1989 PLP 1967 (SCMR)

NASIM HASAN SHAH, J.‑‑The petitioner was serving in the Urology Department of Mayo Hospital in May, 1981. A staff nurse, Munaza Tasneem, made allegations that the petitioner taking advantage of his position had committed sexual intercourse with her and his behavior with her was immoral. An inquiry on these allegations was held against him but it was found that the allegations regarding rape were not established, as this immoral act was the result of mutual consent of the parties. However, the Secretary Health was of the opinion that in order to rid the department of the evil, some admin1strative action against the petitioner may be taken and this could be done by shifting him from his present position to somewhere else. The Chief Secretary agreed with the recommendation of the Secretary Health who further opined that the petitioner and the nurse may not be kept in the same hospital and it would be preferable if the doctor was adjusted somewhere outside Lahore. The case was then sent to the Governor, for orders who agreed with the Chief Secretary. He further observed that this fact may also be recorded in the dossier of the petitioner. He further desired that the doctor may be posted out of Lahore at once. These directions were issued on 5‑12‑1981. In the A.C.R. recorded on 31‑1‑1982, for the year 1981, Professor Dr. Fateh Khan Akhtar recorded the following remarks: "Energetic young surgeon with average professional knowledge and skill. He is rather excitable and has unstable personality. His behavior with subordinate nursing staff has been indecent and undesirable". The Principal of the College, Professor Kh. Sadiq Hussain countersigned the same on 21‑6‑1982, with the following additional remarks: "After enquiry on complaint of immoral activity was transferred out of Lahore as an admin1strative action". However, the Health Secretary, Brig. I.A. Khawaja, the subsequent countersigning officer considering the assessment made by the reporting officer to be biased noted accordingly on 7‑6‑1983. The result was that the above adverse remark stood washed out. It appears that sometime later, the Provincial Health Secretary sought advice from the Regulation Wing of the Government whether the subsequent countersigning officer was competent to disregard the Governor's order dated 5‑12‑1981. The Regulation Wing gave the opinion that the Health Secretary had no authority to disregard the Governor's remark. Accordingly, the following adverse remarks were communicated to the petitioner by letter dated 2‑1‑1985: "In the presence of Directive of the Governor passed on the summary submitted to him on the basis of the inquiry conducted against Dr. Muhammad Hanif Arif, the remarks of Secretary Health recorded in the A.C.R. for the period from 1‑1‑1981 to 31‑12‑1981 carry no weight. A.D. is advised to comply with the directive of the Governor and place a note about the incident in the C.R.Dossier of the Doctor with a copy to him." The petitioner filed an appeal challenging the said adverse remarks before the Service Tribunal. This has been dismissed. Hence this petition. Ch.Khalil‑ur‑Rehman, learned counsel for the petitioner, in support of this petition, has made three submissions: (i) that the order of the Governor dated 5‑12‑1981 was a nullity and liable to be ignored, hence it could not form the basis of any adverse remarks; (ii) that Professor Dr.Fateh Khan Akhtar's remarks were by a person who was prejudiced against the petitioner and his remarks were vitiated on account of his bias; (iii) that the adverse remarks in the A.C.R. pertaining to the year 1981 should have been communicated to the petitioner somewhere m 1982 and the said adverse remarks communicated on 2‑1‑1985 were null and void. So far as the first submission is concerned, this has not been raised by the petitioner ever before, neither in his representation to the Provincial Government nor before the Service Tribunal and we are, therefore, not inclined to allow him to raise the same before us for the first time. As regards the question pertaining to the bias of Professor Dr.Fateh ' Khan Akhtar, the same has been properly dealt with by the Service Tribunal and we find no reason to differ with the view expressed by it. We have also considered the plea ourselves and find that there is no merit in the said plea. As regards the delay in the communication of the adverse remarks, it is true that the Annual Confidential Report of 1981 was ordered to be communicated sometime in 1984 and was actually communicated by the letter dated 2‑1‑1985 while the normal period for communication of such adverse remarks is 30 days, but, as noted already, the position was that the subsequent countersigning officer had nullified the remarks of Professor Dr.Fateh Khan Akhtar and that of the first countersigning officer, namely, the Principal of the College on the ground that they were biased. Later on, however, it was realized that these remarks had been made in accordance with the directive dated 5‑12‑1981 of the Governor and the Martial Law Admin1strator and, accordingly, the said remarks were not the adverse remarks of Professor Dr. Fateh Khan Akhtar but, in reality, the remarks of the Governor himself. In any case, the Secretary Health did not have the authority to disregard the directive of the Governor and the Martial Law Admin1strator to bring those remarks on the dossier of the petitioner. It was only thereafter that the adverse remarks were communicated to the petitioner resulting in the delay of some three years in the communication of the Annual Confidential Report, 1981 to the petitioner. The Service Tribunal, in these circumstances, found that the delay was not fatal to the validity of the remarks. We also agree with this view and endorse it. No ground, therefore, ex1sts for interference with the order of the Service Tribunal. This petition fails and is dismissed hereby. A.A./M‑963/S Petition dismissed