1991 PLP (C (PLC(CS))

MA. Riaz for Appellant. A.G. Hamayun, DA. for Respondents. Date of hearing: 14th May, 1990. MUHAMMAD MAHMUD ASLAM PIRZADA (CHAIRMAN).--Sher .Ali Khan formerly Naib-Tehsildar has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the impugned order dated 6-7-1986 and final order dated 19-6-1988 passed by the respondents. Appellant has impleaded the Commissioner, Multan Division, Multan and Member (Revenue) Board of Revenue, Punjab, Lahore as respondents. By virtue of this appeal the appellant has prayed that impugned orders passed by the respondents be set aside and the appellant be reinstated in service. The facts relevant for the disposal of present appeal are that initially the appellant was enrolled as Patwari in May 1956. On the basis of his good work he was promoted as Kanungo. He was further promoted as Naib-Tehsildar on 20-12-1978. The appellant having completed 25 years qualifying service for pension, therefore, his service record was scrutinized in order to determine whether he is fit for further retention in service or it is in the public interest to retire him. By order dated 6-7-1986 the appellant was retried under section 12(ii) of Punjab Civil Servants Act, 1974. The appellant feeling aggrieved filed representation before respondent No. 2 which was also rejected by final order dated 19-6-1988. Hence this appeal. We have heard the learned counsel for the appellant as well as learned District Attorney for the respondents and gone through the file of this appeal as well as service record of the appellant with the assistance of the representative of the Department. It is argued on behalf of the appellant that the order of his retirement is liable to be set aside for the following reasons:- (i) That the appellant had excellent record of service and the only adverse report conveyed to him was for the year 1982 but that too could not be taken into consideration against him in view of the peculiar facts and circumstances of the case. (ii) That appellant's ACRs for the last 10 years do not contain any adverse remarks and that he has been retired without any justification. On the other hand learned District Attorney has seriously opposed this appeal and argued that appellant suffered adverse entries in the ACRs. Learned District Attorney further stated that the impugned orders passed by the respondents in the light of comments/report furnished on behalf of respondents may be allowed to stand. We have considered the arguments of both sides and gone through the service record of the appellant. We find that during the period May 1956 to November, 1961 the appellant's entire service record remained satisfactory. The ACR of the appellant for the year 1961 was not satisfactory but we find that the same was never communicated and as such it could not be used against him. As far as the period relating to November 1961 to December 1978, the appellant earned satisfactory ACRs. During the course of arguments it has been brought to our notice that ACRs for the years 1964 to 1972 contain some adverse remarks but that too were never communicated to the appellant and as such could not be considered for the purpose of deciding the case of appellant's retirement. Moreover, the appellant was promoted as Naib-Tehsildar in the presence of these remarks and as such these remarks therefore have lost their significance, If any, during the period December 1978 to July, 1981, the appellant earned satisfactory reports as Naib-Tehsildar. The service record of the appellant shows that appellant's A.C.Rs. for the last ten years from the years 1976 to 1986 are quite satisfactory. We have also noticed that the appellant's ACR for the period of six months i.e. 1-1-1982 to 30-6-1982 which contains the remarks "Officer of average category" has been treated to be adverse. In fact on the basis of these remarks the said report was not at all adverse. Appellant earned `A' and `A-I' remarks for the period 1975 to 1985. We also find that appellant's overall record is quite good. It is settled law that the Tribunal has jurisdiction to set aside an order under section 12(ii) when the same is whimsical, capricious or motivated by mala fides. In the light of above discussion the appeal succeeds and the impugned orders are set aside. The appellant is reinstated in service. The intervening period may be treated as leave of the kind to be decided by the competent authority. There will be no order as to costs. Judgment be communicated to the parties. M.Y.H./305/Sr.P Appeal allowed.