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Petitioner: NASIM ALI KHAN VS Respondent: DIRECTOR-GENERAL, INTELLIGENCE BUREAU, GOVERNMENT OF PAKISTAN, ISLAMABADHonorable Justice RASHID ALI MIRZAM.M. Tariq,Asif Hussain Mangi, Standing Counsel with Dr. Fazal Mithani
2007 P L C (C
2007 P L C (C.S.) 5
[Federal Service Tribunal]
Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members
NASIM ALI KHAN
Versus
DIRECTOR-GENERAL, INTELLIGENCE BUREAU, GOVERNMENT OF PAKISTAN, ISLAMABAD and another
Appeal No.197(K)CS of 2001, decided on 28th November, 2005.
Removal from Service (Special Powers) Ordinance (XVII of 2000)---
----Ss. 2(aa), 3 & 5---Government Servants (Appeal) Rules, 1977, R.5(3)---Service Tribunals Act (LXX of 1973), S.4---Compulsory retirement---Appeal---Appellant who was appointed as `ACIO' (BPS-11), was finally promoted as A.D.(BPS-18) and was re-designated as 'D.D.' (BPS-18)---Appellant in consequence of disciplinary proceedings against him was compulsorily retired from service vide Notification after issuing him show-cause notice and charge-sheeting him for allegations of misconduct, malpractice and corruption etc.---Order of compulsory retirement of appellant with retrospective effect was issued by the functionary as Authorized officer and Authority, whereas. competent Authority in case of appellant was Secretary Establishment Division---Said functionary being inferior in rank to Secretary Establishment Division, was not competent to initiate disciplinary proceedings and pass order of compulsory retirement against appellant---Entire disciplinary proceedings against appellant, in circumstances were ab initio void, nullity in the eyes of law, without lawful authority and were liable to be set aside on that ground---Penalty of compulsory retirement was imposed upon appellant retrospectively, which was a patent illegality on the part of Authority vitiating entire disciplinary proceedings against appellant, especially when authorities had not shown whether they were expressly empowered to pass impugned order retrospectively under some statute or Rules made thereunder---Disciplinary proceedings against appellant, in view of said serious illegality, could not be sustained---Service Tribunal without resorting to the discussion of merits of the case, set aside penalty of compulsory retirement imposed upon appellant and ordered his reinstatement in service from the date of his compulsory retirement.
2004 PLC (C.S.) 41; 1982 PLC (C.S.) 795; 1994 PLC (C.S.) 477; 1987 PLC (C.S.) 932; 2002 SCMR 433; 1987 PLC (C.S.) 658; 2000 PLC (C.S.) 1252; 1998 PLC (C.S.) 965; AIR 2000 SC 277; 2002 CLC 1584 (Kar.); 1995 SCMR 1249; PLJ 1990 Tr-C. (Services) 19; 1984 PLC (C.S.) 1614; 1991 SCMR 543; PLJ 2000 Tr-C. (Services) 241; PLJ 1973 Lah. 714; PLJ 1998 Kar. 180; 1992 MLD 318; 2004 PLC (C.S.) 495; Noor Muhammad v. The Member, Election Commission, Punjab and others 1985 SCMR 1178; The Vice-President (Admn.) National Bank of Pakistan and others v. Basharat Ali and others PLD 1979 Lah. 699 and Syed Sikandar Ali Shah v. Auditor-General of Pakistan and others 2002 PLC (C.S.) 1027 ref.
M.M. Tariq for Appellant.
Asif Hussain Mangi, Standing Counsel with Dr. Fazal Mithani, Sub-Inspector for Respondent.
Date of hearing: 7th October, 2005.
JUDGMENT
RASHID ALI MIRZA, MEMBER.---The appellant was appointed as ACIO (BPS-11) on 25-6-1974, redesignated as Inspector. He was promoted as DCIO (BPS-17) on 14-4-1981 redesignated as A.D. (BPS-17). He was further promoted as A.D. (BPS-18) in May, 1993 now redesignated as DD (BPS-18). While he was posted at Mirpurkhas, in consequence of disciplinary proceedings against him he was compulsorily retired from service under Removal from Service (Special Powers) Ordinance, 2000, vide notification dated 25-5-2001. On 8-6-2001, he preferred a departmental appeal to the Chief Executive, Islamic Republic of Pakistan, Chief Executive Secretariat, Islamabad against his compulsory retirement, but it was not responded to within the statutory period, hence, he filed this appeal before the Tribunal on 22-8-2001 praying to set aside the impugned orders/notification, dated 23-5-2001 and 25-5-001 and to reinstate him in service with full back benefits.
2. The facts leading to this appeal, gleaned from the memo. of appeal and the other record of appeal, are that during the last posting of the appellant at Mirpurkhas, as Deputy Director, Division Headquarters, Intelligence Bureau, certain cases of malpractices and corruption on his part allegedly came to the surface; hence, on a telephonic directive dated 14-6-2000 of the Director-General, Intelligence Bureau, the Director Intelligence Bureau, Divisional Headquarters, Mirpurkhas, held a preliminary inquiry against the appellant on the basis of which following charge-sheet was issued to him:--
Confidential
Intelligence Bureau Government of Pakistan, Islamabad
No.4/1/113/A-1. Dated: September, 7, 2000
Charge sheet
WHEREAS, I Maj. Gen. Rafi Ullah Khan/competent authority in your case, am of the considered opinion that you have committed following acts of omission and commission:--
(a) that while posted as Deputy Director (Officer Incharge, Div. HQ) I.B., Mirpurkhas, you had drawn or tried to draw the following amounts from Government exchequer on false grounds:
(i) That you had, vide memo. No.DI/M-156, dated 12-2-2000, submitted a bill of repair and service of radio fitted in Government vehicle No.GP-8065, for Rs.200 whereas no repair or service was carried out. Hence you had drawn Rs.200 from the Government exchequer on false grounds.
(ii) that you had, vide memo. No.DI/M-175, dated 22-2-2000, submitted repair bill of Government vehicle No.GP-8065, for Rs.320 whereas no repair was carried out. That amount is lying unspent with the Inspector (Admn.) at Mirpurkhas. Hence you had tried to draw Rs.320 from the Government exchequer on false grounds.
(iii) That you had, vide memo. No.DI/M-232, dated 8-3-2000 submitted oil filter and speedometer cable bill of Government vehicle No.GP-8065 for Rs.300. The said defect was created by you because the vehicle was misused by you at Karachi and the speedometer was broken deliberately to cover the said misuse of the vehicle: Thus, you had committed crime to misuse the Government vehicle and to cover that crime you destroyed evidence by breaking speedometer of the vehicle. By this way you caused additional loss to the Government exchequer of Rs.300 on the repair of the vehicle.
(iv) That you had, vide memo. No.DI/M-176, dated 22-2-2000 submitted brake and wheel service bill of Rs.480 of Government vehicle No.GP-8065 whereas no such service was provided to the vehicle. That amount of Rs.480 is lying unspent with Inspector (Admn.) the I.B. Office at Mirpurkhas. By this way you had tried to draw the said amount from Government exchequer on false grounds.
(v) That you had, vide memo. No.DI/M-267, dated 25-3-2000 submitted repair bill of Government vehicle No. GP-8065 for Rs.1,900 whereas no such repair was carried out. The said amount is lying 'unspent with the Inspector (Admn.) at Mirpurkhas. Hence you had tried to draw Rs.1,900 from the Government exchequer on false grounds.
(b) That posted as Deputy Director (Officer Incharge, DIV. HQ I.B. Mirpurkhas), you had claimed/drawn following T.A./D.A. on wrong statements which caused damages to Government exchequer: -
(i) That you went to Karachi and returned back to Mirpurkhas (11-13-3-2000) on Government vehicle No.GP-8065 but submitted T.A.M.A. bill vide memo. No. DI/M-253, dated 21-3-2000 stating that you have travelled by public conveyance. By this you had claimed Rs.190 against the rules.
(ii) That on 16-3-2000 you had left Mirpurkhas for Karachi on Government vehicle No.GP-8065 at 1430 hours along with one sacrificial goal and sweeper Muhammad Yaqoob had accompanied you as helper. You returned to Mirpurkhas on 20-3-2000 at 0300 hours in the Government vehicle. As this visit was made without permission of senior officers, the log book of the Government vehicle was falsely prepared to show that the vehicle went to Digri and Umerkot on 16-3-2000 and 20-3-2000. By this way you had misused Government vehicle on false pretext causing damage to the Government exchequer and made forgery.
(iii) That you left Mirpurkhas on 9-4-2000 at 0900 hours on 6 days casual leave. However, at Karachi, you were statedly put on some official job from 10-4-2000 to 21-4-2000 (by the Sindh Province HQ LB. Karachi). You had not returned back to Mirpurkhas on 22-4-2000, instead you left Karachi for Islamabad statedly on official work on 23-4-2000 at 1900 hours by train. However, on your T.A./D.A. you have claimed that you had reached Mirpurkhas on 22-4-2000 at 1030 hours which is wrong. Similarly in the T.A./D.A. bill you had claimed that you had left Mirpurkhas on 23-4-2000 at 1500 hours wrong particulars in the T.A./D.A. bill have caused damage to the Government exchequer.
(c) That you are enjoying a persistent reputation of being morally and financially corrupt. Many of your subordinates at Mirpurkhas have confirmed that you have been indulging in activities like womanizing, drinking and loose-talk at Mirpurkhas.
(d) That your above act and omission have earned bad name for the organization.
(2) WHEREAS by reason of above, you appear to be guilty of misconduct and corruption in violation of law and relevant rules within the meanings of sections 2(b), 3(1)(b) and 3(1)(c) of the Removal from Service (Special Powers) Ordinance, 2000 for these acts of omission and commission on your part -you are liable to disciplinary action which may involve imposition of one or more of the penalties under the provisions of section 3 of the aforesaid Ordinance.
(3) AND WHEREAS the undersigned in exercise of powers conferred under section 5 of the said Ordinance, has decided to constitute Inquiry Committee comprising Mr. Pervez Iqbal, Director to conduct formal inquiry into the above charges.
(4) NOW THEREFORE you, Mr. Nasim Ali Khan, Deputy Director, Div. HQ I.B. Mirpurkhas, are hereby advised to submit your reply to the Inquiry Committee, within fifteen (15) days of the receipt of this charge-sheet and to appear before it for the inquiry on the date, time and place fixed by it, as to why disciplinary action, as aforesaid may not be taken against you.
(5) Please take notice that if you failed to submit your written defence within the aforesaid period, it shall be presumed that you have no defence to offer or you have declined to offer the same and accept the charges, whereby ex parte decision in the matter shall be taken against you.
(Maj. General Rafi Ullah Khan) Director-General Competent Authority
Mr. Nasim Ali Khan, Deputy Director, SPHQ IB Karachi.
Copy forwarded for information and necessary action to:
(a) Mr. Pervez Iqbal, Director/Chairman of the Inquiry Committee.
(b) JDG, SPHQ, Karachi.
(Maj. General Rafi Ullah Khan) Director-General Competent Authority"
Subsequently, following additional charge-sheet was also issued to the appellant:---
Confidential Intelligence Bureau Government of Pakistan Islamabad.
No.4/113/A-1 Dated: September 20, 2000
Additional charge-sheet Continuation Charge-sheet No.4/113/A-1, dated 7-9-2000.
WHEREAS, I Maj. Gen. Rafi Ullah Khan/competent authority in your case, am of the considered opinion that you have committed following acts of omission and commission in addition:
That you received illegal gratification of Rs.20,000 from Mr. Muhammad Iqbal son of Ch. Abdul Majeed Arain, owner of the I.B. Office and Mr. Mehmood Iqbal son of Ghulam Muhammad, one of your friends, on January 15, 1998 for vacating the said building.
(2) WHEREAS by reason of above, you appear .to be guilty of misconduct and corruption in violation of law and relevant rules within the meanings of sections 2(b), 3(1)(b) and 3(1)(c) of the Removal from Service (Special Powers) Ordinance, 2000 for these acts of omission and commission on your part you are liable to disciplinary action which may involve imposition of one or more of the penalties under the provisions of section 3 of the aforesaid Ordinance.
(3) AND WHEREAS the undersigned in exercise of powers conferred under section 5 of the said Ordinance, has already constituted an Inquiry Committee comprising Mr. Pervez Iqbal, Director, to conduct formal inquiry into the charges against you vide order No.4/113/A-I, dated 7-9-2000
(4) NOW THEREFORE you, Mr. Nasim Ali Khan, Deputy Director, Div. HQ I.B. Mirpurkhas, are hereby advised to submit your reply to the Inquiry Committee, within fifteen (15) days of the receipt of this charge-sheet and to appear before it for the inquiry on the date, time and place fixed by it, as to why disciplinary action, as aforesaid may not be taken against you.
(5) Please take notice that if you failed to submit your written defence within. the aforesaid period, it shall be presumed that you have no defence to offer or you have declined to offer the same and accept the charges, whereby ex parte decision in the matter shall be taken against you.
(Maj. General Rafi Ullah Khan) Director-General Competent Authority
Mr. Nasim Ali Khan, Deputy Director, SPHQ IB Karachi.
Copy forwarded for information and necessary action to:--
(a) Mr. Pervez Iqbal, Director/Chairman of the Inquiry Committee.
(b) JDG, SPHQ, Karachi.
(Maj. General Rafi Ullah Khan) Director-General Competent Authority"
The appellant received the above charge-sheets on 12-9-2000 and 28-9-2000 respectively while he was admitted in a hospital where he had undergone surgical operation of his spine and had been under treatment and his application for invalidation retirement was pending as he was declared on 25-10-2000 as permanently unfit for any future service. He stated in the memo. of appeal that he obtained a plot of land for the department from its owner Seth Dhanraj Mal but Rana Abdul Baqi, who was Director of IB, DHQ, Mirpurkhas, motivated him to get the market value of the said plot, but on his refusal to do so, the said Director became inimical and hatched a regular programme to remove him from the department at any cost by concocting false stories appearing in the charge-sheets. He submitted separate replies of the two charge-sheets on 23-11-2000 wherein he denied the allegation against him. It appears that his replies did not find favour with the concerned authorities; hence, inquiry into the charges was held against him by Inquiry Officer Sh. Pervez Iqbal. As per the inquiry report only following charges were proved against the appellant:--
(5.5) Regarding charge 1(b), (ii) of the charge-sheet, it has been established that the officer has used the Government vehicle for visiting his residence at Karachi during Eid holidays and have signed the Movement Register showing official visit to Digri and Umerkot on 16-3-2000 and 20-3-2000. Therefore, officer is liable to redress the damage caused to the Government exchequer by the use of staff car in contravention of Rule No.6 of "The Rule for the use of Staff Cars", 1980. He is, therefore, required to remit an amount as per existing rates for the distance from Mirpurkhas to Karachi and back for a distance of six hundred kilometers (600) only.
(5.7) Regarding charge 1(c) of the charge-sheet the officer on oath before the Inquiry Committee has admitted having parties at his residence in Mirpurkhas where some of his sources and friends used to bring liquor for their own entertainment. He categorically denied that in none of such gathering any woman ever attended. Further stated that his medical record shows that he cannot indulge in drinking and womanizing activities. He has been declared medically unfit/invalid to continue his service. Whereas the statements of the witnesses namely Sweeper Muhammad Yaqoob, Staff Car Driver Abbas Ali have some contradictions. Therefore, the charge has been partially proved.
(5.8) Regarding charge 1(d) of the charge-sheet the Inquiry Committee is of the view that the reputation of DHQ, IB Mirpurkhas along with its District Offices since 1995 specially during the charge of Director Ayaz Ahmed, Deputy Director, Nasim Ali Khan, Assistant Director Zamir Hussain Abbasi, Assistant Director Khalid Ali Khan, remained questionable. The DHQ was subject of many scandals, financial corruption and irregularities. The reputation of organization has remained persistently jeopardized. The charge against the officer has been proved.
(5.9) Regarding charge (1) of the additional charge-sheet the Inquiry Committee is of the view that the charge of illegal gratification against Nasim Ali Khan Niazi has been framed on the basis of the statement of S.-I. Javed Khan Niazi. His previous record/ conduct on account of inquiry of corruption proved against him, reflects his testimony against Mr. Nasim Ali Khan Niazi is not worthy of evidence. It is evident from the statement of Muhammad Iqbal that S.-I. Javed Ali Khan initiated, negotiated and completed the deal involving illegal gratification of Rs.20,000. He is also equally involved with Nasim Ali Khan in the deal and cannot be taken as a witness without confessing whole truth about his own involvement, whereas the additional charge-sheet does not cover the charge against the co-accused S.-I. Javed Ali Khan having persistent reputation of corruption, therefore, liable of misconduct under rule 3(c)(iii). Although the charge against Mr. Nasim Ali Khan has been proved to some extent but cannot be sustained in any further legal process due to omission of the vital evidence by the witnesses."
It has been stated in the inquiry report that although the charge against Mr. Nasim Ali Khan has been proved to some extent, "but it could not be sustained in any further legal process due to omission of the vital evidence by the witnesses."
3. The recommendations of the Inquiry Committee/Officer were as under:
"(6) Recommendations
(1) For the charges 1(b)(i) and (b)(ii) of the charge-sheet the Inquiry Committee has proved the misuse of Government vehicle for 567 and 600 kilometers. The officer is liable for the recovery of pecuniary loss caused to Government in view of charges levelled against the officer as per existing rates.
(2) The officer may also be awarded a penalty of stoppage of increment for one year on the above charge.
(3) For the charges 1(c) and 1(d) of the charge-sheet the officer has been found guilty of misconduct under section 2(b) for conduct prejudicial to good order and service discipline. It is recommended that the officer may be awarded penalty of compulsory retirement.
(4) For the charge levelled against the officer under additional charge-sheet, it has been established that S.-I. Javed Ali Khan having a persistent reputation of corruption was made prime witness against the officer for illegal gratification of Rs.20,000. He was found to be a party in initiating, negotiating and execution of the corruption deal. In view of the criminal implication of the charge,- it is recommended that afresh charge-sheet may please be issued to prove the charge of illegal gratification against both the partners.
(5) The issue of the premises of IB Office, Umerkot occupied without paying any rent since 1-3-1996 should be regularized by paying to the owner, arrears of rent as per agreement."
4. Written comments were filed on behalf of the respondents wherein initial legal objection was taken about the maintainability of the appeal on the grounds of non-joinder and cause of action and for appellant's having failed to comply with Rule 5(3) of the Appeal Rules 1977 (i.e. not submitting the departmental appeal through proper channel). It was stated that the plot of land in question was a gift made to the Department by the efforts of Inspector Javed Ali Khan and not the appellant. Allegations against Director Rana Abdul Baqi were also denied stating the said Director had taken over the charge on 3-4-2000 only a couple of months prior to initiation of disciplinary proceedings against the appellant. It was stated that the charges against the appellant were proved by means of a regular departmental inquiry in which full chance was given to the appellant to cross-examine the witnesses and to defend himself. It was further stated that show-cause notice for imposing major penalty was given to the appellant and major penalty of compulsory retirement was imposed upon him after he was heard in person by the competent authority. It was denied if any departmental appeal of the appellant as alleged by him was received by the appellate authority. It was urged that for the aforesaid reason the appeal was liable to be dismissed.
5. We have heard the learned counsel for the parties and perused the record of the appeal and the authorities cited at the bar.
6. The learned counsel for the appellant raised serious legal objections in his arguments about maintainability of the disciplinary proceedings against the appellant. He argued that the two charge-sheets dated 7-9-2000 and 20-9-2000 respectively and the show-cause notice dated 30-2-2001 as also the order of compulsory retirement of the appellant dated 23-5-2001 with retrospective effect from 19-5-2001 was issued by the Director-General, Intelligence Bureau (respondent No.1) as Authorized Officer and authority at the same time although he was not competent authority as per definition of "competent authority" mentioned in sections 2(a) and (aa) of the Removal from Service (Special Powers) Ordinance, 2000. According to him, Secretary Establishment Division was the competent authority under section 6(2) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and under the Removal from Service (Special Powers) Ordinance, 2000, no person inferior to the Appointing Authority could act as competent authority that Director-General, Intelligence Bureau Major-General Rafi Ullah Khan (respondent No.1), being inferior in rank to the Secretary Establishment Division, was not competent to initiate disciplinary proceedings against the appellant under Removal from Service (Special Powers) Ordinance, 2000 and pass order of compulsory retirement of the appellant with retrospective effect; hence, the entire disciplinary proceedings against the appellant were ab initio void, nullity in the eyes of law, without lawful authority and liable to set aide. In support of his arguments, the learned counsel for the appellant relied upon 2004 PLC (C.S.) 41; 1982 PLC (C.S:) 795 and 1994 PLC (C.S.) 477.
7. On merits, the gist of the arguments of the learned counsel for the appellant was that Director-General, Intelligence Bureau had given the appellant adverse remarks in the ACR for the period from 1-1-1997 to 19-5-1997 as countersigning officer in spite of good remarks given to him by the reporting officer to the extent that the department would be more better without him (appellant) and in order to prove the truth of the adverse remarks, he, firstly got conducted a one sided preliminary inquiry through Director, Rana Abdul Baqi and on the basis of such inquiry he ordered a regular departmental inquiry by Sh. Pervez Iqbal, Inquiry Officer; that the Inquiry Officer did not supply to the appellant the copies of the witnesses examined by Director Rana Abdul Baqi in the preliminary inquiry; that the Inquiry Officer recorded the statement of witnesses in the absence of the appellant at Hyderabad and got some of the witnesses cross-examined by him at the house of the appellant when the appellant was bed-ridden; that no independent witness had been examined and few charges said to have been proved against him were based mainly on the evidence of interested witnesses, subordinate to an .under the pressure of the Director, witnesses namely P.W. Sweeper M. Yaqoob and Driver Abbas and to some extent Driver Azam Ali; that no independent witness was examined by the Inquiry Officer and there was no cogent and convincing evidence against the appellant, but pre-determined penalty of compulsory retirement was imposed upon the appellant at a time when the appellant had himself sought retirement on medical grounds due to his surgical operation of his back and he was declared physically unfit for performing his duty any longer; that adverse remarks given by the respondent No.1, Major-General Rafi Ullah Khan were expunged by this Tribunal vide judgment, dated 8-4-2003; that the appellant had become victim of the wrath of the said Director-General, who did not consider the good points of appellant's long service of 26 years, and without any complaint from any side, initiated disciplinary proceedings against the appellant and kicked out the appellant while he was in a state of physical unfitness. The learned counsel for the appellant beseeched the Tribunal that justice be done to the appellant. In support of his arguments, the learned counsel relied on 1987 PLC (C.S.) 932; 2002 SCMR 433; 1987 PLC (C.S.) 658; 2000 PLC (C.S.) 1252; 1998 PLC (C.S.) 965; AIR 2000 SC 277; 2002 CLC 1584 (Kar.) DB; 1995 SCMR 1249; PLJ 1990 Tr-C. (Services) 19; 1984 PLC (C.S.) 1614; 1991 SCMR 543; PLJ 2000 Tr-C. (Services) 241; PLJ 1973 Lah. 714(K); PLJ 1998 Kar. 180; 1992 MLD 318 and 2004 PLC (C.S.) 495.
8. The learned…
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