2006 PLP (C (PLC(CS))

JUSTICE MUHAMMAD MOOSA K. LEGHARI (CHAIRMAN).

Through this Service Appeal, the adverse remarks recorded in the A.C.Rs. of the appellant for the period 11-4-1996 to 31-12-1996 and 10-6-1997 to 31-12-1997 and 1-1-1998 to 31-12-1998 communicated to him vide Memo. dated 26-6-2001 have been assailed.

2. In the letter of communication in Part V of A.C.R. for the period 11-4-1996 to 31-12-1996, it was mentioned under the Pen Picture as under: "He has persistent reputation of being corrupt. He has earned much less than required units during his tenure here". In the A.C.R. for the period 10-6-1997 to 31-12-1997 in the column of Pen Picture, the appellant earned following remarks:-- "He was lazy Officer, often he was found reading novels, during office hours, when even surprise visit was paid to his Court. Even on the day of annual inspection novels were found on his table. His disposal was very low. His legal acumen was poor. Despite repeated verbal advices, he did not show any sign of improvement towards Integrity or legal acumen." Likewise in his A.C.R. for the period from 1-1-1998 to 31-12-1998 he earned almost the same remarks except the remarks regarding slow disposal. Besides in Column(b)(iii) of Part VI he was assessed to be, "Not yet fit for promotion". Almost in all the columns he earned remarks either 'below average' or 'average'.

3. Being aggrieved by the above adverse remarks, the appellant submitted a representation which was rejected by the 'Authority' viz., the Chief Justice as conveyed to the appellant vide letter dated 19-4-2000.

4. It was contended on behalf of the appellant that the adverse remarks were communicated after considerable delay, that the adverse remarks were not substantiated by quoting any instance or giving justification and that no counselling, was made to the appellant before recording the adverse remarks under challenge.

5. Conversely, it was contended by the learned A.A.-G. on behalf of the respondent that the adverse remarks challenged in this appeal were not the only remarks earned by the appellant during his tenure but even after the said remarks, the appellant was given adverse remarks in his A.C.Rs. about his integrity etc., that his representation was considered in a just and fair manner after affording him proper opportunity, as such his appeal merits dismissal.

6. We have considered the arguments advanced before us and examined the material placed on the record.

7. The contention raised on behalf of the appellant with regard to delay in the communication of ACR does not have much force as the Reporting Officer as well as the Authority remain pre-occupied on account of enormous judicial work and, therefore, mere delay in communication of the adverse remarks in the ACRs would not be a valid ground to expunge the same. Reference in this respect could be made to the verdict of the apex Court reported in 2004 PLC (C.S.) 236 wherein it was observed as under:-- "The first question for determination, therefore, is whether delay in writing ACRs and conveying the adverse remarks can vitiate the adverse remarks. The question is not res Integra. A matter on this subject had come up before Full Bench of this Court for consideration and it was held that Instruction No.2 of the Establishment Manual Volume-I, which is pari materia with Instruction No.2 of the Punjab Esta Code Vol. I, is directly in nature. The ease is reported as Government of Punjab and another v. Ehsanul Haq Sethi (PLD 1986 SC 684)." It was further observed: "The question was determined again in the case of Syed Tahir Hussain Sherazi v. The Governor of the Punjab (1990 SCMR 1510) and it was held that delay in recording adverse remarks does not affect their efficacy or legality. The dictum was reiterated in Lahore High Court, Lahore through Registrar v. K.M. Sohel (2001 PLC (C.S.) 1253) as well as an unreported judgment of this Court titled Ch. Muhammad Wakil v. Punjab Subordinate Judiciary Tribunal Lahore High Court (C.P. No.1170 of 1998) decided on 20-10-1999. In view of this settled legal position and well-known pre-occupation of the District and Sessions Judges and Judges of the High Court with ever increasing judicial work we feel no hesitation in holding that delay in initiating ACRs of some of the appellants and conveying adverse remarks to them is immaterial and cannot obliterate the adverse remarks in question. The contention that the time schedule has been prescribed so that remarks are based on performance of the officer during the relevant year and not any subsequent even stands repelled in view of the observations made in the case of Ehsanul Haq Sethi."

8. It seems that this is not the only occasion that such adverse remarks were recorded in the ACRs of the appellant, but subsequent to this also the appellant was given adverse remarks in his ACRs for the period from 1-1-2001 to 31-12-2001 and 1-1-2002 to 31-12-2002 about his integrity etc. In the instant case the Reporting Officers has made very serious observations that while being on duty the appellant was found reading novels and on the day of annual inspection novels were found on his table. No ill-will or malice has been alleged against the Reporting Officer, as such there is no justification to disbelieve the allegations levelled by the Reporting Officer. In view of his conduct/performance, an opinion as appearing from the adverse remarks under challenge was formed by the Reporting Officer. Evidently there were reasons to form such opinion.

9. So far as the contention of the appellant's counsel that no counselling was made before recording the adverse remarks, suffice it to say that in Part-V(b) of the two ACRs in question it was specifically mentioned by the Reporting Officer, "During monthly scrutiny he was conveyed the remarks about his low disposal. In the inspection notes the above facts were highlighted and remarks were conveyed to him". There is no justifiable reason to take a view other than to accept the same to be correct. As observed earlier, no aversion, disliking or hostility is alleged against the Reporting Officer.

10. The representation submitted by the appellant was given due and proper consideration by the Chief Justice. Besides, he was afforded an opportunity of personal hearing while disposing of his representation. After considering his representation and hearing him in person, his representation was rejected. The order passed by the Chief Justice was just, equitable and legally valid. It does not call for interference of any sort. In the circumstances, no convincing argument was advanced to expunge the remarks in question. Accordingly the appeal, being devoid of merits, is dismissed. Above are the reasons for short order passed on 20-8-2005. H.B.T./M-88/K Appeal dismissed.