MUHAMMOD ZAFAR BUKHARI Versus SECRETARY TO GOVERNMENT OF PUNJAB, HEALTH DEPARTMENT

S. ABDUL JABBAR KHAN (CHAIRMAN). ‑Dr. Syed Muhammad Zaffar Bukhari, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974. in which he has impleaded Secretary to Government of the Punjab, Health Department, Lahore, and Principal, Quaid‑i‑Azam, Medical College, Bahawalpur, as respondents.

2. By virtue of this appeal be has prayed that adverse report for the year 1980, being mala fide be expunged.

3. Brief facts of the case are that the appellant while working as Assistant Professor and Head of Forensic Medicine and Teoxicology Department, Quaid‑i‑Azam Medical College, Bahawalpur, in the year 1980, under the control of respondent No. 2, Principal, Quaid‑i‑Azam Medical College, Bahawalpur, was conveyed adverse entries for the said period by the letter, dated 25th March, 1981 addressed to the appellant by the Government of the Punjab, Health Department. The appellant took exception to the same and wrote a letter, dated 30th March, 1981, address ed to Brig. I.A. Khawaja, Secretary, Government of the Punjab, Health Department, to direct the Reporting Officer i.e., Principal, of the said college to give his comments on each remark individually assessed, enabl ing the appellant to rebut the same, He also made a grievance in the said letter that in the absence of such elaboration on behalf of respondent No. 2, the appellant would not be in position to clarify the mala fide/illegal remarks given by the principal against him. To this letter he received a Registered AJD reply from Government of the Punjab, Health Department, dated 11th July, 1981 in which it was stated that para. 49 of the Instructions about Confidential Reports simply provides that a person, who is communicated adverse remarks can apply for expunction of such remarks within a period of one month from the date of the com munication. As he did not make a regular representation for the expunc tion of adverse remarks within the stipulated period the Department was obliged to reject it as this was a noval procedure adopted by the appellant and decided to contain the above confidential report as it was for the year 1980. Hence this appeal.

4. We have heard Mr. Abid Hassan Minto, learned counsel for the appellant as well as Pir Rafiuddin, learned counsel for respondent No. 2 and learned District Attorney Mr. Haroon‑ur‑Rashid Cheema, on behalf of Government, assisted by the representative of the Department and have perused the record of this case carefully with their assistance. Learned counsel for the appellant has submitted that respondent No. 2 has mostly relied upon the conduct and work of the appellant for the period 1979 which was found below average and adverse entries to that effect, were given by his predecessor Professor S. A. Askari late Principal, therefore, the remarks pertaining to the year 1980, given by respondent No. 2, would not be justified. It has been pointed out that the adverse entries pertaining to the year 1979, were duly expunged by the Government.

5. It has been further submitted that respondent No. 2 had a personal malice against the appellant to an extent that he was instrumental to get him declared ineligible for a certain post before the Punjab Public Service Commission, a matter which was later on probed into and decision in favour of the appellant was given.

6. That Professor lqbal Ahmad who is very close associate of respon dent No. 2 as both being ardent members of Tableeghi Jamat, made a request to the appellant through a chit for doing favour to a student but the same was turned down by him, therefore, the said Professor Iqbal became instrumental for the adverse entries so recorded against the appel lant by respondent No. 2.

7. The appellant when transferred from Quaid‑i‑Azam Medical College, Bahawalpur, to Nishter Medical College Multan, resisted such transfer through civil Courts and High Court and respondent No. 2 opposed these cases by making appearance on behalf of Government, therefore, the appellant is justified to assume that the adverse entries so recorded against him by respondent No. 2 was result of annoyance and malice.

8. On the other hand learned counsel for respondent No. 2 as well as learned District Attorney, have resisted all these allegations vehemently by filing sixteen foolscape typed pages, comments about the said entries and have pursuaded this Tribunal to hold that these entries were fully justified. They have further come out with a legal objection that the appellant never made a representation as required under the rules and thus he was precluded to file the appeal before this Tribunal as the same would not be maintainable in view of the bar as laid down under section A 4 (1) (a) of the Punjab Service Tribunals Act, which requires a civil servant to exhaust all the remedies available to him before coming to this Tribunal.

9. We have given our anxious thought to the arguments so raised before us and first of all we will advert to the legal objection so raised before us, with regard to the maintainability of this appeal. Learned counsel for the appellant has submitted that nowhere in the rules, a pro forma is laid down which a civil servant should adhere to, for filing his representations to the higher authorities in such matters. According to the learned counsel the letter written by the appellant to the Health Secretary, for all purposes was representation, although it was not properly worded. We are afraid that this explanation of the learned counsel for the appellant, is not convincing. The appellant is a highly educated person and has earlier also been a subject of adverse entries and he was fully conversant with the form of representation which he was so required to make. In the year 1979, the predecessor of respondent No. 2, gave him adverse remarks and he did file a representation against it in which, later on, he succeeded, therefore, it cannot be said that he did not know the method or the language which he had to adopt for filing such representa tion. The wording of this letter which the learned counsel for the appel lant, persuaded us to treat it as representation are very clear and leaves no matter of doubt that this letter only asked the Health Secretary to direct the respondent to give his reasons for giving adverse entries against the appellant. We are fully aware of the rules in this respect and find that under the rules, it is not obligatory in any manner, on the Reporting Offcer, to give his reasons for the adverse entries to the person who has been so reported against. It is only when a representation is duly made, the said offcer is called upon to make his comments and it is for the ultimate authority to consider whether the comments so made in that behalf, are acceptable, based on good reasons or the same are to be expunged by the authority considering them whimsical and vague in nature. The letter of 11th July, 1981 from the Health Department to the appellant is based on para. 42 of the instructions and after perusing the said para. we are satisfied that the letter so written by the Government of Punjab, Health Department to the appellant, was fully justified. In view of the above we are of the considered opinion that the letter in dispute, written by the appellant to the Secretary Health, cannot be termed as representation envisaged by para. 42 of the instfuctions about Confidential Reports, therefore, the appeal is liable to be dismissed on this score alone, as the appellant has not exhausted the legal remedy so available to him and has straightaway come before this Tribunal.

10. With regard to the merits of the case we will first of all like to reproduce the adverse entries so given to him by the Reporting Officer, duly countersigned by the Countersigning Officer:

(1) Ability to plan, organize and supervise work

Below average.

(2) Quality and output of work.

Below average.

(3) Perseverance and devotion to duty

Poor.

(4) Co‑operation and Tact

Below average.

(5) Sense of responsibility‑(a) General

Below average.

(6) Behaviour with public

Is inclined to be arrogant.

(7) Punctuality

Unpunctual.

(8) General assessment

Below average.

(9) Fitness fir promotion

Unfit for further promotion as a teacher.

(10) Pen Picture:

"Enthusiastic in pursuing various personal Court cases. A "legal complex" person. Inclined to create legal complications against his seniors. Not a good subordinate and not a good teacher too."

The argument of the appellant that the assessment of his work by Dr. Noor Ahmad Noor, respondent No. 2, p,rtained mostly to the perform ance of the appellant for the year 1979, therefore, the same cannot be made basis for the assessment of work of the year 1980 is hardly impressed and we do not find any force in the said argument. The Reporting Officer has submitted that he recorded the report honestly based on true fasts and quite in accordance with relevant instructions as contained in the booklet "Instructions about Confidential Reports" published by the Government. It was duly countersigned by the countersigning authority and the same has been accepted by him for the communication of adverse entries to the appellant. According to the respondent the overall conduct of an offcer even in the previous years, if it finds support from the documentary evidence, is always relevant in making true assessment of his character. In this matter he has drawn our attention to the antecedents of this offcer that he in the year 1978, also addressed a letter directly to the ultimate authority bypassing his immediate superior in case of his promo tion and appointment in N. P. S. 18. Even in that letter he had threaten ed the Government with dire consequence of going into litigation, so the respondent was justified to mention the same in his pen r..,‑. We have examined this point in the light of the reply given by the respondent and find that assessment about his character of having a legal complex, is fully justified. Besides the incident of the year 1978, we have before us his performance also when he chose to resist the order of the Government regarding his transfer and entered into protracted litigation with his employer before a civil Court/Civil Judge/District Judge and ultimately the High Court. He was able to secure temporary injunctions which are usually granted by such Courts when a lis brought before it, but ultimately the same were vacated, and appeals were dismissed on merits. The judg ment of the High Court in this respect gives a clear picture of the entire matter, upholding the stand of the Government and rejecting the stand of the appellant. His petition was dismissed as being without any merits. We in no manner can uphold the conduct of a civil servant who resisted the order of his transfer by one pretext or the other anti paralysed the action of his employer taking advantage of technicalities of law and procedure when we find that his case was absolutely hallow and the same was inten ded to prolong his stay by defying the order of his superiors, so passed in the public interest.

11. We have also noticed that the appellant got Overdraft of Rs. 5,000 from National Bank of Pakistan and did not return the money to the Bank for a year which was later on recovered by the good offices of his superiors, therefore, this incident also reflects on the straight forwardness of the appellant in his fiscal matters also.

12. We have taken pains to go into the Attendance Register. The copies of the same have been provided by respondent No. 2 alongwith his written statement that the appellant had thought only 2 sessions during the terms of his service in Q. M. C. by the end of the year under report. There were complaints against him as stated by respondent No. 2 on behalf of the students from his poor teaching, negligence in his such work and objectionable behaviour and the respondent has stated that this matter was brought to the notice of the appellant and he was asked to improve his teaching capabilities and conduct. We have no reasons to disbelieve the statement made by respondent No. 2 in this matter but to satisfy ourselves further, we have looked into the enquiry conducted by the Martial Law Team a copy of the same has been placed on the record which is Annexure "L" and find that a number of his girl students as well as boy students appeared before the Martial Law Team and made serious type of allegations with regard to the conduct, character and behaviour of the appellant towards to his students. The appellant was examined in detail by the said Enquiry Team and his statement is also on the said file. The conclusion drawn by that independent forum which comprised of a very senior officer of the Army does not bring out a happy picture about the appellant's conduct and it was found that he had lost his credibility as teacher in Quaid‑i‑Azam Medical College, Bahawalpur and it was recommended that he should be removed from his present assignment as Assistant Professor of Forensic Medicine and Technology Quaid‑i‑Azam Medical College, Bahawalpur and should be posted to some other place to work under a senior to gain more training and experience to bold a responsible assignment in future. The Martial Law Authorities further opined that Dr. Bukhari and his students belong to the same generation and he relegating his responsibilities as Head of Department has tried tc indulge in private communication with the girl students and that too by crude and clumsy methods. In the process he has suffered severe trauma which has torn into shreds his image and prestige. He has got no chance to repair the damage in near future in Quaid‑i‑Azam Medical College, Bahawalpur. Keeping in view the independent opinion of Chairman L. M. L. A. Inspection Team recorded on 16th June, 1979, which came into the notice of respondent No. 2 after he took over the charge as Principal, Q. M. C., we are of the considered opinion that his assessment of work as a Teacher was fully justified and his observation regarding his conduct has sound basis for such assessment.

13. With regard to his teaching method, the Attendance Register reveals that out of total 110 lectures shown to have been delivered by the appellant 43 lectures were delivered in a single month of June, 1980 and the remaining 67 lectures were shown in 8 months from October, 1979 to May, 1980. The analysis of the said record reveals that 4 lectures were delivered by him for 5 days in June, 1980 on 7th June, 1980 and from 9 th June 1980 to11th June, 1980 and 5 lectures were shown to have been delivered on 8 th June, 1980. that would be hardly possible as according to the time table regular teaching in other subjects was also going on during that period. Respondent No. 2 also looked into the record prepared by Dr. Bukhari (appellant) as well as by his own staff and find that such like performance as claimed by the appellant was neither feasible nor possible. In this manner respondent No. 2 was justified to hold that his teachings were below average and not according to the procedure so laid down in this behalf .

14. Respondent No. 2 also found that a number of students were short of attendance but the appellant cleared them for taking their exami nation which was not permitted. Although this action was highly objec tionable yet the respondent No. 2 was forced to ignore the same, to avoid an ugly situation which was likely to occur, as such students were likely, to re‑act against withdrawal of the advantage so clandestinely taken by them with the collusion of the appellant. In view of the above we cannot take any exception of the remarks of respondent No. 2 against the appel lant that be was not a good subordinate, not a good teacher and unfit for promotion.

15. The appellant had made much of the incident which relates to the arrest of students by the police from the college premises and main tained that his refusal to hand over them to the police in fact, caused annoyance to the principal, who was personally interested that the said students should be arrested. There is nothing on record to show as to how the principal was personally interested in the arrest of the said students or what happened between the appellant and the administration on this issue.

16. We have also noted r from the record that the appellant was permitted to work as Head of Department when he intimated to the respondent No. 2 that he had an order of the High Court in his favour and even many of his requests which he made previously to the principal, were acceded. With regard to the allegation that the appellant's sister Dr. Shahida Parween was to appear before respondent No. 2 for examination and he had made protest abut the same, also stood contradicted by affidavit of respondent No. 2 in which it has been stated on solemn affirmation that respondent No. 2 was never an Examiner of 3rd Professional Examination and had never examined the sister of the appellant. Similarly we also find an affidavit on the record of Dr. Iqbal Ahmad Khan acting Principal of Q. M. C. to the effect that no chit was ever issued by him for helping any student to Dr. Bukbari (appellant) and his allegation to that effect was nothing but concoction. We have looked into the grounds of appeal and find that when appeal was earlier filed, it was mentioned in para. 9 :‑ "that the Vice‑Principal of Quaid‑i‑Azam Medical College Dr. Iqbal Ahmad Khan, requested the appellant to do favour to a student by giving him remarks and for that purpose sent a chit but the appellant refused."

It was brought to our notice by the learned counsel for the respondent No. 2 that as this allegation was against the record, the appellant had tampered with paragraph 9 of the appeal and added three words to change the complex of the said allegations. We have noted that after the word chit it is written by hand "signed by Dr. Tayyab". This insertion or addition cannot be read as original because of this insertion as the mean ing of the sentence becomes ambiguous. However, there is nothing on the record to controvert the affidavit so filed by Dr. Iqbal Ahmad Khan. There is also an affidavit of Dr. Noor Ahmad Noor, respondent No. 2 that he was on summer vacation from 10th July, 1980 to 30th August, 1980 thus showing that many of the allegations of personal malice attribu ted to the acts of this period, were baseless. We have seen the statement of the appellant recorded before the Civil Judge in his case before the Government in which it has been admitted that his grievance was not against respondent No. 2 and actually his complaint was against Professor S. A. Askari his predecessor. After going into all the evidence on the record in the form of evidence and admission of the appellant himself, we have no hesitation to hold that the allegation of malice against the respondents are unfounded and these have been brought forwarded only to give strength to the plea that such adverse entries were unjustified.

17. We after going through the entire record of the case including the written statement made by respondent No. 2 and a number of docu ments so appended to it, are of the considered opinion that the assess ment made by respondent No. 2 about the work and conduct of the period for 1980 during which the appellant worked under respondent No. 2, cannot be considered as unjustified, therefore, no exception can be taken to it.

18. The result is we dismiss the appeal an non‑maintainable as well as being without any merit. There will be no order as to costs.

A. E. Appeal dismissed.