1991 PLP (C (PLC(CS))

Manzoor Hussain, Dy. Attorney for Respondents. Date of hearing: 2nd June, 1990. MUHAMMAD MEHMUD ASLAM PIRZADA (CHAIRMAN).-- Abdul Rashid Khan has filed this appeal under section 4 of Punjab Service Tribunals Act, 1974 against the impugned orders dated 18-12-1985, 21-6-1987 and 11.-8-1987 passed by respondents. The appellant has implicated the Director Food Punjab, Lahore and Deputy Director Food, Faisalabad Region, Faisalabad as respondents. Through this appeal the appellant has prayed that the impugned orders passed by respondents be set aside and the appellant be reinstated in service. The salient features of this appeal preferably are that the appellant joined the Food Department as Food Inspector in the year 1958 and was promoted as A.F.C. in 1985. The appellant was compulsorily retired from service vide order dated. 18-12-1989 passed by the respondent No.

2. The appellant filed a review petition which was accepted and the appellant was reinstated in service vide order dated 2-2-1986. Subsequently, the order of reinstatement was withdrawn on 21-6-1987, in consequence of which the appellant again stood compulsorily retired from service w.e.f. 18-12-1985. The appellant V feeling aggrieved filed representation to respondent No. 1 but the same was rejected by a final order dated 11-8-1987. Hence this appeal. We have heard the learned counsel for the appellant as well as the learned District Attorney for respondents and have also gone through the file of this appeal and the service record of the appellant with the assistance of the representative of department. It is argued on behalf of the appellant that the order of his retirement is liable to be set aside for the following reasons:- (i) that the appellant had an excellent record of service and the only adverse reports conveyed to him were for the year 1979-80 which, however, cannot be taken into consideration against him in view of the fact that the representation filed on behalf of the appellant was not decided and the action has been prematurely taken on the said adverse remarks. (ii) that the appellant has been compulsory retired from service without any justification. On the other hand, the learned DA has seriously opposed the appeal and argued that the appellant suffered adverse entries in the A.C.Rs and stated that the orders passed by the respondents in the light of comments/report furnished on behalf of respondents may be allowed to stand. We have considered the arguments of both sides and gone through the service record of the appellant and find that the appellant was compulsorily retired from service on account of adverse remarks in his A.C.R. for the year 1979-80. As the appellant had filed a representation before respondent No. 2 for the expunction of adverse remarks and no decision was taken and communicated to the appellant, the remarks represented should not therefore have been taken into account for the purpose of retirement. It is stated that the appellant was awarded punishment of withholding of his annual increment for one year because he remained involved in a case of Faisalabad and was also administered warning in the year 1971 to be careful in future. We find that on the same charge the appellant and his co-accused officials were acquitted by the Special Judge Anti-Corruption, Sargodha on 4-7-1985. Likewise as far as warning to the appellant in 1971 is concerned the same was never conveyed to the appellant and as such these remarks could not be taken into account and cannot form the basis of his compulsory retirement. We also find that the appellant's service record is quite good. It is a settled law that the Tribunal has jurisdiction to set aside an order under section 12(ii) when it is found that the same in whimsical, capricious and mala fide. In the light of above discussion the appeal succeeds and the orders passed by the respondents are set aside. The appellant is reinstated in service. The intervening period may be treated as leave of the kind to be decided by the competent authority. There is no order as to costs. M.Y.H./349/Sr. P Appeal allowed.