' RASHID ALI MIRZA (MEMBER).--- The appellant is aggrieved by the, impugned order, dated 11-1- 2003 whereby adverse remarks in his A.C.R. For the period from 1-8-2001 to 30-6-2002 were . Made, against which he referred departmental appeal on 10-2-2003 which has remained unresponded, hence this appeal with the prayer to set aside the impugned adverse remarks and upgrade the annual confidential report to the appropriate level.
2. The brief facts leading to this appeal are that appellant Abdul Ghani Channa, after passing the Superior Service Examination, 1972 and being selected by the Federal Service Commission was promoted to Grade-20 vide Notification dated 28-9-1999, he worked as Commissioner of Income Tax Appeals Zone-V, Karachi. His Reporting Officer was Mr. Vakil Ahmed Khan. In the third week, of January, 2003, the appellant received a communication letter dated 11th January, 2003 which reads as under:-- D.O. No,1/CA/81/S(MGT)/2002 Government of Pakistan, Revenue Division (Central Board of Revenue).
' Chairman Islamabad, the llth January, 2003 ' Dear Mr. Abdul Ghani Channa, ' Your Performance Evaluation Report for the period from August, 2001 to June contains the following adverse remarks:-- ' Part-III (1) the quality of the s was not upto the mark.
(3) Has not acquired maturity, needs to improve professional skills. (4) May be kept on peripheral assignments. (8) Not fit for further promotion.
(2) I am communicating these remarks to you with the hope you will endeavor to remove, the defects pointed out and show better performance in future.
(3) The representation, if any, against the said remarks maybe sent to the Board 'in duplicate within 30 days of the receipt of this reference. The representation should not contain personal remark or remarks against the integrity of the Reporting. Officer/Countersigning Officer. Violation of this rule will be considered as misconduct and will also render the representation liable to be summarily Dejected.
(4) Para.3.3(iii)(b) of "A Guide to Pefformance Evaluation" regarding adverse remarks requires you to return the enclosed duplicate copy of this D. O. Letter duly signed as acknowledgment of receipt.
Yours sincerely, (Sd.) (Riaz Ahmed Malik ' Mr. Abdul Ghani Channa, ' Commissioner of Income Tax Appeal Zone, Hyderabad.
3. Appellant was unaware of the reasons which prompted the Reporting Officer to make adverse comments on the work of the appellant while he was working as Commissioner of Income Tax Appeals-V, at Karachi as none were communicated to him. On the contrary the appellant had achieved monthly targets for disposal of appeal and needed appreciation.
4. We have heard the learned counsel for the parties and also perused the record.
5. The learned counsel for the appellant contended that adverse remarks were without pointing out the weak points of the appellants and without advising him to improve in specific areas if there were any. He contended that countersigning authority while signing the relevant column simply agreed with the Reporting Officer but at the same time admitted (in the Confidential report Pro forma) that he never saw the work of the appellant. This admission on the part of the countersigning Officer creates serious. Doubts and proves lack of, reasonability and fairplay.
Moreover natural justice demands that in view of the adverse nature of remarks of the Reporting Officer which was going to adversely affect the future career and advancement of the appellant, it was imperative upon the Countersigning Officer to have either conducted an inquiry to know the facts or to evaluate the performance of the appellant and should have given opportunity of hearing to the appellant to clarify his position. But nothing favouring justice was done and defective subjective findings of the Reporting Officer were countersigned and the appellant was, thus, condemned unheard. He contended that the Countersigning Officer did not decide the appeal in the stipulated period of 90 days. This was 'not only an example of high-handedness of the above officers but at the same time arbitrary on their part to cause service injury to the service record of the appellant and to deprive him of promotion of future service. He contended that in 1998 the appellant had won his case before Federal Service Tribunal with regard to his supersession. The respondent (CBR) went in appeal before the Honourable Supreme Court of Pakistan and the Honourable Supreme Court of Pakistan while declining to grant leave to appeal had given specific following remarks:-- "It is not disputed that during 18 years of his service the respondent No,1 has been assessed "good" and "very good" while assessing his general, moral, and intellectual integrity."
6. He contended that in light of the above-observation, the adverse remarks given by learned Reporting Officer negate spirit of the above finding of the Honourable Judges of the Supreme Court of Pakistan. He contended that the appellant vide Annexure "B" had submitted a detailed representation/appeal dated 10-2-2003 wherein he sought expunction of the aforesaid remarks on cogent grounds of which he did not receive reply till expiry of period of 90 days; He contended that it is unbelievable that the appellant was all of a sudden found to have the defects as pointed out against him. This is because of the fact that the appellant has also served as Commissioner of Income-tax (Appeal) at Bahawalpur w,e,f, September, 1999 to July, 2000 and the then Reporting Officer and Countersigning Officer had not pointed out, at any time any, defects whatsoever in the working of the appellant. He contended that besides above prior to posting as Commissioner of Income-tax (Appeal-V), Karachi, the appellant worked as the Director Inspection and Audit, Southern Region, Karachi w,e,f, August, 2000 to August, 2001, the jurisdiction of which comprises of two Regions of Karachi, Sindh and Balochistan Provinces. He contended that according to the ACR written by Mr. A.R. Afridi the then D.G. Inspection and Audit, the report was good and nothing adverse or below average was reported by the above Reporting Officer. He contended that the Reporting Officer had, in fact, at no stage, inspected the work of the appellant on the spot for the reason that the learned Reporting Officer is based at Islamabad whereas the appellant was posted at Karachi. In this respect it is quite surprising to note that the Reporting Officer has to supervise the performance of about 32 Commissioners of Income-tax spread all over Pakistan in respect of their assessm ents, collection of areas and current demand created and other allied administrative work ... View of this a Member ,sitting at Islamabad cannot fully well supervise the additional work of about 23 Commissioners of Income-tax Appeals who are also spread all over Pakistan. He contended that previously the work of the CIT (Appeals) was always supervised by the Member, Judicial, Central Board of Revenue. But since last two and half years this worth has also been assigned to the Member Administration (DT). This assignment of work is against the spirit of separation of Judiciary from the Executive, as an important functionary on Administrative side has been assigned the work of analyzing the performance of judicial side of the Department. He contended that while giving adverse remarks, the learned Reporting Officer has not quoted any instances in support of the adverse remarks. The absence of specific reference in the remarks given by the Reporting Officer are, prima facie inappropriate uncalled for and liable to be deleted in appeal. He contended that the appellant is unable to gather as to what sort of material, the Reporting Officer, has confidentially or otherwise relied, upon to give adverse remarks. It is evident that the reasons thereof were never confronted to the appellant nor any advice given to him and accordingly the adverse remarks are also against principles of natural justice. He contended that appellant was not heard or given an opportunity to explain his position before expunction was declined or before his appeal was decided by the learned Secretary, Revenue Division, Government of Pakistan and Chairman, Central Board of Revenue, nor he was supplied the reasons or justification for the adverse remarks and thus, he was condemned unheard. He lastly contended that the adverse remarks have seriously affected the appellant's service and career as civil service including the prospect of his future promotion.
7. The learned counsel for the respondent contended that the appeal filed by the appellant is not maintainable in law\ and no cause of action has accrued to the appellant. He contended that the adverse remarks recorded in the Performance Evaluation Report are' about the quality of the s passed by the appellant during his posting as CIT (Appeals), Karachi. The Reporting Officer had clearly mentioned in Part-III(1) that "though the target was achieved in numerical terms, the quality of the s was not upto the mark". He contended that Countersigning Officer recorded his views about the quality of assessm ent as "Fair" in Part-IV(5) as he agreed with assessment made by the Reporting Officer regarding performance of the officer though the Countersigning Officer had never seen the work of the appellant directly. In fact the work of such posts like Commissioner Appeals is not required to be supervised by the Chairman CBR directly. As regards conducting of an inquiry he contended that there is no need, of any inquiry or personal hearing in such matters.
8. We have carefully considered the above arguments of both sides.
9. From the perusal of record it appears that appellant who had a service of about twenty-nine years was never communicated any adverse remarks in his ACR and there was only ACR for the period from August; 2001 to 30-6-2002 wherein adverse remarks were given. Appellant had served as Commissioner of Income-tax Appeals Zone-V, Karachi under Reporting Officer for the period from August, 2001 to June, 2002. Prior to that he had worked as Director Inspection and Audit, Southern Region, Karachi under Mr A.R. Afridi former Director-General, Inspection and Audit, Islamabad, who' while writing his ACR treated his performance under him as satisfactory and did not point out any short comings now .Found by the Reporting Officer (Mr. Vakil Ahmed Khan).
Similarly Mr. Mansoor Ahmed Khan, the then Member (Direct Taxes) CBR while writing his ACR for the period from. September, 1999 to June, 2000 during his posting as Commissioner of Income Tax (Appeals), Bahawalpur also treated his working as satisfactory and did not point out any deficiency. The Reporting Officer while giving adverse remarks had at no stage warned or cautioned the appellant in writing or verbally or in meetings about deficiencies and defects in his working. As such, the Reporting Officer himself violated the instruction contained in "A Guide to Performance Evaluation". Subpara (iv) of para.3.3 of "Instructions regarding adverse remarks which provides-- "(iv) the Reporting Officer should specifically state whether the defects reported have been already brought in another connection to the notice of the officer concerned.
' From the above, it is crystal clear that Reporting Officer had failed to state specifically the defects in the ACR before bringing the same to, the notice of the appellant. The Countersigning Officer, who is incidentally appellate authority also, while signing the relevant column had simply agreed with the Reporting Officer and admitted that he had never seen the work of the appellant directly. This admission on the part of the Countersigning Officer creates serious doubts and proves lack of reasonability and fair play in awarding the remarks. Moreover natural justice demands that while giving adverse remarks in the ACR, it was imperative upon the Countersigning Officer to have either conducted an inquiry to know the facts or evaluate performance of the appellant and should have given opportunity of hearing the appellant to clarify the position, but nothing favouring justice was done and defective finding of the Reporting Officer were countersigned. The appellant was thus, condemned unheard. In 1998 appellant won the case before this Tribunal with regard to his supersession. The respondent CBR being dissatisfied . With the decision, preferred an appeal before the Honourable Supreme Court of Pakistan. The Honourable Supreme Court while declining to grant leave to appeal was pleased to pass the following remarks in favour of the appellant:-- "It is not disputed that during 18 years of his service the respondent No,1 has been assessed 'good' and 'very good' while assessing his general, moral and intellectual integrity."
' Thus, the appellant despite the aforesaid remarks was treated discriminately and no reply of his detailed representation in respect of expunction of adverse remarks was communicated till the statutory waiting period of 90 days had elapsed and the appellant had no alternative but to file the instant appeal within time.
' Reliance is placed on the following authorities:- ' Secretary Government of Punjab v. Ahmad Kamaluddin 1981 SCMR 392 "The recording of the remarks is indeed within the exclusive competence of the superior officer but to say that such a record is immune from review of reconsideration would defeat the very provisions made which provide for representation and their expunction in certain situations. These remarks are reviewable under the rules applicable to their recording and an appeal to the Service Tribunal will lie to appropriate cases."
' Government of Punjab v. Abdul Matloob Khan 1990 SCMR 1430 "it is true that ordinarily, in recording remarks or opinions, full reasons need not be given but the conclusions have to be based on facts and when in contest, as in this case, the concerned officer should have plausible explanation to justify his conclusions. In this case that was not adequately done and the Tribunal was justified in interfering with it."
' Inspector-General of Police, Punjab, Lahore v. Rana Altaf Majid 1994 SCMR 1348: "We may observe that the evaluation of the performance of a subordinate by a Reporting Officer or the Countersigning Officer is a matter of subjective assessment and not an objective evaluation. In this view of the matter, the Tribunal or the Court cannot substitute the view recorded by the Reporting Officer or the Countersigning Officer, nor it will interfere with the above evaluation. This is however, subject to exceptions, firstly, when the Reporting Officer or the countersigning officer himself does not enjoy good reputation and mala fide is alleged against him with full particulars and secondly, when there has been gross violation of the instructions, which resulted in miscattiate which vitiate the evaluation."
' It was further held in the same authority that:-- "although evaluation of subordinate by a Reporting Officer or Countersigning Officer is a matter of subjective assessm ent and not an objective evaluation and the Service Tribunal or Court as rule cannot substitute the view recorded by the Reporting Officer or the Countersigning Officer nor it will interfere with the said evaluation, nevertheless before an officer in command, he should be put to notice so that he may have opportunity to act and conduct himself in a manner which may eliminate the possibility of malicious allegations against him."
' Director, Small Industries Department Quetta v. Hameedullah Khan 1995 SCMR 768: "where ACRs are challenged, the principle enunciated in Sardar Noor Ellahi Khan Leghari's case - does not confer a power on the Service Tribunal to disagree with the opinion of the highest Reporting Officer unless it was mainfestly untenable, biased or prejudiced. In the present case the Tribunal has discussed the manner and the nature of the remarks which had a background and has come to the conclusion that appellant No,1 was biased. This question of fact has been decided by the Tribunal with which we see no reason to differ. One ACR is the result of the bias and prejudice, it cannot stand. Such biased. ACRs do not have any legal validity and must be expunged from the record even if they have been made by the highest Reporting Officer."
' Ch. Saeed Ahmad v. Federation of Pakistan 1996 SCMR 256: "If any adverse remark in the ACR is biased, unreasonable and contrary to facts, the same cannot be allowed to remain on record. It is the duty of the reporting and Countersigning Officer to give an honest, reasonable and unbiased assessment of the civil servant uninfluenced by personal likes and dislikes, prejudices and partiality. Any action suffering from such infirmities can have no legal sanction to exist. While commenting on the principle governing the exercise of discretionary powers by an authority. De Smith in Judicial Review of Administrative Action 4th Edition by J.M.
Evans, inter alias observed; "it must act in good faith, must have regard to all relevant considerations and must not be swa yed by irrelevant considerations, must not seek to promote purpose alien to the letter or the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous about those facts."
' Noor Elahi v. Director of Civilian Personnel Rear Air Headquarters, Peshawar 1947 SGMR 1749: "A Reporting Officer while reporting on his subordinate should be as circumstance as possible. He must be clear and direct, and not ambiguous or evasive in his remarks and avoid exaggeration and gross under-statement. He should also state with particularlity whether any of the defeats reported have already been brought to the notice of the officer concerned and also whether he has not taken steps to remedy them."
' Government of the Punjab v. Ehsanul Haq Sethi PLD 1986 SC 684: ' If the Reporting Officer is partial, his opinion is likely to cause incalculable damage to the officer reported upon, and again if it is ambiguous or carelessly written, it would not represent the result of careful consideration so that if called upon the Reporting Officer will not be able to justify his opinion and such a lapse would definitely defeat the purpose of the report. Therefore, the merits of the officer reported upon should be judged from an absolutely detached objective point of view and to attain this object the ACR forms are so designed as to leave a very little scope for sketchy, vague or subjective assessm ent."
' It was further held in the same authority that:-- "The purpose of such remarks is to inform the officer to correct himself and it is only when he fails to do so that it comes in his way for further promotion."
' The main adverse remark against the appellant is that "quality of the s was Snot up to the mark".
The quality of the orders can be judged only when the result of further appeal in the higher judicial forum is evaluated. Hence such adverse remarks in the ACR are biased and do not reflect true and correct assessm ent made under Part-III of the ACR endorsed by respondent No,1 under column of countersigned by Chairman. Even otherwise the appellant was not provided counseling during the year under report which is essential, requirement of law as held in the case Bashir Hussain v.
Director-General Population Welfare Directorate, Government of N.-W.F.P. Reported in 1988 PLC (C.S.) 394 and 1999 PLC (C.S.) 447. It is an established principle of law that if an officer is to be given adverse remarks in his ACR then the Reporting Officer is bound to issue prior written warning to him, which has not been complied with in the appellant's case and as such respondents have grossly violated the law and therefore, the adverse remarks in the appellant's ACR are liable to be expunged.
11. For the foregoing reasons, we are of the view that there seems no justification in making impugned adverse remarks against the appellant in his ACR for the period from 1-8-2001 to 30-6- 2002. Accordingly, we allow this appeal with no order as to costs and direct the respondents to expunge the adverse made in the appellant's ACR for the period mentioned above.
12. Copies of judgment be sent to the parties under registered cover under Rule 21 of Service Tribunal (Procedure) Rules, 1974.