2000 PLP (C (PLC(CS))

CH. MUHAMMAD ARIF, J.‑‑‑Challenge. in this petition under Article 212(3) of the Constitution of the Islamic Republic of Pakistan 1973, has been made to judgment, dated 28‑1‑1997 passed by the Federal Service Tribunal allowing petitioner's Appeal No.291(L) of 1996 whereby the order, impugned in the said Appeal i.e. order, dated 4-6‑1996, passed by respondent-Deputy Collector/Authorised Officer, was set aside and the penalty imposed upon the petitioner was reduced, in the following terms:‑‑‑ "In view of the findings of the Enquiry Officer and the proceedings conducted by the undersigned, the charges as indicated in the charge‑sheet are established beyond any shadow of doubt. The case with complete documents alongwith the recommendations of the undersigned as an Authorised Officer was referred to the authority for imposition of major penalty as defined under rule 4(b)(i) of Government Servants (Efficiency and Discipline) Rules. 1973. The authority has been pleased to impose major penalty of lowering 5 stages in the time scale of Mr. Aslam Javaid. The accused Deputy Superintendent as covered under rule 4 (b)(i) of Government Servants (Efficiency and Discipline) Rules. 1973. It is accordingly ordered that the major penalty of lowering 5 stages in the time scale of Mr. Aslam Javaid, the Deputy Superintendent is imposed with immediate effect. It is, further ordered that the period of his suspension shall be treated as spent on leave, if due. The competent has also been pleased to reinstate Mr. Adam Javaid into the Government Service with immediate effect." The background, in which the impugned order came to the passed, is that the petitioner was charge‑sheeted, as Deputy Superintendent. Dry Port. Export Section, Mughalpura, Lahore, for misconduct as defined under Government Servants (Efficiency and Discipline) Rules, 1973. The statement of allegations read thus: "Whereas you; Mr. Aslant Javaid, Deputy Superintendent (under suspension) while posted in Export Section, were marked Shippin Bills the details of which is given below for scrutinizing document and countersigning examination report prepared by the Examining Officer and; "(2) Whereas it has been observed that while countersigning the examination report prepared by Examination Officer and scrutinizing the documents you have filed to detect the fraud and allowed export of inferior quality/low, priced carpets which prima facie shows that you have connived with the exporter in order to provide him the opportunity to get massive duty draw back to mischievous way. "(3) Now, therefore, you, Mr. Aslam Javaid, Deputy Superintendent Customs (under suspension) are charged with 'Misconduct' as defined under Government Servants (Efficiency and Discipline) Rules, 1973. "Shipping Bills Nos. 8374 to 8380, dated 28-6‑1994, 8382 to 8408, dated 28‑6‑1994, 8409 to 8458, dated 29‑6‑1994, 8482 to 8484, dated 29‑6‑1994, 8486 to 8492, dated 29‑6‑1994." It was on I‑9‑1995 that the Authorised Officer/Deputy Collector issued show‑cause notice to the petitioner (under suspension) as to why the major penalty of dismissal from service under Rule 4 (b) of the Government Servants (Efficiency and Discipline) Rules. 1973 be not imposed on him.

3. After, considering the relevant material, brought on the record during the departmental. proceedings against the petitioner, the respondent Deputy Collector/Authorised Officer came to the conclusion that: "The authority has been pleased to impose major penalty of lowering 5 stages in the time scale of Mr. Aslam Javaid". As already mentioned above, it was this order dated 4‑6‑1996 which was set aside by the learned Members of the Federal Service Tribunal vide the impugned judgment dated 28‑1‑1997 and the penalty was reduced to lowering of two stages in .the time scale for three years".

4. Hence this petition.

5. It appears that the learned Members of the Tribunal were not impressed by the plea raised on behalf of the petitioner to the effect that in the absence of any mens rea on his part in relation to the performance of his functions as Deputy Superintendent Dry Port. Export Section, he was entitled to a clean chit. Even the argument of the‑then learned counsel for the petitioner to the‑ effect that no loss was caused to the Department as no rebate had been claimed by the exporters and, therefore, he should be exonerated in this cause, did not find favour with the Tribunal. The same is the position with regard to the alleged discriminatory treatment having been meted out to the petitioner.

6. We have heard the petitioner, who has appeared in person, in support of the petition as also Mr. Sh. Izhar‑ul‑Haq, learned counsel appearing for the respondents.

7. Petitioner‑Aslam Javaid has sought reversal of the impugned Judgment on the following lines:‑‑ (I) In the first place it was submitted that he should have been allowed the benefit of the finding by the learned Tribunal he was misled by Standing Order. Dated 3‑12‑1991 and that there was no mens rea on his part. He had only countersigned the signatures of the Inspector who examined the Shipping Bill and other documents, which was subsequently approved .by the Superintendent. The action taken by him was subject to approval by the higher officials with the result that he could not be punished for those actions which were not final at his level. (II) Further, that he had rightly applied Standing Order, dated 3‑12‑1991 and as the same was superseded by Standing Order No.8217, dated 17‑9‑1994, his action, dated 29‑6‑1994 was in order. According to him, Standing Order, dated 3‑12‑1991 provided that 'duty drawback' of carpets shall not exceed 10% of the value. In the case in hand, the 'duty drawback': on carpets was 8.60% while, with the addition of sales tax at the rate of 3.09% and excise duty at the rate of 0.24 % , it swelled the total to 11.93 % . Since the duty draw back was 8.60% the same fell within the ambit of Standing Order, dated 3‑12‑1991, therefore, he is not guilty. Contrarily, Mr. Sh. Izhar‑ul‑Haq, learned counsel appearing on behalf of the respondents, has supported the impugned judgment with the contention that the petitioner has been leniently treated in the matter of reduction of penalty in appeal, by the Service Tribunal.

8. We have considered the arguments of the petitioner and the learned counsel for the respondents and have also perused the material available on the record. As regards the arguments reflected in sub‑para. (I) of para. 7 above, we find that the observations made by the learned Tribunal to the effect that the petitioner was misled by Standing Order, date,! 3‑12‑1991 while dealing the case of the exporters at his level, hardly q1alify him for being excused. These observations were made while considering the quantum of penalty/punishment being commensurate or otherwise with the one imposed by the Competent Authority. The Tribunal preferred its decision to reduce the penalty with two sentences which read thus:‑‑ "All the same he should have consulted a senior about the real impact of this percentage which he failed to do. This means that it is positively a case of negligence and indifference." The learned Members of the Tribunal were quite right in holding that the terms 'export value' used in Standing Order; dated 3‑12‑1991 relates to the total 'export value' and not 'customs duty' only. There is no force in the plea raised by the petitioner that as the declaration of the exporters in respect of the quality of carpets as also their value was to be accepted in terms of the instructions of the‑then Collector of Customs vide Standing Order, dated 3‑12‑1991, he was entitled to a clean chit.

9. Taking up the last point raised by the petitioner, we suffice by observing that the petitioner was unable to meet the reasons advanced by the learned Members of the Federal Service Tribunal for holding that the intention of the Standing Order, dated 3‑12‑1991 is abundantly clear that rebate does not relate to Customs duty alone. 'The. term 'export value embraces the customs duty, sales tax and excise duty with the result that the same exceeds 10 % .

10. It is not the case of the petitioner that the Federal Service Tribunal IA was not possessed of the jurisdiction to reduce the penalty while disposing of his Appeal No.291(L) of 1996.

11. Moreover, no question of general public importance has been raised by the petitioner.

12. Resultantly, the instant petition is dismissed and leave refused. Q.M.H./A‑46/SC Petition dismissed.