1991 PLP (C (PLC(CS))

Charge No. 1 (i) That in October, 1985 you and your wife travelled separately from Kathmandu to Hong Kong via Bangkok which you failed to report to the authorities. Not proved. The, appellant did not conceal his visit to Bangkok and Hong Kong. Information was available with the Embassy. There was no suspicious Circumstance Separate visit was occasioned by family circumstances. (ii) That you left Kathmandu on 30th September, 1985 and returned on 7th October, 1985 while your wife departed from Kathmandu on 2nd October, 1985 and returned on 5th October, 1985. During this period both you and your wife undertook short visits to Hong Kong which involved an expenditure of more than $ 1,800 on air ticket alone. It is certainly odd to believe that a person earning US $ 1,300 per month could have afforded to spend nearly twice the amount of his monthly salary on a brief visit to Hong Kong. Not proved. Tickets for the journey cost about $ 450 each because it is a well-known practice for airlines to sell discounted tickets covering different sectors. The dis-counted tickets available in Karachi for travel on Arab Airlines to London involve brief stop overs in the country of origin of the airline. In this case since Thai Airlines was employed it was logical that the journey to Hong Kong should be via Bangkok. (iii) That at the time you and your wife left Kathmandu for Hong Kong via Bangkok, your son was reported to be seriously ill and he was left under the of the Third Secretary. Therefore, circumstances under which you and travelled to Bangkok and then clandestinely onward to Hong Kong give rise to suspicion that these visits by you and your wife were made under some compulsion. Not proved. The appellant's son was well at the time of his departure and the return of the family on 5th and 7th October, respectively was occasioned care by the news received on the 4th the October that his son had fallen your wife seriously sick after his departure. (iv) (v) and (vi) That you and your wife undertook the journeys at the instance of and in collaboration with an Indian businessman Mr. Shakil Ansari who is a known smuggler in gold and jewels and with whom you had developed intimate relationship. That you and your wife assisted him in smuggling currency and precious stones from Nepal and bringing in gold and diamonds from Hong Kong in return for financial gain; that one S. Ansari was also booked to travel on the same flight by which you left Kathmandu for Bangkok on 30th September, 1985, but he dropped out at the last moment and took a Nepal Airlines flight to Bangkok later. However, one Ansari brother, named S. Ahmed, returned to Kathmandu on 7th October, on the same flight as you travelled; that you and your wife had bought three tickets each of two coupons for the journey from Kathmandu to Hong Kong and back one ticket for the Kathmandu-Bangkok- Hong Kong, another for Hong Kong- Bankok sector and a third for the Bangkok Kathmandu sector whereas only one ticket would have been sufficient for each one of you for the whole trip. Therefore, it gives rise to suspicion that the intention was to throw any one watching you off the track. Not proved. It is accepted practice in discounted travel to issue separate tickets for each sector of the journey. No evidence has been produced which would support the allegation that the appellant was working in league with the alleged band of smugglers headed by Shakil Ansari, an Indian businessman. However, these allegations framed on the basis of observations of our Ambassador in Kathmandu do tend to arouse suspicions when considered in conjunction with the unconvincing explanation received from the Appellant on one particular entry in his bank statement. (vii) That while you were on leave in Pakistan from August to October, 1984, you and your wife are reported to have travelled to U.K. and U.S.A. without information/permission of the authorities concerned. Not proved. The Inquiry Officer accepted the appellant's contention that his trip to U.K. and U.SA. was not clandestine. The Inquiry Officer was himself aware of the trip and he was satisfied that the expenses for this trip were paid for by the appellant's sister-in-law who is a doctor in the United States. (viii) That on November 23, 1985 two persons of extremely suspicious character, a woman of about forty and a man of about twenty-six both looking Indians arrived from Bangkok by Thai Airways and were received and picked up by you from the Airport and driven away by you in your car at a high speed in extremely suspicious circumstances. Not proved. The appellant had gone to the Airport to receive. Mr. Shadani Director of the Foreign Affairs office who was proceeding to Dhaka to attend the funeral of his mother. Mr.Shadani however did not arrive as had been intimated to the appellant. The appellant gave lift to two Bangladeshi nationals resident in Khatmandu with whom he had no sinister connection. (Note: the appellant had explained that the lift was given as these two persons were held up due to VVIP movement and were away from their car and that he dropped them where their car was parked). (ix) That your wife planned to travel to Hong Kong again on January 2, 1986. Reservation for this journey was made on 27th December, 1985 when the Thai Airlines were requested by telephone to book three seats for an infant K.K. Bhan and for one Mrs. S. Gurung and for Mrs. M.N.J. Naim. Mrs. Gurung is reported to travel frequently to Dubai, Bangkok and Hong Kong and is said to be working for the Ansaris as a carrier of smuggled stones and gold. Not proved. It was not likely to make reservation on the 27th of December, 1985 to travel to Hong Kong on 2-1- 1986 when the appellant had already been informed on 26-12-1985 about the orders of his recall to Islamabad. (x) That you are reported to have indulged yourself in black marketing of currency. Your Nepal Bank statement for the period July to December, 1985 does not show any drawal of Nepali currency. Whereas the school fee (NC Rs.13,917) for your daughter was paid in Nepali currency. Further, before proceeding to Pakistan on 6-1-1986 you left NC Rs.19,000 with the Third Secretary to be utilized by him and to send the balance in US dollars to you through bank draft. Since your bank statements do not show the drawal of equivalent amounts from your account, it creates a strong suspicion that the source of this Nepali currency was outside your legitimate earnings. The charge is proved on the basis of Bank statements. (xi) That before proceeding to Pakistan in January, 1986 you left your car with Australian Charge `d' Affairs for disposal without permission of the competent authority. Not proved. Charge No.2: That you are reputed to be living beyond your means which is evident from the fact:- Not proved. (i) That your children were studying in schools where the annual fee was exorbitantly high and beyond the means of an officer of your income. (ii) That the visits of your wife and yourself involved thousands of dollars whereas your total emoluments were about $1,300 per month approx. Charge No3: That you sold a TV and VCR brought duty free into Nepal to a Nepali national for an exorbitant price of Rs.45,

000. Not proved. Charge No 4: That you did not enjoy a good reputation during your posting in Australia where you are alleged to have Been associated with smuggling Activities for monetary gains. Not proved. The appellant never travelled outside Australia during his period of posting in Canberra. Charge No.5: That you acquired/purchased immovable property in Canberra without prior per-mission of the Government and in violation of the rules on the subject and that you are receiving monthly rental for this property through a Real Estate Firm M/s. Bertram Real Estate, Canberra. The appellant and his wife owned a house in Canberra. The house was acquired without the permission of the Government in violation of the Rules. It is however established that $ 50,000 required for part payment of the purchase price of the house was obtained by the appellant from his uncle in lieu of the settlement of joint property claim in Pakistan. Nevertheless the action contravened the Pakistan Foreign Exchange Regulation by accepting payment abroad for properties in Pakistan. There were deposits of $ 5,623 and $

700. This was followed by the telegraphic transfer of $ 6,000 to Mr. D.P. Kumar in Hong Kong. The explanation of the appellant is that the amount belonged to a Nepalese gentleman on whose request it was deposited and sent to Hong Kong for the treatment of that friend's daughter there. The appellant did not disclose the name of the Nepalese friend. His explanation that the disclosure of the name of his friend would embarrass him is not acceptable. The transaction was highly suspicious and may have been connected with unestablished charge of smuggling. It can be reasonably assumed that the appellant made a profit on this transaction. A more sinister explanation can be that the appellant had received payment for service rendered and the money was transferred to Mr. D.P. Kumar who was acting as the appellant's agent.

23. The allegations made against the appellant and the findings given by the Inquiry Officer clearly show that most of the charges were without any foundation whatsoever. The appellant's case is that he was proceeded against for the reason that Mr. Abul Fazl, the Ambassador in Kathmandu had strained relations with the appellant's brother who was also in the Foreign Service and it was as a result of mala fides. Material was brought on record in the shape of correspondence between the Foreign Office and the appellant's brother showing from the very day of the appointment of the appellant at Kathmandu, there was apprehesnsion that the Ambassador might mar the career of the appellant on account of animosity which existed between the appellant's brother and the aforesaid Ambassador. The case of the appellant, therefore, has to be examined inter alia in that background.

24. As the above reproduction of the allegations and the findings show most of the charges being without foundation, the element of the mala fides cannot be excluded. This conclusion is further strengthened from the fact that the appellant's account with the Bank was not obtained from the appellant but from the Ambassador and it has not been disclosed as to how the Bank statements came into the hands of the Ambassador. The appellant's contention that the Ambassador cooked up the case against him and with that intention he was intercepting his post and holding the accounts statement in order to find something against him cannot be easily brushed aside. It is an admitted law that anything built upon mala fides falls to the grounds as mala fide act is an act without jurisdiction which can in no circumstances be saved. The finding of my learned brother about the appellant's failure to report about the purchase of property in Canberra is not proved by evidence but by his own admission in this respect. His explanation that he had intended to inform the authorities when final bargain is carried out and the entire payment is made cannot be wholly accepted because even acquisition of incumbered property has to be reported to the employee's department. There may be no intention to hide the bargain but the misconduct to that extent is technically established and for that, penalty of Censure only can be awarded as there in no other lesser penalty provided in the Rules. However, we hope that for this technical misconduct the career of the appellant who is being reinstated will not be affected.

25. I now refer to some of the charges which according to the Inquiry Officer have been proved. In this regard reference may first be made to parts (iv), (v) and (vi) of charge I of the Inquiry Officer's report. The Inquiry Officer says that the charge is not proved. However, he makes the following observations while discussing the charge: "Not proved .However, these allegations framed on the basis of observations of our Ambassador in Kathmandu do tend to arouse suspicion when considered in conjunction with the unconvincing explanation received from the appellant on one particular entry in his bank statement." The discussion of the Inquiry Officer shows that the adverse finding was on the basis of observations of the Ambassador, Mr. Abul Fazl who was then in Kathmandu. Strange enough neither these observations were brought on record nor the Ambassador was put in the witness-box for cross-examination by the appellant. I cannot, therefore, subscribe to the view expressed by the Inquiry Officer as quoted above. In addition, there is mere suspicion and no charge can be proved on suspicion alone. In other words even the Inquiry Officer thought that the charge was not proved. However, it is not proved either. In my opinion the observations of the Inquiry Officer in this respect are baseless.

26. Coming to part (x) of first charge, the Inquiry Officer says that the charge is proved on Bank statement. The Inquiry Officer did not accept the explanation of the appellant that he used to draw travellers cheques in bulk and encash them whenever needed by him. The Inquiry Officer wanted to know if similar practice was followed by other employees also but it has not been shown that this practice was not followed. In my opinion it was wrong on the part of the Inquiry Officer to have said that the charge is established.

27. While discussing part (x) of the first charge, the Inquiry Officer himself indirectly admitted that the travellers cheques were drawn by the appellant. This is established from 1% charge by the Bank for issuance of travellers cheques. My learned brother has also discussed that charge in his judgment, and I entirely concur with his views.

28. During the course of arguments, the appellant told us that Dr. Tanveer Ahmad Khan who is at present Secretary to the Foreign Affairs Division went to Kathmandu to enquire into certain irregularities of the Embassy and he made a report in this respect exonerating the appellant completely. We gave sufficient time to the Government to produce that report but despite that, that report was not produced. This gives us an indication that the report supports the appellant's version and was against the facts on which the appellant had been charged.

29. To sum up we are of the view that the proceedings against the appellant were taken mala fide. There was no material evidence against him. His post was intercepted. No evidence was produced before the Inquiry Officer. Finding was based on observations of the Ambassador, the mala fides on whose part had, played the role. The appellant was not given opportunity to cross-examine the witnesses specially the Ambassador on whose observations action had been taken. Even the record of the observations was not made available to the appellant. The only evidence is the statement of the appellant which should have been accepted either as a whole or rejected as a whole.

30. With the above observation I again express my agreement with the proposed judgment and order. M.Y.H./618/Sr.F Reinstatement ordered.