that he was not afforded opportunity for defending his case and was also denied the right of hearing. This point was also agitated before us by the learned counsel for the appellant but due to overwhelming material on record, we do not find any force in this contention. The appellant has adopted same attitude by sending messages through Fax after the arguments had been concluded in this case on 5-6-1999.
We do not And any valid ground to postpone the decision. In view of the above discussion, the case law cited by the learned counsel for the anpellant is of no help to the case of the appellant.
36. The appellant did not appear before the Authorised Officer on 24-12-1997 for personal hearing.
Authorised Officer- sent report, dated 27-12-1997 to the competent authority. Having learnt about the report of Authorised Officer, dated 27-12-1997, the appellant started making' applications, dated 29-12-1997, 30-12-1997, 31-12-1997 and 1-1-1998. The Authorised Officer fixed the dated 5-1- 1998, for personal hearing and communicated it to the appellant on 2-1-1998. It was so mentioned by the Authorised Officer in his letter, dated 7-1-1998, addressed to the Secretary, Establishment Division (Page 846). The Authorised Officer in the last sentence recorded as under:- "I would once again reiterate that my report be treated as final."
' Since the Appellant did not appear for personal hearing, the Authorised Officer stuck to his report, dated 27-12-1997.
37. We are grieved to note that due to misutilisation of 25% growth quota by Nasir Hussain, Chairman PAKSEA and A.G. Kapadia, Chairman PHMA, the public exchequer suffered a loss of about 90 crores. Textile Quota Management Directorate suffered huge loss which was worked out as Rs,220 crores due to manipulation by Asif Ali Zardari, Ch. Ahmad Mukhtar, Commerce Minister, Nayyar Bari, Director-General, TQMD, Akhtar Alam, Deputy Director-General, TQMD and Anis Alam, Computer Incharge, TQMD and the two Chairmen of the two Companies, referred to above. We further notice with concern that the contract of sale of 98,000 tons of rice to Government of Togo and M/s Rustal Trading Limited at US Dollar 242 PMT in violation of the Government Policy caused a loss of US Dollar 36 million approximately (more than 150 crores).
38. It has been alleged by the appellant in his reply to the show-cause notice that Nayyar Bari, Ex- D.G., TQMD, was guilty of manipulation which had caused a loss of 220 crores to the public exchequer. Surprisingly, both M. Salman Faruqui and Nayyar Bari had left the country. It is a matter of concern. Government should take measures to see that civil servants involved in departmental inquiries or criminal cases are not permitted to leave the country before the finalisation of departmental inquiries or criminal cases.
In view of the aforesaid discussion, and for reasons stated above, we dismiss the appeal with cost.
Copies of the judgment shall be sent/delivered to the parties as required under Rule 21(1) of the Service Tribunal (Procedure) Rules, 1974.