2007 PLP (C (PLC(CS))

JUSTICE MUHAMMAD MOOSA K. LEGHARI, CHAIRMAN.

Through this service appeal, the adverse remarks recorded in the A.C.R. of the appellant for the year 1989-90 communicated to him vide memo. dated 21-9-1991 have been assailed.

2. In the letter of communication in Part-V of A.C.R. for the year 1989, it was mentioned under the Pen Picture as under:-- "His integrity is doubtful as there were complaints against him." In Part-V of the A.C.R. for the year 1990, it was reported in the Pen Picture as under:-- "He should guard his reputation and behave properly. He should also be looked after properly."

3. Being aggrieved by the above adverse remarks the appellant submitted a representation dated 14-10-1991. On his representation, the appellant was afforded a personal hearing on 22-10-1992, however, vide memo., dated 14-11-1992 the decision was communicated to the appellant which reads as under: "A.C.R. 1989: Except for the year adverse remarks in respect of integrity in Part-III and Part-V, all other remarks arc converted from "below average" to "average". Adverse remarks regarding integrity are retained. A.C.R. 1990: Remarks "and behave properly" in Part-V Pen Picture is expunged. The representation is otherwise rejected."

4. It is mainly contended on behalf of the appellant that the communication of adverse remarks beyond the period of 90 days was illegal and that the adverse remarks were not substantiated by any material. It was argued that the appellant was issued a show-cause notice but in those proceedings no action was taken against the appellant except that he was warned to be careful in future.

5. As against that, it was contended on behalf of the respondents that two complaints were received against the appellant which contained allegations of corruption against him. The said complaints were sent to the District and Sessions Judge, Sukkur who in turn confirmed that he had also received complaint of corruption against the appellant. Learned District and Sessions Judge further reported that some practising lawyer of Panoo Aqil also make complaint impugning the integrity of the appellant.

6. Learned Additional Advocate-General further contended that though disciplinary proceedings were not initiated against the appellant, yet it does not mean that the integrity of appellant was beyond doubt. The photostat copies of the complaints were also placed on record by the respondents.

7. We have considered the, arguments advanced before us and examined the material placed on the record. The contention raised on behalf of the appellant with regard to delay in the communication of A.C.R. 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 A.C.Rs. would not be a valid ground to expunge the same. Reference in this respect could not 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 A.C.Rs. 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 a Full Bench of this Court for consideration and it was held that Instruction No.2 of the Establishment Manual Volume-I, which is part materia with Instruction No.2 of the Punjab ESTACODE. Vol.I, is directory in nature. The case is reported as Government of the 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 (CP 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 communicating A.C.Rs. 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 event stands repelled in view of the observations made in the case of Ehsanul Haq Sethi.

8. Adverting to the merits of the case, it may be stated that it could not be denied by the appellant that a show-cause notice containing the allegations of corruption was issued to him under the Sindh Civil Servants (Efficiency and Discipline) Rules, however, a lenient view was taken in the matter and no further action was initiated against the appellant except that he was warned to be careful in future. However, in view of the written complaints by the litigant public as well as the Advocates, an opinion was formed by the Reporting Officer that his integrity was doubtful. Evidently there were reasons to form such opinion, as by letting off a Judicial Officer by taking a lenient view, and issuing him a warning does not mean that the doubts regarding his integrity were cleared. Similarly in the year 1990 the appellant was directed to guard his reputation. Evidently there was a basis for recording such observation, as the doubts were already created on the integrity of the appellant as such his reputation was not above-board. 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. After considering his representation and hearing him in person, an order was passed whereby all other remarks showing him "below average" were converted to "average", however, adverse remarks regarding integrity were retained. So far as the A.C.R. for the year 1990 is concerned, adverse remarks "and behave properly" recorded in the Pen Picture were expunged. His representation was otherwise rejected. No convincing argument was advanced to expunge the said remarks.

9. It is abundantly clear from the above discussion that the remarks were based on the material which was available with the Reporting officer as well as countersigning officer. There was specific complaint about the integrity of the appellant. Merely because a lenient view was taken in the disciplinary proceedings, would not entitle the appellant to have a clean slate so far as remarks in the A.C.R. are concerned. The appellant was afforded ample opportunity while disposing of his representation. The order passed by the Chief Justice was just, equitable and legally valid. It does not call for interference of any sort. These are reasons for the short order, dated 16-4-2005 whereby the above appeal was dismissed. H.B.T./M-175/K Appeal dismissed.