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Petitioner: AZIZULLAH SHAIKH VS Respondent: FEDERAL INVESTIGATION AGENCY through Director-General Headquarters, IslamabadHonorable Justice MUHAMMAD JAVED ASHRAF HUSSAINSanaullah Noor Ghouri,Asif Hussain Mangi
2008 P L C (C
2008 P L C (C.S.) 328
[Federal Service Tribunal]
Before Rashid Ali Mirza and Muhammad Javed Ashraf Hussain, Members
AZIZULLAH SHAIKH
Versus
FEDERAL INVESTIGATION AGENCY through Director-General Headquarters, Islamabad and another
Appeal No.211(K)C.S of 2005, decided on 13th September, 2007.
Removal from Service (Special Powers) Ordinance (XVII of 2000)---
----Ss. 3, 5 & 10---Service Tribunals Act (LXX of 1973), Ss.3-A(2)(b) & 4---Appeal to Service Tribunal---Withholding of promotion for 3 years---Enhancement of penalty---Appellant was proceeded against on allegations of misconduct, lack of supervision and for having failed to perform his duties efficiently---Inquiry Officer, finding appellant guilty of said allegations, recommended that minor penalty of withholding promotion for three years be imposed on appellant---Competent Authority having found the reply to show-cause notice issued to appellant unsatisfactory, enhanced punishment of appellant from minor penalty of withholding promotion to major penalty of compulsory retirement from service---One Member of the Bench of Service Tribunal on appeal, upheld findings of Competent Authority, holding that the Authority was justified in taking serious view of the matter and in enhancing the punishment beyond that recommended by the Inquiry Officer and dismissed appeal---Second Member of the Bench of the Tribunal, modified said major penalty of compulsory retirement awarded by First Member to minor penalty of withholding of promotion for three years---Case, in view of the division of the judgment of the Bench of the Tribunal, was referred to Chairman of the Federal Service Tribunal under S.3-A(2)(b) or Service Tribunals Act, 1973---No direct involvement of appellant was manifested from the record---Chairman of Federal Service Tribunal modified major penalty of compulsory retirement to that of minor penalty of withholding of promotion for 3 years as was imposed by Second Member of the Tribunal---Chairman had found that Inquiry Officer had correctly observed that appellant who was a Shift Incharge at the relevant time was guilty of only negligence, lack of supervision and effective control over his subordinates---No irregular exercise of authority was made by the Inquiry Officer, when he recommended minor penalty of withholding of promotion for 3 years---Punishment of minor penalty of withholding of promotion of appellant for 3 years as awarded by Second Member was found by the Chairman to be in accordance with preponderance of evidence on the record and just and proper in the circumstances of the case, which was also in accordance with the recommendation of the Inquiry Officer---Same was upheld.
Sanaullah Noor Ghouri for Appellant.
Asif Hussain Mangi, Standing Counsel for Respondents.
Date of hearing: 16th December, 2006.
JUDGMENT
MUHAMMAD JAVED ASHRAF HUSSAIN (MEMBER).---This is an appeal under section 4 of the Service Tribunals Act, 1973 against the impugned Order No.Z/4890/Admin.-I/2005/85-88, dated 26-4-2005 whereby the major penalty of compulsory retirement from service under Removal from Service (Special Powers) Ordinance, 2000 has been imposed upon the appellant. The appellant filed departmental appeal, dated 16-5-2005 which has remained unresponded and therefore, this appeal before the Tribunal, dated 6-8-2005.
2. The brief facts of the case are that on 8-9-2004 passengers namely Irfan Abbas holding Pakistan Passport No.KB-493078 and Masood Iqbal holding Pakistan Passport No.KD-744704 arrived at Islamabad by PIA Flight No.PK-770 and finally at Karachi by Flight No.PK-301 having been deported from Milan, Italy as Italian Immigration Authorities refused entry to the two passengers for holding stolen Schengen visas. On interrogation, the two deportees disclosed that the Schengen visas and air tickets were provided by an agent namely Hasnat Ahmed Khan alias Hasnat Kiyani of District Jhelum against payment of Rs.17,50,000. As per record of FIA, the two passengers left Pakistan on the night of 2/3-9-2004 from Quaid-a-Azam International Airport (QIAP) by PIA Flight No.747 when shift "A" was on duty at the Airport Immigration Counter. The two passengers were cleared by Stamping Officer A.S.-I. Nazia Saleem and re-checked by Group Incharge S.-I. Muhammad Suleman who were performing duty under the supervision of the appellant. The preliminary inquiry conducted by the PIA revealed that the appellant personally brought the two passengers at the counter of A.S.-I. Nazia Saleem. The preliminary inquiry further alleged that the appellant directed the Stamping Officer to clear the two passengers and accordingly they were cleared. Thereafter, on arrival at Milan Airport in Italy the two passengers on being checked were found in possession of stolen Schengan visas. They were, therefore, deported back to Pakistan by the Immigration Authority at Milan Airport.
3. The appellant was charge-sheeted by the FIA Crime Circle Karachi vide No.FIA/CCC/K/2004/4984-88, dated 26-10-2004 and the Deputy Director, FIA Corporate Civic Circle Karachi was appointed Inquiry Officer. The charges framed were as follows:--
"(i) On 8-9-2004 a pax namely Irfan Abbas holding Pak. Passport No.KB-493078 and pax namely Masood Iqbal son of Muhammaduddin holding Pak Passport No. KD-744704 arrived/deported from Milan/Italy by PIA-770 to Islamabad and finally to Karachi by Flight No.301 under the Deportation charge as "Italian Immigration Authorities refused entry since holding stolen Schengen Visa.
(ii) That on interrogation, both the deportees disclosed that the stolen Schengen Visa and Air Tickets were provided by an agent namely 'Hasnat Ahmed Khan alias Hasnat Kiyani of District Jhelum against payment of Rs.17,50,000.
(iii) The record shows that pax named above left Pakistan on the night of 2/3-9-2004 for QIAP by PIA Flight No.747 when shift "A" on duty. Both the paxes were cleared by Stamping Officer A.S.-I. Nazia Saleem, and re-checked by Group Incharge S.-I. Muhammad Suleman who were performing duties under your supervision.
(iv) The preliminary enquiry revealed that you personally brought both the paxes at the Counter of A.S.-I. Nazia Saleem. You directed the Stamping Officer to clear both the paxes. Under your specific instructions, the Stamping Officer A.S.-I. Nazia Saleem cleared both the paxes and affixed departure stamp No.5 allotted to her by using/hiding technique of stamp number with a piece of paper as well as deliberately concealed her computer I.D. and intentionally used secondary mode of data input in the PISCES system, rather than using the primary one. Yet, you (Insp. Azizullah Sheikh) did not take any action.
(v) That on interrogation, deportee Masood Iqbal disclosed that after obtaining Boarding Card, agent Hasnat Kiyani directed him on Mobile Phone to approach Immigration Counter No.5 for clearance, Immigration Counter No.5 was the same where A.S.-I. Nazia Saleem was sitting and both the paxes were taken to the same counter for clearance by you (Inspector Azizullah Sheikh).
(vi) That the above acts on your (Inspector Azizullah Sheikh) part amount -to misconduct."
4. The findings as in the inquiry report, dated 28-1-2005 were as follows:--
"(i) Inspector Azizullah Shaikh in his reply adduced that it is not possible to detain a pax if he is travelling on a genuine but stolen visa without prior intimation at Immigration Counter/PISCES system. Since there was no information regarding stolen visas the Stamping Officer or Group Incharge did not detain any paxes on this pretext.
(ii) The officer has pleaded in his defence that a Shift Incharge is not physically involved in clearance and re-checking of passenger's travel document.
(iii) He has stated that neither the Stamping Officer nor the Group Incharge raised any suspicion about the pax.
(iv) Inspector Azizulalh Shaikh referred the statement of deportee, which discloses the name of the agent but does not implicate him as a facilitator.
(v) A.S.-I. Nazia Saleem, S.-I. Muhammad Suleman and Inspector Azizullah Shaikh were produced before the deportees at FIA, Passport Cell, Karachi for proper identification. The deportees identified A.S.-I. Nazia Saleem as Stamping Officer and S.-I. Muhammad Suleman as re-checking officer. Whereas the deportees did not identify Inspector. Azizullah Shaikh in connection with their, Immigration Clearance or providing any help to them.
(vi) A.S.-I. Nazia Saleem/Stamping Officer appears to be aware about the clearance of both these paxes in illegal manner, since she concealed her stamp number and computer I.D.
(vii) Mr. Ajaz Mazhar, Station Manager PIA, Karachi stated that two passengers namely Irfan Abbas holding Pakistan Passport No.KB-493078 and Masood Iqbal, Pakistan Passport No.KD-0744704 travelled Karachi Milan on PK-747 on 3-9-2004 against genuine tickets issued by Messrs Aasi Travel, Deena Jhelum and the visa was endorsed on their passports. He also stated that the airline issues boarding cards to passengers against travel ticket, reservation status and valid passport/visa and as such these requirements in this case were complete. Regarding the stealing of visa stickers he stated that no such information was received by them.
(viii) Mr. Zubair Pachuho, the then Assistant Director, FIA, Immigration, Departure, and presenting posted at FIA, Sukkur, was also examined. He described the duties of Shift Incharge, Group Incharge, and Stamping Officer. He stated that no passenger at departure is cleared by the Shift Incharge at the counter or at the re-checking. He also stated that Group Incharges have to check each and every passport of each flight, and they are fully responsible for each clearance. He further stated that the Stamping Officer has to make sure the genuineness of the travel documents before its feeding and stamping the same if he/she finds some defects in the documents he/she has to refer the passenger to Group Incharge.
(ix) Mr. Muhammad Suleman, S.-I./Group Incharge disclosed in his statement that after completion of the Immigration formalities from the Immigration Counter, both the passengers appeared before him for re-checking. He re-checked the travel documents as well as the visas affixed on their passports, which were found to be genuine, and both the paxes were allowed to travel to Milan, Italy.
(x) Lady A.S.-I. Nazia Saleem stated that Inspector Azizullah Sheikh directed both the passengers at her counter for clearance because the Shift Incharge was performing the duty to lin-up the passengers. When both paxes reported at her counter, she cleared the paxes in routine. She stated that the charge of concealing Stamp No.5 is not correct. The impression of the Stamp No.5 is found thick on the other passenger's passport. But it could not be indicated/found on this pax passport due to shortage of ink.
(xi) When questioned during cross-examination, by Inspector Azizullah Shaikh that why did not she make any complaint before the High-ups or make entry in Roznamcha of HAP (Departure) Karachi regarding force clearance of aforesaid paxes by Inspector Azizullah Shaikh whereas there was sufficient time of 6/7 days between the departure and deportation of passengers, lady A.S.-I. Nazia Saleem gave evasive reply by saying "no comments".
(xii) During cross-examination, A.S.-I. Nazia Saleem also admitted that she did not refer the passengers to Group Incharge for guidance, and cleared them on genuine travel documents.
(xiii) At FIA Passport Circle, Karachi, a case was registered vide FIR. No.239 of 2004 under sections 17, 18 Emigration Ordinance, 1979 read with 411, 420, 468, 471, 109, P.P.C. against accused Irfan Abbas son of Muhammad Nawaz Khan and Masood Iqbal son of Muhammeduddin both deported from Milan (Italy). During the course of Interrogation, both the passengers Irfan Abbas and Masood Iqbal disclosed that the visa for Schengen were provided to them by an agent namely Hasnat Ahmed of Islamabad for Rs.6,00,000 each and they were also directed by him to report on Counter No.5 for their clearance. They further disclosed that they went to Counter No.5 where they were cleared by lady A.S.-I. Nazia Saleem and were subsequently re-checked by S.-I. Muhammad Suleman and were finally allowed to board on the flight. Both the deportees identified A.S.-I. Nazia Saleem as Clearing Officer whereas S.-I. Muhammad Suleman as Re-checking Officer.
(xiv) During the cross-examination of Inspector Anwarul Haq Qureshi, Investigating Officer of the case at Passport Circle, Karachi, by Inspector Azizullah Shaikh whether any of the deportees disclose his name, on which Inspector Anwarul Haq replied in negative.
(xv) Apart from these paxes, several other inadmissible passengers with faire travelling documents were cleared between 27-8-2004 to 4-9-2004, during the duty hours of Inspector Azizullah Shaikh.
(xvi) It is important to observe that Inspector Azizullah Sheikh was "under transfer" when all the inadmissible paxes were cleared.
(xvi) A.S.-I. Nazia Saleem cleared majority of such inadmissible paxes.
(xviii) During this time inadmissible paxes were cleared back to back without any inhibition and apparently immigration control ceased to exist. This is not merely a coincidence or an act done in good faith. This is intentional facilitation of human smuggling.
(xix) The whole fiasco appears to be teamwork of the intending pax, agent, and the immigration staff. It is too good to believe that a Shift Incharge is clueless about the misdoings of his officers. Even if his defence is considered it would make him guilty of gross negligence and lack of supervision.
(xx) Since there is no evidence that the said paxes were referred to Inspector Azizullah Shaikh for clearance, it is not possible to recommend major penalty against him.
(xix) However, the fact remains that during his duty hours as Shift Incharge, more than one inadmissible pax were cleared during a specific period, during which he was also under transfer. This makes him liable for gross negligence and evinces lack of supervision and effective control over his subordinates."
5. The Inquiry Officer having found the accused official (appellant in the present case) guilty of misconduct, lack of supervision and for having failed to perform his duties efficiently recommended that minor penalty of withholding promotion for three years under the relevant provisions of Removal from Service (Special Powers) Ordinance, 2000 may be awarded against the accused official Inspector Azizullah Shaikh. Accordingly, a Show-Cause Notice vide No.Z/4890/Admin-I/200, dated 20-2-2005 was served upon the appellant by the Competent Authority i.e. Director-General FIA. Having found the reply to the show-cause notice unsatisfactory, the Competent Authority vide Office Order No.Z/4890/Admn-I/2005-85-88, dated 26-4-2005 imposed the major penalty of compulsory retirement from service under the provisions of Removal from Service (Special Powers) Ordinance, 2000 upon the appellant. The Competent Authority held that the recommendation of the Inquiry Officer for awarding minor penalty of withholding of promotion for three years was not commensurate with the gravity of the misconduct established during the proceedings.
6. The learned counsel for the appellant argued that the major punishment of compulsory retirement from service was unwarranted, void, illegal and without any justification. The contention of the appellant was that although he was Incharge, Shift "A" of FIA Immigration QIAP (Departure) Karachi during the relevant night of 2/3-9-2004, in the absence of prior intimation from the concerned quarters, i.e. the relevant embassy or the concerned office of FIA Immigration regarding stolen Schengen visa, which could be misused, it was not possible for an official in his position to discover such misuse of stolen visas specially as there was great rush of passengers. Besides, Shift Incharge has to attend to various duties including attending to telephone calls from higher officials, attend to diplomats and also to dispose of the routine daily work of official dak etc.
7. The learned counsel for the appellant further argued that no allegations of corruption had been levelled against the appellant and that there was no evidence available on record regarding the appellant's intention to obtain illegal benefit from the deportees.
8. The learned counsel further argued that neither the Stamping Officer, A.S.-I. Nazia Saleem nor the Re-checking Officer Group Incharge, S.-I. Muhammad Suleman raised any objection regarding stolen visas being misused when the two passengers reported at Exit point. The two passengers were allowed to board the flight bound for Milan, Italy as they could not be detained by FIA in absence of any proof regarding misuse or counterfeiting of visas or any advance information thereof.
9. The learned counsel for the appellant also argued that the Inquiry Officer had recommended the imposition of minor penalty of withholding promotion for three years and therefore, there was no justification on the part of the Competent Authority to enhance the punishment to that of major penalty of compulsory retirement. He also argued that no cogent reasons were recorded by the Competent Authority for enhancing the penalty.
10. In view of the above, arguments, the learned counsel for the appellant stated that the penalty imposed upon the appellant is liable to be set aside and prayed that the appellant may be reinstated in service.
11. The learned standing counsel for the respondents stated that the appellant was actively involved with the agent Hasnat Ahmed Khan alias Hasnat Kiyani for enabling the illegal immigration of the two passengers on the basis of stolen visas. He further stated that the two passengers were personally brought by the appellant to Immigration Counter No.5 and he asked the Stamping Officer A.S-I. Nazia Saleem to clear the passengers for boarding. He further argued that the agent i.e. Hasnat Ahmed Khan alias Hasnat Kiyani was in contact with the two passengers on mobile phone and had asked them to report specifically to Immigration Counter No.5.
12. The learned standing counsel submitted that the whole episode was part of a racket involving illegal immigration. He averred that the appellant, the agent, Stamping Officer and the Group Incharge were all involved in effecting safe passage to the two passengers on the basis of stolen visas. He further argued that the gravity of the offence is very serious in that the appellant and other officials were involved in the crime of illegal immigration which has brought a bad name to the country and therefore, imposition of major penalty of compulsory retirement from service was justified as opposed to the recommendation of the Inquiry Officer for imposition of the minor penalty of withholding of promotion for 3 years.
13. Heard the learned counsel for the appellant and the learned standing counsel for the respondents and also carefully perused the record. There is no denying the fact that the two passengers who were deported by the Immigration Authorities at Milan airport Italy were travelling on stolen Schengen visas. The two passengers were deported back and during interrogation they admitted that they had paid illegal money to the agent Hasnat Ahmed Khan alias Hasnat Kiyani who arranged stolen visas to enable them to travel to Italy. It would be difficult to believe that only the agent would be involved in the racket of illegal immigration and that the two passengers were able to smoothly board the outbound aircraft without the involvement and active connivance of the staff on duty at the Immigration Counter. The Inquiry Officer has also pointed out that the whole fiasco appears to be the teamwork of the intending passengers, the agent and the immigration staff.
14. The involvement of the appellant is to the extent that he guided the two passengers to Immigration Counter No.5 from where they were cleared for onward travel to Italy. The fact that the two passengers were able to board the flight bound for Milan, Italy on the basis of stolen visas arranged admittedly on payment of illegal money to the agent Hasnat Ahmed Khan alias Hasnat Kiyani who in return for the payment had guided the two passengers to Counter No.5 and the appellant also asking the two passengers to report to Immigration Counter No.5 could not be considered as innocent coincidence. The Inquiry Officer has convincingly established the involvement of the whole chain including the appellant in the racket on the night of 2/3-9-2004. The only question that requires careful consideration is whether there was justification on the part of the Competent Authority i.e. Director-General FIA to enhance the minor penalty of withholding promotion for three years against the appellant as recommended by the Inquiry Officer to that of compulsory retirement. We are aware that illegal immigration/human smuggling from the airports in Pakistan is a major scandal which they often subjects not only the relevant local authorities but also the Government of Pakistan to serious embarrassment and even the PIA, the national carrier is brought to disrepute. Facilitating illegal immigration has become a regular racket at the International Airports in Pakistan. Therefore, once the involvement of an official in the transaction of illegal immigration is established through the process of regular inquiry, there is no reason to adopt lenient attitude in the matter. On the basis of evidence placed before us, the involvement of the appellant in the transaction leading to the exit of the two passengers through stolen visas and their eventual deportation from the airport of disembarkation i.e. Milan, Italy has been clearly established. In order to check the menace of illegal immigration, severe penalty is called for once the charge is established through the process of inquiry and therefore, the Competent Authority was justified in taking serious view of the matter and in enhancing the punishment beyond that recommended by the Inquiry Officer.
15. In view of the above, we see no merit in the appeal and therefore, dismiss it.
16. There shall be no order as to costs. Parties be informed.
(Sd. ) Muhammad Javed Ashraf Hussain, Member.
Note of Dissent
RASHID ALI MIRZA (MEMBER).- I had the honour of perusing the judgment in Appeal No.211(K)(CS) of 2005 rendered by my learned brother Mr. Muhammad Javed Ashraf Hussain. With profound respect for him, I find it difficult for me to agree with him on the findings recorded and conclusion drawn by him. In his judgment Mr. Muhammad Javed Ashraf Hussain has reproduced the relevant portion of the inquiry proceedings at pages 2 and 3. I would further like to refer to the findings of the inquiry report at pages 3 to 6 of the judgment. These are reproduced as under:---
"(i) On 8-9-2004 a pax namely Irfan Abbas holding Pak. Passport No.KB-493078 and Pax namely Masood Iqbal son of Muhammaduddin holding Pak Passport No. KD-744704 arrived/deported from Milan/Italy by PIA-770 to Islamabad and finally to Karachi by Flight No.301 under the Deportation charge as "Italian Immigration Authorities refused entry since holding stolen Schengen Visa.
(ii) That on interrogation, both the deportees disclosed that the stolen Schengen Visa and Air Tickets were provided by an agent namely Hasnat Ahmed Khan alias Hasnat Kiyani of District Jhelum against payment of Rs.17,50,000.
(iii) The record shows that pax named, above left Pakistan on the night of 2/3-9-2004 for QIAP by PIA Flight No.747 when shift "A" on duty. Both the paxes were cleared by Stamping Officer A.S.-I. Nazia Saleem, and re-checked by Group Incharge S.-I. Muhammad Suleman who were performing duties under your supervision.
(iv) The preliminary enquiry revealed that you personally brought both the paxes at the Counter of A.S.-I. Nazia Saleem. You directed the Stamping Officer to clear both the paxes. Under your specific instructions, the Stamping Officer A.S.-I. Nazia Saleem cleared both the paxes and affixed Departure Stamp No.5 allotted to her by using/hiding technique of stamp number with a piece of paper as well as deliberately concealed her computer I.D. and intentionally used secondary mode of data input in the PISCES system, rather than using the primary one. Yet, you (Inspector Azizullah Sheikh) did not take any action.
(v) That on interrogation, deportee Masood Iqbal disclosed that after obtaining Boarding Card, agent Hasnat Kiyani directed him on Mobile Phone to approach Immigration Counter No.5 for clearance, Immigration Counter No.5 was the same where A.S.-I. Nazia Saleem was sitting and both the paxes were taken to the same counter for clearance by you (Inspector Azizullah Sheikh).
(vi) That the above acts on your (Inspector Azizullah Sheikh) part amount to misconduct."
The findings as in the inquiry report, dated 28-1-2005 in paras.(i) to (xvi),…
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