2009 PLP (C (PLC(CS))

Laws Cited

Representation

• M.M. Aqil Awan, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Appellant.
• Amir Naqvi, D.A.-G. for Respondents Nos.1 and 2.
• Lateefur Rehman Sarwary, Advocate Supreme Court for Respondent No.3.
• Date of hearing: 27th October, 2008.
• 3. Mr. M.M. Aqil Awan, learned Advocate Supreme Court appearing for the appellant stated that the learned Tribunal erred in law by' holding that it was not required and would not be justified to substitute the opinion of the competent authority with its own opinion after assessment of the service record of the appellant.' According to learned counsel, the learned Tribunal had reached the conclusion by relying upon the case of Chairman, Central Board of Film Censors, Islamabad and another v. S. Muhammad Ali Shah 2004 PLC (C.S.) 707. Per learned counsel this decision of this Court is per incurium. Since per settled law, the Tribunal is competent to confirm, alter, set aside or modify the order of the departmental authority keeping in view the facts and circumstances of the case and to meet the ends of justice. Consequently, the Tribunal had vast powers and could inquire into all questions of law and fact. In support of this proposition, learned Advocate Supreme Court has relied upon Ejaz Ahmed Qazi v. Province of Sindh 2003 SCMR 1080, M.D. Sui Southern Gas Company v. Ghulam Abbas PLD 2003 SC 724, Chairman, WAPDA, Lahore v. Gul Bat Khan 1996 PLC (C.S.) 376=1996 SCMR 230, WAPDA through Chairman v. Fida Muhammad Khan 1996 SCMR 639=1996 PLC (C.S.) 700, Shaikh Abdul Aziz v. Collector, Muzaffargarh and 2 others NLR 1983 Service 175, Ali Muhammad v. Commissioner, Afghan Refugees 1995 SCMR 1675 and Pakistan Railways v. Ghulam Rasool 1997 SCMR 1581.
• 4. Learned Advocate Supreme Court has in this context also referred to the Leave Granting Order, wherein it has been observed that "by the impugned judgment, the learned Tribunal has expressed its helplessness, which amounts to abdication of jurisdiction for examining the findings of the Review Committee and the departmental action".
• 5. On the merits of the case, learned Advocate Supreme Court has firstly submitted that in the guidelines for review of the cases of civil servants under section 13(1)(i) of the Civil Servants Act, 1973 formulated by the Establishment Department, Government of Pakistan, the case of the appellant can only fall under para. 6(b) viz.:--
• 6. Consequently, per learned Advocate Supreme Court since admittedly the adverse remarks in the A.C.R. for the period of 1-1-1981 to 1-4-1981 were not communicated to the appellant and similarly in the A.C.Rs. from 12-5-1984 to 31-12-1984 and 1-1-1988 to 10-5-1988, hence the case of the appellant could not be finalized with the result that para.6(b) of the guidelines would not apply to him. Learned Advocate Supreme Court has referred in this regard to letter, dated 15-10-2005, addressed by the Railways Department to one Mr. Muhammad Aslam, Advocate, High Court, Karachi with a request to place the same before the learned Federal Service Tribunal which has been filed with the paper book.
• 7. Learned Advocate Supreme Court has further submitted that an average report is not adverse unless treated as such and hence this had to be communicated to the appellant because he was compulsorily retired on such ground. In support of this submission, learned Advocate Supreme Court has relied upon Muhammad Anwar v. The Secretary, Establishment Division, Rawalpindi and 2 others PLD 1992 SC 144, Province of Punjab v. Sardar Noor Ilahi Leghari 1992 SCMR 1427, Federation of Pakistan and others v. Muhammad Qaisar Hayat Khan 1992 SCMR 544 and Federation of Pakistan through the Secretary, Health Division v. Dr. Najmul Ghani Khan PLD 1995 SC 556. Hence as such average reports were not communicated to the appellant and his case not finalized, therefore, he cannot be compulsorily retired on such ground under para.6(b) of the guidelines.
• 8. On the other hand, Mr. Latifur Rehman Sarwary, learned Advocate Supreme Court has fully supported the impugned judgment. He has further submitted that the plea of adverse remarks against the appellant were never taken either in the departmental proceedings or in appeal before the learned Tribunal and hence for the first time this cannot be done before this Court.
• 10. We have heard both learned Advocates Supreme Court and the D.A.-G. Admittedly, the appellant was compulsorily retired under para.6(b) of the guidelines issued by the Establishment Division, according to which overall grading of the A.C.Rs. is average, and/or where adverse remarks in regard to acceptance of responsibility, integrity, reliability, output of work and behaviour with the public were recorded in the A.C.Rs. duly conveyed to the concerned civil servant and his representation against it finalized as per rules. A plain reading of this guideline would convey, therefore, that there are two eventualities under which action can be taken against the civil servant in accordance with section 13 of the Civil Servants Act. Firstly, where overall grading of the A.C.Rs. is average and where adverse remarks with regard to acceptance of responsibility etc. were recorded, secondly or where only adverse remarks with regard to acceptance of responsibility etc. have been recorded in the A.C.Rs. However, in both the eventualities the average grading as well as adverse remarks are to be conveyed to the concerned civil servant and his representation against it finalized as per rules. In this connection, it will be seen that per the letter written by the Department to its Advocate Muhammad Aslam, (copy placed at page 83 of the paper book). Average remarks in his A.C.Rs. for the period of 1-1-1988 to 10-5-1988 and 12-5-1984 to 31-12-1984 were not communicated to the appellant and hence he had no opportunity to meet the same. As these are sought to be made, inter alia, the grounds for his premature retirement, therefore, under para.6(b) of the guidelines, in our opinion, this should have been communicated to the appellants and the same finalized accordingly before any action could be taken against him under section 13 of the Civil Servants Act. It is settled law that average entry in the A.C.R. is not adverse unless disciplinary action is initiated on this ground when the same is to be communicated to the civil servant. Even in the Leave Granting Order we had observed that perhaps the learned Service Tribunal had ignored this aspect of the matter and not exercised its jurisdiction in accordance with law.
• 12. Insofar as the contention of learned Advocate Supreme Court for the Department regarding objection to the non-conveying of the adverse remarks is concerned, suffice it to say that upon perusal of the reply to the show-cause notice served upon the appellant as well as Memo. of Appeal before the Service Tribunal, such objections have been taken by him.

Headnotes / Summary

Judgment & Decree