1993 PLP (C (PLC(CS))

GHULAM MUJADID ISRAN (MEMBER): ‑‑Appellant Khuda Bux who is Divisional Forest Officer Planning, Hyderabad has filed this appeal seeking expunction of the adverse remarks conveyed to him by Government of Sindh Forest Fisheries & Live‑stock Department by three letters bearing No. DOB FF & L (SO‑1)6(4)1991, dated 29th August, 1991. By these letters the adverse entries recorded in his ACRs for the period 1‑10‑1974 to 31‑12‑1974, 1‑10‑1975 to 31‑12‑1975 and 1‑10‑1977 to 10‑10‑1977 were communicated to him with an advice to make efforts to improve his conduct and to devote his wholehearted attention to his professional duties. Against these entries he submitted appeal to the Chief Secretary which is till pending decision and the appellant filed this appeal after expiry of 30 days.

2. We heard Mr. M.M. Aqil, Advocate for the appellant and so also Mr. Habibur Rasheed assisted by Mr. Mohammad Ibrahim the departmental representative for official respondents. The relevant record relied upon by both the parties was also perused with their assistance.

3. The main argument advanced on behalf of the appellant was that adverse entries relating to the performance of the appellant for the years 74‑75 and 1977 were recorded after lapse of 14 to 17 years and in the mean time they have lost their effect. It was further contended on his behalf that no counselling had been made to the appellant before recording the said adverse remarks. The learned counsel for the appellant attacked the adverse reports also on the ground of mala fides as according to him they were the result of the bias of the authorities concerned. The learned counsel for the Official respondents conceded to the fact that the reports were written at belated stage and as such reports lost their effect.

4. With a view to appreciate the arguments advanced at the bar we perused the department file containing the ACRs of the appellant. It revealed that the adverse entries for the period 1‑10‑1974 to 31‑12‑1974 were recorded on 15‑5‑1991 by Mr. G.D. Memon, the retired Conservator of Forests. The adverse entries are as under:‑

1. Emotional Stability Below Average.

2. Adaptability Below Average

3. Understanding and tolerance Below Average

5. It appears from the footnote written by Mr. G.D. Memon on the said ACR that he was not a reporting officer in this case but due to death of the reporting officer he was advised to record the ACR. The note on page 5 of the ACR for this period reads as under:‑ "Note: The report for his period's ACR was to be written by his DFO Mr. Mirza who has expired. As advised by CF and CCF report for that period has been written by me as his CF then."

6. It is admitted fact that the appellant joined service on 1‑10‑1974 and the report on his performance at the start of his career during the year 1974 was recorded in 1991 which was also not recorded by the officer under whom he had actually worked namely Mr. Mirza. Had the report been recorded at the proper time by the Officer under whom the appellant had actually worked, the views of that officer would have been given weight, because he was best suited person to judge the competence of the person working under him.

7. We have examined the ACR of this period written by Mr. G.D. Memon. In column I of Part II of the ACR pertaining to intelligence of the person reported upon, the entry against the said column is `good'. Similarly the overall grading in Part II, Part III, Part IV and part VI is `average'. In Part V pen‑picture column the comments of the reporting officer are as under:‑‑ "Just started his career. Joined service on 1‑10‑1974. Has to work hard to pick up his job." However, in Part VII of the ACR form the countersigning officer has stated as under:‑ "A beginner in advice, but has potential to show good work."

8. It is an admitted fact the period of this ACR was beginning of the career of the appellant in Government Service. The entries showing the appellant as below average in Columns 3, 4 and 5 of Part II of the ACR are not supported by any material on record and respondents had failed to point out that there was any complaint by public or any other allegation against the appellant during this period. The adverse entries referred to above are in consistent with `average' entry in over all grading in Parts II, III, IV and VI. None of the remarks of the reporting officer had been underlined in red ink by the countersigning officer as per instructions for writing confidential reports which meant that the countersigning officer had not approved and upheld the adverse remarks, rather the remarks of the reporting officer are rebutted by the opinion of the countersigning officer that the appellant had potential to show good work.

9. The report pertaining to the period 1‑10‑1975 to 31‑12‑1975 contains the following adverse entries:‑ (1) Emotional Stability Below average. (2) Adaptability Below average. (3) Acceptance of responsibility Below average. (4) Ability to produce constructive ideas Below average. (5) Reliability under pressure Below average. (6) Financial responsibility Below average. (7) Power of expression (a) written, oral Below average. (8) Knowledge of work Below average. (9) Analyticability Below average. (10) Ability to take decision Below average. (11) Work-quality Below average.

10. This report was recorded by Mr. Hameed Ahmed, Chief Conservator of Forests. No date has been indicated on which the report was initiated but it appears from the letter No. BI (d) Estt.3921, dated 27‑5‑1991 issued by the office of the Chief Conservator of Forests, Sindh, Hyderabad addressed to the Secretary of the Department placed at page 25 of the file produced before us. This letter was written with reference to department's letter dated 23‑2‑1991. It was stated in that letter that the ACR of the appellant relating to the said period had been got written from Mr. Hameed Ahmed and the same was enclosed. The letter is reproduced as under: "Office of the Chief Conservator of Forests, Sindh, Hyderabad, Confidential. No. B.I. (d) Estt./3921 Hyderabad, dated 27‑5‑1991 To, The Secretary, Government of Sindh Forest, Fisheries and Livestock Department, Karachi. Subject: Completion of Annual Confidential Report of Mr. Khuda Bux Baloch Divisional Forest Officer (BS‑

121. Reference Administrative Department's Letter No. F & F (SOI) 6(1)/1991, dated 23‑2‑1991.

11. Mr. Khuda Bux Khoso, Divisional Forest Officer remained Divisional Forest Officer Planning Division, Hyderabad in the Office of the Chief Conservator of Forests, Sindh, Hyderabad from 1‑10‑1975 to 31‑12‑1975 and worked under Mr. Hameed Ahmed the then Chief Conservator of Forests, Sindh. As such the report in question has been got written from Mr. Hameed Ahmed the then Chief Conservator of Forests, Sindh which is sent herewith (in‑duplicable). (Sd.) Chief Conservator of Forests, Sindh at Hyderabad." 12, This indicates that the said report was recorded between the period 23‑12‑1991 and 27‑5‑1991. The same was countersigned by Mr. W.A. Kirmani on, 12‑8‑1991. On scrutiny of the ACR of this period we find that it was written and countersigned after period of 16 years. The overall grading in Part II and part III of the ACR is `average'. The reporting officer had not kept in view the overall grading in these columns while giving his general assessment of the officer in Part VI of the ACR. No evidence against the appellant was produced before us to prove the adverse entries in question. The Countersigning Officer had also not underlined in red ink remarks which is his opinion were adverse.

13. The adverse entries for the period 1‑1‑1977 to 10‑10‑1977 are as under:‑ "

1. Emotional stability Below average.

2. Adaptability Below average.

3. Understanding, and Below average.

4. Financial responsibility Below average.

14. This report was also initiated by Mr. G.D. Memon the retired Conservator of Forests on 15‑5‑1991. The overall grading in Parts II, III and IV is `average'. In the Part VI giving his general assessment of the officer, the reporting officer has initiated the box of below average. However the countersigning officer had not agreed with the reporting officer in Part VI of the report and had rated the officer as `average'. The Countersigning Officer had not underlined adverse entries in red ink to be communicated to the officer. This indicates that the countersigning officer was not in agreement with the reporting officer in respect of adverse entries.

15. The learned counsel for the appellant has argued that the retired officers who had recorded the adverse entries were biased as they had initiated disciplinary proceedings against the appellant in the year 1977, as the result of the disciplinary action, the appellant was dismissed from service. He referred to the judgment of this Tribunal dated 12‑1‑1985 in Appeal No.l/85 whereby the impugned order of dismissal was set aside and substituted with a reduction in rank of the appellant to the post of Sub‑Divisional Forest Officer for a period of three years from the date of the judgment. The findings of this Tribunal were accepted by the Department concerned as no appeal was filed against the judgment of this Tribunal. We have gone through the file in Appeal No. 1/85 and found that M/s. G.D. Memon, Hameed Ahmed and WA. Kirmani who have recorded the adverse entries were party in the disciplinary proceedings initiated against the appellant. We cannot remain oblivious of the fact that ‑these ACRs as well as adverse remarks came of the disciplinary proceedings against the appellant which resulted in his dismissal. As the past episode was fresh in the minds of the officers, it cannot be ruled out that their observations were not completely independent. The very fact that these ACRs have been written after a lapse of 14 to 17 years also goes against para. 2 of the instructions for writing of Confidential Report. The confidential reports were required to be written within the time schedule given in the said para, which is 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. 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 the Government servants during the calendar year to which they relate. Otherwise, consciously or sub‑consciously subsequent events can contribute towards the formation of opinion in respect of the past year. Thus the reports should be completed within month of January each year." As such the adverse entries recorded after such a long period are not justified.

16. Our reference was also invited to the instructions at Serial No.4 provided in A.C.M. Form which read as under:‑‑ "

4. Reporting officer is expected to counsel the officer being reported upon about his weak points and advise him to improve. Adverse remarks should normally be recorded when the officer fails to improve despite counselling." It is clear from the above instructions that before recording formal adverse report about any official, the Reporting Officer is required to sound the said officer 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 ever tendered such advice during the said period. We are of the view that non- compliance of the said instructions also did not justify the recording of the p adverse report in question

17. In the light of the above discussion we have come to the conclusion that the adverse entries recorded in the ACRs of the appellant for the period from 1‑10‑1974 to 31‑12‑1974, 1‑10‑1975 to 31‑12‑1975 and 1‑1‑1977 to 10‑10‑1977 were unjustified and therefore should not be allowed to remain on the record. Accordingly we accept the appeal with no order as to costs and order expunction of the said adverse entries. A.A./384/Sr.S Appeal accepted.