1986 PLP (C (PLC(CS))

JUSTICE SHAH ABDUR RASHID (CHAIRMAN).‑‑The appellant, M.M. Sharif, was issued a notice on 8th November, 1980 under the Government Servants (Efficiency and Discipline) Rules, 1973, to show cause why major penalty of dismissal may not be imposed upon him for the reason that during his posting as Deputy Collector, Central Excise and Land Customs, Quetta, he, in violation of the provisions of the Customs Act (IV of 1969), (hereinafter referred to as the Act), reviewed, without jurisdiction, the order of the Assistant Collector, Customs, Quetta, regarding the refund of the sale‑proceeds of a Mercedez Benz Mini‑bus, 1968 Model, bearing No. BN‑WK‑752, brought into Pakistan by one Mudassar Ali Khan, and illegally directed the Assistant Collector to notify to the said Mudassar Ali Khan that he was not entitled to the sale‑proceeds which direction resulted in denial of legal dues to the importer.

2. The appellant in his detailed reply justified his action in law and stated that whatever he did was done bona fide in the interest of Government money.

3. When the Authorised Officer (the Chairman, Central Board of Revenue), received the explanation of the appellant, he opined that it was not satisfactory and consequently proposed the imposition of major penalty of compulsory retirement on the appellant. Since the Authority in the case was the President of Pakistan, the recommendation was sent to him through the Establishment Division. The said Division advised the President that this was case in which formal inquiry should have been held and that mere serving of a show‑cause notice was not sufficient. This advice was accepted by the President and consequently a charge‑sheet was served on the appellant. The allegations contained in the charge‑sheet were the same that had been communicated to the appellant in the show-cause notice.

4. On receipt of the reply to the charge‑sheet, Mr. Mobin Ahsan, Collector of Customs (Preventive) was appointed Inquiry Officer. He made his report` which was to the effect that though the appellant had reviewed the order of the Assistant Collector, Quetta, without jurisdiction, it was so done in good faith, because similar view was held by other officers as well, and that the action was in the interest of Government revenue.

5. The Authorised Officer did not agree with the conclusion of the Inquiry Officer and, in his recommendation, pointed out that the appellant by illegally reviewing the order of the Assistant Collector, Quetta, deprived the importer of his legal dues and as such his action was prejudicial to good order as well as to service discipline, and as such constituted misconduct, as defined in the Government Servants (Efficiency and Discipline) Rules, 1973. He again recommended the imposition of major penalty of compulsory retirement which recommendation was accepted by the Authority, and the appellant was compulsorily retired from service by order, dated 20th April, 1982. The review petition of the appellant having failed, he has filed the present appeal before the Tribunal under section 4 of the Service Tribunals Act (LXX of 1973).

6. The facts of the case are that the Mini‑Bus in question was imported via Taftan by one Mudassar Ali Khan. He deposited the same with the Customs on 19‑5‑1979, pending clearance or re‑export. More than one notices were issued in the name of the importer, either to produce import permit or to re‑export the vehicle. The importer made several attempts for getting an import permit and went to the extent of applying to the Chief Martial Law Administrator. He could not succeed in getting an import permit, because at the relevant time, the Mini‑Bus of 1968 Model was banned under a notification issued by the Ministry of Commerce. The result was that the Assistant Collector, Quetta, who had the formal custody of the vehicle, put the same to auction. The importer applied for payment of the amount after deduction of the Government dues from the auction money. The Assistant Collector, Quetta, consequently allowed the refund of Rs.61,832 to the importer after deducting the Government dues. He informed the importer accordingly and at the same time sent the papers to the Assistant Accounts Officer attached to the appellant, for counter‑signatures. The Assistant Accounts Officer, after examining the case, recorded a note that since the item imported was a banned item, the importer was not entitled to the refund. He also suggested revision of the order under section 195 of the Act. The Assistant Collector at Headquarter attached to the appellant marked the file to the appellant for necessary orders. The appellant, in his capacity as Deputy Collector, recorded the following note: ‑ "Since the import permit has not been produced, the owner is not entitled to the sale‑proceeds of the vehicle. In case the permit is not produced, the vehicle will be formally confiscated." The above decision was communicated to the Assistant Collector, who informed the importer also.

7. The President of Pakistan visited Germany where the importer was working. The importer made a complaint which was to the effect that he had neither been given import permit nor the auction money. As a result of this complaint, the appellant was suspended and thereafter proceeded against, as already stated.

8. The learned counsel for the appellant has argued that the order of the Deputy Collector was perfectly justified and that even if there was any error, that was an error of judgment, which does not amount to misconduct, as no mala fide was even alleged. He urged that the order of penalty, in the circumstances, was uncalled for.

9. On the legal plain, the objections raised by the learned counsel for the appellant were:‑ (i) that the Assistant Collector, Quetta, being an officer of B‑17, his pecuniary jurisdiction at the relevant time did not exceed Rs.25,000, under SRO 974(1)/79, dated the 17th October, 1979, issued under section 179 of the Customs Act, and, therefore, it was a void order which could be ignored by the appellant. (ii) that the order of the Assistant Collector being void, shall be deemed never to have been passed and since the Deputy Collector under section 4 of the Act, could exercise all the powers of the Assistant Collector, the appellant validly ordered withholding of payment to the importer and directed that the vehicle shall be confiscated. (iii) that the provisions of section 201 of the Act were not attracted. The vehicle was liable to confiscation under section 17 of the Act having been brought into Pakistan in violation of prohibition made by the Federal Government under section 16 of the Act, The said section 201 would apply only when, as laid down in proviso (c1 to section 82 of the Act, the goods are not liable to confiscation. (iv) that the order ‑of the Assistant Collector not being an order of adjudication, the question of revision thereof by the Collector or the Central Board of Revenue under section 195 of the Act did not arise. (v) that even if the order of the appellant was wrong, it was an error of judgment and not a deliberate act on his part, and as such the passing of order did not constitute misconduct.

10. Since these objections involved interpretation of different provisions of the Customs Act itself, we on 12‑3‑1985, passed an order that the parties should address arguments on the points involved. As regards jurisdcition of the Assistant Collector, the respondent department could not satisfy us that the had the pecuniary jurisdiction contrary to what was given to him by notification SRO‑974(1)/79, dated the 17th October, 1979, referred to above. The latter notification issued A in 1983 was produced but in that too the pecuniary jurisdiction of the Assistant Collector (B‑17) is shown to be Rs.50,

000. This notification is, however, irrelevant, because at the relevant time when the vehicle was imported, the notification of 17th October, 1979 was in field, according to which the pecuniary jurisdiction of the Assistant Collector (B‑17) was Rs.25,

000. In these circumstances, there is no denying the fact that the order of the Assistant Collector, even if it was an order of adjudication, was without jurisdiction and ab initio void. Similarly, it can be said that by ignoring a void order, the appellant as Deputy Collector acted under section 4 of the Act and passed the order, which the Assistant Collector could pass.

11. It is not denied, and, of course, the rejection of the prayer for import licence of the importer upto the level of Chief Martial Law Administrator shows, that the vehicle in question was brought into Pakistan in violation of the prohibition made under section 16 of the Act. The vehicle was, therefore, liable to detention and confiscation under section 17 of the Act. Why the Assistant Collector did not detain and confiscate the vehicle is not clear? It is also a point of controversy whether the requirement of detention and confiscation under section 17 is directory or mandatory. In case it is directory, then there must be some reason, which should have been mentioned by the Assistant Collector in exercising the discretion in favour of the importer by auctioning the vehicle instead of detaining and confiscating it.

12. Whether the order of Assistant Collector was an adjudication,, subject to revision under section 195 of the Act or it was merely an administrative order, is a question which presents sufficient difficulty. Since we are not expected to give our own interpretation of the provisions of the Customs Act where there is a doubt, we are of the opinion that both the interpretations are possible and if some person makes mistake in this respect, this mistake would be bona fide and not intentional.,, The appellant, in these circumstances, cannot be blamed if he had the view contrary to what the Chairman, Central Board of Revenue holds, specially when instances have been quoted where vehicles imported into', Pakistan, contrary to the provisions of section 16 of the Act, had been) detained and confiscated. Apart from that, section 201 of the Act when read alongwith proviso (c) to' section 82 of the Act, would show that the former applied to sale‑proceeds, of goods which, unlike the vehicle in question, are not liable to confiscation.

13. It can be said that when the Assistant Collector auctioned the vehicle and the Assistant Accounts Officer referred to section 195 of the Act, it was the duty of the appellant to send his recommendations to the Collector or to the Central Board of Revenue for revision of the order. ‑No doubt, that would have been a better course, but since the appellant held a view that the order of the Assistant Collector was not adjudication subject to revision, but it was an administrative void order, his action does not amount to misconduct under any stretch of imagination.

14. The Authorised Officer while disagreeing with the Inquiry Officer, had observed that the appellant acted in a manner prejudicial to good order and office discipline, and as such he committed misconduct. We fail to understand, how an error of judgment on the part of the appellant, even if it was, can amount to an action prejudicial to good order and office discipline. All Courts and quasi‑judicial officers commit mistakes which are corrected by the higher authorities and sometimes the higher authorities themselves commit mistakes in one case and in another case, they become wiser and give opinion to the contrary. If every decision of n quasi‑judicial tribunal which is wrong is considered to be a misconduct, then there would be no officer who would escape penalty because perfection cannot be expected at any tier of the departments.

15. In view of what we have stated above, we are of the opinion that, in all probability and as far as we understand, the order of the Deputy Collector, the appellant, was not without jurisdiction being an administrative order passed by ignoring an order without jurisdiction, but since we cannot lay down law involving the interpretation of Customs Act, we would say that this is a reasonable interpretation which is quite possible. Even if the view held by the Chairman, Central Board of Revenue is the correct one, then the action of the appellant, in our opinion, did not amount to misconduct, as he passed the order in good faith and no malice or ill‑will was involved as found by the Inquiryl officer himself. We, however, say that the Authorised Officer was notl justified in holding that the error of judgment (if any) committed by the appellant was an act against good order and office discipline, and as such amounted to misconduct. In our opinion, the appellant has wrongly been found guilty of misconduct.

16. The result is that we accept this appeal, set aside the finding of guilty and the order of his compulsory retirement, and re‑instate the appellant into service from the date of impugned order with all consequential benefits including full pay of the period he remainedl under suspension. We understand that the appellant has already reached the age of superannuation. If it is so, then he shall be deemed tol have superannuated on the date he attained the age of sixty years, with all the benefits flowing from his re‑instatement. A.A. Appeal allowed.