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Petitioner: MUMTAZ ALI CHANGEZI VS Respondent: PRESIDENT OF THE ISLAMIC REPUBLIC OF
2000 P L C (C
2000 P L C (C.S.) 484
[Federal Service Tribunal]
Before Gulbaz Khan, Chairman and Muhammad Ayub Khan, Member
MUMTAZ ALI CHANGEZI and another
Versus
PRESIDENT OF THE ISLAMIC REPUBLIC OF PAKISTAN through Establishment Secretary and others
Appeals Nos. 653(R) and 673(R) of 1997, decided on 10th March, 1999.
(a) Civil service‑
‑‑‑‑ Enquiry into ‑ conduct of civil servant‑‑‑Procedure‑‑‑Nature of such enquiry‑‑‑ "Criminal trial" and "Departmental enquiry "‑‑‑Distinction‑‑ Enquiry into conduct of a civil servant was neither a criminal indictment nor even a quasi‑criminal proceedings, but was mainly an administrative proceedings conducted by a domestic forum to examine fitness of a civil servant for service‑‑‑Subject‑matter of such proceedings was not civil rights and 'duties for criminal liabilities, but was simply the conduct of a civil servant which was to be properly reviewed in the interest of purity and honour of civil servant‑‑‑Criminal trial and Departmental enquiry proceedings were independent of each other and different standard of evidence was required in both such proceedings‑‑‑Result of one could not influence the other‑‑‑Holding of Departmental enquiry did not have the effect of prejudicing the criminal trial‑‑‑Acquittal from criminal case could be on technical ground or on the ground that all ingredients of the offence were not proved by evidence produced in the Court, but in Departmental proceedings even one of the ingredients, if proved, could be sufficient to record a conclusion that accused civil servant had mis-conducted himself or acted in grossly negligent way or had shown inefficiency in the discharge of his official duty.‑‑Departmental proceedings on same facts could be started even if person concerned had been acquitted in criminal proceedings‑‑‑Civil servant, in some cases, could not be criminally prosecuted on technical grounds, but that would not bar the Government from enquiring into the truth of the charge against him by means of a Departmental enquiry‑‑‑No bar existed to proceed against a civil servant departmentally when he could not be criminally proceeded in a Court ‑of law for one reason or the other.
PLD 1980 SC (AJ&K) l; 1984 PLC (C.S.) 176; 1984 PLC (C.S.) 465; 1981 SCMR 1160; 1994 SCMR 962; 1995 SCMR 1025; 1997 SCMR 1073; 1984 PLC (C.S.) 1401; AIR 1961 SC 1623; 1980 PLC (C.S.) 401; 1984 PLC (C.S.) 455; PLD 1973 Note 36 at p. 46; 1980 SCMR 850 and AIR 1958 Cal. 49 ref.
(b) Civil service‑‑‑
Initial or preliminary inquiry‑‑‑When Department, before any departmental action was taken, collected some evidence to come to the conclusion whether or not regular enquiry was required, said proceedings could be termed as initial/preliminary inquiry or fact finding enquiry‑‑‑Civil servant was not to be associated/joined in such an enquiry‑‑‑After evidence was collected during said initial enquiry or fact finding enquiry, same was to be placed before Authorised Officer who, on examining material, would take up decision under R.5 of Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑Authorised Officer could drop enquiry if sufficient evidence was not collected.
(c) Criminal trial----
‑‑‑‑ Charge, framing of‑‑‑Charge was framed for the purpose of informing the accused as to what were the allegations against him, which he was required to meet‑‑‑Every minor detail was not to be given in the charge, but it would be enough to mention the main allegation.
Abdul Ghafoor Mangi for Appellant (in Appeal No.653‑R of 1997).
Syed Ijaz Hussain Shah for Appellant (in A.673‑R of 1997).
M. Javed Aziz Sandhu for Respondents alongwith Zulfiqar Ahmed, Second Secretary, CBR, Faiz Ahmed, Assistant Collector of Customs, Quetta and Syed Zafar Ali, Deputy Superintendent.
Date of hearing: 31st August, 1998.
JUDGMENT
GULBAZ KHAN (CHAIRMAN.)‑‑‑This judgment would dispose of two Appeals bearings Nos.653(R) of 1997 and 673(R) of 1997, filed by Mumtaz Ali Changezi and Ali Ahmad Baluch, respectively.
2. Mumtaz Ali Changezi appellant (Ex‑Assistant Collector of Customs) was dismissed from service vide order, dated 11‑4‑1997. He submitted departmental appeal, on 8‑5‑1997, which was not responded to for 90 days. Mumtaz Ali Changezi preferred appeal before this Tribunal, on 4‑9‑1997, which is within the period of limitation.
3. Ali Ahmad Baluch appellant, (Ex‑Deputy Superintendent, Customs and Central Excise), was dismissed from service vide order, dated 26‑4‑1997. He filed departmental appeal on 24‑5‑1997. Having not received any reply to his departmental appeal, he filed the present, appeal before the Tribunal, on 10‑9‑1997,' which is also within time.
4. Messrs Concord Export House, Karachi, and Messrs Charly Enterprises, Karachi, (both based in Karachi) exported Polyester Fabrics (Jacquard) valued US $ 2,91,36,500 (Over Rupees Seventy Crores), from Customs House, Gwadar to Dubai. They claimed rebate and Import Licence Fee over Rupees Sixteen Crores. They received Rs.11,77,92,323 as rebate and Rs.1,28,66,662 as Import Licence Fee (80% of the total amount) and filed two Constitutional Petitions Nos.27 and 28 in Balochistan High Court, Quetta, through their Chief Executive Imptiaz, Ali Taj, for the payment of balance (20 % ). Messrs Concord Export House, Karachi and Messrs Charly Enterprises, Karachi had entered into an agreement with Messrs Sangeeta Traders for the supply of 1,53,35,000 meters of Polyester Fabrics (Jacquard) to Dubai. Instead of supplying the said Polyester Fabrics from Karachi, which was the base of the said two firms, they exported 733 bales and 12 wooden cases, on 15‑6‑1991; 799 bales and 12 wooden cases on 11‑7‑1991, through Country Craft Al‑Ameeni, and 1533 bales and 16 wooden cases on 28‑7‑1991, through Country Craft Al‑Anwari.
5. An information was received in the Directorate‑General of Inspection and Training (Inspection Wing), South Zone, Karachi, that a fraud had been committed at Customs House, Gwadar; that not even a single meter of Polyester Fabric had been exported by the said two firms by means of the two Country Crafts, mentioned above, on the dates indicated hereinbefore, to Messrs Sangeeta Traders, Dubai; that fictitious documents had been prepared and the exporters had claimed rebate illegally and received the same in connivance with the Customs Staff and others‑ In February, 1992, Muhammad Saleem, Principal Appraiser of the Directorate of Customs Inspection, got five cases registered against Messrs Charly Enterprises and Messrs Concord Export House, the Clearing Agents and Customs Staff and others under provisions of Customs Act, 1969. After completion of the investigation, challans had been submitted in those cases against the appellants and others, which are still pending.
6. Muhammad Nawaz, Collector of Customs, Quetta, who had sanctioned rebate amounting to Rs.11,70,41,396 to the two Exporters, was dismissed from service. Khalid Aziz, Inspector, who also played major role in preparing false documents was also dismissed from service. Both of them did not challenge the orders of dismissal. This fact has not been disputed and it had been admitted before us by the learned counsel for the appellants during the hearing of appeals.
7. The execution of 48 shipping bills brought on record of this case is not denied. These shipping bills bear the signatures of Mumtaz Ali Changezi, Assistant Collector appellant, Ali Ahmed Baluch, appellant Deputy Superintendent, Superintendent and Khalid Aziz, Inspector, all from Customs House, Gwadar. The signatures on these shipping bills are admitted by the two appellants. Through these shipping bills, the Polyester Fabrics (Jacquard) were shown to have been exported through Gwadar by the two Country Crafts Al‑Ameeni and Al‑Anwari, on the dates referred to above. The Polyester Fabrics were sent by means of bales.
8. Mr. S.T.R. Zaidi, Director‑General, Inspection and Training (Customs, Excise and Sales Tax) Customs House, Karachi, conducted preliminary inquiry and submitted a detailed report comprising of 48 pages (pages 142 to 190 of Appeal No.653(R) of 1997). He concluded the inquiry by stating that Customs officials of various grades were fund involved in the fraud who were inter‑linked and had colluded and. connived to perpetrate the fraud. He recommended to the competent Authority that inquiry should be held against the Customs officials under the Government Servants (Efficiency and Discipline) Rules, 1973. Various Annexures had also been appended with the file starting from pages 292 to 488.
9. Mumtaz Ali Changezi, appellant, was charge‑sheeted on 0‑10‑1993. The charge‑sheet reads as under:‑‑‑
"Whereas it has been reported that you Mr. Mumtaz Ali Changezi, Assistant Director (under suspension), Directorate‑General of Inspection and Training (Customs and Excise), Karachi while posted as Assistant Collector of Customs at Gwadar Port in the jurisdiction of the Collectorate of Customs and Central Excise, Quetta had failed to discharge your official duties in protecting Government revenues by processing export documentation in respect of fake and fraudulent exports of polyester fabrics (Jacquard) by M/s. Concord Export House, Karachi and M/s. Charly Enterprises, Karachi as a `, consequence of which you enabled the aforesaid firms to obtain illegal/inadmissible and fraudulent draw‑back of Customs Duties and Sales Tax and refund of import Licence fee, as per the Statement of allegations enclosed. Your role in the processing of the documents under reference point to your having connived, abetted and collaborated with the above said exporters in these fraudulent transactions.
(2) And whereas the said irregularities amount to gross misconduct and inefficiency on your part and render you liable to disciplinary action under the Government Servants (Efficiency and Discipline) Rules, 1973.
(3) And whereas it has been decided to hold inquiry into the said charges and allegations against you under the Government Servants (Efficiency and Discipline) Rules, 1973
(4) And whereas I am of the opinion that the aforesaid charges if established, would call for major penalty of dismissal from Government service as specified in Rules 4 (1)(y)(iv) of the Rules (ibid).
(5) And whereas Mr, S.N.H. Zaidi, Director‑General (Inquiries), CBR, Islamabad, has been appointed as Inquiry Officer, under Rule 5 read with Rule 6 of the Rules (ibid), to conduct inquiry into the aforesaid charges.
(6) Now, therefore, you Mr. Mumtaz Ali Changezi, Assistant Director, Directorate‑General of Inspection and Training (Customs and Excise), Karachi are required under sub‑rule (2) of Rule 6 of, the aforesaid Rules to put in your written defence to Inquiry Officer viz. Mr. S.N.H. Zaidi within 14 days of the date of communication of the charge‑sheet. In case you fail to put in your written defence within the stipulated period, it shall be deemed that you have nothing to say in your defence and the action against you shall be taken ex parte. "
Alongwith the charge‑sheet, the statement of allegations was supplied to the appellant. The statement of allegations is reproduced herein below:
"It has been reported that you Mr. Mumtaz Ali Changezi, Assistant Director (under suspension) while serving as Assistant Collector of Customs, Gwadar in the Collectorate of Customs and Central Excise, Quetta happened to cause injury to the Government revenues through collusion, abetment and, connivance in the fake export of Polyester Fabrics (Jacquard) from Gwadar to Dubai by Karachi based exporters and their Chief Executive, namely:‑‑‑
(i) Haroon Rashid, Proprietor of M/s. Charly Enterprises, Karachi.
(ii) Qurban Khan, Proprietor of M/s., Concord Export House, Karachi.
(iii) Imtiaz Ali Taj, Chief Executive of both the exporting firms which enabled the aforesaid firms to obtain illegal drawback of Customs duty and Sales Tax (Rs.11,77,92,323 and refund of Import Licence Fee (Rs.1,28,66,662).
(2) A thorough investigation conducted into the fraudulent export by the aforementioned firms has revealed that 48 Shipping Bills pertaining to shipment of 1,53,45,000 meters of Polyester Fabrics (Jacquard) from Gwadar to Dubai were filed at Gwadar from 1‑6‑1991 to 31‑7‑1991 on behalf of the aforesaid firms by M/s. Abdul Majeed Askani and Abdul Ghani Askani, Customs and Excise Clearing and Forwarding Agents, Gwadar. The exported Polyester Fabrics (Jacquard) cloth being a high rebateable item warranted its examination under your personal supervision in your capacity as Assistant Collector, Gwadar which you failed to do; rather you alongwith Shahid Hussain, Superintendent of Customs, Gwadar, Ali Ahmed Baluch, Deputy Superintendent of Customs, Gwadar, Khalid Aziz, Inspector of Custorns, Gwadar and M/s. Abdul Majeed and Abdul Ghani Askani, Customs and Excise Clearing and Forwarding Agents, Gwadar, in collusion and connivance with each other completed/certified false Customs documents relating to the alleged export whereas in fact no Polyester Fabrics (Jacquard) was exported against these documents.
(3) That the documentary evidence regarding your involvement, besides other officers posted at the relevant time at Gwadar .in the completion and certification of false shipping documents is available in the form of examination report of alleged export consignments recorded on the Shipping
Bills by Khalid Aziz, Inspector, Gwadar of who also endorsed loading of goods in the launches (Al-Ameeni & Al‑Anwari) and the date of their sailing for Dubai U.A.E and you certified the correctness of these reports. Moreover, Export General Manifest (E.G.M.) Nos.19 of 1991, dated 15-6‑1991, 22 of 1991, dated 11‑7‑1991 and 23 of 1991, dated 28‑7‑1991 carry certification of Khalid Aziz, Inspector of Customs Gwadar 'Loaded in full; and signature of Ali Ahmad Baluch, Deputy Superintendent of Customs, Gwadar and Shahid Hussain, Superintendent of Customs, Gwadar and the same were certified to be true by yourself in your capacity as Assistant Collector of Customs, Gwadar.
(4) Detailed probe into the case and documentary and circumstantial evidence obtained have conclusively established that:
(i) No Polyester Fabrics (Jacquard) was procured by the exporting firms;
(ii) No Polyester Fabrics (Jacquard) was transported to Gwadar;
(iii) No Polyester Fabrics was exported from Gwadar to Dubai;
(iv) Your unauthorised visit to Dubai in 1991 was part of the planning of the fraudulent scheme of fictitious export by the' Proprietors of M/s. Charly Enterprises, Karachi and M/s. Concord Export House, Karachi, respectively (the exporters).
(v) Your close acquaintance with Haroon Rashid and Qurban Khan paved and accelerated the pace of fraudulent export exercise;
(5) From the foregoing facts it is prima facie established that ‑you, by misusing your official position, facilitated the commission of the fraud of fictitious export of Polyester Fabrics (Jacquard) from Gwadar to Dubai, resulting in fraudulent drawal of drawback of Customs Duty and Sales Tax and refund of Import Licence Fee which resulted in heavy loss to the Government exchequer. This criminal and irresponsible action on your part constitute misconduct under the Government Servants (Efficiency and Discipline) Rules, 1973."
10. Mr. S.N.H. Ziaid, Inquiry Officer, conducted inquiry and submitted report, dated 17‑5‑1994. Secretary, Revenue Division/Chairman, Central Board of Revenue, in his capacity as Authorised Officer, gave personal hearing to Mumtz Ali Changezi. After receipt of inquiry report, submitted by Mr. S.N.H. Zaidi, the Authorised Officer decided to conduct a de novo inquiry. He constituted an Inquiry Committee comprising of M/s. Riaz Ahmed Malik and Muhammad Suleman. The inquiry was conducted by the Inquiry Committee which submitted its report, dated 29‑12‑1994, to the Authorised Officer. The Inquiry Committee came to the' conclusion that no Polyester Fabric (Jacquard) was procured by the exporting firm; that no Polyester Fabrics (Jacquard) was transported to Gwadar and that no Polyester Fabrics (Jacquard) was exported from Gwadar to Dubai. It was observed by the Inquiry Committee that there was no conclusive proof that Mumtaz Ali Changezi had visited Dubai in 1991, for planning the fraudulent and fictitious export of Polyester Fabrics (Jacquard) by Proprietors of Messrs Charly Enterprises and Messrs Concord Export House, Karachi. It further observed that there was no proof of friendship between Mumtaz Ali Changezi, appellant, and the proprietors of two exporter‑firms. On receiving the report, submitted by the Inquiry Committee, the Authorised Officer issued show‑cause Notice, dated 26‑2‑1995, to Mumtz Ali Changezi, appellant, with reference to charge‑sheet, dated 20‑10‑1993. It was disclosed in the show‑cause notice that the Inquiry Committee had given the finding that the charges levelled against the appellant stood proved. The appellant, Mumtaz Ali Changezi, was called upon to show‑cause in writing within fourteen days of the receipt of the notice as to why major penalty of dismissal from service should not be imposed upon him. He was also asked if he desired to be heard in person by the Apthorised Officer. Alongwith the show‑cause notice, copy of the inquiry report and annexures were attached.
11. After the finalization of disciplinary proceedings by the Authorised Officer against Mumtaz Ali Changezi, appellant, the Authority Was pleased to impose major penalty of dismissal from service under Rule 4(1)(b)(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973 vide order, dated 11‑4‑1997.
APPEAL No.673(R).OF 1997 FILED BY ALI AHMED BALOCH.
12. Ali Ahmad Baloch was posted as Deputy Superintendent, Custom and Central Excise at Camp. Office, Customs House, Gwadar, in the month; of June‑July, 1991. It came to light that Messrs Concord Export House, Karachi, and Messrs Charly Enterprises, Karachi, had fraudulently shown to have exported Polyester Fabrics (Jacquard) from Gwadar to Dubai, measuring over 1,53,00,000 meters, valued at over Rs.70,00,00,000 by means of Country Crafts, Al‑Ameeni and Al‑Anwari, whereas in fact not even a single meter of Polyester Fabric (Jacquard) was exported to Dubai from Gwadar. The exporters claimed rebate of Rs.11,77,92,323 and refund of Import Licence Fee amounting to Rs.1,23,66,662 and succeeded in getting 80% of the said amount. On detection of this fraud, Sahibzada Tahir Zaman, Authorised Officer, served charge sheet on Ali Ahmed Baluch, appellant, on 7‑3‑1996. The charge‑sheet reads as under:‑‑‑
"Whereas, it has been reported that you Mr. Ali Ahmed Baloch, Deputy Superintendent of Customs (under suspension), while posted at Gwadar Port in the jurisdiction of the Collectorate of Customs and Central Excise, Quetta had failed to discharge your official duties in protecting Government Revenues by processing export documents (shipping bills and connected documents) without proper and scrutiny, verification of facts and application of mind in respect of fake and fraudulent exports of Polyester Fabrics (Jacquard) by M/s. Concord Export House, Karachi and M/s. Charly Enterprises, Karachi as a consequence of which you enabled the aforesaid firms to obtain illegal, inadmissible and fraudulent draw back of Customs duties and Sales Tax and refund of import licence fee, as per the statement of allegations enclosed. Your role in the processing of the documents under reference point to your negligence, indifference and failing and also indicate your having connived, abetted and collaborated with the above said exporters in these fraudulent transactions, by writing false examination reports on the aforesaid documents.
(2) And whereas, the said irregularities amount to gross misconduct and inefficiency on your part and render you liable to disciplinary action under the Government Servants (Efficiency and Discipline) Rules, 1973.
(3) And whereas, it has been decided to hold inquiry into the said charges and allegations against you under the Government Servants (Efficiency and Discipline) Rules, 1973.
(4) find whereas, I am of the opinion that the aforesaid charges if established, would call for major penalty of dismissal from service as specified in Rule 4(1)(b)(iv) of the Rules (ibid).
(5) And whereas, Mr. Syed Aqeel Zafar‑ul‑Hassan, Director Enquiry Wing, Islamabad, has been appointed as Enquiry Officer, under Rule 5 read with Rule 6 of the Rules ibid, to conduct inquiry into the aforesaid charges.
Now, therefore, you, Mr. Ali Ahmed Baloch, Deputy Superintendent (Under Suspension) are required under sub‑rule (2) of Rule 6 of the aforesaid Rules to put in your written defence to Inquiry Officer viz. Mr. Syed Aqeel Zafar‑ul‑Hassan, Director Enquiry Wing, Islamabad, within 14 days .of the date of communication of the, charge‑sheet. In case you fail to put in your written defence within the stipulated period, it shall be deemed that you have nothing to say in your defence and the action against you shall be taken ex parte. "
alongwith the charge‑sheet, Statement of allegations was also supplied to the nt. It would be advantage to reproduce the Statement of allegations:
"It has been reported that you Mr, Ali Ahmed Baloch, Deputy Superintendent of Customs, Gwadar, between the period from 13‑6‑1991 to 27‑7‑1991 did not perform your duties as a Customs Officer by ensuring the compliance of prescribed procedures and the provisions of Customs Act, 1969, in respect of filing of Shipping Bills, presentation of export goods, examination of the goods and then actual loading on the ships well as the preparation of proper record correctly and truthfully and, thus, collaborated and connived with the exporters, M/s. Concord Export House, Karachi and M/s. Charly Enterprises, Karachi, owned by Haroon Rashid and Qurban Khan respectively, together with the Chief .Executive of both the firms, Mr. Imtiaz Ali Taj, wilfully and intentionally to being (sic) the party in the preparation/completion of Shipping Bills numbering 48 purportedly covering a total quantity of 1,53,00,000 meters of Polyester Fabrics (Jacquard) packed in 3067 bales, filed at Customs House, Gwadar for purported export of the said fabrics from Gwadar to Dubai.
The examination report on each of the Shipping Bills was written by Mr. Khalid Aziz, Inspector of Customs, Gwadar and was endorsed amongst other Customs Officials by Mr. Ali Ahmed Baloch, Deputy Superintendent of Customs, (Gwadar) to verify that the consignments of Polyester Fabrics (Jacquard) as declared on each Shipping Bill were actually and physically presented for examination whereas the fact has emerged after in‑depth investigation by the Directorate of Inspection (Customs Central Excise and Sales Tax), Karachi, that the consignment said to be containing Polyester Fabrics (Jacquard) as declared on the Shipping Bills were not presented for examination to Customs and‑the endorsement on the Shipping Bills by Mr. Ali Ahmed Baloch, Deputy Superintendent of Customs, Gwadar was patently false.
(3) Mr. Ali Ahmed Baloch, Deputy Superintendent of Customs, Gwadar falsely endorsed the Export General Manifests (EGM) Nos. 19 of 1991, dated 15‑6‑1991, 22 of 1991, dated 11‑7‑1991 and 23 of 1991, dated 26‑7‑1991 which carried the false certification of Mr. Khalid Aziz Inspector of Customs Gwadar in token of loading of Polyester Fabrics (Jacquard) in the Country Crafts 'Al- Ameeni/Al‑Anwari" for export from Gwadar to Dubai, U.A.E. whereas investigation carried out by the Directorate of Inspection (Customs, Central Excise and Sales Tax) Karachi conclusively established that no Polyester Fabrics (Jacquard) were loaded/exported in the relevant Country Crafts from Gwadar to Dubai.
(4) Mr. Shahid Hussain did not take into consideration the full facts while endorsing shipping bills and other documents.
(a) Each Bill of the shipped consignment was declared of so many Kgs./Weight. The question was how could bales of such weight be loaded on the small boats for carrying the same to the Country Craft which was anchoring in the high seas because Gwadar Port was not operational due to on‑going construction.
(b) How much time was required to carry such a large number of bales for loading of the same on the Country Crafts mentioned on the shipping bills and whether it was possible to be done at Gwadar Port in a short time as indicated in the record.
(c) Whether the huge quantity of fabrics covered by shipping bills under reference could be exported to Dubai by the Country Crafts in three voyages. How could such a big quantity be transported from Karachi to Gwadar and where could such huge consignment be stored in reasonably secured place in Gwadar in view of the lack of sheds, godowns, warehouses and other such buildings in Gwadar town.
(5) By being a party to the fraudulent exports, Mr. Ali Ahmed Baloch, Deputy Superintendent, Gwadar enabled the exporters M/s. Concord Export House, Karachi /Charly Enterprises, Karachi to obtain…
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