' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER)---This appeal under section 4 of the Service Tribunals Act of 1973 was filed by appellant against the respondents, hereinabove, on 2-3-1999.
2. The facts leading to this appeal are that the appellant joined the Pakistan Navy in 1979 as Civilian Workman. He was lastly promoted as Ship Fitter, Highly Skilled Mistry and was posted in the Gun Boat Sections of the Fleet Management Group on 5-5-1996 where he allegedly worked till 15-10- 1996 under Sub./Lt. Saghir Khokhar, Incharge Gun Boat Section and Mr. Zakir Hussain, CGO Officer Incharge, Ship Fitting Shop of Pakistan Navy, Dockyard, both of whom had no complaint regarding his work and conduct and were fully satisfied with him. It was alleged that on 16-10-1995, Sub./Lt. Saghir Khokhar transferred the Appellant orally to Missile Boat Shop (Mechanical) as its Incharge (Sub./Lt. M. Ashraf) had with the permission of the higher authorities demanded transfer of his services in connection with the forthcoming naval exercise. He accordingly joined the Missile Boat Shop on 16-5-1996 where he was, allegedly badly maltreated by Sub./Lt. M. Ashraf, who was already hostile to him and harboured against him, with the result that as the end of the year 1996, ACR for the year 1996 with below average remarks was communicated to him he was placed under special report for six months viz. From 1-1-1997 to 30-6-1997. He made representations against the adverse remarks in both the ACRs, but nothing came out of it; hence, he filed Appeal No,2724(K)/1997 before this Tribunal 4-12-1997. The said appeal was remanded to the respondent No,1 vide judgment dated 29-7-1998. The operative part of the said judgment is reproduced as under:-- "4. In view of the above observations and without commenting on the merits of the remarks in the ACR, we are of the view that the procedure required to have been followed has not been satisfied and thus, because it has caused prejudice to the right of the appellant, we remand this case to the appellate authority and both the representations of February 1997 and August, 1997 may be forwarded to the appellate authority (copies whereof has been annexed to the memo. Of appeal with copies to the respondent) for independent decision on merits keeping in view of the observations made by the Honourable Supreme Court in a case reported as 1991 SCMR 2330 by a detailed speaking order."
3. After the remand of Appeal No,242(K)/1997 to the appellate authority, ACR for 1997 and special report for another three months, effective from 24-1-1990, containing adverse remarks were also communicated to the appellant. A number of show-cause notices and charge-sheets were also issued to him on various counts and finally all his appeals were rejected vide order dated 6-1-1999.
Thereafter a final show-cause notice dated 12-2-1999 was issued to the appellant for his removal from service; hence he filed the present appeal on 2-3-1999 with the following prayer:-- "It is prayed that in view of the position explained, Rules and Regulations discussed in Statements of facts and Ground of Appeal this Honourable Tribunal may be pleased to declare the Annual Confidential Reports for the years ended 31-12-1996 and 31-12-1997 rendered by S/Lt. M. Ashraf PN and in consequence Below Average Remarks of the Annual Confidential Reports, Below Average Remarks of the Special Report, Charge Sheets and Show-cause notice detailed below as illegal and void.
RESPONDENT NO.3
(i) Letter No,FMG.590/01 dated 2-1-1997.
(ii) Letter No, FMG.590/744.Dated 12-7-1997.
(iii) Show-cause Memo.No,FMG-593/32041/1199 dated 20-10-1997.
(iv) Letter No,FMG-0590/17 dated 2-1-1998.
(v) Letter No,FMG-0590/32041/593 dated 8-6-1998.
(vi) Show-cause notice No,FMG-59332041/222 dated 12-2-1999. RESPONDENT NO.2
(i) Final show-cause notice No,CA/LD/PF/32041/0-2-W/285 dated 11-1-1998.
AND ' Any further action which may be taken by any authority or Pakistan Navy adverse to the interest of appellant in this connection.
2. May please direct to Respondents to transfer the appellant to the Shop of his Trade.
3. Any other benefits which this Honourable Tribunal can award within the rules."
4. Written comments were filed on behalf of the respondents, wherein adverse remarks against the appellant were justified and the various allegations, levelled by the appellant against the respondents, as well as officers under whom he had worked as also the officers, who had given adverse remarks to the appellant, were denied.
5. We have heard the learned counsel for the parties and perused the record carefully.
6. The record shows that following four ACRs/special reports had been communicated to the appellant:-
(i) ACR 1996;
(ii) Special Report; ACR 1997; (iv) Special Report 1998, for 3 months.
' Except special report of 1998, in all the above reports Sub/Lt. M. Ashraf, Incharge Missile Boat Section was the reporting officer who had evaluated the work and performance of the appellant. Lt. Muneer was the Gr. Officer and Deputy Manager of the Missile Boat Section wrote these ACRs/report and recotded adverse remarks whereas Captain Nayyar Iqbal was the counter- signing officer as stated by the Respondents.
7. It is settled law that an ACR is vitiated if it is not recorded by a competent authority; if it is for less than a period of three months, if it is not objective and is based on highly unwarranted/personalized remarks; if it is not recorded within the prescribed time, if it is not communicated to the concerned person within prescribed time or communicated with inordinate and unexplained delay; if the person against whom adverse remarks are to be written is not counselled about his defects and for improving the same, and if it is biased, mala fide or prejudiced.
8. It is not the case of appellant that the ACRs were not written in tithe or not communicated to the appellant in time. However, in the instant appeal, the learned counsel for the appellant, amongst others, mainly raised the following points during his arguments:--
(i) That Sub. /Lt M. Ashraf was not competent to initiate/write the ACR of the appellant for the year 1996 as the appellant has served under him only for a period of two and half months viz: from 16- 10-1996 to 31-12-1996.
(ii) That all the ACRs containing adverse remarks below average against appellant were vitiated as these were allegedly the out come of the bias, mala fide and prejudice on the part of the respondents, particularly on the part of Sub./Lt. M. Ashraf.
(iii) That the appellant was not counselled before writing the ACRs in question;
(iv) The ACRs and special reports lacked objectivelty;
9. The learned counsel for the appellant argued that during the year 1996, appellant Muhammad Anwar served under following three officers:- S.No, Name & Rank Group/Section; Duration
1. Mr. Zakir Hussain Ship Fitting Shop 1-1-1996 to CGO PN D/Yd. 4-5-1996
2. S./Lt.Saghir Khokhar Gun Boat Secion 5-5-1996 to 15-10-1996.
3. S./Lt. M. Ashraf PN Missile Boat Shop 16-10-1996 to 31-12-1996 ' That since the appellant had served under Sub./Lt/ M. Ashraf for a period of two and half months i,e, for a period less than three months, Sub./Lt. M. Ashraf was not competent to write the ACR of the appellant for 1996 and that such ACR had to be written by Lt. Saghir Khokhar under whom the appellant had served for major part of the year.
10. In rebuttal the learned counsel for the respondents pointed out that the appellant was promoted as High Skilled Mistry on the sanctioned complements of Pat-10/FMG and transferred to PAT-10/FMG on 5-5-1996 vide PN Dockyard Letter No,MHE/012/2066 dated 4-5-1996; that the appellant had served under the reporting officer Sub./Lt. M. Ashraf for eight months in the said unit from 5-5-1996 to 31-12-1996 and he had never worked under Sub./Lt. Saghir Khokhar PN during his stay in PAT 10/FMG Workshop as alleged by him, but through out his stay in the Missile Boat Section he had served under Sub./Lt. M. Ashraf. The Appellant has failed to controvert this position by any cogent documentary evidence except the affidavit of one Abdul Qadir, an employee of Gun Boat Shop during the relevant period, but such affidavit had been replied to by the respondents along with documentary evidence to show that Sub./Lt. M. Ashraf was earlier over all Incharge of both Gun Boat Shop and Missile Boat Shop and Sub./Lt. Saghir Khokhar was an Assistant to Sub./Lt. M.
Ashraf, before transfer of the staff of the Gun Boat Section to the Missile Boat Section. Thus Sub./Lt. M. Ashraf, who was the Incharge of Missile Boat Section was fully competent to report on the work and performance of the appellant on the basis of which the ACR for 1996 was written by Deputy Manager/Group Officer Lt. Saadat Munir and was counter-signed and communicated to the appellant by Nayyar Iqbal TI (M), Captain Pakistan Navy, Captani Fleet Maintenance Group, as such, the ACR of the Appellants for the year 1996 containing adverse remarks was competently written by the officers mentioned above.
11. About report being biased, mala fide and prejudicedFwe have to observed that in the three ACRs i,e, for the year 1996, for special report of six months from 1-1-1997 to 30-6-1997 and for the year 1996 Sub./Lt. M. Ashraf had initiated these as reporting officer and he had simply recorded the performance rating of the appellant as Assistant Manager Incharge Missile Boat Shop whereas Lt. Saadat Munir has written these ACRs as Group Officer and Deputy Manager, Engineering Workshop.
Fleet Maintenance Group. The three adverse reports of below average were communicated to the appellant by Nayyar Iqbal TI (M), Captain Pakistan Navy, Captain Fleet Maintenance Group. The fourth one viz: the special report for three months effective from 24-1-1998 was communicated to the appellant by Khalid Ameen, TI (M) Capital Pakistan Navy, Captain Fleet Maint, Group Capts.
Nayyar Iqbal and Khalid Ameen were the counter-signing officers. It may be pointed out here that no allegation of any bias, malice or prejudice had been levelled by the appellant against Lt. Saadat Munir and Captains Nayyar Iqbal and Khalid Ameen. The appellant had alleged hostility and against Sub./Lt. M. Ashraf only and, later on, he had thrown the entire debris of his annoyance on Sub/Lt. M. Ashraf. The record shows that the allegations of hostility and on the part Sub./Lt. M. Ashraf was, for the first time, levelled by the Appellant in his representation dated 6-2-1997 against the adverse remarks in the ACR of 1996, and the reasons for that given by the appellant was that Sub./Lt. M. Ashraf was inimical to him as he had expressed his inability to fulfil the undue demands of Sub./Lt. M. Ashraf. He had repeated the same allegations against Sub./Lt. M. Ashraf subsequently also, but he had never stated what was the undue demands made by Sub./Lt M. Ashraf, which he was unable to fulfil. He was involved in a criminal case in which he was ultimately acquitted by the Additional Sessions Judge, East. In that respect he alleged the hand of Sub./Lt. M. Ashraf in getting him involved in the said criminal case, but of that there is no evidence. He did not bring on record any written complaint against Sub./Lt.M. Ashraf, but in his written complaint dated 18-12-1997 to the Captain FMG, PN Dockyard, Karachi against one Lt. Commander Rasheed and his staff in JS Section for being physically and mentally tortured, he imparted a side kick to Sub./Lt. M. Ashraf alleging that Lt. Commander Rasheed and his staff had done so at the instigation of Sub./Lt. M. Ashraf. The record, however, shows that on the complaint of appellant M. Anwar against Sub/Lt. M. Ashraf, the Director, Naval Intelligence (Security) had called both of them for interview, in consequence whereof the said director made the following report to the Commander Pakistan Fleet, which is at Exh. 25 of the comments of the Respondents:-- "DIRECTOR NAVAL INTELLIGENCE (SECRETARIAT) NAVAL HEADQUARTERS Liaquat Barracks Karachi.
' The Commander Pakistan Fleet, At PNS HAIDER, KARACHI 19 February 1998 COMPLAINT-MUHAMMAD ANWAR HSM (P.NO.32041) Reference.
A. Fleet Headquarters Letter FLG-046/CIV/98/62 dated 06 Feb, 1998.
1. The above named HSM was interviewed by this Directorate due to increasing complaints of his being victimized by his officer Sub./Lt. M. Ashraf PN of FMG. A detailed report to the effect was submitted to Naval Headquarters for further necessary action.
2. During interview, his version, scrutiny of his service record and ground check revealed that the civilian employee was habitual of improper absence, having manipulative attitude. The civilian employee had earlier forwarded redress of grievances to COMPAK, PNCA and Federal Service Tribunal. He also remained in civil prison for 01 month from 23 June to 25 July, 1997 on the charge of possessing illegal small arms. Because of his causal attitude and professional incompetency, he may be discharged from service.
(Sd) TANVEER FAIZ Captain Pakistan Navy,\ Director."
12. There is nothing against Sub./Lt. M. Ashraf in the above letter/report. On the other hand, it adversely reflects on the work and conduct of the appellant himself which, is in way, supports the adverse remarks in the two ACRs,
13. The appellant had alleged that Sub./Ld. M. Ashraf had managed to get the signatures of his higher officers on the ACRs, This does not appeal to reason. Lt. Saadat Munir, Captains Nayyar Iqbal and Khalid Ameen were very senior responsible officers. They could not be expected to have signed the extremely adverse reports against the appellant blindly or mechanically at the instance of their junior/subordinate. At least we are not ready to believe that they could have acted so irresponsibly.
We also do not attach any importance to the allegation of the appellant to the effect that Sub./Lt. M. Ashraf orally got him transferred to his section only to maltreat' him due to alleged grudge in the past, which has not been proved on record.
14. The ACRs of the appellant containing below adverse remarks cannot be thrown out on the unproved allegations levelled by him against Sub./Lt. M. Ashraf, moreaso for the reason that there is nothing on record against other three higher officers, namely, Lt. Saadat Munir, Captains Nayyar Iqbal and Khalid Ameen, whose opinion/remarks/ reports/must prevail in the matter.
15. So far as the question of counselling to the appellant before recording the ACRs is concerned, it has been clearly mentioned in the special report dated 12-7-1997.
"1. You had been graded "BELOW AVERAGE" in Annual Confidential Report 1996 and were placed under special report for six months commencing from 1, Jan, 97, but you have failed to improve your work and conduct, in spite being warned and guided during period under special report, You have again been graded "BELOW AVERAGE" in special report ending on 30 June, 97, on account of the following deficiencies observed in your work and conduct:---
(a) ..
(b) .
(c)
2. You are instructed to improve considerably in profession and discipline for which you have again been adjudged 'BELOW AVERAGE" for the period under report."
16. About the objectivity of the remarks in the ACRs in question, it is observed that the remarks in all ACRs were about the productivity, attitude and commitment of the appellant. Out of four ACRs Special reports, all of which contain almost identical remarks, the lost one is reproduced as under:- - Fleet Maintenance Group, C/o Fleet Mail Office, At PN Dockyard Karachi.
FMG-590/32041/593 MR. MUHAMMAD ANWAR KHAN HSM-(P.No,32-41) FMG ENG. Workship.
8 May 98.
COMMUNICATION OF "BELOW AVERAGE" REMARKS IN SPECIAL CONFIDENTIAL REPORT.
1. You have been graded "BELOW AVERAGE" in the Annual Confidential Report of 1997 and were placed under special report for 03 months, commencing from 24 Jan 98, but you have failed to improve your work and conduct, in spite being warned and guided during period under special report. You have again been graded "BELOW AVERAGE" in special report, ending on 24 April, 98, on account of the following deficiencies observed in your work and conduct: a. PRODUCTIVITY. During period under observation, you were assessed as un-inquisitive, and disinterested workman, who fails to accomplish the assigned tasks as per service requirement, Similarly you have been found ignorant of your professional duties and unable to exercise quality control which is a permanent requirement of a workshop. You have not shown any improvement in your work whatsoever. b. ATTITUDE You remained, indisciplined, disrespectful, insincere, illogical and disobedient. You continued to misbehave with your superiors on for which you were Charge Sheeted and warned vide Letter No,FMG-593/32041/493 dated 4, Apr,
98. You have not shown any improvement or flexibility in your attitude towards service/job requirement. c. COMMITMENT. You have frequently absent from workshop without justification. Your low productivity and negative attitude has proved that you are disloyal to service and organization. You have exhibited poor organizing and planning skills.
' You are instructed to improve considerably in profession and discipline for which you have been adjudged "BELOW AVERAGE" for the period under special report.
(Sd) KHALID AMIN (M) Captain Pakistan Navy Captain Fleet Maint, Group."
' The above remarks are substantiated by charge-sheets, show-cause notices and other documents, available on record, which shows that in the past also there had been no plain and smooth sailing on the career of the appellant claimed by him to be unblemished.
17. As to the show-cause notices, which pertain to disciplinary action against the appellant, we have to observe that held by the Full Bench of the Hon'ble Supreme Court reported in 1999 SCMR 819=1999 PLC (C.S.) 409, no appeal is maintainable against a show-cause notice.. On the other hand, the show-cause notices and charge-sheets had given a fresh/separate cause of action to the appellant, and on the basis of these show-cause notices he was removed from service against which he had filed a separate appeal No,2724 (K)/1997. It is still pending decision before this Tribunal, as such, so far as this appeal is concerned, these documents have become redundant and superfluous.
18. In view of what has been said in the foregoing paragraphs, we are not inclined to grant the prayer of the appellant to declare the ACRs/ Special Reports of the appellant containing below average remarks against him as illegal and void merely on the unproved allegations against Sub./Lt. M. Ashraf, moreso for the reason that these ACRs/Special Reports had been recorded and signed by superior officers like Lt. Saadat Munir, Captains Nayyar Iqbal and Khalid Ameen against whom there was no allegation of any bias, mala fide and prejudice against the appellant.
19. In the circumstances and for reasons, mentioned above, we do not find any substance in this appeal, it is dismissed accordingly.
20. Parties are left to bear their own costs.
21. Copies of the Judgment be sent to the parties under registered cover and to the relevant quarters under rule 21 of Service Tribunal (Procedure) Rules, 1947.