1993 PLP (C (PLC(CS))

RANA RIFAT SAEED (MEMBER).‑‑‑The appellant, Rahim Dino Mahar, had stated that be had been , conveyed certain adverse remarks pertaining to his ACR for 1991 vide D.O. letter dated 30‑6‑1992 and O.M. dated 13‑7‑1992. He had made a representation to the Secretary on 9‑8‑1992, but it was rejected on 14‑11‑1992. He had mentioned that his earlier ACRs were `good' and this ACR of 1991 had been written with bad intention of the senior officers i.e. D.G. (Mr. M. Ashraf Cheema) who had turned against him, because he had made reports against him for misuse of Government vehicle and other funds. He had also lodged an FIR with the police against his senior officer who had victimized him and given the adverse report in question. The appellant had pleaded that his work and conduct was satisfactory and in the recent meeting of the CSB‑I1, he had also been cleared for promotion as Director (B‑19). He had stated that report of 1991 had been written by the senior officers because of an ill-will against him. He had prayed for expunction of adverse remarks and upgradation of the report to be as `good'.

2. The learned counsel and the representative of the respondent Departments had informed that during the period under report, the appellant's work and output was not satisfactory and that was why adverse remarks were recorded in his report. They had further mentioned that in the past report, since appellant's performance was upto the mark, they had given him satisfactory report. There was no victimisation or illwill against the appellant who had even written many letters containing objectionable and obnoxious material against the senior officers and also lodged an FIR to harass them. But they had given satisfactory reports up to 1990 and only during 1991, since his work and performance was not satisfactory, he did not deserve a positive report.

3. The main emphasis of the respondents for justification regarding adverse remarks was that, the appellant was a psychic case and he had not performed well, whereas medical certificate issued by FGSH vide letter dated 18‑8‑1992 indicated that he did not suffer from any psycho problem. The relevant portion of report of the Medical Board reads as under:‑‑ "He has not been under any medical treatment or supervision (follow up) for any illness either. The Medical Board is of the opinion that there is no evidence of emotional instability or any psycho‑neurotic problem and even any specific physical defect with Mr. Mahar. He is declared mentally and physically fit:" Therefore, it looked that a psychic problem had wrongly been emphasised by the respondents, as it had not been supported by the report of the Medical Board. It was also evident that the appellant who had earned good and satisfactory reports during the past period up to 1990 and he had been cleared by the CSB‑11 for promotion as Director (B‑19), how his report for 1990 would become too adverse to show him as a poor worker and also to be `Unlikely to progress further'. These adverse remarks had not been justified and substantiated by the respondent‑department and for sake of justice these should not form a part of service record of the appellant. 4. under the aforementioned facts and averments made at bar, we find that there was no justification for recording such poor adverse remarks in the ACR for 1991 of the appellant who had on the basis of his earlier service record upto 1990 had also been cleared for promotion as Director (B‑19) and this showed an element of mala fide and ill-will against the appellant by the respondents in order to victimise and downgrade him. We, therefore, accept the appeal to the extent that all the adverse remarks shall stand washed off and the said ACR shall now rate/read as `Average'/`fit for promotion' and the Department shall issue necessary orders in this behalf.

5. No order for costs.

6. MISBAH ULLAH KHAN (MEMBER): ‑‑I have gone through the judgment of my learned brother/Member, Rana Rifat Saeed, but I regret to agree with his conclusion arrived at and, therefore, write a dissenting judgment.

7. The appellant, Rahim Dino Mahar, had stated that he had been conveyed certain adverse remarks pertaining to his ACR for 1991 vide D.O. letter dated 3‑6‑1992 and O.M dated 13‑7‑1992. He had made a representation to the Secretary on 9‑8‑1992 but it was rejected on 14‑11‑1992. The relevant extracts of the report is as under:‑ (a) He is continuously submitting applications/notes to the Minister/Secretary (L&M), J.S. (Adorn) and Director‑General, National Talent Pool levelling very serious, wild and baseless allegations against the staff and officers of NTP and senior officers of Manpower Division which are in the knowledge of the Ministry. These wild allegations speak of his state of mind and in my opinion he is a psychic case. In the light of his mental condition, behaviour and work, he is not fit for Government service. (b) Advised several times to improve his work and conduct. Apparently there is no possibility of his improvement. (c) During the period under report, he remained busy submitting applications/notes as mentioned in para. V(a) above instead of any contribution to the job assigned to him."

8. The appellant had mentioned that his earlier ACRs were 'good' and this ACR of 1991 had been written with bad intention of the senior officer i.e. Director‑General (Mr. M. Ashraf Cheema) who had turned against him, because he had made reports against him for misuse of Government vehicle and other funds. He had also lodged an FIR with the Police against his senior officers who had victimised him and given the adverse report in question. The appellant had pleaded that his work and conduct was satisfactory and in the recent meeting of the CBS‑11, he had also been cleared for promotion as Director (B‑19). He had stated that report of 1991 had been written by the senior officers, because of an ill-will against him. He had prayed for expunction of the adverse remarks and upgradation of the report to be as `good'.

9. The learned counsel and the representatives of the respondent Department had informed that during the period under, report, the appellant's work and output was not satisfactory and that was why adverse remarks were recorded in his report. They had further mentioned that since appellant's performance was upto the mark in the past, they had been him satisfactory report purely on humanitarian grounds considering him mentally instable and to avoid any monetary setback to him. There was no victimisation or imp against the appellant who had even written many letters containing objectionable and obnoxious material against the senior officers and also lodged an FIR to harass them. But they had given satisfactory reports upto 1990 and only during 1991, since his work and performance was not satisfactory, he did not deserve a positive report. The behaviour and conduct of the appellant amply proves that he suffers for psychic and mental fits,' A normal person cannot be involved in such activities. Such a mental state of a person would ultimately effect the office working. However, it seems that he is suffering from psychics fits and sometimes he behaves normally and mostly remains in infancies. Medical certificate may have been obtained during the time he behaved normal.

10. In view of the above background and the perusal of the adverse remarks, it is revealed that the remarks are based on the baseless, vague and wild allegations levelled by the appellant against the Director‑General and other staff members. It simply depicts the conduct, behaviour and the state of mind of the appellant which is proved from the record. It is not even denied by the appellant. No mala fide has been established but on the other hand the respondent i.e. Director‑General, has been considerate enough for avoiding adverse report in the preceding years to avoid any damage to the appellant.

11. Therefore, there is no ground and justification for us to expunge the said remarks. However, taking into consideration the mental state of mina of the appellant and perusal of the record and its examination, we feel that the adverse remarks, are the natural outcome what the appellant himself has given rise to. The report is reflected on his own conduct, behaviour and persuade which is amply substantiated from the facts and history of the case and the pleadings of the respondents. However, taking into consideration the nature of the case and the mental health of the appellant we feel that all he did during 1991 was pot intentional nor deliberate but was due to unfortunate and unstable mind. We, therefore, feel that the report of 1991 A not be given any serious consideration and weightage during his service career, although being based on actual facts will be retained.

12. The appeal is disposed of as above with no order as to costs. ABDUL RAZZAQ A. THAHIM (CHAIRMAN).‑‑‑Appellant Mr. Rahim Dino Mahar filed appeal against adverse remarks recorded in his ACR for the year 1991. His appeal was heard by a Bench comprising Mr. Rana Rifat Saeed and Mr. Misbah Ullah Khan, Members. Mr. Rana Rifat Saeed is of the view that there was no justification for recording such poor adverse remarks in the ACR of the appellant for the year 1991 as on the basis of his earlier record when the appellant was cleared for promotion as Director (B‑19) which shows the element of mala ride and ill‑will against the appellant by the respondents in order to victimise and downgrade him. He has allowed the appeal to the extent that all the adverse remarks shall stand washed off and the said ACR shall now rate as `Average' and. `fit for promotion'.

2. Mr. Misbah Ullah Khan, Member is of the view that mala fides has not been proved by the appellant against the Director‑General and there was no justification to expunge the adverse remarks. He has observed that taking into consideration the mental state of mind of the appellant and perusal of record and its examination, he feels that adverse remarks are the natural outcome what the appellant himself has given rise to. Mr. Misbah Ullah Khan has also observed that taking into consideration the nature of the case and the mental health of the appellant, he feels that all the appellant did during 1991 was not intentional nor deliberate but was due to unfortunate and unstable mind. Therefore, the report of 1991 shall not be given any serious consideration and weightage during his service career although being based on actual facts will be retained.

3. Since there was difference of opinion between the two learned Members, this matter has come up before‑ me under proviso (b) to subsection (2) of section 3‑A of the Service Tribunals Act, 1973. The notices were issued to the parties. I heard the appellant and the learned Standing Counsel for the respondents as also the respondent No.2 Mr. Muhammad Ashraf Cheema. Mr. Cheema has produced one folder giving the background of the state of affairs of the appellant. The contention of the appellant is that with mala fide intention Mr. Cheema has given him adverse remarks and he has put in 31 years service and there is nothing against him during his entire service career. Mr. Cheema was asked about this fact, which he has not denied and on the contrary it reveals from the record that Mr. Cheema as reporting officer gave him average remarks in the year 1989 and nothing adverse was communicated to him. The appellant has been promoted and all these factors must have been given due consideration by the Central, Selection Board. With due regard for the views of the learned Member Mr. Misbah Ullah Khan. I disagree with his observations he has dealt with the mental condition of the appellant. The appellant has clearly stated that he was found fit by the Medical Board and he has been promoted. Therefore, these adverse remarks, in my view, are irrelevant. The reporting officer while recording the ACR went to the extent of observing that the appellant was not fit to be retained in Government service but looking to the findings of the Medical Board that the appellant was declared fit to be retained in Government service, everything vanishes. I have also noticed that Mr. Cheema has taken personal point of prestige by producing the entire record of the appellant which has hardly any point when the appellant stands promoted by the Central Selection Board and this record was not produced before the Bench at the time of hearing of appeal by the Bench. It may further be observed that Mr. Misbah Ullah Khan, learned Member, to some extent, has half‑heartedly agreed with Mr. Rana Rifat Saeed and stated that these remarks should not come in his way but he did not expunge those remarks. I, therefore, agree with my learned brother Mr. Rana Rifat Saeed, Member and expunge the adverse remarks recorded in the ACR for the year 1991. Consequently, the appeal is allowed. ORDER OF THE TRIBUNAL By virtue of proviso (b) to subsection (2) of section 3‑A of the Service Tribunals Act, 1973, by majority opinion, the appeal is allowed and the adverse remarks recorded in the ACR of the appellant for the year 1991 stand expunged. H.B.T./848/Sr.F Appeal allowed.