MUHAMMAD SALEEM Versus FEDERATION OF PAKISTAN through President President's Secretariat, Islamabad

ABDUL HAMEED DOGAR, J. --- This appeal with leave of this Court is directed against judgment, dated 12-4-2001 passed by learned Federal Service Tribunal, Islamabad (hereinafter referred to as "the Tribunal") whereby Appeal No.1624(K) of 1998 filed by appellant was dismissed.

2. Briefly, stated facts giving rise to the filing of instant appeal are that appellant was appointed as Inspector BPS-11 in the Federal Investigation Agency in the year 1977. He was promoted as Assistant Director BPS-17 in 1986 and as Deputy Director BPS-18 in 1994. On 22-5-1997 he was served with charge-sheet alleging that:

(i) You have constructed a bungalow worth Rs.20 millions in the posh and expensive area of Phase-V, Defence Housing Authority, Karachi;

(ii) You own a petrol pump at Larkana;

(iii) You maintain a foreign exchange account and City Bank Gold Card;

(iv) You maintain four cars of the latest models;

(v) You arranged the marriage of your brother at Hotel Pearl Continental which was attended by about 1500 persons; and

(vi) You are reported to have been mixed up with smugglers of precious stones while posted as Assistant Director Arrival at Karachi Airport.

Subsequently respondent No.4 was appointed as Inquiry Officer who after holding inquiry found the appellant guilty only against charge No.1 and observed as under:--

"The value of the said bungalow may not be twenty million as alleged and it may be twenty lacs as claimed by the accused officer yet the circumstantial inference goes against him and suggests that he has acquired/constructed the bungalow in the name of his wife beyond his known source of income. The charge of corruption on this count stands established."

2. On the basis of above mentioned inquiry report show-cause notice was issued on 9-1-1998 by competent authority i.e. respondent No.3 by asking the appellant to show cause as to why the penalty of dismissal from service should not be imposed upon him and the opportunity was provided to him to be heard in person. The appellant filed written reply wherein he denied the charge and submitted that the house was in the name of his wife which was declared by him in his declaration of assets and that he never received any adverse report and on the basis of good A.C.Rs. he was promoted. The reply was not found satisfactory, as such, the Authorised Officer i.e. respondent, No.4 recommended penalty of compulsory retirement but the competent authority i.e. respondent No.2 did not agree with the same but imposed the penalty of dismissal from service vide order, dated 22-5-1998. Feeling aggrieved appellant filed departmental appeal on 15-6-1998 which was not responded hence he filed appeal before the Tribunal which was dismissed vide impugned judgment.

3. On 6-5-2004 leave to appeal was granted by this Court to `consider the contentions of appellant's counsel that prosecution could not substantiate the allegations against appellants so much so he was not found guilty with regard to 5 charges out of 6 and that defence plea though fully supported by plausible evidence was arbitrarily rejected by the department and was not appreciated in its true perspective by the learned Tribunal and that the penalty imposed upon him was too harsh and disproportionate to the charge.

4. We have heard Mr. M.M. Aqil Awan, learned counsel for the appellant, Ms. Soofia Saeed, learned Standing Counsel for respondents Nos.1, 2 and 4 and Mr. Akhlaq Ahmed Siddiqui, learned Advocate-on-Record for respondent No.3 at length and have gone through the record and proceedings of the case in minute particulars.

5. Learned counsel for the appellant vehemently contended that competent authority while disagreeing the recommendation of the Authorised Officer was bound to record reasons for imposing major penalty of dismissal from service by inferring adverse presumptions against appellant. The Inquiry Officer cannot delegate his powers to S.D.P.O. Saddar Larkana to hold inquiry and record the evidence of defence witnesses. He further contended that defence plea taken by appellant though supported by plausible evidence yet was rejected arbitrarily by the Inquiry Officer. The Inquiry Officer observed in his report that P.Ws. have not contributed any valuable material to substantiate the allegations as such he exonerated appellant from five charges but found him guilty with respect to charge No. 1. He contended that the said bungalow was declared by appellant in his declaration of assets in 1995. According to him the plot was purchased for Rs.8 lacs out of prize money of 5 prize bonds won by appellant's wife and for the construction of house appellant's wife obtained loan of Rs.14 lacs also as Qarz-e-Hasna from her father through Foreign Exchange bearer certificates, certified by Bank of America: According to him the father of appellant's wife is immune from disclosing the source of his income regarding foreign exchange bearer certificate in view of S.R.O. No.(sic) dated 6-6.1985 issued under section 28 of the Public Debt Act, 1944 and Rule 4 of Foreign Exchange Bearer Certificate Rules, 1985, as such the findings of the Inquiry Officer being based on surmises or conjectures are not in accordance with law. He further contended that Inquiry Officer did not examine the witness but deputed S.D.P.O. Larkana for the same who did not examine the witness in questioning form which act vitiates the whole inquiry proceedings and the burden to prove the charge was on the department and not on the accused. He lastly contended that order of dismissal must be based on some evidence which fact is lacking in the instant case, as such the same be set aside and the appellant be reinstated in service with all back benefits. In support of his contentions he relied upon the cases of Muhammad Ismail Solangi v. Deputy Inspector-General, Pakistan Railways Police HQs Office Lahore and others 2002 PLC (C.S.) 255, Rafi Ahmed Pervaiz Bhatti v. Government of Pakistan Cabinet Secretariat, Establishment Division through Secretary Establishment PLD 2003 SC 382, Samiuddin Qureshi v. Collector of Customs PLD 1989 SC 335, Jan Muhammad v. The General Manager, Karachi Tele-communication Region, Karachi and another 1993 SCMR 1440 and Managing Director, N.B.F. Islamabad and others v. Muhammad Aril' Raja PLD 2006 SC 175.

6. On the other hand learned counsel appearing for respondents while supporting impugned judgment contended that the charge of corruption against appellant is established and the construction of big house in Defence Housing Authority from doubtful sources of income is also established against appellant, therefore, he is not entitled to any leniency.

7. The Inquiry Officer examined 6 witnesses, namely, Mian Habib Ahmad, Assistant Director, Crime Branch, Khalid Iqbal, Deputy Director, Crime Circle, Iqbal Ahmed Mughal, Assistant Director Crime Circle-II, Ch. Muhammad Sharif, Assistant Director, Immigration, Lt.-Col. (Retd.) Amir Afzal, Manager Pearl Continental and constable Aurengzeb, F.I.A. Immigration and Anti-Smuggling. All these witnesses could not adduce any substantial evidence against the appellant, therefore, Inquiry Officer observed in his report that P.Ws. have not contributed any valuable material to substantiate the allegations and none of them could adduce positive evidence. The Inquiry Officer in view of this exonerated appellant from 5 charges out of 6 but found him guilty on charge No.1, only for the reason that appellant's father-in-law has failed to disclose the source of his income regarding foreign exchange bearer certificate. The father-in-law of appellant namely, Abdul Sattar Sheikh is a businessman and proprietor of Pakistan Medical Store, Larkana. The finding of the Inquiry Officer with regard to source for purchase of foreign exchange is erroneous for the reason that bearer of these certificates is immune from disclosing his source of income vide C.B.Rs' Circular No.4 of 1985 dated 1-7-1985 which reads as under:--

"These would be bearer certificates to be issued against payment in foreign exchange. Encashment could be in foreign exchange or in rupees. In all these certificates are encashed rupees no question shall be asked regarding the source of funds in these certificates and the holder would be entitled to bring the amount into his books for income-tax purposes. The profit earned on these certificates on encashment would also be free from income-tax."

8. The Inquiry Officer without lawful authority deputed S.D.P.O. Saddar Larkana to hold inquiry and record the statement of defence witness i.e. father-in-law of appellant. The appellant declared the disputed bungalow in declaration of assets in 1995 which shows his bona fide. It was held in the case of Rafi Ahmed Pervaiz Bhatti referred (supra) that "appellant admittedly declared his income in the declaration assets without any concealment and mere non-mentioning of source of income in the declaration would not be as such violation of rules to constitute an act of misconduct". About purchase of plot on 6-1-1992 appellant furnished its entire detail by disclosing that his wife purchased 5 prize bonds of Rs.500 denomination on 30-1-1991. An amount of Rs.2 lacs on each prize bond was won in February, 1992 on which income-tax of Rs.15,000 each totalling Rs.75,000 was paid in February, 1992 and appellant disclosed the same in declaration of assets in 1995. Photocopies of the prize bonds and certificate issued by the State Bank of Pakistan dated 19-2-1992 and Income tax Paid Challan were produced. For the construction of house loan was obtained from his father-in-law as stated above. It is also an admitted fact that competent authority without giving any show-cause notice or recording any reason for dissenting with the penalty recommended by Authorised Officer imposed the major penalty of dismissal from service upon appellant, which is not sustainable in law and against the settled norms of justice. This Court in the case of Samiuddin Qureshi referred (supra) while dealing with this aspect of the matter held that the order of dismissal must be based on some evidence.

9. For the reasons stated above, the appeal is allowed. The impugned judgment of the Tribunal and the order of dismissal dated 22-5-1998 are set aside. Appellant is reinstated into service without back benefits.

S.A.K./M-30/SC Appeal accepted.