LAHORE HIGH COURT , LAHORE through Registar vs MUHAMMD JAHANGIR

' SHAFIUR RAHMAN, J.---Leave to appeal was granted under Article 212(3) of the Constitution to examine, inter alia, whether the Service Tribunal had in the impugned order/judgment failed to give consideration to the rejection by the High Court of the representation of the respondent on 10-2- 19g8 which showed that the High Court agreed with the adverse remarks of the District Judge.

2. For the period 1-3-1986 to 13-10-1986, the respondent No,1 remained posted as Judicial Magistrate, Kasur. For this period the District and Sessions Judge Kasur on 9-7-1987 recorded his Annual Confidential Report. With regard to his personal qualities (Part II of the Annual Confidential Report), attitudes (Part III of the Annual Confidential Report), proficiency in job (Part IV of the Annual Confidential Report) he gave him reports which amounted to good and average. However, in Part V of the A.C.R. (Pen Picture Counseling Assessment of Performance) and Part VI of the A.C.R. (Fitness for Promotion and Integrity) he was given certain remarks which were adverse. The Countersigning Officer/Judge recorded no remarks observing that he had not seen much of his work nor had he even met him so far.

3. The adverse remarks were communicated to the respondent No,1 whereupon he represented against it. The representation was considered by the Administration Committee of the High Court and it was rejected thereby keeping intact the adverse remarks recorded, The respondent No,1 appealed 4o, the Service Tribunal. It, accepted the appeal and expunged the remarks reason advanced for, doing so were hereunder:--

(i) "In the cbifi mtisz of a C.R. The appellant has been placed in categories 'A' & nowhere he has been shown in column 'C'. "

(ii) "The record so produced before us reveals that even the countersigning Judge, .His Lordship Mr. Justice Muhammad Ilyas, has also not agreed with the Reporting Officer as far as his adverse remarks are concerned."

(iii) "The impugned adverse remarks are not even supported by any material available on file."

(iv) "The reporting officer is bound to issue warning to him prior to the said period which has not been done in the present case."

(v) "We find serious violation of instruction No,13 as none of the remarks of the, Reporting Officer have been under-lined in red-ink by the Countersigning Officer.

(vi) "It is thus clear that the Countersigning Officer have not approved and upheld the adverse remarks of the Reporting Officer for communication to the appellant."

(vii) "Even the comments furnished on behalf of the respondent No,1 speak volume in favour of the appellant."

4. The learned-counsel for the respondent No,1 has raised two preliminary objections to the competence of the appeal. The first is that it is barred, by time and the second is that it concerns the recording of an Annual Confidential Report of an individual officer and no question of law of public importance-is involved so as to attract the limited jurisdiction of the Supreme Court under Article 212

(3) of the Constitution.

5. So far as the question of limitation is concerned we find that the arguments in appeal before the Service Tribunal were concluded on 24-2-1990 and the judgment was delivered on 4-3-1990 with the direction that "Copies of the signed judgment be released to the parties according to the procedure of the Tribunal". It was sent to the Registrar, Lahore-High Court on 1-4-1990 and was received by the Registrar the next day. The petition was filed in the Supreme Court on 30-5-1990. As the Judgment was not announced in the presence of the parties, the institution of the petition for leave to appeal after receiving information with regard to the judgment by receipt copy thereof from the Tribunal would be within time.

The second objection concerns the overall merits of the case. If a Tribunal exercising exclusive jurisdiction omits to take into consideration :material factors or interprets admitted facts in a manner not warranted by law or C fails to pass a value judgment then a question of law of' public importance does arise for keeping such a Tribunal Within its jurisdiction Hence this aspect of matter would become clearer on examining the merits of the case in appeal.

6. After hearing the learned counsel for the parties on merits we find that the Tribunal has noted the remarks which are not adverse to the respondent but not those which are adverse. The Tribunal has not held that the two cannot consistently coexist. They can Therefore the report as such suffered Nip no infirmity on account of its having noted certain good points of the respondent, while in the appropriate recording adverse remarks.

7. The conclusion drawn by the Service Tribunal, from the remarks recorded by the Countersigning Officer/Judge are not consistent with the instructions on the subject which are contained in paragraph 36. In order to overrule such adverse remarks the Countersigning Officer had to positively say so. In case he expressed his inability- to record any remarks, such adverse remarks hold good. Even otherwise the substance of these adverse remarks was fully attended to, taken note of and considered by the Administration Committee of the High Court which upheld it. In such circumstances, it will be a perverse conclusion to draw that the adverse remarks recorded by the Reporting Officer were set aside, eroded or diluted by any superior authority in any Planner and to any extent.

8. The adverse remarks clearly show that the required counselling had been done. In the relevant column it was noted that "he was repeatedly advised to take care of his reputation". In his reply to the Memorandum of Appeal, the Reportine Officer had stated "even at that time he had made a commitment that he would bring about a change in his outlook, approach and conduct in future".

There is no requirement of the instructions on the subject that such counselling or warning has to be in writing communicated earlier under the seal and signature of the reporting officer. Instruction No,13 "under-lining in. Red ink by the Countersigning Officer" has been taken by the Service .

Tribunal to be a mandatory requirement so that an omission of it frustrates instruction in para.

36. The consequence having not been provided, this requirement could not be treated, nor can any such instruction be treated as mandatory in the context.

9. The comments offered by the respondent No,2/Reporting Officer does not speak volume in favour of the officer reported against. It is in fact consistent with the report submitted by him. He has stood by it. He has confirmed every word of what he recorded.

10. The omission of the Tribunal to note the effect of paragraph 36 of the instructions, its omission to take note of the decision of the Administration Committee of the High Court Judges, its failure to take note of the conduct of a Judicial Officer who has been approaching M.N.As. And members of the Bar obtaining certificates of good character and filing them in the proceedings to rebut the adverse remarks recorded in his Annual Confidential Report, is deplorable. There was no allegation in the Memorandum of appeal of any mala fide on the part of the Reporting Officer or those upholding those remarks. If the remark's with regard to honesty or integrity were supported by tangible evidence produced before the Tribunal it would be more a case of dismissal of the officer than recording of adverse remarks in his Annual Confidential Report. The Tribunal has completely misdirected itself in evaluating the case and in appreciating the material on record.

11. We accept the appeal, set aside the judgment of the Service Tribunal, with no order as to costs.