1988 PLC(CS) 752
IHSANUL HAQ C14AUDHRY (CHAIRMAN).‑‑ The appellants are directly responsible for flooding the Province with cheap intoxicants, i.e., Tincture Card Co., Scillea, etc. These products are used as intoxicants as the same contain a very high percentage of Alcohol. The appellants are responsible for supply of about 70,000 pounds of these cheap intoxicants to the underground drug market in about six months time.
2. The brief background of these appeals is that about two dozen Chemical` Works have been issued licences under Excise and Taxation Rules for manufacture of Tincture Scillea, Card Co., etc., which are used in different medicines. The authorities found that in spite of all sorts of restrictions and l precautionary measures underground market is full of these cheap intoxicants. The matter was thrashed and further precautionary measures formulated to stop this illegal flow of Alcohol. It was resolved in the meeting of the Excise officials held on 7‑10‑1982 that Excise and Taxation Inspectors posted in Chemical Works shall inform through registered post about the issuance of these Chemicals to their counterparts posted at the place of destination of the drug consignments. This was done to weed out despatches to the bogus parties, on the one hand, and on the other hand to keep a strict vigilance both at the source and at the place of destination. This precautionary measure, normally speaking, should have cut down misuse of these drugs appreciably if not altogether. But, on the other hand, authorities were stunned to notice that even this precautionary measure proved utter failure. The result was that the Excise and Taxation Intelligence Bureau was briefed to conduct raids and as a result of this it came to light that the Inspectors including the appellants posted in various Chemical Works were not following the instructions issued on 23‑10‑1982 and in this way contributed their full share to let the flow of intoxicants continue unhampered and uninterrupted.
3. The matter was reported to the Police, which according to the learned District Attorney, kept the files for sometime and returned the same without any action. It does not require much of common sense to understand the reasons for this inaction on the part of the Police. It is needless to add here that no action was taken against any one of the Chemical Works either by the Police or by the Department. It is for the authorities to know the reasons. However, the appellants and other Inspectors were proceeded against under the Punjab Civil Servants (E & D) Rules, 1975. They were charge‑sheeted for inefficiency and misconduct and supplied with the statement of allegations, placed as Annexure `A' with their respective appeals.`
4. The appellants submitted detailed reply to the charge‑sheet before the Enquiry Officer. The prosecution recorded the statement of Qalib‑e‑Hussain, Inspector Excise intelligence Bureau as PW. 1, Riaz as PW‑II, Muhammad Sadiq Khokhar as PW‑111, Shafqat Mahmood as PW‑IV and Sh. Abdul Majeed, AETO as PW‑V to prove the charges against the appellants. The appellants in defence examined Malik Abdul Waheed. The Enquiry Officer formulated his report on 21‑4‑1984, and submitted the same to the Director, Excise and Taxation, as Authorised Officer. The conclusion arrived at by the Enquiry Officer reads as under;‑‑
.....But sometime passed, it was felt that strict control over the Chemical Works for the use of rectified spirit was not there. Accordingly vide endorsement No. 433/Ex. dated 23‑10‑1982, instructions to the officers incharge of the Chemical Works were imparted that in order to ensure that L‑46 pass reach their destination, these should be despatched under registered cover. They were further directed to produce relevant record pertaining to the despatch of L‑4fi pass in office, once in a week for scrutiny. Leaving aside all matters connected with this issue the officer incharge of the Chemical Works violated the instructions given to him. For this reason alone lie is guilty of the charge of inefficiency and misconduct and cannot claim that he is innocent. The acknowledgements of having noted these instructions by various E & T Inspectors are there of the above referred minutes of the meeting of 1982. Still he claims that he performed his duties diligently and lie was efficient iii the performance of his duties. Had he acted upon the directions given to him in writing as well as verbally by the officers at various occasions, the irregularities as indicated in the charge‑sheet would not have cropped up now. For all cannons of justice he is guilty of violation of the instructions, if not the rules on the subject. I, therefore, hold him guilty of tire charges so far as the violation of the instructions are concerned and the charges are thus proved. Major penalty is merited, please."
5. The Director, after receipt of Inquiry Report, proceeded to serve show cause notices upon the appellants, heard their learned Counsel and decided to impose minor penalty of stoppage of two increments. Although he was fully conscious of the gravity of the offences committed by the appellants yet in order to render undue favour to the appellants, he proceeded to impose upon them minor penalty of stoppage of two increments himself. It is just making mockery of law which should not be ignored. It is not very difficult to guess his interest in the matter and it will be for the Director‑General to take an appropriate action against him. The relevant portion of his order reads as under:‑
"In the light of the above observations and going through the relevant record (including the findings of the Inquiry Officer), I have arrived at the conchls1on that the charges levelled against the accused official arc well proved beyond airy doubt, i.e., those of sending of the passes in Form 46 to the District Offices concerned which obviously should have been despatched properly for ail effective check of the consignments of the stations of their destinations because of the prohibition policy ill the country as well. It will, however, be not fair if due consideration is not given to the gravity of the charges, the findings of the Inquiry Officer and the show‑cause notice served on the accused official and it will therefore meet the ends of justice if the official concerned is awarded with a minor penalty instead of the major that had been proposed for him earlier, i.e., removal from service."
6. The appellants even felt aggrieved by this insignificant penalty and proceeded to file two separate appeals but same were rejected by the Director, E & T Lahore Division, Lahore, vide orders dated 11‑7‑1985. The appellants thereafter assailed theorder of the Director through separate appeals before this Tribunal. It was argued that Director was not competent to decide the appeals of the appellants himself and should have forwarded the same to the Director General for decision.
7. These appeals came up for hearing before a Bench of this Tribunal consisting of learned Members. The appeals were allowed and Director‑General, Excise and Taxation was directed to decide the appeals of the appellants. The Director‑General, E & T, after receipt of the remand order proceeded to hear the arguments and dismissed the appeals of the appellants vide orders dated 22 6‑1986.
8. It is thereafter that the appellants have filed the present appeals in this Tribunal. The same were admitted to regular hearing on 11‑8‑1986 and notices were issued to the respondents. The respondents have controverted the contentions of the appellants as contained in their respective memo of appeals, contested the same and prayed for dismissal of these appeals.
9. We initially heard the learned counsel for the appellants and Mr. A.G. Humayun, District Attorney on behalf of the respondents on 17‑9‑1987. The learned counsel for the appellants in support of the appeals raised following points:‑‑
(1.) Firstly, it was argued that the charge‑sheet was vague and it lacked necessary details of charges
(2) Secondly, it was argued that both the Chemical Works and Inspectors posted at the destination of the products were equally responsible but action has been taken against the appellants alone. The action is, therefore, discriminatory and as such proceedings arc liable to be quashed;
(3) Thirdly, there was no evidence in support of the charges; and
(4) Lastly, it was argued that increments can be withheld for a specified period and not with cumulative effect.
10. On the other hand learned District Attorney argued that necessary particulars of consignments were clearly incorporated in different columns of the charge‑sheets issued to and served upon the appellants and there was no ambiguity whatsoever. In reply to the second point, it was argued that the Chemical Works were also suitably dealt with and since the Excise Staff posted at the alleged destination of the Cargo was not involved in this racket at all, therefore, there was no question of initiating any proceedings against them. While in reply to the third point, the learned District Attorney pointed out that statements of as many as five witnesses were recorded. This included the statement of Head of the raiding party and its members. The learned District Attorney in reply to the legal objections about the quantum of punishment submitted that there was nothing wrong with the same as the increments can be withheld with cumulative effect.
11. It was noticed by us while dictating the judgment that the appellants are guilty of heinous offence against the society and they have been let off very cheaply. We, therefore, issued notices to them to show‑cause why the minor Penal imposed upon them should not be converted into major penalty. The appellants after receipt of the notices, proceeded to submit applications under section 151 C.P.C on 8‑10_1987 praying that the show‑cause notices being illegal and without withdrawn. The notice of these petitions was issued jurisdiction be for 12‑10‑1987 to the respondents. The respondents filed their written reply to their petition and alongwrth it attached statements as to the quantity involved in these appeals. The sum and substance of the same is as under:‑‑
Mr. Salahud Din
Name of the Product Alcoholic Quantity strength in Lbs.
Tincture Scillea 96% 4,200
Tincutre Card Co. 97% 6,700
Total: 10,700
Sh. Tajammal Hussain
Tr. Card Co. 97% 21,804
Tr. Aurantii 116% 7,775
Tr. Zingiberis Mits 150% 1,300
Tr. Scillea 96% 9,100
Spt. Ammonia Arromat 120% 5,858
Aqua Anisi Con. 110% 22,052
Aqua Anethi 220
Total: 68109
12. The learned counsel for the appellants submitted replication to this reply by the respondents controvert its contents. The quantity declared by the respondents, was, also disputed but the appellants have not pointed out the quantity involved according to them. .
13. Thereafter, we once again proceeded to hear the arguments of both sides at length. The learned counsel for the appellants argued that this Tribunal has no jurisdiction to enhance the penalty imposed by the departmental authorities under the Punjab Civil Servants (E & D) Rules, 1975). The main reason advanced was that neither there is a provision for enhancement nor there is any procedure prescribed in the Punjab Service Tribunals Act, 1974, therefore, this Tribunal cannot enhance the penalty.
14. On the other hand learned District Attorney has submitted that the Tribunal is fully competent to pass any order including enhancement of penalty The arguments were two‑fold. Firstly, the appeal is in continuation of original proceedings and after submission of the appeals to regular hearing the Tribunal is fully empowered either to set aside or increase or decrease the penalty imposed by the departmental authorities. Secondly, as per Section 5 of the Punjab Service Tribunals Act, 1974, the Tribunal is competent to set aside, confirm, 'modify' or 'vary' the order. It is argued with emphasis that word `modify' and 'vary' arc exhaustive to cover all situations including awarding of greater penalty. It was, therefore, concluded that there was absolutely no bar to the Tribunal for enhancing the penalty.
15. The objection with regard to the jurisdiction to issue the show‑cause notice to the appellants wits overruled by this Tribunal and their petitions under section 151.C.P.C. were dismissed vide detailed order dated 2‑12‑1987. It was concluded that this Tribunal has jurisdiction to vary' the penalty either way. The conclusion was based mainly on the following local consideration
(i) Firstly, the appeal is in continuation of the proceedings, therefore, the Tribunal is vested with the powers of the departmental authority;
(ii) Secondly, the Tribunal for the purpose of deciding appeal is vested with all powers of Civil Court under Section 107 and Order 41, rule 33, C P C and as such it can pass any order or impose any penalty which should have been made or imposed by the authorities below; and
(iii) Thirdly, the word `vary' is comprehensive and wide enough to cover imposition of greater penalty than awarded by departmental authority.
16. These appeals have arisen under similar circumstances. The factual as well as legal points are exactly the same therefore, we are taking up the same together.
17. Now we proceed to decide the points raised in the appeals by the learned counsel for the appellants with reference to the counter arguments advanced by the learned District Attorney.
18. The first ground of attack of the learned counsel for the appellants, as noted in earlier portion of this judgment, was that charge‑sheet was ambiguous and lacked necessary details. We have gone through the charge-sheet and statement of allegations and find that the same are comprehensive and all the necessary details of the misdeeds of the appellants are clearly mentioned therein. The learned counsel for the appellants while making submissions on this point did not refer to the remarks column, wherein the 4iIlegations were clearly stated. We, therefore, find no force in the argument of the learned counsel for the appellants. The learned counsel for the appellants, also, tried to half‑heartedly argue that show‑cause notice was issued in respect of another Chemical Works. This is of no legal consequence for the reasons:‑‑
(1) The appellants were fully aware of the allegations against them and never took up this point either before the Enquiry Officer or Authorised Officer; '
(2) This was typographical mistake/slip of pen. The moment Authority detected the same, it proceeded to issue corrigendum, dated 3‑4‑7955 and notified to the appellants. .
(3) This point is not denied 'by the appellants. The appellants were not prejudiced in any manner by the incorporation of wrong name of Chemical Works in their charge‑sheet. We have asked Salah‑ud‑Din Butt, one of the appellants, who was present in the Court is to whether the allegations contained in the charge‑sheet, statement of allegations and show‑cause notice pertained to him or not. He admitted that these allegations pertained to M/s. Marshal Chemical Works where he was posted. We, therefore, conclude that the wrong mention about the name of the Chemical Works is of no benefit to the appellant as the other allegations were very clear and no prejudice .was caused to the appellants.
19. The learned counsel for the appellants in the second place argued that the appellants were serving as Excise Inspectors and were posted in Marshal Chemical Works and Home Chemical Works at relevant time and their duties were as under:‑‑
(1) Collection of Excise Duty; and
(2) Issuance of Permits for the, sale of products and transit passes, which is technically called L‑46.
The learned counsel for the appellants went on to amplify his contention, with reference to these duties, that it is clear that the Chemical Works as wolf its staff of the Excise and Taxation Department posted at the place of destination were, also, equally responsible and liable to same extent. They have not been touched and no action was taken against them. The learned counsel for the appellants concluded his argument by saying that in this way the action against the appellants alone amounts to discrimination and, therefore, is illegal.
20. On the other hand learned District Attorney argued that a meeting of Excise Officers was convened on 7th October, 1982 to discuss measures to put an end to the misuse of these products as cheap intoxicants and it was resolved that copy of transit permit L‑46 should be sent to the Excise Staff posted at the destination of consignment, as given in the permit. The purpose was to have a strict control both at the source and at the destination point. The appellants attended this meeting. It is not their plea that they were not aware of these instructions. The relevant paras of the minutes of the meeting read as under:‑‑
(i) Attendance:
Importance of presence of Excise Inspector in the licensed premises of Chemical Works during working hours was impressed upon the participants. All Excise Inspectors were directed to be punctual and regular. Frequent surprise visits by the Excise and Taxation Officer (Excise) would be made and delinquents will be brought to book.
(ii) Strict Control:
It was felt that there was still room for improvement in the supervision of the use of Rectified Spirit in Chemical Works. It was observed that rectified spirit could only be misused when there is a connivance of Officer Incharge with the management of the Chemical Woks or lie did not perform his duties efficiently. In this connection directions and instructions issued from time to time by the authorities were brought home to the Inspectors staff. While elaborating main features of the present campaign of the Government launched for the eradication of corruption they were directed to discharge their duties honestly, faithfully, and without fear or favour.
(iii) L‑46 Plisses:
One of the most important assignments of an Officer Incharge of a Chemical Works is, the despatch of L‑46 passes. Passes covering local consignments are required to be sent to the office within 24 hours, and those meant for other districts have to be despatched to the Assistant Excise and Taxation Officer of the district of destination. The officers incharge were therefore directed to strictly comply with the orders in this connection in order to ensure that L‑46 Passes reach their destination these should he despatched raider registered cover. They were further directed to produce relevant record pertaining to the despatch of L‑46 passes in office, once a week for scrutiny.
It is relevant to mention here that according to rule 7.8 of the Punjab Permit and Pass Rules, the copies were to be sent to the Excise Inspector of the district of destination. The relevant rule reads as under:‑‑
"7.8. All passes granted to cover the import, export or transport of liquor shall be subject to the conditions:‑‑
(a) ... ...
(b) ... ...
(c) that copies of the passes shall be sent to the Excise Inspector of the district of destination.
21. Copies of the minutes of the meeting dated 7‑10‑1982 were sent to all concerned vide endorsement, dated 23‑10‑1982. It is clear that the appellants were duty bound to send copy of L‑46 under registered cover to their counter‑parts posted at the destination given in the permits.
22. It is argued that when the Intelligence Team checked up the record it came ‑to light that the appellants were not following the instructions faithfully, as they have not intimated their counterparts through registered post as to the despatch of huge quantities. On further inquiry it came to light that these consignments were mostly sent to bogus and fake parties. It was in this view of the matter that disciplinary proceedings were initiated against the appellants.
23. We have gone through the inquiry report and find that the argument of the learned counsel for the appellants is fully vouched by the statements of PWs recorded by the Enquiry Officer. The Enquiry Officer as well as Authorised Officer both have concurrently held that the allegations have been fully proved against the appellants. The appellants while trying to capitalise this grouse perhaps did not bear in mind that by advancing this argument, in so far as they are concerned, they factually admitted their guilt. They, therefore, cannot escape the liability simply because the law enforcing agencies failed to proceed against some of their accomplices.
24. The appellants have not intimated their counter‑parts posted at the alleged places of destination of the consignments, therefore, they cannot be held responsible in any manner by any stretch of imagination. It is clear from the statements of P. Ws. that most of the consignees were bogus parties, there was no question of the Excise Authorities of those Districts to keep surveillance and check over the distribution and sale of these chemicals within their domain.
25. Now we take up the case of the Chemical Works. It is clear from the record that the matter was referred to the Police Authorities, who kept the files for some time and then returned the same without any action. It is not difficult to understand the reasons for this in‑action. It is maintained by the learned counsel for the appellants that the Chemical Works were not proceeded against only because they were enjoying high status both socially and financially. While on behalf of the respondents it is argued that the Chemical Works were fined Rs. _5;000. The same was the position taken up in the comments but it was vehemently denied by the learned counsel for the appellants, therefore, we directed the learned District Attorney to produce the copy of the order imposing penalty of fine. The learned District Attorney in compliance to the same produced photo-stat copy of order dated 23‑4‑1985. This order shows that a fine of Rs. 5,000 was imposed on Home Chemical Works. While there is no such order pertaining to Marshal Chemical Works and the order referred to has nothing to do with this Chemical Works. Whereas the respondent No. 2 in the comments in both the appeals has taken up the position that fine of Rs. 5,000 was imposed on Chemical Works. It is a matter of great regret that the respondent submitted incorrect and misleading para wise comments in this Tribunal. The Director‑General is directed to look into the matter and fix the responsibility as to who is responsible for submission of this incorrect report.
26. The present laws are totally ineffective to cope with the situation. The provisions for the most part were enacted by the English Rulers keeping in view their own social, religious, political and economic conditions. The same have altogether changed with the creation of Pakistan and the pledge of the nation to set up Islamic Society. But the said provisions of laws have not been amended suitably keeping in view the national and religious requirements. The same are not at all conductive for combating with this major evil i.e., drug traffic. The present penalty which can be imposed on Chemical Works for violation of any rules is provided in rule 11.50 of the Punjab Chemical Works Rules of 1933, which reads as under:‑‑
"11.50: If the approved manufacturer infringes or causes or permits any person to infringe any of the conditions enumerated above or any of the conditions ‑of his license, the Collector may revoke and determine the license and he may forfeit to Government the whole or any part of the security deposit:
Provided that the revocation of the licence or forfeiture of the security may be foregone on payment of such sum not exceeding the amount of security deposit, as the Collector may deem fit to accept."
27. The learned District Attorney in this behalf argued that even if the penalty of Rs. 5,000 is daily imposed on the Chemical Works, it will not at all have deterrent effect because they make lacs of rupees from the supply of these cheap intoxicants in the underground market. The figure of 75,000 pounds is not small by any means itself and one need, not be mathematician or use a calculator to make a safe guess as to quantity of intoxicants being put in the blood of the nation.
28. It is a matter of grave concern that use of these tinctures is on the decline but the production, according to the official sources, is multiplying every year. The reason is obvious that bulk of the production is diverted to be used as intoxicant. It is not an ordinary crime which can be checked or tackled by routine a measures. They arc traders of death and deserve to be dealt with a' strong hand.
Therefore, it is desirable shat suitable amendments in the relevant provisions of law are made to the following effect:‑‑
(a) Capital punishment should be provided for all persons involved or connected with drag traffic.
(b) The offence should be made triable by the special Courts estbalished under Special Courts for Speedy Trials Ordinance.
29. It is almost the entire world which is thinking on these lines and this is the reason that in the recent World Psychiatric Association Symposium on "Alcoholism and Other Dependencies" held in Warsaw, Poland from November 22‑25‑1987, the delegates unanimously recommended to treat drug menace as enemy No.1 and moved for great punishments in order to effectively dealt with the problem. Our brother Muslim countries, including Malaysia, have already legislated and provided for capital punishment.
30. Now we take up the third point that there was no evidence, whatsoever, to prove the charges against the appellants. The learned District Attorney on the other hand referred to the statements of P.Ws. We have gone through the inquiry file and find that the allegations against the appellants we proved to the hilt. The PWs during investigation have gone from district to district and from town to town to verify all the despatches made under the authentication of the appellants from the two Chemical Works to the different parts of the Province. They have clearly brought on record the number, date and names of the consignee. Most of the consigners were not in existence at all and the others did not receive any such consignments. The PWs were cross‑examined at length by the accused but they failed to get any point or shake the credit of these witnesses, who are natural, independent officials, and have no enmity with the accused. The appellants produced Malik Abdul Ahad as DW, who simply stated that the passes were issued by the accused in accordance with the rules. The statement of DW reads as under:‑
This statement in no way covers the allegations against the appellants. It is not the allegation that the appellants did not recover the Excise Duty nor it is the case of the Department that they did not issue authentication in L‑46, therefore, statement of DW has no bearing on the matter, whatsoever. The argument raised on behalf of the appellants is falsified by the record itself. Therefore, both Enquiry Officer and Authorised Officer rightly and concurrently concluded that the allegations were fully proved against the appellants. Moreover, the appellants confessed, as noted by us while deciding the preceding point, i.e., that the appellants have met with discriminatory treatment as their accomplices have not been proceeded against. Therefore, it does not lie in their mouth to raise a contradictory plea. The argument is factually fallacious and incorrect.
31. The last point raised by the learned counsel for the appellants is that Authorised Officer acted illegally while ordering withholding of two increments with cumulative effect. This argument after issuance of show‑cause notice as to why greater penalty should not be imposed, has become irrelevant and has no significance. However, this fact at least clearly proves that the Authorised Officer is most inefficient person; otherwise our impression is that the Authorised Officer mala fide left this locating to help the appellants. The provisions for Atithorised Officer ill the Efficiency and Discipline Roles have not invoked They are the major cause of delay ill the disposal of the disciplinary actions and also defeat the well purpose of the law and create inlay legal complications because they are not mindful of the law and rules. Therefore, rules relating to Authorised Officer require review.
32. This brings us to the issuance of show‑cause notice and the penalty which should have been imposed on the appellants keeping in view the nature and magnitude of their guilt. We have heard the parties twice and when these appeals were fixed for orders for 2‑12‑1987 there was yet another application filed on I behalf of the appellants under section 151, CPC. The arguments addressed under the cover of this application were merely repetition of the arguments on previous two occasions. We have dismissed these applications by a separate order. The appellant are guilty of first allowing thousands of pounds of cheap intoxicants to flow in the wrong hands in a period of six months. The Alcohol has been declared by Islam as `Umm ul‑Khabais', mother of evils. The cheap intoxicants which have gone with the blessing of the appellants in the underground market, its formula is such that the same is injurious to human health. The learned District Attorney pointed out that the Chemical Works made 22 to 25 lacs of rupees by diverting the drugs to the underground market. The appellants being their share‑holders must have received their share: Since it is not one of the charges, therefore, we need not discuss the merits of the plea. Secondly, they have flouted the lawful orders. They are not paid from the public exchequer to inject poison in the veins of the nation but they arc required to sec that the law has its recourse respected and followed by the citizens and if they become instrumental for flouting the laws and defeating the very purpose of their posting, they do not deserve any leniency or indulgence. The laws should be so strict that if a civil servant is found involved ill dent trafficking he should riot only lose the job bill he should also lose the head. The deterrent punishment will prove most effective weapon in the armoury of the State to win the war waged against enemy No. 1.
33. We are of the considered view that the charges of inefficiency and l misconduct have been fully proved against the appellants by the evidence on record, to the same effect are concurrent findings of the Enquiry and Authorised Officers. This is open secret that the Chemical Works have made lass of rupees due to the diversion of the drug and who will believe that the appellants assisted them `gratis'. We have given our anxious consideration as to the quantum of punishment and one cannot think of any other penalty than dismissal from service keeping in view the magnitude and gravity of their illegal and anti‑social activities.
34. The upshot of the discussion is that we vary the minor penalty of withholding of two increments to that of dismissal of the appellants from service forthwith. Their appeals are dismissed with costs.
S.Q./218/Sr‑P
Appeals dismissed/Penalty enhanced.