MUHAMMAD NAWAZ ABBASI, J.--This appeal by leave of the Court has been directed against the judgment dated 18-9-2001 passed by the Federal Service Tribunal in a service appeal preferred by the appellant.
2. Leave in the present appeal, was granted vide order dated 15.4-2002 in the following manner:-- "The petitioner was proceeded against under the Government Servants (Efficiency and Discipline)
Rules, 1973, and the following 4 charges were framed against him:--
(i) You failed to submit the annual declaration of assets for the years 1983 to 1985, 1993 and 1994, in violation of Rule 12 (2) of the Government Servants (Conduct) Rules, 1964.
(ii) You have declared Property No, 17-A, Street 15, Cavalry Ground, Lahore in the assets declaration for the years 1992 and 1995. The property stands in the name of your wife. The value of the property was declared at Rs,2,00.000 in the year 1992 and at Rs,35,00,000 in year 1995. This increase cannot be reasonably justified.
(iii) Annual income has been declared at Rs,5,80,000 in the year 1995 but no details or source of income are ascertainable other than salary; and
(iv) You visited USA/UK for 21 days in 1995 and again in 1996 alongwith wife and two sons. The expenditure on the trip cannot be explained from the declared sources. There is no evidence to support the statement that the tickets were financed by friends and relatives."
(v) In the course of inquiry, Charge No,1 was dropped while Charge No,2 was not proved and under Charges Nos.3 and 4 the petitioner was found guilty and thus he was retired compulsorily from service. Aggrieved by the said order, the petitioner invoked the jurisdiction of Federal Service Tribunal but his appeal was dismissed vide judgment dated 18-9-2001.
Leave to appeal is sought against the aforesaid judgment. We have heard Mr.Abid Hassan Minto, Senior Advocate of this Court in support of this petition and we are inclined to grant leave to appeal against the said judgment on the following grounds:--
(a) That the officer had himself explained that after selling the property, he gifted the amount to his wife who invested it in a business venture with one Saeed whose two affidavits are on record but these affidavits were not gone into by the Service Tribunal. The crucial question is whether in these circumstances, Rule 12 (2) of the Government Servants (Conduct) Rules, 1964 is applicable or not?
(b) That the evidence which was relied upon by the Inquiry Officer in this case was brought on record by the petitioner himself and there was no incriminating material produced by the prosecution to prove the misconduct on the part of the petitioner. Hence to re-assess the entire record, particularly with regard to the explanation of the petitioner against the aforesaid charges, leave to appeal is granted. Notice shall be issued to the Attorney-General and office shall fly the appeal arising out this petition at an early date."
3. The Tribunal dismissed the appeal of appellant with the following observations:-- "10. We were inclined to treat this charge lightly till we found that the appellant has also stated that Mr. Saeed Ahmed had gifted US $3000 in 1995 and again in 1996 (the appellant states that it was only in 1995) to cover the boarding, lodging and shopping expenses of the appellant and his family to UK and he has further stated that his son was engaged with Mr.Saeed's daughter and in consideration of this engagement, Mr.Saeed had paid this amount of US$ 3000 for incurring non- travel expenses. In our culture, the father of the bridegroom feels superior to the father of the bride but it is not becoming of a senior officer like the appellant to extort money from the father-in-law to be of his son. We, therefore, fully agree with the opinion of the Inquiry Officer that 'The acceptance of these two contributions, to cover the tickets and other expenses for two consecutive years ($3000 for each year) is behaviour unbecoming to an officer and gentleman. It is also prejudicial to good order and service discipline as it reflects adversely on Government service and government servants and their public image generally. It falls,therefore, within the definition of 'misconduct' as given in rule 2(4) of the Government Servants (Efficiency and Discipline) Rules, 1973'. The appellant has made contradictory statements regarding his relationship with Mr.Saeed.
In Charge 3.He was business partner of his wife and in Charge 4, he is the father-in-law to be of his son, who gifts money to marry his daughter to the son of the appellant.
11. Even if we accept his explanation regarding financing of his travel and non-travel expenses, which we doubt, we find his conduct extremely unbecoming and ungentlemanly of officer in B-20.
Learned counsel for the appellant stated in the Court that his son has not yet been married to Mr.Saeed's daughter and this would imply that he is continuously extorting money from Mr.Saeed for the last six years on the promise to marry his son to his daughter. His admission of receiving money from Mr.Saeed on account of this relationship is highly objectionable to say the least.
12. The Inquiry Officer has, therefore, conducted impartial inquiry and we find the appellant guilty of Charge No,3 and of conduct unbecoming of an officer in B-20."
4. Learned counsel for the appellant has contended that the Tribunal without considering the explanation offered by the appellant to the allegations contained in Charges Nos.3 and 4 relating to non-disclosure of the sources of income other than salary and the expenditure incurred on foreign's trip in a judicious manner, affirmed the finding of Inquiry Officer on the above charges in a mechanical manner by raising an unfounded presumption of fact based on the declaration submitted by the appellant. Learned counsel argued that not only the departmental authorities but also the Tribunal omitted to take notice of the factual position relating to the expenses of the appellant on the foreign trips duly supported by an affidavit of his nephew who arranged tickets for the travelling of the family and the explanation of the appellant regarding the investment made by his wife in the family business of Saeed Ahmed, father-in-law of son of appellant and submitted that the Inquiry Officer as well as the Tribunal while proceeding on presumption of application of rules 14(2) and 16 of the Government Servants (Conduct) Rules, 1964 held the appellant guilty of misconduct under Rule 2 (4) of the Government Servants (Efficiency and Discipline) Rules, 1973.
5. Learned Deputy Attorney-General, on the other hand, has contended that non-disclosure of the sources of income in the declaration of assets, would squarely bring the matter within the ambit of Rules 14(2) and 16 of the Government Servants (Conduct) Rules, 1964 and in any case the compulsory retirement with full benefits was neither a punishment nor a stigma to be challenged as a question of law.
6. We having heard the learned counsel for the parties and examined the record find that the ground on the basis of which the appellant was proceeded against for the charge of misconduct in terms of rules 14(2) and 16 of the Government Servants (Conduct) Rules, 1964 were without any foundation. The above rule provides as under:- "14(2). No Government servant shall make any investment the value of which is likely to be affected by some event of which information is available to him as a Government servant and is not equally available to the general public."
16.Private trade, employment or work.--(1) No Government servant shall, except with the previous sanction of the Government. Engage in any trade or undertake any employment or work, other than his official duties: Provided that, he may. Without such sanction, undertake honourary work of a religious, social or charitable nature or occasional work of a literary or artistic character. Subject to the conditions that his official duties do not thereby suffer and that the occupation or undertaking does not conflict or is not inconsistent with his position or obligations as a Government servant but he shall not undertake or shall discontinue such work if so directed by the Government. A Government servant who has any doubt about the propriety undertaking any particular work should refer the matter for the orders of the Government: Provided further..............................
(2) Notwithstanding anything contained in sub-rule (1). No Government servant shall associate himself with any private trust, foundation or similar other institution which is not sponsored by the Government.
(3) This rule does not apply to sports activities and membership of recreation clubs."
7. The appellant admittedly was not engaged in any business and the income shown by him in the declaration for the year 1995 related to the income of his wife derived by her in the small investment made in the family business of father-in-law of her son which was not her regular business and in any case, the engagement in the business by spouse of Government servant is not prohibited, except in the business in which the influence of husband can possibly be misused and public interest can be jeopardized. The wife of the appellant made investment with a view to increase the family income and it was not a business of the nature which would involve influence of appellant or would be against the public interest. The concealment of assets in the declaration of assets submitted by a Government servant is undoubtedly a serious matter but detail disclosure of source of income shown in the declaration being not an express requirement of rules, the nondisclosure of the same is only an omission which can be rectified at any subsequent stage. The appellant admittedly declared his income in the declaration of assets without any concealment and mere non-mentioning of source of income in the declaration, would not be as such violation of rules to constitute an act of misconduct. The reply submitted by the appellant to the show-cause notice and the charge sheet contained sufficient explanation regarding the legitimate source of his income and we find that there was neither any allegation of corruption against the appellant nor he was charged for misuse of power or taking of any benefit from any person which might place him under any sort of official obligation. The appellant was also not found to have used official influence to hold him responsible of jeopardizing the public interest and the mere fact that appellant proceeded on foreign trips with family sponsored by his close relatives or his wife made investment in the family business of in-laws of her son, would not be objectionable under Government Servants (Conduct) Rules.
1964.
8. "Misconduct" as defined in rule 2(4) of the Government Servants (Efficiency and Discipline) Rules, 1973 means conduct prejudicial to good order to service discipline or contrary to the Government Servants (Conduct) Rules, 1964, or unbecoming of an officer and a gentleman, includes any act on the part of a Government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Government servant. The appellant was not proceeded against for the charge of misconduct based on the allegation of use of official position for any financial benefit which would attract the Government Servants (Conduct) Rules, 1964 to bring the matter within the mischief of misconduct. We having examined the matter in the light of rule 14(2) and rule 16 of Government Servants (Conduct) Rules, 1964 find that same was not at all attracted in the present case and the charges against the appellant were groundless. There was nothing wrong in making small investment by the wife of appellant on the advice of in-laws of her son to increase the income in order to meet the extra expenses and it being entirely private affair of the family, would have no relevance to the official conduct of appellant to hold him unbecoming of a good officer and a gentleman but unfortunately the Tribunal by misconstruing the same, held the appellant guilty of misconduct.
9. For the foregoing reasons, we while setting aside the judgment of the Tribunal, direct reinstatement of the appellant in service without back benefits. This appeal is allowed with no order as to costs.