MUHAMMAD AHMAD AFGHANI Versus GOVERNMENT OF PUNJAB

This appeal initially brought under section 4 of the Punjab Service Tribunal Act 1974 was transferred under section 8 of the Punjab Subordinate Judiciary Service Tribunals Ordinance No.II of 1991 to this Tribunal for disposal.

2. It was directed against the modified version of adverse remarks recorded in the appellant's A.C.R. in the year 1979 by respondent No. 3 Malik Lutaf Ali, the then District and Sessions Judge, Dera Ghazi Khan. According to the original version thereof (Annex. `A') he was reported to be below average, hundred per cent. liar, first class intriguer, and reputed to be corrupt. On his representation the High Court substituted the remarks to read:‑‑

"After inquiry he has been found to have the reputation of a corrupt officer."

He assailed these remarks too in Appeal No.343/1084 of 1982 brought before the Service Tribunal, but waited for finalization of the inquiry which ultimately ended in holding him guilty of one of the three charges, namely that he had the reputation of a corrupt officer at Dera Ghazi Khan and was awarded penalty of Censure by the High Court. He preferred an appeal there from to the Government of the Punjab; the same was, of course, allowed and the penalty was set aside.

3. On the other hand, he withdrew on 22‑2‑1980 his Appeal No.343/1084 of 1982 pending before the Service Tribunal stating that he would rather prefer a departmental representation for expunction of the adverse remarks. Accordingly, he submitted his representation (Annex. `G') urging that since the inquiry from which the adverse remarks had emanated, ultimately resulted in his total exoneration, those will be deemed to have been knocked out leaving no semblance of reason behind to sustain them on the record. The High Court, however, vide their order dated 10‑7‑1988 (Annex. `H') rejected his representation. He preferred an appeal bearing No. 547/88 against the aforesaid order, but subsequently withdrew it on 1‑7‑1989 with permission to re file it after impleading the Reporting Officer as a party. Consequently respondent No. 3 was impleaded in the latest memo of appeal.

4. The grounds taken up in support of the appeal were firstly, that if the charges were not proved in an inquiry, remark's based on the subject‑matter of the same could not be sustained; secondly, that these were the first ever adverse remarks in the appellant's 21 years' service and as such were hit by the rule enunciated in a number of cases including Muhammed Khalid Pervez Uppal v. The Chairman, Central Board of Revenue and 2 others 1986 PLC (C.S.) 117 and Janas Khan v. Deputy Inspector‑General of Police, Rawalpindi Range, Rawalpindi and another 1988 PLC (C.S.) 415 etc. etc.; thirdly that those were made in violation of para. 28 of the relevant instructions which forbid passing adverse remarks based on an inquiry before it is finally concluded. Reliance in this behalf was placed also on Abdul Rashid v. Director Agricultural Engineering, Faisalabad and another 1986 1;LC (C.S.) 471 wherein it was observed that only a copy of the final result of the inquiry had to (Akhtar Hassan, J) be annexed to the personal record of the officer rather than to make any adverse remarks arising there from.

5. Alongwith the appeal, the appellant sought condonation of delay by a separate application moved under sections 5 and 14 of the Limitation Act Literating the facts detailed above in order to show how the appeal was withdrawn owing to setting aside of the penalty of censure, and later impleading the Reporting Officer as a party.

6. The respondents formally contested the appeal as also condonation of delay by submitting separate written statements.

7. The fact remains that the adverse remarks were recorded even by the High Court when the inquiry against the appellant had still not been concluded. Para. 28 of the Instructions and the decision rendered in Abdul Rashid's case do not permit recording adverse remarks which may be arising out of the subject‑matter of a departmental inquiry. The provision was to place a copy of the result of the inquiry on the record of the officer. This was not done here. The inquiry, however, was finally decided in favour of the appellant in that the penalty of censure awarded to him was set aside in appeal by the Government of the Punjab. Obviously it was a case of total exoneration from those charges. The language of the impugned remarks as modified by the High Court reflected that those were stemming from the inquiry which till then was not finalised. On this ground alone, those could not be sustained.

8. The appellant's claim that these were the first ever adverse remarks communicated to him in his entire 21 years service career, was not disputed. Learned counsel for the respondents could not bring on record any other remarks which may have been reflective upon the appellant's conduct. The appellant maintained that respondent No3 in his written reply failed to justify those remarks in that he offered no comments on that behalf. He placed reliance upon Government of the Punjab through Additional Chief Secretary, Services General Administration and Information Department and another v. Abdul Matloob Khan, Extra‑Assistant Commissioner/Magistrate Ist Class, Gujranwala 1990 SCMR 1431 wherein it was observed that at least some reason for recording adverse remarks should have been offered. Explaining why the appellant was treated so harshly in the ACR he submitted that the reporting officer namely, Malik Lutaf Ali, District Judge was suspended on a complaint of corruption by Mr. Ashiq Mazari and that, right or wrong, he believed that the said complaint was maneuvered against him‑by the appellant. This is how he asserted that the remarks were mala fide. He further argued that Malik Lutaf Ali's credentials had been doubtful even otherwise as he was served with a notice of dismissal in the year 1972. Moreover, he canvassed that despite these adverse remarks, he was first promoted as Senior Civil Judge and later as Additional District and Sessions Judge, meaning thereby that the pungency of the remarks stood automatically diluted and that practically there was no use to alloy them to exist on the record.

9. It was established that this was a first instance of recording adverse remarks against the appellant. In Farooq Ahmad v. Superintendent of Police, Sahiwal and 2 others 1983 PLC (C.S:) 1295 unblemished record of 14 years was considered enough reason to expunge adverse remarks. The appellant's service career was much longer, that is 21 years without any adverse entry. There should have been some strong reason and, of course, justified that he had deteriorated his image so as to have been dubbed to be a reputedly corrupt officer. The element of mala fides was not totally absent in that the reporting officer's own credentials in having been once served with a notice for dismissal, and virtually suspended on another occasion, reflected that he had not been objective in recording remarks against a subordinate. This impression finds further support from the extreme nature of remarks recorded against the appellant. In the column of `pen‑picture' he was shown to be hundred per cent. liar, first class intriguer and reputed to be corrupt officer. Using epithets like "hundred per cent :" or " first class " was no manner of objectively assessing a subordinate. The element of extremeness exhibited in the expressions was rather in a way counter productive so as to cast reflection upon the reporting officer himself. This appeared to be the reason why the High Court substituted his remarks by choosing words of lesser grade. Learned counsel for the respondents offered no comments upon using extreme language by the C reporting officer, nor did he controvert the appellant's contention that the reporting officer faced virtual suspension and an inquiry at Dera Ghazi Khan. This incident largely suggested a reactionary approach on his part presumably believing the appellant to be involved in manipulating trouble for him. Nor could the counsel adduce any explanation as to why in spite of these remarks on the record, the appellant was promoted almost two times to comparatively higher posts. Usually such remarks create hurdle in one's promotion, but here they were not so rated resulting in their total disregard. If the officer reported upon goes on getting better and better position progressively ‑vis‑a‑vis such remarks, it would be deemed that the authorities competent to grant him promotion had literally rendered them of no effect against his career. Further if the respondent's own attitude exhibits such an impression, there was nothing for us to stick to the position that the remarks cannot be expunged. The factum of holding a full‑dress inquiry against the appellant and his gaining acquittal in the end, should yield some beneficial result in his favour. The remarks arising out of the allegations comprising subject‑matter of the inquiry should not, as a matter of salutary rule, be allowed to continue appearing in the record against f him.

10. Accordingly we allow the appeal and expunge the entire adverse remarks recorded against the appellant in his ACR for the year 1979 not only by the District Judge but also the High Court including columns of `integrity' and `pen‑.picture'.

A.A./1/Sr.P.S.J.T. ' Appeal accepted.