' MOAZZAM HAYAT (MEMBER)---Appellant Sajid Bashir, General Manager, Legal (Corporate and Civil), in the service of Civil Aviation Authority is aggrieved by the adverse remarks recorded in his ACR for the year 1998. These remarks were communicated to him vide A letter dated 27-7-1999. His departmental appeal dated 20-8-1999 was not responded. It is prayed by him in his present appeal filed under section 4 of the Service Tribunals Act, 1973 that the impugned remarks be expunged.
2. The impugned remarks were recorded by respondent No.4 Mr. Shafaat Nabi Khan Sherwani, Director Legal Services. These remarks were countersigned by the Director General. According to the appellant the adverse remarks are based on malice of respondent No.4 towards him. As regards the Countersigning Officer it is submitted by him that he had no applied his independent judicial mind while countersigning the said remarks.
3. The appeal is resisted by the respondents. It is stated that the appeal is barred in view of section 4-B of Service Tribunals Act, 1973. On merits it is stated that the adverse remarks were correctly recorded by the Reporting Officer and the same were endorsed by the Countersigning Officer.
4. We have heard the learned counsel for the parties and have also perused the record.
5. The respondents have raised a legal objection that this appeal is not maintainable under section 4(b) of the Service Tribunals Act, 1973. The objection is misconceived. This appeal is not against the order of decision of a departmental authority determining the fitness or otherwise of the appellant for promotion. On the contrary the appeal is against the remarks recorded in the ACR by a Reporting Officer and countersigned by the Countersigning Officer. Against adverse remarks appeal in the Tribunal is not barred. The objection is overruled.
6. The appellant had challenged the appointment of the Reporting Officer Mr. Shafaat Nabi Khan Sherwani, respondent No.4 as Director Legal Services by filing a Writ Petition No.9515 of 1998 in the Honourable Lahore High Court. It was maintained by the appellant in his writ petition that the appointment of the respondent No.4 was illegal. We agree with the learned counsel for the appellant that being an aggrieved person the respondent No.4 should not have recorded the ACR of the appellant. It is a well established principle of law that 'justice should not only be done but it must appear to have been done'. The respondent No.4 might have given the report in question in good faith to the appellant as a Director Legal but he should have kept in mind that eye brows would be raised when he would take an adverse action against a person who had started litigation against him relating to his very appointment. This part of the principle that 'justice must appear to have been done' was thus not followed by the respondent No.4. The very fact that the present appeal has been filed proves that the appellant was not satisfied by the adverse remarks.
According to him these remarks were recorded only because he had challenged the appointment of the Reporting Officer in the High Court. The argument of his learned counsel that the apprehension of the appellant that he would not get justice at the hands of respondents No.4 was well founded. On this ground alone we are satisfied that the report against the appellant was recorded by a person who has bias towards him.
7. The bias of the Reporting Officer is manifest from the date of recording of the impugned remarks.
This date is mentioned to be 31st February, 1999. The respondent No.4 did not remember that there were only 28 days in the month of February, 1999. By mentioning the date to be 31st he indicated his bias towards the appellant which he had developed because of writ petition filed against him. A Reporting Officer is always expected to be stable, fair, impartial and free of bias and malice. The date recorded by him did not show that he was behaving normally.
8. The learned counsel for the respondents has vehemently argued that the Director General being the Countersigning Officer had no malice or bias towards the appellant and since he had endorsed/countersigned the ACR recorded by the respondent No.4, therefore, the present appeal was liable to be dismissed. Reliance is placed by him on 1999 SCM R 197. We have seen the report of the Countersigning Officer. The report is 'agree with Investigating Officer. We are constrained to hold that this report was made by the Countersigning Officer in a mechanical manner, without application of his mind. He was required to give some reasons for agreeing with the Reporting Officer particularly when it was in his knowledge that the appellant had filed a writ petition challenging the appointment of the Reporting Officer as Director Legal Services. In the circumstances on the basis of the report of the Countersigning Officer the appeal filed by the appellant cannot be thrown away. In fact the report of the Countersigning Officer is not worth- consideration.
9. In preliminary objection 'c' of the parawise comments filed by the respondents it is stated that "the impugned ACR is high average and none of the grading is below 3 or less". We fail to understand that if the appellant was give 'high average' report then why he was not found fit for promotion. The adverse entries made in the ACR of the appellant are liable to the expunged on the basis of the above admission made by the respondents that the appellant was given high average report.
10. For the above reasons we accept the appeal and expunge the impugned remarks record in the ACR of the appellant.
11. There shall be no order as to costs. Parties be informed.