1988 PLP (C (PLC(CS))

CH.A. RAHMAN KHAN (MEMBER).‑‑The appellant, S. Iftikhar Hussain, Ex‑Appraiser, Collectorate of Customs (Preventive), Karachi, has come in appeal against the impugned order of his dismissal vide final Order No. 278‑ACE.I/84, dated 5th September, 1984. The appellant preferred a departmental appeal to Respondent No.l but having received no reply within the statutory period of 90 days has come in appeal before the Tribunal.

2. The facts of the case are that the appellant joined the Custom House, Karachi as Examining Officer with effect from 9th September, 1967 and was later promoted as Appraiser with effect from 31st May, 1976. It was contended by the learned counsel for the appellant that he had rendered about 17 years of blotless service and performed his duties with diligence and hard work. However, on 15‑1‑1983, the appellant was served with a charge‑sheet by Respondent No.2 which is reproduced below:‑ "GOVERNMENT OF PAKISTAN Confidential CENTRAL BOARD OF REVENUE Registered A/D C.No.4/8‑82‑ACE.I Islamabad, the 15th Jan.1983. CHARGE SHEET Whereas it has been reported that in the month of January, 1982, while you, Mr. S. Iftikhar Hussain, Appraiser, were posted in the Export Wing of Air Freight Unit, Karachi Airport, two S/Bills No.409/18‑1‑1982 and 25613/20‑1‑1982 were filed by clearing Agents M/s A1‑Hamd Enterprises, CHL No.889, covering two consignments, consisting of 30 and 31 cartons, declaring the contents as 2773 and 3112 'Tennis Rackets of Super Delux Laquer Finish Super Swing' valued at Rs.2,54,742 and Rs.2,75,537.70 respectively, at a rate of $ 9 per racket, under rebate claim of Rs.2,54,

534. The said shipping bills were submitted by the above clearing agent on behalf of M/s Puri International, 17‑8, Morji Street Kharadar, Karachi, consigned to M/s Ali Tansiq Trading Company, Dubai and Jeddah.

2. The said shipping bills were marked to Mr. Fazal Ahmed Abbasi, Examiner for examination and report. He examined the goods and put in his report on the reverse of the triplicate copies of both the S/bills stating as follows: 'Examined the selected cartons, descriptions goods Tennis Rackets, quantity found as per S/Bills and Invoice checked with A.E.2, 4th copy endorsed, all cartons sealed'. Whereas you, Mr. S. Iftikhar Hussain, Appraiser approved the examination report, stated above, and assessed the value of goods accordingly, and Mr. Usman Ali Khan, Principal Appraiser, approved the Valuation and Examination Reports and allowed the shipment of goods in question.

3. On credible information, the staff of the Special Checking Squad (Preventive) intercepted both of the consignments, consisting of 30 and 31 cartons, while these were being loaded on the Aircraft.

4. On re‑examination misdeclaration of value, quality and quantity was found. The rackets were short in quantity i.e. 1471 and 1469 rackets in place of the declared quantity of 2883 and 3112 rackets. Thus 1406 and 1743 rackets were short in each consignment resulting in the total shortage of 3149 rackets. The quality of the rackets was also not in accordance with the declaration, as the rackets were found to be ordinary badminton reject rackets meant for children, having a market value of Rs.5 per racket against the declared value of $ 9 per racket. The value of rackets actually found, was ascertained to be Rs.8,355/‑ and Rs.7,355/‑ only, as against the declared value of Rs.2,54,742/‑ and Rs.2,75,537.70. Thus, had the case not been detected, the Government would have been defrauded of Rs.2,54,534 by way of export rebate.

5. On learning of the detection of fraud, you Mr. S. Iftikhar Hussain, Appraiser and Examiner Mr. Fazal Ahmed Abbasi deliberately tampered with the documents to cover the act of gross misconduct and the following additions were made by the Examiner: 'Samples put up to A.0. for 'value'; and you made the following additions: ‑ 'Sample seen. Declared value is very much on higher side. Samples may be referred to Assistant Collector for Check.'

6. Now, therefore, you Mr. S. Iftikhar Hussain, Appraiser, Custom House, Karachi are charged with 'misconduct' under the Government Servants (Efficiency & Discipline) Rules 1973. The allegations, if established would call for a major penalty of dismissal from service, as provided under rule 4(b) (iv) of the aforementioned Rules.

7. It has been decided to hold a formal inquiry against you in respect of the charges mentioned above and specifically mentioned in statement of allegations. Mr. Tahir Mehmud, Deputy Collector of Customs, Custom House, Karachi, has been appointed as Inquiry Officer. You are hereby required under sub‑rule (2) of Rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1973, to put in your written defence to the Inquiry Officer within 14 days of the receipt of this charge‑sheet and also to state whether you desired to be heard in person. Sd/- (FAZLUR RAHMAN KHAN) CHAIRMAN Mr. S. Iftikhar Hussain, Appraiser, Collectorate of Customs, (Preventive) Custom House, KARACHI."

3. It was strongly contended by the learned counsel for the appellant that although an enquiry was conducted but the Inquiry officer failed to record the relevant evidence of the concerned parties which could conclusively prove the guilt of the appellant. Strangely enough the co‑accused i.e. Principal Appraiser Mr. Usman Ali Khan's statement was recorded as a prosecution witness. All other statements were recorded in his absence and the appellant was not given any opportunity to cross‑examine any witness except the co‑accused Mr. Usman Ali Khan, Principal Appraiser, on his request.

4. The learned counsel for the appellant also submitted that according to the processing order a consignment under two shipping Bill No.25409 dated 18‑1‑1982 was examined by the Examining Officer, Mr. Fazal Ahmad Abbassi. The consignment consisted of Sports Goods, Tennis Rackets and was to be air‑lifted under Airway Bill No.065‑1424‑5302 booked by M/s Puri International, Karachi for Dubai and Jeddah. When this bill was brought to the notice of the appellant, he too in routine initially endorsed his remarks and allowed the shipment of the Goods but suspecting something abnormal he proceeded to examine the samples. During this examination, it was revealed that in fact the Tennis Rackets were not of the proper size and quality but were of smaller size and meant for children. Under the normal circumstances cargo air‑lifted even when re‑examined is allowed for shipment but samples are sent back to the Custom House for re‑assessing the value. In this case too, it was contended that, after making the necessary entry on the bill, the sample was drawn in the presence of Principal Appraiser Mr. Usman Ali Khan who signed it. The shipment was recommended to be allowed which is the routine procedure. The Principal Appraiser also approved this action of the appellant and has confirmed this in his statement. It was submitted by the learned counsel for the appellant that, as stated above, it is true that initially the appellant in routine did endorse his remarks "Shipment may be allowed" but before its submission to the Principal Appraiser for approval he did take out a sample for re‑assessment and endorsed the remarks on the bill in this case in his own hand. It is not, therefore, true that these remarks were added any time other than the original date of shipment. However, the shipment was intercepted by the Special Checking Squad (Preventive) and the consignment was sent to the Custom House for checking and re‑assessment. The discrepancies were found both in the number of tennis rackets as well as in the quality and the size of the Sports Goods. It was strongly contended by the learned counsel for the appellant that in this process of examination there are three people who are involved as under: (a) The Examining Officer who carries out the initial check according to the examination order which in this case is reproduced below: ' "A/O E/O. Please inspect the lot. Examine 10$. Verify description, quantity as per invoice and S/B. End. 4th copy. Sd/‑ A.O. Processing Sd/‑P.A. Export." The check was carried out by the Examining officer according to the examination order and if there was any doubt the Examining officer could open all the packages and check the actual number of the goods. Since the examination report did not cast any doubt the report was generally taken as correct by the Appraiser. (b) The second person in the chain is Appraiser who again has the discretion to have the packages opened out for full examination if any doubt is created. In this case it is only as a result of doubt that the Appraiser had the sample drawn out of ‑ the packages for examination which brought the discrepancy to light. This fact was brought to the notice of the Principal Appraiser by the appellant and the sample drawn was to be sent to the Custom House for re‑assessment. (c) The third person in the chain is the Principal Appraiser who finally approved the recommendation of the Appriaser. The shipment was finally allowed only when the orders were passed by the Principal Appraiser. In this case the Principal Appraiser too could open up the entire packages for examination and counting, if necessary. However, this was not thought appropriate by the Principal Appraiser in this case.

5. The learned counsel for the appellant contended that only the person who has suffered in this case is the appellant who has been dismissed whereas the other two persons i.e. Examining Officer and Principal Appraiser who are in fact just as responsible have been dealt with lightly and left almost unscratched. It is not clear as to how the entire blame has been placed on the appellant who is only one of the three in the chain. If the entire examination was so faulty then all three in the chain should have been punished equally.

6. It was contended by the learned counsel for the appellant that if the was shipment was to be stopped then it was only the Principal Appraiser who could have passed such an order. The appellant's recommendation of allowing the Shipment could have been overrule by him. The report of the appellant is only recommendatory. This is for the Principal Appraiser to pass the final order who is incharge of the team. The discrimination shown in punishing the appellant so severely is against the principle of fairplay and justice. As a matter of fact in the' chain of examination it is the appellant only who brought the discrepancy to the notice of the Principal Appraiser and he in his statement has also confirmed that the sample was drawn in his presence and that he signed the sample for onward despatch to the Custom House for necessary re‑assessment. If, therefore, all this is proved, the appellant cannot, by any stretch of imagination, be solely held responsible for any lapse in the process of examination. It is indeed in the fitness of things that the dismissal order of the appellant is set aside, being unjust and discriminatory.

7. Besides, it was further submitted by learned counsel for the appellant that in spite of the clear orders of the Deputy Controller (Preventive) to order an enquiry to find out the circumstances of deliberately tampering with the documents, no action was taken. There was nothing on record to prove that any act of misconduct was committed by the appellant in this regard. The inability of the respondent‑department to do the needful in this case is obvious. Even on this count when the charges are not proved beyond any doubt, the impugned order is liable to be set aside being void and illegal.

8. The learned counsel for Respondents as well as the representative of the respondent‑department emphasized that the enquiry conducted in the case proved beyond any shadow of doubt that the process of examination was not carried out in a correct manner. It was also contended that at the time of seizer of the goods the bills did not carry the remarks for drawing of samples etc. by the appellant but these remarks were added some time later between 21‑1‑1982 and 24‑1‑1982 when these papers were in fact in the custody of the Special Checking Squad (Preventive). This fact is also corroborated by the statement recorded by the Deputy Controller (Preventive) dated 24‑1‑1982. This goes to prove that the remarks of the Appraiser regarding drawing of samples were added later on and were not there at the time of receiving of the bill. This amply proves that the appellant had fraudulently managed to add the remarks afterwards and that the appellant was guilty of misconduct. It was further submitted that it is true that the Examining Officer's report is generally taken as correct but the Appraiser who is very important person in the chain of examination of goods is expected to exercise his discretion in view of his longer service and experience. In this case the appellant failed to do his duty and did not check the packages when a doubt was .created. If the remarks of the Appraiser i.e. the appellant in this case, had existed originally the Principal Appraiser would have certainly taken the appropriate action of having the goods re‑examined. In this case the Principal Appraiser merely acted on the recommendation of the Appraiser, the appellant and allowed the Shipment,. Therefore, the Examining Officer and the Principal Appraiser have been dealt with comparatively leniently. The punishment of dismissal in the case of the appellant is very much appropriate in view of the facts brought out by the enquiry and may not be up set.

9. We have perused the record produced before us and we find that the Deputy Controller (Preventive) in his report had strongly recommended that an enquiry be carried out to find out the circumstances under which the appellant could have made the alleged endorsement when these bills were in the custody of the Special Checking Squad (Preventive). But, no action seems to have been taken on these orders. No enquiry report was made available to show that these orders were carried out to enquire into the circumstances of the alleged fraudulent entry by the appellant. In fact the representative of the respondent‑department had no knowledge of any such orders on the subject. We also examined the original shipping bills produced by the representative of the respondent‑department and also the cross‑examination of the Principal Appraiser Mr. Usman Ali Khan by the appellant. We are of the considered view that the circumstances narrated by the learned counsel for the appellant make a plausible story. We believe that since the sample was confirmed to have been drawn in the presence of the Principal Appraiser and signed by him, the remarks too were added by the appellant on 21‑1‑1982 and most probably in the presence of the Principal Appraiser. There was a little chance for the appellant to add anything when these papers were in the custody of the Special Checking Squad (Preventive). If there is any doubt, we feel the benefit of it must go to the accused. Also it is a fact that the other two co‑accused i.e. Examining officer Mr. Fazal Ahmad Abbassi and Principal Appraiser Mr. Usman Ali Khan have been dealt with rather leniently who, in our opinion, are equally responsible in the process of examination. It is not understood why the appellant has been dealt with so severely and singled out. It may be that the leniency was shown to the Principal Appraiser because he was on the verge of retirement as stated by the representative of the respondent‑department. Then it is not understood why the Examining Officer was left so easily. Whatever the case the appellant deserves even handed treatment. In conclusion we feel that the appellant has been dealt with rather B severely. Since the State has suffered no loss, in our considered opinion there appears no urgent cause to award the appellant the maximum punishment of dismissal out of the available choice among the panel of Major Penalties.

10. In view of the above discussion, the order of dismissal of the appellant dated 5‑9‑1984 is set aside. The appellant is reinstated in service with effect from 5‑9‑1984. He is awarded the stoppage of two increments without cumulative effect for a period of two years.

11. No order as to costs.

12. Parties to be informed. A.A./386/Sr.F. Appeal allowed.