1985 PLP (C (PLC(CS))

MUHAMMAD IRSHAD KHAN (MEMBER).‑‑ It is the case of the appellant that he in 1974 while posted as Inspector, Central Excise and Land Customs, Quetta, had detected "ever biggest" case of smuggling of goods amounting to the tune of Rs.1,53,44,018 and as an acknowledge ment of his extraordinary devotion to duty and show of courage in the said smuggling racket and in some previous cases the then Assistant Collector, Central Excise and Land Customs, Quetta, recommended for the appellant's out of turn promotion of the post of the Deputy Superin tendent, Central Excise and Land Customs. In addition, according to rule 3 of the Customs Reward Rules, 1973, the appellant was entitled to a reward amounting to Rs.2,20,000 and to an equivalent amount reward to the informer. However, in spite of his repeated representa tions/appeal neither out of turn promotion was granted to him in recognition of his meritorious service, nor reward due under the Customs Reward Rules, 1973, was paid to him inasmuch as only Rs.11,520 and Rs.37,120 respectively were paid as a reward to him and the informer. When the respondent‑Department did not respond to his numerous representations the appellant finally submitted a representation through his Advocate on the 20th of May, 1982, and after waiting for a statutory period of 90 days, filed the present appeal before this Tribunal on the 22nd of August, 1982, praying for a direction to grant him out of turn promotion as Deputy Superintendent w.e.f. 14‑8‑1973 and for a declaration that he is entitled to receive reward under rule 3 of the Customs Reward Rules, 1973, and further a direction to respondent No.2, the Collector, Central Excise and Land Customs, Quetta, to pay the appellant's informer his balanced reward without any condition of disclosing identity of C. S. informer.

2. It was pointed out by the respondent‑Department that the appellant had already sought the same relief in his appeal being No. 157(R) of 1976 filed in this Tribunal which was rejected after due consideration. On our verification it transpired that for the same cause of action and relief the appellant filed the said appeal which was dismissed by this Tribunal vide its order, dated 7‑1‑1977 at the stage of preliminary hearing. However, such dismissal of earlier appeal in our view, does not operate as res judicata because the facts involved were not finally heard and decided in that earlier appeal.

3. It is, however, to be seen that the present appeal is hopelessly time barred. The cause of action had accrued to the appellant latest in 1976 prior to filing of the aforesaid appeal bearing No. 157(R) of 1976. The appellant's representation in 1982 cannot give him a fresh cause of action. There is no proper explanation for inordinate delay of about six years. The appeal, therefore, deserves to be dismissed on this ground alone.

4. The peculiar facts of this case, however, attracted our attention and after having anxiously examined the record of the case and considering the submissions made by the parties, we reached the conclusion that the appellant was not treated fairly and justly in the matter because he demonstrated a remarkable performance in preventing the smuggling against the wishes of some of his colleagues and bosses. Our perusal of the record has revealed that in pursuance of the Central Board of Revenue Memo. No. 2627‑M(O.E.)/74, dated 9‑10‑1974 Ch. Muhammad Hussain, the then Joint Secretary, Cabinet Division, had made a thorough probe into the smuggling racket, in question and sub mitted a detailed enquiry report, dated 16‑2‑1974. The said enquiry report clearly shows that the performance of the appellant in the said smuggling racket was really appreciable, while, the conduct of Mr. S.T.R. Zaidi, the then Collector, Central Excise and Land Customs, Hyderabad was found to be highly objectionable. It may be advantageous to reproduce pares. 66 and 67 of the said enquiry report which read below: "

66. It has been said that corruption flows from top to bottom. The present is a case in point. Where the game‑keeper turns into a poacher, the consequences are sure to be disastrous.

67. The proprietor of M/s. Marketing International imported individual consignments prior to 6/74 through Quetta route. Having developed his contacts with the customs staff and won the patronage of the Collector Hyderabad Mr. S.T.R. Zaidi and having seen that no proper examination of goods was carried out at Quetta where physical check was confined to visual and casual examination, he imported a trailer load of consignments in 5/74. The trailer as per manifest had 424 packages but in the import application 230 packages were declared. This trailer was cleared by the Custom Inspector Mr. S.N.P. Bhangar who had been specially selected for the job and posted at the Quetta Railway Station Customs Office Quetta for this specific purpose. Encouraged with the case, with which this was done, in 8/74 he brought two trailers loads of consignments which were cleared by the Station Custom Staff for which purpose the Collector of Custom had paid a special visit to Quetta from 22‑8‑1974 to 24‑8‑1974 and earlier during the first week of August. But as bad luck would have it for them, the informer proved too resourceful and the Custom Inspector Mr. Ghulam Sarwar too courageous to intercept the trailers in time and they both succeeded to foil the design of the importer and his accomplices in the custom organization. Every effort was made to prevent unloading of trailer at Quetta and to remove these to Hyderabad/ Karachi or Lahore but so far such attempts have proved abortive."

5. The above conclusion is sufficient to establish beyond any shadow of doubt that the then Collector, Hyderabad, Mr. S.T.R. Zaidi, bore a grudge and malice against the appellant. We, therefore, find force in the contention of the appellant that out of turn promotion was not granted to him due to the annoyance of the said Collector with him. A stand has been taken by the respondent‑department that there is no provision in the rules for out of turn promotion which cannot be claimed as of light. The material on record, however, shows that in a number of cases out of turn promotions have been granted to the Custom Inspectors on consideration of their role in detection of smuggling cases. This creates an unavoidable impression that recommendation of out of turn promotion of the appellant was maliciously and unjustly turned down and an apparent injustice was done to the appellant in this regard.

6. The stand taken by the respondent‑department on the question of grant of reward, is that though rule 3 of the Customs Reward Rules permits 1/3rd share of the admissible reward to the staff and officers of the Customs Department or other anti‑smuggling agencies involved in seizure operations yet rule 4 of the said Rules restricts the reward to a serving officer equivalent to his two years' salary only and the appellant was accordingly granted reward equivalent to his two years' salary. To appreciate the contention it may be advantageous to reproduce below the said rule 4:‑ "

4. Notwithstanding anything contained in paragraph 3 the reward to serving officer shall not ordinarily exceed 2 ears' salary in anyone case." (Underlining is‑mine) A bare reading of the above provision makes it quite clear that the intention is to restrict the reward to an amount not exceeding two years' salary only in ordinary cases. In other words, in a special case the restriction Imposed in rule 4 does not apply and reward in such case can be granted even in excess of two years' salary. Undoubtedly, the instant case was not ordinary one and deserved to be treated as a special case for grant of reward permissible under rule 3 disregarding the restriction contained in rule 4 for ordinary case. It therefore seems that in the matter of reward also a fair and just treatment was denied to the appellant. Under the circumstances notwithstanding the fatal technical defects in the present appeal, we would in the interest of justice, fairplay and good administration, require and advise that the case may .be taken up and reconsidered by the Chairman, Central Board of Revenue, with a view to redress the grievances of the appellant keeping in view the observations made hereinbefore and the enquiry report of Ch. Muhammad Hussain. For the purpose, a copy of this order may be endorsed to the Chairman, Central Board of Revenue.

7. With the above observations the appeal is otherwise dismissed with no order as to costs. A.E. Appeal dismissed.