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Petitioner: MOEEN JAN NAEEM VS Respondent: ISLAMIC REPUBLIC OF PAKISTAN
1991 P L C (C
1991 P L C (C.S.) 181
[Federal Service Tribunal]
Before Ch. A. Rahman Khan and Misbah Ul1ah Khan, Members
MOEEN JAN NAEEM
Versus
ISLAMIC REPUBLIC OF PAKISTAN and others
Appeal No. 61(R) of 1988, decided on 20th June, 1990.
(a) Government Servants (Efficiency and Discipline) Rules, 1973--
----Rr. 3 & 6---Removal from service---Appellant ex-Director, Ministry of Foreign Affairs was charge-sheeted in respect of sixteen allegations out of which only three, namely with regard to currency racketeering; suspicious activities relating to smuggling and contravention of Foreign Exchange Regulations, stood proved in regular inquiry conducted by department as a result of which he was removed from service---Perusal of record showed that three charges levelled against appellant, had not been proved beyond reasonable doubt-- Allegations preferred against appellant in show-cause notice, forming basis of order of removal from service thus were not established---Order of removal was set aside and appellant reinstated in service with full back benefits.
(b) Civil service---
----Acquisition of property by Government servants---Permission of Government necessary.
(c) Government Servants (Efficiency and Discipline) Rules, 1973--
----Rr. 3 & 6---Mala fides---Anything built upon mala fides falls to ground, as mala fide act is an act without jurisdiction which can in no circumstances be saved.
Shah Abdur Rashid and M. Bilal for Appellant.
Hafiz SA. Rahman for Respondents.
Date of hearing: 21st January, 1990.
JUDGMENT
CH. A. RAHMAN KHAN (MEMBER).--Mr. Moeen Jan Naeem, ex -Director, Ministry of Foreign Affairs, Islamabad has preferred this appeal against the impugned order dated 7-10-1987 whereby he was removed from service. His departmental appeal dated 4-11-1987 remained unreplied ever since.
2. Briefly, the facts of the case are that while serving as Director in the Ministry of Foreign Affairs, Islamabad, the appellant was served with a charge- sheet dated 22-1-1986 which contained 16 charges. He submitted his reply to the charge-sheet denying the allegations vide his written statement dated 2-2-1986. As a result of the regular enquiry conducted by the respondent-department the appellant was cleared of all the charges except the following:--
(a) Mr. Moeen Jan Naeem was guilty of currency racketeering in Kathmandu.
(b) Mr. Moeen Jan Naeem engaged in some highly suspicious activities which would be related to smuggling or worse.
(c) Mr. Moeen Jan Naeem has acquired property in Canberra without seeking Government's approval. He has also contravened foreign exchange regulations in this process. Presumably he has not declared the income that he secured from his house and is, therefore, also guilty of income tax evasion.
3. In consequence, it was contended by the learned counsel for the appellant that the show-cause notice was served on 9-2-1987 to which he submitted his reply dated 19-2-1987, once again denying the allegations levelled against him. It was submitted that in spite of the total denial of the allegations levelled against him the impugned order of his removal from service was issued on 7-10-1987.
4. It was strongly urged by the learned counsel for the appellant that close examination of the charge-sheet which contained 16 charges and the resultant acquittal by the enquiry officer from 13 charges would reveal that basically the charges were framed with personal malice and did not contain any solid proof against him. These charges were framed only to harass and intimidate the appellant. This situation, it was contended, was in fact, the natural corollary of the circumstances which now form the part of the record. Suffice it to say, that it only proved the apprehensions expressed by the elder brother of the appellant, Mr. Amin Jan Naeem, in his D.O. letter, dated 7th September, 1983. It was strongly argued by the learned counsel for the appellant that if there was even an iota of proof available, the enquiry officer would not have cleared him of these otherwise serious looking charges. It, therefore, goes to prove that the entire case was cooked up and false evidence was initially brought in to convince the authorities to initiate the disciplinary proceedings against the appellant. This in the back ground of the contents of the D.O. letter, dated 7-9-1983, would further prove the genuineness of the request made therein to say the least.
5. It was submitted that the enquiry was not conducted on day to day basis as envisaged under rule 6(4) (9) of the E&D Rules, 1973 but was spread, almost over two years. The appellant was not provided the copies of the statements of Ambassador Abdul Fazl and others which were recorded through correspondence and referred to in the enquiry report. This lapse, therefore, prejudiced the appellant's case because he was not given the opportunity to cross-examine the individual witnesses on which the enquiry officer placed reliance to reach his conclusions. Furthermore, the enquiry officer held the appellant guilty of the three irregularities mentioned above which did not form part of the original charge-sheet dated 22-1-1986. In this regard it was strongly contended that the first two charges could be termed only imaginary without concrete proof based on surmises and the third charge is merely relevant to the extent of acquiring property in Canberra without seeking Government's approval. The appellant, it was contended, had submitted an affidavit to the enquiry officer in which Dr. Anwar Ali, appellant's uncle had categorically confirmed that the money in lieu of appellant's share of the family's property in Mardan was transferred directly from abroad by his sons who lived permanently in U.S.A. These facts were neither enquired into nor controverted at any stage by providing any evidence during the enquiry by anyone. It was, therefore, totally unfair to conclude that the appellant was involved in violation of any foreign exchange regulations. And, no specific foreign exchange regulation was quoted in this regard.
6. It was submitted that the purchase of the property in Canberra could not be notified to the Government in time because of the pending non transfer of property in his name. The transfer remained incomplete till the payment of the final instalment two years later. Meanwhile, the disciplinary proceedings had started against the appellant and so the information regarding this purchase of the property could not be notified to the authorities concerned.
7. An regards the charge of being guilty of currency racketeering the conclusion of the enquiry officer is equally ambiguous. It was a solitary case in which the appellant had confessed helping his Nepalese friend to transfer the sum of US $ 6,000 to Hong, Kong. This amount belonged to the Nepali citizen and was needed by him for the treatment of his ailing daughter. It was done purely on humanitarian grounds. It is well-known that the transfer of foreign exchange through Nepali Banks by a local citizen is almost impossible. This contention was further proved by the fact that this amount was transferred as a result of single day transaction. Since there was no other transaction of this nature throughout his stay in Nepal, it was not fair to conclude that the appellant was involved in currency racketeering. No additional evidence in this regard was produced to make the charge look reasonable. The conclusion of the enquiry officer in this respect is based on mere presumptions and conjectures based on inaccurate and inconclusive evidence.
8. In the case of second charge that the appellant was engaged in some `highly suspicious activities', it was submitted that no solid proof whatsoever has been produced to prove this allegation by the enquiry officer. All visits abroad of the appellant were duly sanctioned by the Ambassador concerned and he had notified his visits well in advance to all concerned. This contention of the appellant has been accepted by the enquiry officer without any reservation while exonerating him on charges 1 to 9 of charge-sheet dated 22-1-1986. 3
9. It was strongly contended that the antecedents of the appellant's family are well-known. He does not have to brag about it. He has sufficient means of income available over and above his salary without any shadow of doubt. He did not allow his children to be educated in the school run by the Indian Embassy which his senior colleague preferred for reasons of his own. For him it was a choice between saving money at the cost of better education. Obviously he accepted the better of the two in the interest of his children.
10. In view of the above facts it was strongly contended by the learned counsel for the appellant that the penalty imposed on him of removal from service vide the impugned order is not merely too harsh but entirely unjustified. It was, therefore, requested that in the interest of fairplay and justice the impugned order dated 7-10-1987 may be set aside and the appellant be reinstated in service with full back benefits.
11. The learned counsel for the State alongwith the representative of the respondents contended that it w0s rather irrelevant on the part of the appellant to confuse the present disciplinary proceedings against him on the ground of misconduct by bringing in the so-called unpleasant relations that existed in the past between his brother Amin Jan Naeem, the Minister and Ambassador Abdul Fazl. In his case the charge-sheet containing 16 charges was served on him as a result of the evidence that was available in the Embassy of Pakistan in Kathmandu against him. It was to meet the ends of justice that a regular enquiry was ordered which eventually found him guilty of three charges only. The appellant was issued a show-cause notice and was given personal hearing under the existing rules. The reply submitted by the appellant to the show-cause notice was duly considered by the authorised officer who recommended his removal from approved competent authority i.e. the Prime Minister. It was argued by the learned counsel for the State that the acquisition of the house by appellant and his wife in Canberra without the permission of the Government was in violation of the existing rules. The appellant was obliged to inform the Government in such a case which he failed to do so. The fact that he accepted payment abroad for sale of his property in Pakistan contravened the Pakistan Foreign Exchange Regulation. In this case too the appellant failed to apprise the Government about the exact state of circumstances under which this transaction in foreign exchange was accepted abroad. It was further submitted that the transaction of US $ 6,000 to one Mr. D.P. Kumar in Hong Kong was against the deposits of US $ 5,623 and $ 700 in personal account of the appellant. This was highly objectionable and created suspicion of smuggling. If anything, such a transaction would point to a rather unacceptable conduct on the part of the appellant. More undesired explanation could be that the appellant had received payment for services rendered and the money was transferred to Mr. D.P. Kumar who was acting as the appellant's agent. The appellant failed to give a satisfactory explanation regarding these transactions and on behalf of whom such transactions were made. Although the other 13 charges out of 16 mentioned in the charge-sheet served on the appellant were not proved yet they did cast doubt on the conduct of the appellant which ought to have been otherwise unstained as a senior civil servant. The practice on the part of the appellant to draw huge amounts in Traveller Cheques was also considered rather unusual because no other person posted m the Pakistan Embassy in Kathmandu followed such a practice. In view of the above circumstances, it was strongly contended by the learned counsel for the State that the conclusions drawn by the enquiry-officer were based on the evidence which reflected directly on the personal conduct of the appellant which was his own doing. In view of these circumstances it was requested that the impugned order dated 7-10-1987 of removal from service of the appellant be upheld as competent and legal.
12. We have heard the arguments of both the parties` arid perused the record presented to us very carefully. We are of the firm view that the three charges levelled against the appellant in the show-cause notice dated 9-2-1987 have not been proved beyond doubt. In the case of the first charge that the appellant was involved in currency racketeering in Kathmandu, no evidence of any heavy transaction in foreign exchange have been proved except the withdrawal from the appellant's account of US $ 404, $ 1,818 or $ 1,010 in traveller's cheques. If we really come to convert this amount into Pakistani currency against the US Dollar rate that prevailed in 1983, it comes to approximately Rs.6,464, Rs.28,800 and Rs.16,000 respectively. In our view these amounts cannot be categorized as huge f amounts, to say the least.
13. With regard to the transaction of US $ 6,000 in the name of Mr. D.P. Kumar which is alleged to be of very suspicious character, once again, we are of the view that the amount involved comes to Rs.96,000 and the explanation given by the appellant in this regard cannot be entirely disregarded. Since-this is a solitary transaction during his tenure of duty at Kathmandu which lasted for about two years, we do not subscribe to the view that this could be termed as an act of smuggling on the part of the appellant. It is our considered view that it is not appropriate to draw the conclusion of such serious nature from this single transaction.
14. Regarding the acquisition of the property by the appellant it has been amply established by the appellant that the amount utilized by him in this regard was transferred to him by his uncle and his two sons who lived in USA. He has also submitted the affidavit to this fact which has not been controverted. No spec rule of foreign exchange regulation has been quoted which stands violated. Indeed, the appellant had failed to inform the Government regarding the acquisition of property which he ought to have done without exception.
15. Ordinarily, we were not prepared to consider the unpleasant state of relationship that existed between Ambassador Abdul Fazl and appellant's brother Mr. Amin Jan Naeem, the Minister. However, in view of the fact that the respon0ents have failed to provide th4 Tribunal, the copy of the report which was stated to have beer prepared by Dr. Tanveer Ahmad Khan about the state of affairs at Pakistan Embassy at Kathmandu leaves serious doubts in our mind. As contended by the appellant a rather undesirable state of affairs, existed between Ambassador Abdul Fazl and other officers posted there. Under the circumstances, -e have no choice but to accept the contention of appellant without expressing our opinion on the subject.
16. In the light of the above discussion we are of the view that the allegations preferred against the appellant in the show-cause notice dated 9-2-1987 which formed the basis of the issuance of the impugned order dated 7-10-1987 of his removal from service are not established beyond doubt. However, the appellant cannot be exonerated for not informing the Government about the acquisition of the property by him and his wife in Canberra. We think he should have obtained the Government's permission even though the transaction was incomplete and the property was under mortgage.
17. The upshot of the above discussion is that the appeal before us succeeds as indicated above. The impugned order dated 7-10-1987 of appellant's removal from service is set aside and he is reinstated in service with full back benefits. However, for lapse of withholding information regarding acquisition of property on the part of the appellant we impose upon him the minor penalty of censure.
18. No order as to costs.
19. Parties to be informed.
MISBAH ULLAH KHAN (MEMBER).---I am in agreement with the conclusion arrived at by my learned brother Maj.-Gen. Ch. A. Rahman Khan, HI (M), that this appeal should be accepted and the appellant be reinstated with a minor penalty of censure to be substituted for that of removal.
21. Although the judgment of my learned brother is fairly detailed, nevertheless in view of the importance of the case I would take the liberty of adding a few words to what my learned brother has said in his judgment.
22. The appellant, who was a member of the Foreign Affairs Group, was transferred from Canberra and posted to Kathmandu in Nepal where he served for a considerable period and was then transferred to the Ministry of Foreign Affairs at Ialamabad. On 22-1-1986, he was served with. a charge-sheet containing t> charges and the first charge was further split up into 11 charges. After receiving his reply, an inquiry was conducted. The finding of the Inquiry Officer in respect of those charges maybe summarised as under:
ALLEGATIONS
FINDINGS
Charge No. 1 (i) That in October, 1985 you and your wife travelled separately from Kathmandu to Hong Kong via Bangkok which you failed to report to the authorities.
Not proved. The, appellant did not conceal his visit to Bangkok and Hong Kong. Information was available with the Embassy. There was no suspicious Circumstance Separate visit was occasioned by family circumstances.
(ii) That you left Kathmandu on 30th September, 1985 and returned on 7th October, 1985 while your wife departed from Kathmandu on 2nd October, 1985 and returned on 5th October, 1985. During this period both you and your wife undertook short visits to Hong Kong which involved an expenditure of more than $ 1,800 on air ticket alone. It is certainly odd to believe that a person earning US $ 1,300 per month could have afforded to spend nearly twice the amount of his monthly salary on a brief visit to Hong Kong.
Not proved. Tickets for the journey cost about $ 450 each because it is a well-known practice for airlines to sell discounted tickets covering different sectors. The dis-counted tickets available in Karachi for travel on Arab Airlines to London involve brief stop overs in the country of origin of the airline. In this case since Thai Airlines was employed it was logical that the journey to Hong Kong should be via Bangkok.
(iii) That at the time you and your wife left Kathmandu for Hong Kong via Bangkok, your son was reported to be seriously ill and he was left under the of the Third Secretary. Therefore, circumstances under which you and travelled to Bangkok and then clandestinely onward to Hong Kong give rise to suspicion that these visits by you and your wife were made under some compulsion.
Not proved. The appellant's son was well at the time of his departure and the return of the family on 5th and 7th October, respectively was occasioned care by the news received on the 4th the October that his son had fallen your wife seriously sick after his departure.
(iv) (v) and (vi) That you and your wife undertook the journeys at the instance of and in collaboration with an Indian businessman Mr. Shakil Ansari who is a known smuggler in gold and jewels and with whom you had developed intimate relationship. That you and your wife assisted him in smuggling currency and precious stones from Nepal and bringing in gold and diamonds from Hong Kong in return for financial gain; that one S. Ansari was also booked to travel on the same flight by which you left Kathmandu for Bangkok on 30th September, 1985, but he dropped out at the last moment and took a Nepal Airlines flight to Bangkok later. However, one Ansari brother, named S. Ahmed, returned to Kathmandu on 7th October, on the same flight as you travelled; that you and your wife had bought three tickets each of two coupons for the journey from Kathmandu to Hong Kong and back one ticket for the Kathmandu-Bangkok- Hong Kong, another for Hong Kong- Bankok sector and a third for the Bangkok Kathmandu sector whereas only one ticket would have been sufficient for each one of you for the whole trip. Therefore, it gives rise to suspicion that the intention was to throw any one watching you off the track.
Not proved. It is accepted practice in discounted travel to issue separate tickets for each sector of the journey. No evidence has been produced which would support the allegation that the appellant was working in league with the alleged band of smugglers headed by Shakil Ansari, an Indian businessman. However, these allegations framed on the basis of observations of our Ambassador in Kathmandu do tend to arouse suspicions when considered in conjunction with the unconvincing explanation received from the Appellant on one particular entry in his bank statement.
(vii) That while you were on leave in Pakistan from August to October, 1984, you and your wife are reported to have travelled to U.K. and U.S.A. without information/permission of the authorities concerned.
Not proved. The Inquiry Officer accepted the appellant's contention that his trip to U.K. and U.SA. was not clandestine. The Inquiry Officer was himself aware of the trip and he was satisfied that the expenses for this trip were paid for by the appellant's sister-in-law who is a doctor in the United States.
(viii) That on November 23, 1985 two persons of extremely suspicious character, a woman of about forty and a man of about twenty-six both looking Indians arrived from Bangkok by Thai Airways and were received and picked up by you from the Airport and driven away by you in your car at a high speed in extremely suspicious circumstances.
Not proved. The appellant had gone to the Airport to receive. Mr. Shadani Director of the Foreign Affairs office who was proceeding to Dhaka to attend the funeral of his mother. Mr.Shadani however did not arrive as had been intimated to the appellant. The appellant gave lift to two Bangladeshi nationals resident in Khatmandu with whom he had no sinister connection. (Note: the appellant had explained that the lift was given as these two persons were held up due to VVIP movement and were away from their car and that he dropped them where their car was parked).
(ix) That your wife planned to travel to Hong Kong again on January 2, 1986. Reservation for this journey was made on 27th December, 1985 when the Thai Airlines were requested by telephone to book three seats for an infant K.K. Bhan and for one Mrs. S. Gurung and for Mrs. M.N.J. Naim. Mrs. Gurung is reported to travel frequently to Dubai, Bangkok and Hong Kong and is said to be working for the Ansaris as a carrier of smuggled stones and gold.
Not proved. It was not likely to make reservation on the 27th of December, 1985 to travel to Hong Kong on 2-1- 1986 when the appellant had already been informed on 26-12-1985 about the orders of his recall to Islamabad.
(x) That you are reported to have indulged yourself in black marketing of currency. Your Nepal Bank statement for the period July to December, 1985 does not show any drawal of Nepali currency. Whereas the school fee (NC Rs.13,917) for your daughter was paid in Nepali currency. Further, before proceeding to Pakistan on 6-1-1986 you left NC Rs.19,000 with the Third Secretary to be utilized by him and to send the balance in US dollars to you through bank draft. Since your bank statements do not show the drawal of equivalent amounts from your account, it creates a strong suspicion that the source of this Nepali currency was outside your legitimate earnings.
The charge is proved on the basis of Bank statements.
(xi) That before proceeding to Pakistan in January, 1986 you left your car with Australian Charge `d' Affairs for disposal without permission of the competent authority.
Not proved.
Charge No.2: That you are reputed to be living beyond your means which is evident from the fact:-
Not proved.
(i) That your children were studying in schools where the annual fee was exorbitantly high and beyond the means of an officer of your income.
(ii) That the visits of your wife and yourself involved thousands of dollars whereas your total emoluments were about $1,300 per month approx.
Charge No3: That you sold a TV and VCR brought duty free into Nepal to a Nepali national for an exorbitant price of Rs.45,000.
Not proved.
Charge No 4: That you did not enjoy a good reputation during your posting in Australia where you are alleged to have Been associated with smuggling Activities for monetary gains.
Not proved. The appellant never travelled outside Australia during his period of posting in Canberra.
Charge No.5: That you acquired/purchased immovable property in Canberra without prior per-mission of the Government and in violation of the rules on the subject and that you are receiving monthly rental for this property through a Real Estate Firm M/s. Bertram Real Estate, Canberra.
The appellant and his wife owned a house in Canberra. The house was acquired without the permission of the Government in…
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