1993 PLP (C (PLC(CS))

Feeling aggrieved of the aforesaid orders of the respondent the appel lant has now approached this Tribunal by way of present appeal for the redress of his grievances arising out of them. The respondent has contested this appeal by filing written statement through his counsel in which the impugned orders were defended to have been passed on the merits of the case in accordance with law. We have heard the learned counsel for the parties and have also perused the relevant record. It has been firstly argued by the learned counsel for the appellant that the impugned order of his compulsory retire ment from service is vitiated on the ground that the Inquiry Officer who was Food Secretary in this case was personally biased against the appellant, We find no merit in this contention of learned counsel for the appellant. No such plea of Inquiry Officer being prejudiced or biased against appellant ‑was taken before the Inquiry Officer in written reply submitted to the charge‑sheet or during the proceedings of the inquiry. Similarly this contention was neither raised before the authority during the personal hearing given to the appellant by him or in the review petition submitted to it against the penalty order. Even the grounds of appeal do not contain any such allegation against the Inquiry Officer and there is also nothing on the record to indicate that the Inquiry Officer was in any way biased person not fit to hold an inquiry against the appellant.

4. It has been next contended by the learned counsel for the appellant that the impugned order retiring the appellant compulsorily from service is bad in law because the disciplinary proceedings against him could not be lawfully initiated. In this connection it is contended that the charges made subject of departmental action against him had already been twice inquired into‑once by Anti‑Corruption Establishment of Police Department and for the second time by the Commission of Inquiry No. 2 headed by Brig. Muhammad Arif Khan and he was found innocent and exonerated of the charges. Therefore, it is argued that under the well -settled principles of law that a man cannot be twice vexed for the one and the same cause the disciplinary proceedings could not be commenced against the appellant. We also do not find much substance in this contention of the learned counsel for the appellant. It is, of course, correct that the charges for which the disciplinary proceedings were initiated against the appellant were previously investigated by the Anti‑Corruption Establish ment of the Police Department in a case registered against him as well as by the Commission of Inquiry No. 2 and the appellant was absolved of the charges as they were not established against him. The previous enquiries against the appellant, however, did not‑create any legal bar for taking disciplinary proceedings against him under the Efficiency and Discipline Rules. There is no such law or service rule to our knowledge and none has been referred to the bar by the counsel for the appellant under which the departmental proceedings were prohibited to be taken against the civil servant on charges which had been subject of investigation pre viously by some other lawful agency of the Government. As the taw stands a civil servant can be proceeded against departmentally under the Efficiency and Discipline Rules for the same charge for which he might have been tried and acquitted by the competent Court of law. In this view of the matter the disciplinary proceedings were lawfully and compe tently commenced against the appellant notwithstanding the fact that the charges forming the basis of such proceedings were already enquired into twice by other agencies of the Government and were found to be incorrect. It has been further contended by the learned counsel for the appellant that the charges levelled against the appellant in the charge‑sheet have not been established against him during the departmental proceedings that in spite of that the impugned order of his compulsory retirement has been made ‑which is unlawful and unsustainable. After examining the record of the departmental proceedings including the charge‑sheet served on the appellant the Inquiry report and order of the competent authority we find that this contention of learned counsel for the appellant has much force in it. The examination of the aforesaid record has revealed that the allegations forming basis of the charges con tained in the charge‑sheet have not been established against the appellant having been found incorrect and that the penalty of compulsory retirement from service has been imposed upon the appellant for quite distinct and different allegations which did not form the foundation the charges levelled against him in the disciplinary proceedings initiated under the Efficiency and Discipline Rules. The reading of the charge‑sheet reproduced above would show that the appellant was accused of assisting the smuggling of the three cars bearing registration Nos. A J K 3401, A J K 2343 and A J K 5627 from abroad in complicity with his real brother Mr. Gul Azam Khan and the above charges were based on allegations as were given in the charge sheet under the heading "The history of these cars". The Inquiry Officer as well as the authority has exonerated the appellant of the charges relating to above‑mentioned first two cars and, therefore, we need not discuss the charges against the appellant in respect of these cars and would confine ourselves to the discussion and examination of the charge and allegation on which the same is based relating to car No. A J K 5627 only with a view to find out as to whether or not the same charge stands proved against him. For the facility of reference it appears necessary to reproduce once again the allegations on which the charge pertaining to the above car is based in the charge‑sheet. It reads as under :‑ "This car carried registration No. KAA 1242 owned by Muhammad Shafi 325 Bahadarabad, Karachi which was transferred to your Mr. Said Hassan Khan, S. P. care of Gul Azam Khan, your real brother after owning car you got it registered at M'abad in the name of one Muhammad Yasin Khan which is also fictitious name and not a real one." In view of the above allegations the charge against the appellant that he was the abettor in the smuggling of car No. A J K 5627 could only be established against him if at least it would have been found that the said car was originally owned by Muhammad Shafi under the registration No. KAA 1242 and was transferred to the appellant who in turn transferred to one Muhammad Yasin Khan who was not a real but a fictitious person, be cause from such findings an inference about the appellant being an accom plice in the smuggling of the said car might have been drawn. But such allegations have been held to be incorrect even by the Inquiry Officer in the very beginning of the para. 13 of his report which runs as follows : ‑ "In the charge‑sheet it has been mentioned that this car originally carried registration No. KAA 1242 and was owned by Muhammad Shafi of Karachi and it was transferred to Mr. Said Hassan Khan son of Gul Azam Khan. This statement is not correct." This finding of the Inquiry Officer reproduced above leaves no manner of doubt that the statement of allegations explaining the charge against the appellant in respect of the car in question as contained in the charge‑sheet was not found to be factually true by the Inquiry Officer and thus if the allegations on which the charge against the appellant was based were not correct, how could it be held that the charge stands proved against him. Such a finding tantamounts to erecting an edifice without first laying its foundations which obviously falls in the realm of impossibility. The Inquirer Officer has held the car in question to have been smuggled from abroad into the country with the assistance and connivance of the appellant but the grounds on which the appellant was held privy to the smuggling of the car have been found altogether different from those which were furnished to him as the statement of allegations explaining the charge levelled against him in charge‑sheet in respect of this car. At this stage in support of our observations it appears appropriate to reproduce the relevant abstracts from the inquiry report whereby the Inquiry Officer has found the appellant guilty of assisting and connivancing at the smuggling of the car No. A J K 5627. In para. 15, page 8 of the inquiry report, it is remarked that ‑ "the correct position is that the vehicle, `Jaguar Sports' was got registered at Sheikhupura on forged documents by one Muhammad Yasin Khan showing the previous number of the vehicle as A J K 123 which was Cheveirelet owned by Mr. Said Hassan Khan. It is further stated in the said para. that ‑-- "this vehicle was later on got registered at Mardan on the basis of previous registration of Sheikhupura. The new registration number allotted was M.R. 4506. This was done somewhere in 1972 in the month of July. In September, 1972 this car was again got registered in Mirpur District against Registration No. A J K 5627, in the name of S. Hamid Khan son of Baroo Khan of District Mirpur. The original application of S. Hamid Khan is Exh. P. B. This application has been attested by Mr. Said Hassan Khan in his capacity as S. P. Exh. P. C. is an application from Muhammad Yasin Khan son of Col. Khan Muhammad Khan in which he says that he has sold car No. M. R. 4596 to S. Hamid Khan son of Baron Khan. This application addressed to Dy. Collector Taxation, Mirpur is attested by Mr. Said Hassan Khan, S. P., Mirpur. There is an affidavit Exh. P. D. from S. Hamid Khan son of Sub. Baroo Khan in which the deponent admits that he has purchased car No. M. R. 4596 from Muhammad Yasin Khan. This affidavit is again attested by Sardar Said Hassan Khan as S. P. Mirpur. Normally, the application of the nature of Exh. P. C. or an affidavit of the nature of Exh. P. D. is not required to be attested by a S. P. The mere fact that Mr. Said Hassan Khan has attested the application of S. Hamid Khan for re‑registration of the vehicle and application of Muhammad Yasin Khan declaring that he had sold the car and also the affidavit of S. Hamid indicate that he was specially interested in this deed". At the same page in para. 16, it has been opined that‑

"it is possible that the duplicate copy of Registration Book of vehicle No. A J K 123 was used after forging the entries while getting the registration at Sheikhupura. It is on record that one such duplicate copy of A J K 123 was obtained by Mr. Asmatullah Khan, Assistant Engineer, P. W. Railways, Cambellpur, to whom vehicle No. 123 A J K was sold by Mr. Said Hassan Khan. After obtaining the duplicate copy, the duplicate registration fee has to be deposited. In obtaining the duplicate copy in this case, the fee Rs. 7 was deposited by Mr. Said Hassan Khan." Continuing to para. No. 17 of the report it is stated that ‑ "This clearly indicates that, in fact, the duplicate Registration Book was obtained by Mr. Said Hassan Khan on fictitious name and after forging the entries the car 'Jaguar Sports' was got registered at Sheikhupura as SA 2884." It is further recorded that‑ "the need for getting a vehicle registered on forged documents arises only when the car is smuggled, hence there is a clear indication that this car, Jaguar Sports 170 model, carrying registration No. 5627 was smuggled inside the country and was got registered on forged docu ments with the assistance and connivance of Mr. Said Hassan Khan, D.I.G. Police. The element of connivance is clearly proved from the very fact that it had its first registration at Sheikhupura. The old number of the vehicle was shown as A J K

123. This registration No. 123 A J K was allotted to another car of Chovrolet Make owned by Mr. Said Hassan Khan. Thus, from the very beginning Mr. Said Hassan Khan was involved, hence it is established that car No. A J K 5627 was smuggled into the country and then got registered on forged documents with the assistance and connivance of Mr. Said Hassan Khan." Similarly at page 11 in para. 19 of the report it has been held that‑

"from the inquiry before me, it has been established that car No. A J. K 5627, Jaguar Sports was smuggled into the country and registered on fake and forged documents and in the said forgery, besides others Mr. Said Hassan Khan, was involved. It has been established that he misused his authority in the case of registration of Car No. A J K 5627, Jagular Sports. He has been, therefore, guilty of misconduct.;" From the extracts of inquiry report reproduced above it becomes quite clear that the appellant was found guilty of the charge of assisting the smuggling of car No. A J K 5627 from abroad into the country .by the Inquiry Officer on the grounds which are other than those on which the said charge was founded in the charge‑sheet served on him by the Authority. As would appear from his report, the Enquiry. Officer has held the charge under consideration having been established against the appellant mainly on the following grounds :‑ (i) That he had obtained a duplicate Registration. Book of the car No. A J K 123 which he had sold to one Asmatullah Khan Assistant Engineer. P. W. Railways, Campbelipur by applying fictitiously in the name of its owner to the Registering Authority and that the said duplicate Registration Book was later on forged by him to make it a duplicate Registration book pertaining to "Jaguar Sports" car model, 1970. (ii) That on the basis of the forged duplicate registration book men tioned in (i) above the said car was got registered at Sheikhupura under the registration No. S A 2884 in the name of one Muhammad Yasin. (iii) That again the above car was got registered at Mardan under Registration No. MR 4596 in the name of Muhammad Yasin who then transferred the same to one S. Hamid resident of Mirpur District who secured its registration at Mirpur Azad Kashmir under registration A J K No. 5627. (iv) That the appellant; attested the application of M. Yasin Khan evidencing the sale of the car in favour of S. Hamid and the application form and the affidavit submitted to the Registering Authority, Mirpur by S. Hamid for registering, the car in his name. (v) That the car in question is presumed to be smuggled into the country because it was registered on fake and forged documents. Under the relevant rules it was not lawful for the Inquiry Officer to hold the appellant guilty of the charge of abetment in the smuggling of ca C in question on the grounds formulated above inasmuch as these were no made the basis of the charge in the statement of allegations in respect of this car furnished to him in the charge‑sweet served upon‑him. The Inquiry Officer under rules 7 of Efficiency and Discipline Rules was bound to confine the scope of his inquiry to the allegations made against him in the charge‑sheet on which the said charge was framed and he had no authority to travel beyond the ambit of such allegations and hold the appellant guilty of the charge for the reasons not communicated to him in charge‑sheet. As mentioned earlier in this judgment the Inquiry Officer had found the allegations on which the charge in respect of this car was made against the appellant to be. factually incorrect and thus after such a finding no question of charge having been proved against the appellant in respect of this car as contained in the charge‑sheet arose. In this view of the matter the findings of the Inquiry Officer that the charge in respect of the car in question stood proved against the appellant cannot be sustained with the result that the impugned order of his compulsory retirement based on such unlawful findings also stands vitiated. Even if for the sake of argument it is assumed that the Inquiry Officer did possess the power to go beyond the scope of the allegations on which the charge under discussion rested and could hold the appellant guilty of the charge on the grounds other than those mentioned in the charge‑sheet, we, after examining the record of the inquiry proceedings have reached the conclusion that the grounds made the basis of the findings of the Inquiry Officer are not established from the evidence brought on the record during the inquiry proceedings but wholly consist of assumption, surmises, con jectures and inferences. As stated earlier the Inquiry Officer has first of all held that the appellant had obtained a duplicate registration book of the car registered as A J K 123 from the Registering Authority, Mirpur by making a fictitious application in the name of its owner and that the said duplicate Registra tion Book was first forged to make it duplicate registration book pertaining to Jaguar Sports Car Model 1970 and then to use the same for making it the basis for securing its registration at Sheikhupura under registration No. S A 2884 in the name of one Muhammad Yasin. After going through the record of inquiry proceedings we find 'that the above findings of the Inquiry Officer are not supported by any evidence adduced before him during the inquiry. There is nothing on the record of the said proceedings to show that the Duplicate registration book car No. A J K 123f pertaining to Chevrolet car registered in the name of Asmatullah Khan was not in fact obtained by its said owner but by the appellant by making fictitious application in the name of its owner to the Registration Authority at Mirpur Azad Kashmir for the issuance of the same. The evidence of the registering authorities of Azad Kashmir on the record of the enquiry proceedings does not warrant the finding of the Inquiry Officer that the duplicate copy of the Registration Book of car No. A J K 123 was obtained by the appellant. The Inquiry Officer has based his above finding on the ground that since the fee for obtaining the copy of the Registration Book was deposited by the appellant, it was, therefore, he who had made fictitious and forged application on behalf, of the owner of the said car and obtained duplicate copy of its registration book. Such an inference could not be legally drawn and the mere deposit of the requisite fee by the appellant for getting the duplicate Registration Book of the car does not by itself go to prove that the same was obtained by him on the fictitious application made in the name of its owner. It may also not be out of place to mention here that there is nothing on the record of inquiry proceedings to indicate that the fee for getting the duplicate copy of the Registration Book under discus sion was obtained by appellant except a remark by the Inquiry Officer in its report to that effect which is unsupported by any evidence. Had the appellant obtained the duplicate copy of Registration Book of the car A J K 123 then there would have been entry to that effect in the office record of the concerned Registration Authority. Similarly the record of inquiry proceedings does not lend support to the inference drawn by the Inquiry Officer that the duplicate copy of the registration hook of the car so obtained was forged by the appellant with a view to getting the "Jaugar Sports" car registered at Sheikhupura". More over we do not find any material on which it could be held that it was only the duplicate copy of the registration book of car No. A J K 123 obtained from the Registering Authority Azad Kashmir that was used, after forging the same, for getting the Jaugar Sports car registered at Sheikhu pura under the registration No. S A 2884. The Inquiry Officer has based his finding that the duplicate copy of registration book of car No. AJK 123 was first forged and then made use of for securing the registration of car in question at Sheikhupura on mere possibility as would appear from the following passage in para. 16 of his report :‑ "It is possible that a duplicate copy of registration book of vehicle A J K 123 was used after forging the entries while getting the registration at Sheikhupura." We need hardly mention that a thing being only possible cannot be held to be proved and by holding so in this case, the Inquiry Officer has committed error with the result that his above conclusion cannot be sustained. There is also not an iota of evidence on record to involve the appellant, directly or indirectly, in the act of getting the car in question registered at Sheikhupura or Mardan and as such how could he be held guilty of getting the said car registered at Sheikhupura or Mardan on forged documents when he was not found in any way involved in the process of obtaining the registration of the car at the aforesaid places. The officers of the concerned Registering Authorities have categorically denied in their statements before the Inquiry Officer that the appellant had any hand in the registration of the car. The car was registered in the name of Muhammad' Yasin Khan on his application who alone could prima facie be held responsible for obtaining the registration of the car in question on some forged document. Next it appears from the inquiry report that charge has been found to have been established against the appellant on the ground that the appellant had attested documents on the basis of which car in question was registered at Mirpur under No. A J K 5627. It is, of course, correct that the appellant had attested the application from one Muhammad Yasin Khan evidencing the sale of the car in question in favour of S. Hamid Khan, the application of S. Hamid Khan to the Registering Authority for the registration of the said car in his name as well as his affidavit attached therewith containing the affirmation regarding the purchase of the car by him from its previous owner Muhammad Yasin Khan but, in our view, the attestation of the above documents by the appellant does not, by any stretch of imagination, go to prove that he was an abettor in the smuggling of the car which was the charge levelled against him in the charge‑sheet. The dictionary meaning of the word "Attest" is, to verify, to certify or to bear witness to. Thus, by attesting the aforesaid docu ments evidencing the sale or purchase of the car in question the appellant only verified the fact of their having been executed by their executants in his presence and nothing more. If it had been found that Muhammad Yasin Khan or S. Hamid Khan or any one of them was not a real person and the documents attested by the appellant were fictitious and forged, then of course, there could be some person for holding the appellant responsible for getting the car registered on forged and faked documents but this is neither the case of the departmental authority nor the finding of the Inquiry Officer. It is nowhere alleged or found by the Inquiry Officer that the executants of the aforesaid documents were not real persons or they never executed the said documents and that the car at Mirpur was got registered on forged documents. If Muhammad Yasin and S. Hamid Khan had executed these documents, the mere attestation of these by the appel lant does not implicate him in any unlawful or criminal act for which he could be held to have committed the misconduct thereby making himself liable to be dealt with under the Efficiency and Discipline Rules. We also do not agree with the finding of the Inquiry Officer that by attesting the documents in question, the appellant has misused his authority in getting the registration of the car and, therefore, is guilty of misconduct. The car was registered by the Registering Authority, Mirpur and not by the appellant in his any official capacity. Since he had no authority to register the car, we fail to understand how the question of misusing his official authority arose. The authority can only be misused by a person who is vested with an authority to be exercised in a particular matter and since the S. P. had nothing to do with registration of the car in question, he could not be held guilty of misusing the authority in the matter of registration of the said car. The mere attestation of documents executed by a person known to f the appellant does not constitute misuse of authority of misconduct within the meaning of Efficiency and Discipline Rules. The officers of the Registering Authority, Mirpur examined by the Enquiry Officer have not accused the appellant of having approached them or used his official influence in the matter of the registration of car No. A J K 5627. As already stated, the charge against the appellant was that he had assisted his brother Mr. Gul Azam Khan, in the smuggling of three cars including car No. A J K 5627, presently under discussion. So, before the appellant could be held guilty of said charge, it should have been proved that the car in question was not only smuggled one but it was also the real brother of the appellant who was responsible for its smuggling into the country. The Inquiry Officer in his inquiry report has nowhere held that this car was smuggled by the brother of the appellant. Not only that the brother of the appellant was not found involved in any way in any dealing of the car in question but the finding of the Enquiry Officer regarding the car having been smuggled into the country was not based on any direct evidence but was inferred from a certain fact. The Enquiry Officer has held the car to have been smuggled on the ground that since it was got register ed at Sheikhupura on fake and forged documents, it shall be presumed to have been smuggled. The reasoning given for coming to this finding was that "the necessity of getting a car registered on fake and forged docu ments arises only when the same is smuggled". We are of the opinion that this is a very far‑fetch inference which is not the only conclusive one that could be drawn from the fact of a car having been got registered on forged and fake documents. This can be one of the many inferences that can be drawn from the aforesaid fact. For instance in case of stolen car the necessity of obtaining its registration on the fake and forged documents does arise. Thus, from the above inference drawn by the Enquiry Officer it cannot be held that car in question was smuggled from abroad into the country. To sustain the above charge it was necessary to prove that the car in question was clandestinely brought into the country without paying its prescribed custom duty, but no effort was made by the Enquiry Officer to find out from the official record of the Custom Department of Government of Pakistan as to whether or not the custom duty of the car A J K 5627 was paid. In the absence of any such proof appearing from the record of the said department, it was not possible to hold that the said car had been smuggled into the country. To recapitulate it may be observed that in order to bring home charge under discussion to the appellant it was imperative to establish three things namely that the car in question was smuggled into the country ; that the smuggler was Mr. Gul Azam, the brother of the appellant and that the appellant had rendered assistance to his said brother in the smuggling of the same. But as seen above none of the above ingredients of the charge stood proved from the record of the enquiry proceedings. The findings of the Enquiry Officer regarding the car No. A J K 5627 having been smuggled into the country and the involvement of the appellant in the same have been founded‑not on any substantial and reliable evidence but only on surmises, conjuctures, possibilities and inferences which cannot be substitute for a positive proof required to sustain a charge levelled against the accused civil servant in a disciplinary proceedings against him. As regards the appellant's said brother ‑ complicity in the smuggling of the car in question, even the Enquiry Officer has not found him in any manner connected in any of the dealings of the said car that took place, what to speak of his any involvement in the smuggling of the same. In view of what has been stated above the appellant could not be guilty of abetting or assisting his brother in the smuggling of the car in question. The nutshell of the above discussion is that

(a) the appellant has been absolved of the charges levelled against him in respect of cars No. AJK 3401, Hillman Model 1969 and AJK 2343 Plymouth Model 1959 both by the Inquiry Officer as well as the authority. (b) The grounds on which the charge in respect car No. AJK 5627 was based in the charge‑sheet served on the appellant were found to be untrue and incorrect by the Inquiry Officer and the‑authority but despite that finding the charge regarding the said car against the appellant of his assisting the smuggling of the same from abroad in complicity with his real brother Mr. Gul' Azam Khan was held to have been proved against him on quite distinct and separate grounds not forming the basis of the above charge and which were never communicated to the appellant nor any opportunity was given to him for explaining the same. By holding the appellant guilty of the charge in question on such grounds the Inquiry Officer and the authority both have travelled beyond the scope and province of their inquiry and authority respectively in asmuch as before the appellant could be held guilty of the said charge on altogether different grounds than communicated to him by way of explaining the charge incumbent upon the competent authority to initiate present disciplinary proceedings on such new grounds against the appellant in accordance with the Efficiency and Discipline Rules, 1975. (c) Even the new grounds on the basis of which the appellant was found guilty of the charge are not established from the evidence brought on the record of inquiry proceedings or on the file of the case. For the foregoing reasons we accept the present appeal and set aside the orders of the respondent dated 1‑4‑1981 and 24‑9‑1981. (i) The appellant is re‑instated in service from the date of the impugn ed orders with all back benefits. (ii) There shall be no order as to the cost. (iii) The parties shall be informed of this order. Appeal accepted.