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Petitioner: ABDUL GHAFFAR QURESHI VS Respondent: ISLAMIC REPUBLIC OF PAKISTANHonorable Justice A. O. RAZIUR RAHMAN
1984 P L C (C
1984 P L C (C. S.) 1401
[Federal Service Tribunal]
Present : Mr. Justice S. Abdur Rashid, Chairman, A. O. Raziur Rahman and Brig. (Retd.) Abdur Rashid, Members
ABDUL GHAFFAR QURESHI
Versus
ISLAMIC REPUBLIC OF PAKISTAN THROUGH THE SECRETARY, MINISTRY OF COMMERCE AND ANOTHER
Appeal No. 74(K) of 1980, decided on 14th June, 1984.
(a) Government Servants (Efficiency and Discipline) Rules, 1973‑
‑‑ Rr. 3 & 4 ‑ Charge and quantum of penalty ‑ Charge of carelessness and lack of caution shown while processing cases (relating to import of cars under Gift Scheme) by accused (Assistant Controller of Imports and Exports) ‑ No suggestion that alleged charge resulted in loss to Government or gain to any individual (s) or that alleged carelessness or lack of caution was in return for any consideration‑Such mistakes, in circumstances, held, do not call for a major penalty not to speak of extreme penalty of dismissal from service.
(b) Government Servants (Efficiency and Discipline) Rules, 1973‑
‑‑ R. 5‑Charge‑sheet mentioning that charges if established would call for a major penalty‑Enquiry held‑Accused never informed of result of enquiry and given no chance to show cause against action proposed by Authorised Officer ‑Accused, in circumstances, held, materially prejudiced and impugned penalty of dismissal passed behind his back ‑ Held: Irregularity sufficient to vitiate entire proceedings justifying setting aside impugned penalty order Service Tribunal setting aside impugned dismissal order with direction that proceedings should start afresh from stage of irregularity and accused (appellant) should be supplied with a copy of enquiry report and copy of views of Authorised Officer and should also be asked to explain as to why proposed penalty may not be imposed upon him.
Per Abdur Rashid, Member‑[Dissenting view].
Syed Mir Muhammad v. Government of N.‑W. F. P. P L D 1981. S C 176 rel.
1982 P L C 686 ref.
Manzoor Ali Khan for Appellant.
Niaz Ahmad Khan for the State.
Dates of hearing : 1st and 2nd June, 1983.
JUDGMENT
A. O. RAZIUR RAHMAN (MEMBER).‑The appellant was an Assistant Controller of Imports and Exports, posted at Hyderabad, when, by a notification, dated 21st April, 1979 he was placed under suspension. There after, he was served with a charge‑sheet, alongwith a statement of allegations, on 14th May, 1979 and required to submit his explanation in writing to an Enquiry Officer appointed for conducting the proceedings against him on the basis of the charge‑sheet. The appellant submitted his explanation, where after the Enquiry Officer conducted a Departmental Enquiry, under rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1973 from 1st to 5th September, 1979. After some time by a notification dated 10th June, 1980 the President was pleased under rule 3 of the Government Servants (Efficiency and Discipline) Rules, 1973 to dismiss him from service on the basis of the disciplinary action taken against the appellant. Against this order, be preferred a review petition before the President on 26th June, 1980 and after having waited for the statutory period of 90 days during which he did not receive any reply to the review petition, he came in appeal before the Tribunal on 6th October, 1980. . The parties were heard on 1st June, 1983 and 2nd June, 1983. The case record and the relevant documents were examined, where-after, this order is being passed.
2. The charge‑sheet accused the appellant of lack of supervision and careless-ness, constituting the offence of misconduct, inefficiency and corruption and listed as many as 8 specific acts of omission/commission which, if established, would call for a major penalty under the Government Servants (Efficiency and Discipline) Rules, 1973. The relevant portions of the charge‑sheet are reproduced below :‑
"WHEREAS, you Mr. Abdul Ghaffar Qureshi, Assistant Controller of Imports and Exports, in the Office of the Deputy Controller of Imports and Exports, Hyderabad ordered issue of import permits for cars under Gift Scheme against forged and fake documents without ensuring the genuineness of the documents produced by the applicants and have acted in most irresponsible and careless manner in discharge of your duties which led to your involvement in the scandal of import of cars under the Gift Scheme. You, Mr. Abdul Ghaffar Qureshi, have deliberately committed the following serious irregularities and acts of omissions and commissions amount ing to misconduct :‑
(1) Although inmost of the cases of import of cars under the Gift Scheme (163 cases) purchase receipts, invoices and Bills of Lading were of the same date i.e. 22nd December, 1978 which is not possible yet you passed orders to issue import permits against these forged/fake documents without scrutinising these documents properly. You should have noticed, at the time of examining these papers/applications that how, it could be possible to make payment on 22nd December, 1978‑ for these 163 cars and arrange shipment on the same date.
(2) You passed orders to issue import permits in cases where date of purchase receipt and invoice was the same i.e. 5th December, 1978 which is not possible in the normal course.
(3) Almost in all the cases, stamped papers on which attorney had been appointed by the applicants were not in order i.e. name of purchaser and seller was not indicated on the stamped paper and you did not care to see the discrepancy in the stamped paper and ordered for issue of import permits to Attorney holders who were fake.
(4) In many cases, purchase receipt did not bear the date 'but the import permits were issued under your orders. The date on purchase receipt was the vital factor to determine whether payment was mole on or before 28th December, P78, since in cases where payments had been made after 28th December. 1978 import permits for cars under the Gift Scheme were not to be issued.
(5) Purchase receipts showing payments received through Bank Draft, were without date and number.
(6) Signatures of applicant differ in various documents signed by the applicants.
(7) Import Permits were delivered to unauthorised persons.
(8) You were expected to scrutinise all documents received with applications for issue of import permits for cars carefully and follow the procedure laid down for the issue of import permits under the Gift Sheme before ordering to issue import permits for reconditioned cars ;
(2) Your deliberate action in committing the above irregularities not only amounts to gross negligence in the discharge of your duties but also makes it clear that import permits were issued deliberately against forged/fake and incomplete documents ;
(3) AND WHEREAS the above action amounts to gross negligence, lack of supervision, carelessness constituting the offence of misconduct, inefficiency and corruption as defined in Government. Servants (Efficiency and Discipline) Rules, 1973 which, if established, would call for a major penalty under the Government Servants (Efficiency and Discipline) Rules, 1973."
3. The Enquiry Officer submitted his report and finding on 11th October, 1979. In this report, his finding m respect of the various acts of omissions/commissions listed in the charge‑sheet are summarised below :‑
Item 1: According to the Enquiry Officer, the charge had been proved to the extent that the accused officer had manifested lack of care and caution in processing the documents in all the 163 cases.
Item 2: The charge was not proved as according to the Enquiry Officer, it is not impossible and improbable to issue purchase receipts and invoices on one and the same date for the simple reason that the action of only one party (the supplier is involved in such cases). According to him, it was possible that after issue, of purchase receipts, the supplier may have simultaneously issued invoices on the shippers.
Item 3: The finding of the Enquiry Officer was that this charge was untenable.
Item 4: According to the finding of the Enquiry Officer against this item, the allegation was false and had no basis at all. . To quote the Enquiry Officer himself, it had been alleged that "in many cases purchase receipts did not bear the date but import permits had been issued under the orders of the accused officer. Cases noted against serial Nos. 56 to 95 and 187 to 205 of the list (Exh. P/1) has been quoted as specific instances. I have gone through these cases referred to in the charge‑sheet and I find that all the purchase receipts are dated and hear the date 22nd December, 1978. This charge, therefore, has no basis and hence not proved."
Item 5: This charge also was without any merit. According to the Enquiry Officer, since, the purchase receipts invariably contained a recital about receipt of the purchase price before 28th December, 1978 the omission to mention the date and number of the Bank Draft in the purchase receipts was of no consequence and did pot merit any consideration at the stage of the proceeding.
Item 6: Not proved. .
Item 7: No evidence had been produced to prove that import permits had‑been delivered to unauthorised persons. This allegation, therefore, also stood unproved.
Item 8: No finding had been given by the Enquiry Officer. Therefore, it is presumed that he did not find him guilty on this point.
4. Towards the end of his finding the Enquiry Officer had observed that only charge No. 1 had been proved against the accused officer and that he had failed to scrutinise the documents diligently and with due care and caution.
5. Although the Enquiry Officer's report exonerated the appellant of almost all the charges preferred against him, the extreme penalty of dismissal from service was awarded to the appellant. This, prima facie, appears to be highly excessive and, therefore, unjustified. Although we have reasons for holding that the finding of the Enquiry Officer in respect of this particular allegation was not correct, assuming for a moment that the finding is acceptable, since it has not been established that the carelessness or lack of caution shown by the officer in the processing of 163 cases had resulted in loss to Government or gain to any individual or individuals or that the officer had shown carelessness and lack of caution in return for any consideration, it is difficult to agree that the mistake, if any, committed by the appellant called for a major penalty, not to speak of the extreme penalty of dismissal from service.
6. As for the correctness of the finding, itself, we find that the main charge against the appellant was that he had ordered issue of import permits for cars under Gift Scheme against forged/fake documents without ensuring the genuineness of the documents and that in doing so, he had acted in a most irresponsible and careless manner as evidenced by the fact that, in spite of the date of purchase receipts, invoices and bills of lading being the same i.e. 22nd February, 1978 in as many as 163 cases, which was not possible the appellant had passed orders for the issue of import permits against forged/fake documents without scrutinizing them properly. The report of the Enquiry Officer does not clarify whether all the 163 cases to which reference was made in the charge‑sheet were cases of forged or fake documents and whether the appellant could have detected that these were so merely because, in all these cases the three documents mentioned were of the same date. He has, however, worked on the assumption that all the three documents could not have been prepared on the same date and since in these cases, they had been prepared on the same date, the accused officer should have refused to pass orders without verifying about the authenticity of the documents in question. It is difficult to agree with the reasoning adopted by the Enquiry Officer. There is no merit at all‑in his assumption that all the three documents cannot be prepared on the same date and even some o' the prosecution witnesses had deposed that it was possible for all the three documents to be prepared on the same date. In fact, the Deputy Controller of Imports and Exports, Hyderabad, admitted that his office had been accepting applications for the issue of import permits for cars in which all the three documents, purchase receipts, invoices and bills of Lading bore the same date. The Deputy Controller of Imports and Exports, Karachi also stated that there existed no hard and fast restrictions against the documents bearing the same date. He also deposed that no application had ever been rejected on the ground that the invoices, purchase receipts and bills of lading bore the same date. In the face of these clear statements by prosecution witnesses themselves, it passes one's understanding how the Enquiry Officer could hold that merely because the applications in question had all the three documents bearing the same date, the appellant should have treated them as forged/fake or bogus documents. He had no justification for making such an assumption and on the basis of that to treat the officer as having been guilty of carelessness and lack of caution. Since the very major premise, on which the Enquiry officer has based his finding against the appellant, is not true as borne out by the evidence on record, we do not see any reason for accepting the finding that the appellant showed carelessness or lack of caution in dealing with the cases in question.
7. Apart from the merits of the case which do not justify the action taken against the appellant, we find that gross irregularities have been committed in dealing with this case. Although the charges were very detailed and specific for which an Enquiry Officer was appointed and regular proceedings conducted under rule 6 of the Government Servants (E & D) Rules, 1973, the appellant was never informed of the result of the enquiry and given a chance to show cause against the action proposed to be taken against him. As has been laid down by the Honourable Supreme Court in the case of Mir Muhammad v. Government of N.‑W. F. P. (P L D 1981 S C 176), it is a statutory obligation of the relevant authority to furnish, the officer proceeded against with a copy of the report of the Enquiry Officer or the Enquiry Committee as the case may be and given him an opportunity of showing cause against the action proposed against him. In this case, the report of the Enquiry Officer was not furnished to the appellant and he was not given an opportunity of showing cause against the action proposed against him. in fact, he had no idea of what the findings of the Enquiry Officer were and he did not know before the dismissal orders were issued what action was contemplated against him. He was, thus, materially prejudiced and the impugned order was passed almost behind his back. Even if on merit the case against the appellant was not as weak as this, this irregularity alone was enough to vitiate the entire proceedings and justify the setting aside of the impugned) order.
8, From the charge‑sheet, the report of the Enquiry Officer, and the written objections filed on behalf of the respondents, as well as the arguments of the learned counsel for the State, we could not escape the impression that the concerned authorities in the Government hierarchy were in a great deal of mental confusion on account of what was mentioned as the reconditioned cars scandal. Whatever may have been the ramification of the said scandal, we do not find from the case record or the evidence collected by the Enquiry Officer that the appellant was guilty, either through negligence or deliberate and wilful acts of omissions/ commissions of either causing loss to Government or unlawful gain to any individual or individuals or of himself deriving any illegal benefit by issuing the import permits on the basis of which the departmental action was taken against him. We, therefore, do not see what justification the authorities had in placing him under suspension and taking the action against him that they did. If they had reasons to suspect that the appellant had indulged in corrupt practices or had managed to accumulate wealth through unlawful income, it was open to them to collect evidence in these behalf and bring him to book on that charge. But, by merely stating, as they did in the charge‑sheet that by acting in a most irresponsible and careless manner, the appellant had got involved in the scandal of import of cars under the Gift Scheme, they could not expect to find justification for punishing him.
9. The very fact that, out of 8 charges, as many as 7 were found by the Enquiry Officer to be either false or baseless or untenable or not proved should be enough to expose the weakness of the departmental case against the appellant. Indeed, even a careful reading of the charge‑sheet clearly brings out that those dealing with the case had no clear idea of what fault they had found with the appellant and, therefore, they jumbled up a large number of objections, some of which were either imaginary or misconceived.. In these circumstances one even doubts the wisdom of initiating the action against the appellant.
10. In the light of the above discussions, we do not find any other option but to allow the appeal and set aside the impugned order. The appeal is, therefore, allowed and the appellant ordered to be reinstated in service, with effect from the date of the impugned order, with all the consequential benefits.
No order as to costs.
ABDUR RASHID (MEMBER.)‑ During the course of hearing at Karachi on 1st, 2nd June, 1983 the Hyderabad Office of the Deputy Controller of Imports and Exports produced before us 275 case files, against which import permits were issued by the said office. After, my learned colleague had written the judgment on 3rd November, 1983 and sent the case to me, I discovered that none of the said case files had been brought by our staff to Islamabad. As a result, our office got in touch with the Office of C. C. I & E as well as that of the Deputy Controller of Imports and Exports Hyderabad to get the record It was on 22nd December, 1983 that I got the complete record, which I have carefully gone through. Before I deal with the record itself, I would refer to the "Rules Regarding Import of Cars Against Foreign Exchange
Earnings of Pakistanis Working Abroad", effective 1st July, 1975 an issued by the Ministry of Commerce, Office of the Chief Controller o Imports and Exports.
14. Annexure 'I' of the rules ibid is the application for grant of import permit for car for personal use or as a gift. Annexure `III' is the Gift Undertaking, which is to be executed by a Pakistani National, for making a gift of a car to his family in Pakistan. The said annexure is to be certified by the Pakistan Mission abroad. The important point with regard to this annexure is that in case of such Pakistanis, whose continuous stay abroad was for more than two years, earning certificate was not required. If, however, such Pakistanis temporarily visited Pakistan during the two years, with duration of stay in Pakistan exceeding two months, then they bad to provide an earnings certificate. In the instant case, the gifters have furnished certificates in a manner which exempted them from the submission of earning certificates.
15. The perusal of 275 case files shows that Annexures `I' and `III' as per rules have been filed. Even a cursory analysis reveals the following infirmities in cases of which I am quoting only two:‑
(1) IP‑424734 was issued to Mst. Alam Bibi on 4th February, 1979. In this case, the Bank Draft No. 916372, dated 5th December, 1978 has been quoted at para. 9(4)(i)(6) of Annexure 'I' but the name of the bank has not been mentioned. The sum of U. S. dollars 3,200 was remitted from U. K. on 5th December, 1978 (because this is the date of the bank draft). The receipt issued by S. A. R. G. A. International Limited, Tokyo is also dated 5tb December, 1978.
(2) IP‑424735 was issued to Mst. Qasim Bibi on 4th February, 1979. Bank Draft No. 710663, dated 5th December, 1978 was remitted for 1,700 U. S. dollars from U. K. without mentioning the name of the bank. S. A. G. R. A. International Ltd. Tokyo receipt is also dated 5th December, 1978.
There are a few cases of the above type where the bank draft is dated 5th December, 1978 which originated in U. K. and the receipt for the amount was issued on the same date from Tokyo.
16. There are 163 cases in which the purchase receipt, invoice and bill of lading are of one and the same date viz., 22nd December, 1978.
17. There are a number of cases, where the mode of remittance of amount has been left blank. In some cases bank draft numbers have been given (with and without date) but the name of the bank has been left blank.
18. With the above background, and in order to be brief, I shall deal with one aspect of this case i.e. whether or not it is possible that the bank draft, originating in U. K. and its receipt issued in Tokyo could be of the same date. I would say that it is NOT possible. However, in my opinion it is NOT impossible that the purchase receipt, invoice and bill of lading are of the same date though it would be a rare phenomenon and would be feasible only if the exporters had readily available ships, Even with the most modern means of communications, it would be impossible that the bank draft and its receipt could be of one date unless, of course, a gang of racketeers was operating in close collaboration and co‑ordination with one another at two places, viz. U. K. and Pakistan and this is what is doubtlessly the case. Whoever conceived the scheme would be someone working in the Import and Export Organisation of the Government of Pakistan. If not so employed, then he is well‑versed with the working of the said Government organisation.
In Pakistan if it was a Pakistani working for the Japanese exporters then it was also the Office of the Deputy Controller of Imports and Exports Hyderabad who were willing hands for the issuance of a large number of import permits. When we look at 163 cases for which import permits were issued in two days on 7th‑8th February, 1979 the involvement of D. C. I & E's Office at Hyderabad becomes obvious. Even if we give the said staff a credit for speed, for which they are certainly not known, no one could dispose of all these cases in two days unless they had some extra incentive awaiting them.
19. I have stated that it is NOT possible that the bank draft originating in U. K. and its receipt being given in TOKYO could bear the same date. Going through the enquiry and other record, I find that opinions have differed on this vital issue. Apparently, no one has cared to identify the time zones in which U. K. and Tokyo are situated. Tokyo being in the East, is nine hours ahead of U. K. in terms of time and hence the date. Even if money is remitted from U. K. at 1000 hours on 5th December, 1978 it would already be 1900 hours in Tokyo, by which time their business would have closed. They would be in no hurry to issue the receipt the same day even if open, because this could be very easily and more appropriately done the next morning. The purchase receipt, invoice and bill of lading of the same date, in the circumstances of difference of time zone, would be dubious. I think the racketeers had to hurry up their activities because the Government of Pakistan had imposed a ban on the import of reconditioned cars w.e.f. 28th December, 1978 unless they had been shipped on or before the said date.
20. For me it would be unnecessary to point out errors/omissions in each and every case. There is hardly a case in which one or the other shortcoming is not visible.
21. I would say without hesitation that charges Nos. 1 and 2 stand established beyond any reasonable doubt. Due to the fact that the said two charges stand proved, charge No. 8, which is, actually, a blanket charge also stands proved. It is not merely a case of lack of diligence or care on the part of the appellant. It is a case of his proven involvement in the scandal. Had he acted in an honest manner he would have discovered what was happening around him. For him to raise hue and cry just as the cat was coming out of the bag after he had issued large scale permits, could be of no avail later on.
22. 1f the Deputy Controllers Karachi and Hyderabad had been issuing import permits where bank drafts, purchase receipts, invoices and the bills of lading bore one and the same dates and orders had been placed from U. K. on Japan, then those cases, too, need to be re‑examined and the said Deputy Controllers questioned. It is not a question of hard and fast rules as suggested by Deputy Controller Karachi. It is a matter of vigilance based on common sense as to whether something can or cannot be possible.
23. It would be worthwhile for the Chief Controller of Imports and Exports to carry out a survey of the years 1980‑82 (three years) to ascertain how many cases…
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