1993 PLP (C (PLC(CS))

GHULAM MUJADID ISRAN (MEMBER): ‑‑Muhammad Wasiq Ali, Superintending Engineer (Retd.) Provincial Buildings Circle, Government of Sindh has riled this appeal under section 4 of the Sindh Service Tribunal Act, 1973 By virtue of this appeal. he prayed that the adverse entries communicated to him through D.O. No. SO‑111 (S&GAD)‑2‑6/80, dated August, 1989 as well as appellate order dated 19‑2‑1991 which was received by the appellant on 25‑2‑1991 be set aside. Brief facts of the case are that the appellant was posted as Superintending Engineer/Director, High Ways, Sukkur. The Reporting Officer i.e. the Chief Engineer, High Ways gave him an adverse remarks in his confidential report for the period of 1‑1‑1988 to 15‑6‑1988. These remarks were countersigned by the Secretary, Works and Communication Department endorsing the view of the reporting officer. The remarks were communicated to the appellant in August, 1989. He filed a representation to the Chief Minister, Sindh on 7‑9‑1989 which was rejected. Hence this appeal. We heard Mr. Manzoor Ali Khan, the learned counsel for the appellant and so also Mr. Hayat Qureshi appearing on behalf of the official respondents. The relevant record relied upon by both the parties was also carefully perused. In course of his arguments the learned counsel for the appellant submitted that the confidential report conveyed to the appellant suffers from contradictions and infirmities. It has been further argued that the report in question had been written belatedly and in total disregard of the "Instructions About Confidential Reports" hereinafter referred to as the said instructions. It was further .pointed out that no counselling had been made to the appellant before writing the adverse remarks. It was vehemently argued by the learned counsel that appellant's work and conduct did not come to any adverse notice either prior or subsequent to this short period of 5‑1/2 months. On the other side the learned counsel for the official respondents contended that it is a biased report. It would be useful to reproduce the adverse entries in dispute as communicated to the appellant:‑‑ Subject:‑‑Adverse Remarks in the ACR for the period 1‑1‑1988 to 15,6‑1988. . My dear Wasiq, The following adverse remark's occurring in your ACR for the period 1‑1‑1988 to 15‑6‑1988 are hereby communicated:‑‑ Part V (Column: Pen‑picture) "Technically unsound. Avoids supervision of works even under his nose. District Jail, Larkana is an example of his negligence. Lacks in administrative and technical control. Tries to blackmail his officers and arranges complaints against them to cover his inefficiency . Column: (Assessment of performance) "(i) routine cases. Poor (ii) Complicated cases/situations. Poor (iii) Policy cases/Crisis situation dealt with by the officer Poor". (2) A photocopy of the ACR for the period 1‑1‑1988 to 15‑6‑1988 is enclosed. (3) Kindly return the duplicate copy of this D.O. letter after affixing your signature therein in token of having received the communication. (4) In case you wish to represent, this may be done within 30 days of the receipt of this letter. Yours sincerely, (Sd.) Ashiq Hussain Memon." In order to appreciate fully the arguments advanced on behalf of the appellant we went through the personal file of the appellant containing ACRs for the last ten years. Perusal of the rile shows that he earned `good' reports upto 31‑12‑1987. It is interesting to note that Mr. Noor Muhammad A. Qudus, Chief Engineer and the reporting officer of the disputed report considered his work from 26‑5‑1987 to 31‑12‑1987 as satisfactory and rated him "good". He was assessed as an obedient officer. It would also be useful to mention that the officer's record was satisfactory during the period 22-6‑1988 to 31‑12‑1988. The Reporting Officer in his pen‑picture in Part V of the said report has given adverse remarks of "Technically unsound". It is interesting to note that under Part IV of ACR Form dealing with `Proficiency in job' there is specific column No. 2 pertaining to `knowledge of work'. In this column the Reporting Officer has rated the appellant as `average' which is not adverse entry. The Reporting Officer has based his opinion on sole example of negligence of appellant in respect of project of District Jail, Larkana. This project, as reported, was completed in the year 1974‑

75. There is no evidence on record to show that any departmental action was taken against the appellant for his negligence in performance of his duties on the said project. Under instruction No. 3 of the instructions as given in the ACR Form, the assessment in the ACR is required to be confined to the work done by the officer reported upon during the period covered by the report. No such incident accrued during the period 1‑1‑1988 to 15‑6‑1988. Hence making of such observations in A.C.R. of 1988 were uncalled for. Similarly in the same column the Reporting Officer has given the adverse remarks "Avoids supervision of work even under his nose". Whereas in Part IV of the ACR Form there appears column 4 relating to `Supervision and Guidance'. To our surprise the Reporting Officer has initialed box `B' which is average. We agree with the arguments of the learned counsel for appellant that if the Reporting Officer was not satisfied with the appellant's performance he could have used either box `C' or `D'. The preparation of confidential report is responsible duty. The manner in which such reports are written is taken into account in judging the qualities of the Reporting Officer. The opinions which are expressed in the reports should represent the result of careful consideration objective assessment so that, if called upon, the reporting officer could justify the assessment of his subordinate made by him. Furthermore, in Part V of pen‑picture the Reporting Officer giving the weak point of the appellant has commented as under: "Tries to blackmail his officers and arranges complaints against them to cover his inefficiency." We fail to understand that if the appellant's relations with his colleagues were such then why in boxes 12 and 13 of Part III of the ACR he was rated as `average'; and `good' by the Reporting Officer. This inconsistency in the assessment has not been explained by the reporting officer. We have further noticed most of the entries are in Box `B' in Parts II; III, IV and VI whereas in Part V of the report the officer has been assessed as (i) poor, (ii) poor, (iii) poor and given adverse remarks: The Reporting Officer should have give detailed reasons for his adverse assessment. Normally these should be identical. The countersigning officer also failed to take notice of it. It is also the case of the appellant that the disputed report was written at belated stage. We have. noticed that the Reporting Officer retired from Government service w.e.f. 31st December, 1988 and the report was initiated on 25‑5‑1989. This fact is admitted in para. 8 of the written statement filed on behalf of the official respondents. This indicates that while initiating the disputed report the instructions as givens in paras. 2, 3 and 5 of the said instruction were ignored. Confidential reports are of extreme importance and need to be prepared when due with least delay. The reports are required to be prepared annually at the close of each calendar year, also on the departure of the concerned reporting officer. The relevant instructions are reproduced as under:‑‑ (2) When should a report be written.: The report shall relate to a calendar year. It shall be initiated in the first week of January by the initiating authority and forwarded to the higher authority in the same week. The higher authority shall give its remarks within one week. In case it is necessary to send the report to a third authority, it will be sent to that authority immediately. The final authority shall also record its views within a week. Time schedule has been laid down so that the remarks are based on the performance of Government Servants during the calendar year to which they relate. Otherwise, consciously or subconsciously subsequent events can contribute towards the formation of opinion in respect of the past year. Thus, the reports should be completed within the month of January each year. (3) Responsibility of the final Authority to ensure prompt writing of Confidential Reports.‑‑Generally, the writing of confidential reports gets delayed, which affects the disposal of cases in which it is necessary to consult Character Rolls. This also leads to frustration among the Government servants. The final authority about the writing of confidential report will be responsible for obtaining confidential reports for the preceding calendar year within the month of January, each year. It would then furnish a certificate to Services and General Administration Departmental that all the confidential reports which are due to be completed have actually been completed and placed on the Character Rolls. This certificate should reach Services and General Administration Department (Section XIII) in the first week of February. The defaulting authorities shall be brought to the notice of Government for appropriate disciplinary action. (5) Action when a Reporting Officer or a subordinate is transferred.‑‑If the reporting officer is transferred during the course of a calendar year he should be required to write a report if his transfer occurs more than two months from the date, the last report was due. Such reports must be written before relinquishing charge. The report shall be sent to the higher authority when all the reports for the year have been written. If a subordinate is transferred during the course of a calendar year he has worked for more than two months under the reporting officer then the latter shall record his opinion. In case he is being transferred from the jurisdiction of the Authority then the views of the higher authority shall be obtained and forwarded to the Department/Officer where a subordinate has been transferred." Further, it was argued on behalf of appellant that under instructions the reporting officers are expected to counsel the officer being reported upon about his weak points with the advice to improve the same. No such counselling has been done in this case by the reporting officer. The relevant instruction in this behalf is Instruction No. 4 printed on page 9 of the prescribed Form for writing ACR. It reads as under:‑‑ "

4. Reporting officer is expected to counsel the officer being reported upon about his weak points and advise him how to improve. Adverse remarks shall normally be recorded when the officer fails to improve despite counselling." The record shows that before initiating the disputed report the appellant was not counselled about his weak points. This fact is also admitted in para. 10 of the written statement. Thus, the adverse entries are liable to be expunged on this ground alone. The learned counsel for the appellant relied upon the judgment of this Tribunal dated 30‑11‑1988 in case of Pana Lala v. Secretary of Government of Sindh, Education Department (1989 PLC (C.S.) 508) in which this Tribunal has taken the view that non‑compliance of the instructions referred to above did not justify the recording of the adverse report. As such the report in question was expunged. We see no reason to deviate from above decision and take different view with present case particularly when the point for determination in both the cases is identical. The relevant portion of the judgment is as under:‑‑ `Our attention was also invited to the latest `instructions for filing of the ACR Forms' appended with ACR Form. The instruction at S.No.4 printed on ACR. Form reads as under:

4. Reporting Officer is required to counsel the officer being reported upon about his weak points and advise him to improve. Adverse remarks shall normally be recorded when the officer fails to improve despite counselling.' It is clear from the above instruction that before recording formal adverse report about any official the Reporting Officer is required to send the said official a note of caution advising him to mend his defects. It is after such counselling is unheeded by' him that adverse report is recorded in respect of the defaulting official. The record is absolutely silent if the appellant was even tendered such advice. The learned Government counsel after consultation with the departmental representative and the record he had brought to assist the said counsel frankly conceded that there was no trace suggesting that the appellant was counselled in terms of above instructions, prior to recording of the adverse report under consideration. We are of the view that non compliance of the said instruction did not justify the recording of the adverse report in question. In the light of the above discussion we have come to the conclusion that the adverse report for the period from 10‑9‑1981 to 31‑12‑1981 was unjustified and, therefore, should not be allowed to remain on the record. Accordingly we accept the appeal and order expunction of the said report. The parties will bear their own costs." Keeping the above analysis in view we accept the appeal with no order as to costs and direct that the adverse remarks of the appellant recorded in his ACR for, the period 1‑1‑1988 to 15‑6‑1988 be expunged. Expunction ordered. H.B.T./410/Sr.S Appeal accepted.