RASHID ALI MIRZA, MEMBER- The appellant was holding the post of Inspecting Additional Commissioner of Income Tax , Ranger-ll, Companies-V, Karachi being aggrieved by the adverse remarks in ACR for the period from 1.1.2002 to 30.6.2002 communicated to him on 21.8.2003 against which the appellant filed departmental appeal dated 11.9.2003 which was not responded to despite the lapse of statutory period of 90 days, hence he assailed through this appeal, the adverse remarks passed against him and has prayed for expunction of the same.
2. The facts as enumerated in the Memo, of Appeal are that the appellant was selected and recommended by the Federal Public Service Commission in C. S.S. He joined his service in BPS-17 in Income Tax Department on 3.10.1982 (Income Tax Group) thereafter, he was promoted in BPS-18 and then in BPS-19, as Additional Director, Inspection & Audit Southern Region/Additional Commissioner Income Tax, Range-V, Special Zorie, Lahore. Ever since his appointment in Income Tax group spreading over more than 20 years at no time any adverse remarks were passed by any of the superior under whom the appellant had worked. All along he had unblemished service record as well as his achievement of assignments during the period reported upon was appreciated by the reporting officer at part-IH which are reproduced hereunder:-- "The Officer performed well, he has been able to achieve the target in terms of disposal and budget. Iagree with the data given above." lt would be useful to reproduce the adverse remarks entries in dispute.
PART-111 PEN PICTURE:- He however needs to acquire more proficiency in communication skills and interpersonal effectiveness.
PART-IV, REMARKS OF THE COUNTERSIGNING OFFICER The Officer lacks initiative, drive leadership quality he cannot stress and pressure of field job but gets along in routine work."
3. We have heard the learned counsel for both the parties and have also perused the record.
4. The learned counsel for the appellant has contended that the adverse remarks in question are without any basis and justification. He contended that the adverse remarks for the period from 1 1.2002 to 30,6.2002 for.Six months conveyed to the appellant on 21 8.2003 after a lapse of about 8 months are violative of instructions 3.1(4) read with 2.32 and 2.39(i)(3) of the guide to Performance Evaluation as the remarks have to be conveyed within a period of one month. He placed reliance on. 1999 SCMR 1587 (The Chief Secretary, Government of Punjab, Lahore and two others Vs. Muhammad Saeed Zafar and another), 1996 SGMR 256 (Ch. Saeed Ahmed Vs. Federation of Pakistan and others), lt was next argued that counseling was not giveri before the remarks were conveyed. He contended that it is mandatory requirement of law to give counseling or issue a warning in terms of instructions 3.3(iv) and (vi). He placed reliance on 1991 PLC (CS) 1027 (Kamaluddin Memon v. Chief Secretary), 1994 PLC (CS) 129 (Syed Ali Ashraf Shah Vs. Secretary NWFP), 1992 Learned Counsel (CS) 1051 (Tahir Mansoor 1's. SP, Bahawalnagar) and 1992 PLC (CS)
1032 (Irshad Akhtar Gulab Vs. I.G. Police, Punjab). He further contended that the impugned remarks rated by the Reporting Officer in pen picture are advisory as well as average and the Countersigning Officer on overall grading had assessed as Average Officer, therefore the Advisory remarks and average remarks are not adverse but the same had been conveyed as adverse, therefore, the same is appealable. He placed reliance on PLD 1995 (Supreme Court) 556 (Federation of Pakistan through the Secretary Health Division 1's. Dr. Najmul Ghani Khan). The relevant contents are reproduced hereunder:-- "ACR rated as Average:-- Implications - Such report ordinarily should not be treated' as average and therefore, not appealable, nevertheless, where such remarks were communicated as adverse or treating same to be adverse any order was passed against civil servant, he would have a right to the appeal and challenge the same."
5. The learned counsel for the appellant contended that the advisory remarks in Part-Ill given by the Reporting Officer are not permanent stigma but have been conveyed as a matter of caution to correct himself. He placed reliance on PLD 1986 Supreme Court 684. He further contended that the average assessm ent reveals that the remarks given in other columns as well as pen picture are not justified having serious contradiction. He contended that under instructions contained in 2.3- A(iii), the 'Reporting Officer is bound to see that the major number of entries are rated good as well as overall grading rated as average without giving detailed reasons for average assessment. He also contended that the remarks reported upon violative of instructions being vague are not based on any convincing material evidence, ln support of the remarks of the Reporting Officer he placed reliance on 1993 PLC (CS) 997, 1995 PLC (CS) 960, 1992 PLC (CS) 1032, 1983 PLC (CS) 1019 and 2001 PLC (CS) 516.
6. The learned counsel for the respondents supported the parawise comments filed on behalf of the respondents and reiterated that the Countersigning Officer had assessed the appellant as 'Average' and did not endorse the assessment of the Reporting Officer.
7. After having gone through the entire case-law as well as decisions of this Tribunal, we have given our anxious thought to the submissions made by the learned counsel for {Doth the parties. The service record of the appellant has been found to be satisfactory and there is nothing on record to indicate that any counseling or warning was issued to the appellant during the period under adverse report and impugned adverse entries are also not supported by any material available on record. Further it would be interesting to note that the appellant's performance during the period was assessed as 'Good' by the same Reporting Officer in other corresponding columns. We have noticed that the Countersigning Officer has not given any cogent reason by quoting specific instance with regard to the work of the appellant.
8. We are constrained to agree with the arguments of the learned counsel for the appellant that the delay in communication of the remarks within prescribed period and the Authority failed to explain such delay with sufficient reasons so that such remarks be accepted to be unbiased and effective, ln absence of any reasonable explanation for not communicating the adverse remarks within prescribed period of one month, the civil servants having been alleging bias, prejudiced and partiality against the Reporting Officer and Countersigning Officer.
9. In view of the above facts, we are of the considered opinion that the case-law referred to above support the appeal and come to the rescue of the appellant. We, therefore, proceed to accept the appeal with no order as to costs and the adverse remarks passed against the appellant for the period from 1.1.2002 to 30.6.2002 are hereby expunged.
10. Copies of the judgment be sent to the parties (under registered cover) and to the relevant quarters under rule 21 of Service Tribunal.