2008 PLP (C (PLC(CS))

(On appeal from the judgment, dated 19-2-2007 of the Federal Service Tribunal, Islamabad in Appeal No.1775(R)(C.S.) of 2005).

S. 3

Compulsory retirement from service

Charge of misconduct

Going abroad of two passengers on fake travelling documents during civil servant's duty at F.I.A. Immigration Check Post at Airport

Inquiry Officer recommended penalty of reduction to lower stage in time scale for period of three years

Competent Authority imposed penalty of compulsory retirement without recording specific reasons of his disagreement with recommendations of Inquiry Officer, but adding additional charges not mentioned either in the order of 'inquiry or statement of allegations or in final show-cause notice

Validity

Civil servant, despite having full opportunity to cross-examine witnesses, could not vindicate his position

Such passengers could not proceed abroad without blessing or inefficiency of civil servant

Recommendations of Inquiry Officer should have been given respect

Impugned penalty was set aside and that recommended by Inquiry Officer was maintained in circumstances. JIJDGMENT IJAZ-UL-HASSAN KHAN, J.

Above titled appeal, with leave of the Court granted on 7-11-2007, is meant to call into question the judgment, dated 19-2-2007 passed by Federal Service Tribunal, Islamabad, dismissing Appeal No.1775(R)(C.S.) of 2005, preferred by Khalid Mansoor, appellant.

2. Shortly narrated the facts necessary for disposal of instant appeal are, that appellant joined service of the Federal Investigation Agency (F.I.A.) as constable w.e.f. 13-9-1987. The appellant was proceeded under the provisions of Removal from Service (Special Powers) Ordinance, 2000, vide order, dated 17-9-2004 on the allegation that while posted at F.I.A. Immigration Check Post at Islamabad International Airport he committed acts constituting inefficiency and misconduct as two passengers namely, Mrs. Romeena Manzoor and Mr. Gulzar Hussain travelled to United Kingdom on fake passports and the appellant being on duty at General Checking Counter failed to check/stop them from proceeding to their destination. An Inquiry Officer was appointed to conduct a departmental inquiry and a charge-sheet was issued to the appellant. The appellant submitted his defence reply and denied the charges/allegations levelled against him and professed innocence. After the finalization of the inquiry proceedings, Inquiry Officer submitted his report to respondent No.1 i.e. Director, F.I.A. Rawalpindi Zone, Rawalpindi recommending that `appellant may be awarded major penalty of reduction to lower stage in time scale for a period of three years'.

3. On receipt of the inquiry report, respondent No.1, while disagreeing with the commendations of the Inquiry Officer, imposed major penalty of dismissal from service upon the appellant vide order, dated 8-11-2004. The appellant filed a departmental representation/ appeal before respondent No.2 i.e. Director, F.I.A. Headquarters, Islamabad, which was allowed. Dismissal order was set aside and appellant was reinstated in service with order of de novo proceedings. The appellant reported for duty. De novo proceedings were started against the appellant, a show-cause notice was issued and reply of the appellant having been found unsatisfactory, major penalty of compulsory retirement from service was imposed upon the appellant vide order, dated 1-6-2005. Against the aforesaid order, a departmental representation was made before respondent No.2, which remained unresponded. Feeling aggrieved, appellant filed an appeal before Federal Service Tribunal, which was dismissed through the impugned judgment.

4. Mr. M. Shoaib Shaheen, Advocate appearing on behalf of the appellant, in support of the appeal, contended with vehemence that the competent authority has no power to impose a major penalty upon the appellant without recording specific reasons of disagreement of the recommendations made by the Inquiry Officer in the departmental inquiry report; that the Tribunal instead of adjudicating upon the question assailed in appeal as to whether order of compulsory retirement was lawful, valid and legal or otherwise, took into consideration extraneous matters; that the appellant has been discriminated and given step-motherly treatment qua other officials involved in the case and that material on the file has not been appreciated in its true perspective and appellant has been condemned unheard. To augment the contentions, reliance has been placed on Dilawar Hussain Shah v. Maqbool Hussain Shah 1990 SCMR 994, Mukhtar Ahmad Bhatti v. Director Food, Punjab, Lahore, 1992 SCMR 1864, Chief Director, Central Directorate of National Savings, Islamabad v. Rahat Ali Sherwani 1996 SCMR 248, Deputy Inspector-General of Police v. Shafique-ur-Rehman 2000 SCMR 669, Samiuddin Qureshi v. Collector of Customs PLD 1989 SC 335 and Shafaullah Khan Niazi v. Deputy Director, Food Department, Multan PLD 2004 SC 55.

5. Raja M. Irshad, learned Deputy Attorney-General on the other hand, controverted the arguments of learned appellant's counsel and supported the impugned judgment forcefully, maintaining that sufficient incriminating material was available on the record to connect the appellant with the guilt and in view of the gravity of the offence, appellant has been dealt with rightly and punished appropriately.

6. A perusal of the record would reveal that a detailed inquiry was conducted to probe into the matter and appellant was provided full opportunity of cross-examination of the witnesses but he failed to vindicate his position. The appellant also failed to prove that the two passengers boarded on the plane not by using some unauthorized passage thereby avoiding the immigration clearance. It stands established from the material on record that both the passengers succeeded to proceed abroad on fake travelling documents during appellant's duty at General Checking Counter and it was not possible for the said passengers to go abroad without the blessing of the appellant or at least because of his inefficiency. However, we find force in the contention of learned counsel for the appellant that the competent authority imposed major penalty upon the appellant without recording specific reasons of disagreement with the recommendations made by the Inquiry Officer and instead of adjudicating upon the question involved, added the additional charges which were neither contained in the order of inquiry nor in the statement of allegations or even in the final show-cause notice. The responsibility, in our considered view, could not have been solely placed on the appellant's shoulders. The recommendations of the Inquiry Officer should have been given respect.