ABDUL GHAFOOR SAQIB Versus SECRETARY TO GOVERNMENT OF PUNJAB, CUMMUNICATION

The relevant facts for the disposal of the appeal arc that the appellant was posted as S.D.O. at Pakpattan and he was transferred to Lahore vide order dated 18‑4‑1984. The appellant in compliance with the transfer order relinquished the charge at Pakpattan on 20‑4‑1984 and assumed the duty art Lahore on 22‑4‑1984. Thereafter, the appellant developed kidney problem and he applied for leave from 27‑4‑1984 to 3‑8‑1984 and the same was sanctioned. The appellant after availing the medical leave reported for duty. The appellant was an Officer communicated adverse remarks recorded by the second vide demi‑official letter dated 25‑3‑1986 for the period from 12‑11‑198‑1 to 20‑4‑1985 which reads its under:‑‑

"All over‑assessment of his work. An officer of doubtful integrity. Unfit for field job."

The appellant submitted a representation against these remarks on 22‑4‑1986, the same was considered and rejected by the competent authority. The decision of the representation was communicated to the appellant vide memo: dated 12‑10‑1986.

2. The appellant failing in his efforts to get the redress of his grievance at the departmental level decided to invoke the jurisdiction of this Tribunal through an appeal under section 4 of the Punjab Service Tribunals Act, 1974. This appeal was filed on 21‑10‑1986 and the same came up for preliminary hearing on 22‑6 1986. It was admitted to the regular hearing and the notices were issued to the respondent. The respondent (C & W Department) has contested the same, filed the para wise comments and prayed for the rejection of the appeal.

3. 1 have heard the learned counsel for the appellant as well as the learned District Attorney on behalf of the respondent and also gone through the record inclusive of the ACRs/Dossiers of the appellant.

4. The learned counsel for the appellant argued following points in support of the appeal:‑‑

(i) Firstly, that the impugned adverse remarks are contradicted not only by the reports for the earlier and for the succeeding report but also contradicted by the whole service record of the appellant which is clean and unblemished;

(ii) Secondly, that the report is based on surmises and conjectures and not on personal knowledge as the second Countersigning Officer had no occasion to visit any of the works handled by the appellant:

(iii) Thirdly, it is submitted that the remarks arc mala ride and result of misgiving in the mind of second Counter signing Officer. The learned counsel for the appellant went on to explain his arguments and added that the second Countersigning Officer somehow or the other got impression that the appellant never wanted to join duty at Lahore. It is argued that the impression was clearly contradicted by the conduct of the appellant, who immediately on receipt of the transfer order not only relinquished the charge at Pakpattan but also assumed the duty at the new place of posting. It is submitted that as a result of this misgiving in the mind of the second Countersigning Officer he was annoyed and as it result of this annoyance the adverse remarks were recorded.

5. On the other hand the learned District Attorney has submitted that the second Counter signing Officer has justified the remarks. These remarks were result of information collected by the second Counter signing Officer through his own sources. It is argued that the second Counter signing Officer recorded what he honestly believed to be the correct position. It was further argued that the pleas of mala fides and personal prejudice were concoction and afterthought.

6. I have considered the arguments of both sides and now proceed to decide the points raised by the learned counsel for the appellant with reference to the counter arguments of the learned District Attorney. The first argument is that the appellant had clean and unblemished service record of 10 years. I have gone through the ACRs/ Dossiers. It fully supported the arguments raised on behalf of the appellant. I may sum up the entries as under:‑‑

Years. Integrity. Overall comparison with other officers.

1976 to 1978 A 'Good'

1979 A 'Good/Very

Good'

1980 `A' `Very Good'

1981 `A' `Good'

1982 to 1984 `A' 4A'

1985 12‑11‑1984 Impugned. to 20‑4‑1985

1985 to 9‑11‑1985 "A" "A"

Now coming to the disputed report, the position is as under:‑‑

Reporting Counter signing Counter signing

Officer. Officer‑1. Officer‑II.

Integrity. `A'

Overall grading. `A'

Pen picture. He is an His works were intelligent and inspected from hard working time to time. officer Prepared to accept him, on promotion.

Assessment for Good ‑‑‑ An over assessment performance of his work. An

Officer of doubtful integrity. Unfit for field job.

Overtrading. Better than Better than majority majority

Fit for Yes Yes promotion.

Now when 1 compare the adverse remarks subject‑matter of the appeal with the remaining service record of the appellant and even with the reports of the Reporting Officer and the First Counter signing Officer for the same period then the contradiction. is very clear. I am not prepared to accept that an officer, who has been treated its honest and upright throughout his carer his integrity will become doubtful just overnight. Moreover, the Reporting Officer and the Countersigning Officer I are the persons, who directly supervise his conduct and work. Their opinion has definitely to be given more weight than that of the remarks recorded by the second Countersigning Officer, who admittedly had not personal and direct knowledge of the conduct and work of the appellant especially in the absence of the argument that they are chips of the same block.

7. The arguments of the learned District Attorney that the remarks recorded by the second Countersigning Officer reflect what he honestly felt are contradicted by the record. Even the second Counter signing Officer has not asserted in the justification report that he ever had the occasion to see the work e and conduct of the appellant. He has in a straight‑forward manner confessed that the remarks were based on the opinion collected from the source and not his personal knowledge. The second Countersigning, Officer has recorded the result of his secret enquiry and failed to disclose the source m the justification report. Therefore, no importance can be attached to the same.

8. This brings me to the last point that the remarks are the result of prejudice and malice of the second Counter signing Officer entertained by him on account of the impression gathered by him that the appellant did not want to loin his duty at Lahore. Normally it was very difficult to prove the pica of malice taken by the appellant but to his good luck, the second Countersigning Officer did not conceal his annoyance in the justification. report It is evident from the justification report that prejudice was lurking in his mind as is abundantly clear from the following para of his justification report:‑‑

"Remaining fit before his transfer to Lahore on an office job and suddenly getting so‑called Kidney trouble only (luring such period as had enabled him to manoeuvre the posting of his choice amply confirms my earlier apprehension about his integrity. How he got himself out of South Zone and had himself allocated to the North (Buildings) one is very much on the record of C.' & W Department. His posting by the C.E. N Buildings in an unattractive Sub Division of Lahore led him to continue his allct4ed sickness till such time he could arrange influence to yet a Sub‑Division of leis choice i.e., his present posting at Gujranwala."

This report also makes it clear that further transfer of the appellant from Lahore to Guiranwala added fuel to the fire as the impression of the second Counter signing Officer was confirmed that the appellant is avowing to perform office duty at Lahore. He was naturally further annoyed with the appellant having been posted out of his domain. It seems to me that since the appellant had no occasion to go through the justification report, therefore, he could not agitate the pica of prejudice with reference to the report. The mala fides is patent on record. Therefore, report is illegal and liable to be expunged.

In this behalf I may refer to case reported its P L D 1969 SC 14 wherein the honourable Supreme Court of Pakistan observed as under:‑‑

"If the argument be correct that unless the statute itself says that the authority must act reasonably or honestly there is no scope for judicial review then even questions of bona fides or good faith would be beyond the scope of judicial review but it has, throughout without any exception whatsoever, been always consistently held that a mala fide action is not action in accordance with law, Decisions arc also not wanting to show that very often the requirement of reasonableness has also been added to the requirement of good faith. Indeed it has even been said that the question of reasonableness would be pertinent in an enquiry as to mala fides. Thus, to determine as to whether the officer concerned really believed that facts existed which would bring the case within the statute and honestly intended to put the law into force, the question of reasonableness may well become material but reasonableness in the limited sense indicated in the case of Abdul Baqi Baluch would always the material. In other words when it is said that no reasonable person could have upon such and such material, formed the opinion that the person detained had brought himself within the mischief of the statute, in effect the contention is that the officer concerned has in these circumstances acted mala fides in law. I make a distinction between mala fide in fact or malice in fact and mala fide or malice in law). Thus in the case Can V. Clippertion (1) Denman C.J. said: "I am unwilling to say that if a party acts bona ride as in the execution of a statute he is justified at all events, merely because he thinks he is doing what the statute authorises, if he has not some grounds in reason to connect his own act with the statutory provision." In Hermann v. Seneschal (P. 13 CVNS 392) it was conceded that reasonable ground or belief was an important ingredient in ascertaining the existence of bona fides."

8. The upshot of the discussion is (hat I hold that the report given by the I second Countersigning Officer is biased and as a result of misunderstanding, It therefore, I accept this appeal and expunge the' adverse remarks.

There is no order as to costs.

MYH/220/Sr. P.

Appeal allowed.