1989 PLP (C (PLC(CS))

DARGAHI L. MANGI (MEMBER).‑‑The appellant, Ali Anwar Ghanghro who has been working as Assistant Director, Labour since 16‑1‑1971 has filed this appeal, praying for expunction of the adverse ACRs conveyed to him on 12‑3‑1986, relating to the following years: (1) From 16‑1‑1971 to 31‑12‑1971 by Reporting Officer and First Counter‑ signing Officer. (2) From 1‑1‑1972 to 31‑12‑1972 by Reporting Officer only. (3) From 1‑1‑1975 to 31‑12‑1975 by Reporting Officer. (4) From 17‑8‑1982 to 13‑12‑1982 by Reporting Officer. As required by proviso (a) to section 4 of the Sind Service Tribunals Act, 1973, the appellant had to exhaust departmental remedy before approaching this Tribunal for the desired relief. According to para. 43 of the Instructions about Confidential Reports, representation for expunction of the adverse remarks was to be made to the appointing authority. Since the appellant was holding the Grade‑17 post when the adverse remarks were communicated to him, his appointing authority was Minister concerned vide amendment made by the notification dated 11th February, 1985 in the Table below sub‑rule (1) of rule 4 of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. However, instead of making representation to the Minister, the appellant addressed the same to the Secretary, Labour Department who partly allowed his representation. Thereafter he challenged the order of the Secretary in second appeal riled before the Chief Secretary on 14‑12‑1986. After waiting for decision of the Chief Secretary for 90 days, the present appeal was filed before this Tribunal on 25‑3‑1987. Before going into merits of the case we have to see if the appellant had fulfilled the requirement of departmental remedy before coming to this Tribunal and further if his appeal before this Tribunal was within time. As stated above the appellant filed departmental appeal before the wrong forum. In this connection the learned counsel for the appellant has placed reliance on the case reported as Federation of Pakistan v. Muhammad Azam Javaid 1988 S C M R 1458. It would appear that the case in our hands is not on all fours with the above‑reported case and as such the latter case would not be helpful to the learned counsel. In the instant case, apart from the question of limitation, non‑compliance of mandatory provision with regard to departmental remedy is involved. As required by para. 43 of the said instructions the appellant was to move his appointing authority namely the Minister concerned for expunction of the adverse t, remarks. But he admittedly addressed his representation to the Secretary of the Department. Even if the argument of the appellant's counsel is accepted that it was the duty of the Secretary to pass on and place the appellant's representation; before the Minister for his orders, the failure on the part of the Secretary to do so would not absolve the appellant of the legal obligation of first resorting to the departmental remedy. After the appellant received the order of the Secretary, he could still approach the correct forum namely the Minister either directly or through the Secretary for expunction of the adverse remarks. Instead of doing so, he challenged the order of the Secretary in appeal riled before the Chief Secretary which was totally uncalled for. In this case the Chief Secretary was not supposed to he involved in any capacity. By taking the matter to him, not only the requirement of seeking departmental remedy before correct forum remained unfulfilled but also the appeal filed by the appellant before this Tribunal got time -barred. For above reasons the appeal is not legally sustainable and therefore it is dismissed with no order as to costs. Appeal No. 2 of 1987 In my opinion there arc two issues involved in the appeal which is filed against the reporting of the A.C.Rs. (1) That the departmental representation has been directed to a wrong forum, should it be ignored or not? (2) Was the departmental representation decided by a Competent Authority or not? if not what is the status of such orders? I shall discuss No. 1 first;

1. That the appellant was a Grade‑17 Officer appointed as Assistant Director, Labour (G‑17). His appointment was made on 16‑1‑1971 and regularised by Sind Public Service Commission w.e.f. 18‑3‑1974. He was conveyed the adverse remarks on 12th March, 1986. These remarks were for the years 1971, 1972, 1975 and 1982. Of course the appellant had to exhaust the appropriate departmental remedy before approaching this Tribunal for the desired relief and according to para. 43 of the Instructions about confidential reports the representation for expunction of the adverse remarks was to be made to the appointing authority. Appellant at that time was holding a Grade‑17 post. I have gone through the schedule and his appointing authority, at the time when he was conveyed the remarks, was the Labour Minister concerned. No doubt the appellant addressed his representation to the wrong forum, namely the Secretary instead of the Labour Minister, but in the same hierarchy, and it was only fair on the part of the Secretary to process immediately his departmental representation to the Minister concerned which he did not. Instead the learned Secretary Labour very specifically dealt with the said representation and reply was communicated to the appellant vide a Notification No. Lah(1)22‑7/77 of the Labour Department dated I 8‑12‑1986. Not only that the representation for expunction went to the wrong forum but the same was decided by the wrong forum which was not vested in with I such an authority. With all the humbleness at my command, I shall only say that though the reported decision of Federation of Pakistan v. Muhammad Azam Javaid 1988 S C M R 1458 is not on all fours with this case, but a very relevant reference/observation, which can apply to this case, has been made. The learned Supreme Court has taken a view which was taken by the Federal Tribunal in the reported case. The extract is reproduced: "The view taken by the Tribunal, about the appeal having been preferred to the wrong quarters, in the same hierarchy, we endorse the view taken that it being the designated authority and only channel for appeal having not been followed, it is a rectifiable irregularity and could be corrected by sending the appeal to the appropriate quarters for its comments. We find that the view taken by the Service Tribunal is correct." I shall take the inference that the observation of the Supreme Court in its generality can be applied in this very similar case.

2. The answer to question raised in issue No. 2 is obviously `No.' The departmental representation against the ACR was not decided by the Competent Authority and as such I may decide to ignore the expunction at the level of the Labour Secretary. By all means the expunction of the adverse remarks at the level of the Secretary Labour is not a legal order of expunction, yet it stays in the file of the appellant. I hold the view that an Illegal Order should not be allowed to stay in the file of the appellant and the record must be put straight. In view of what I have argued above, I shall with utmost respect for the views of my learned Members dissent with the opinion expressed m the main body of the judgment and say that the impugned expunctions be ignored and n ACR's be recast again, and the appellant be given a fresh opportunity to apply for expunction of the remarks strictly in accordance with instruction No. 43 of the booklet, and proceed further in accordance with law. A.A /178 /Sr.S Order accordingly.