' ABDUS SATTAR ASGHAR J./MEMBER.--- Through this composite judgment we propose to decide Service Appeals Nos.48 and 49 of 2001 and 52 of 2002 as they involve identical questions of law and facts.
Service Appeal No,48 of 2001
2. In the ACR of the appellant pertaining to the period 1-1-1997 to 1-7-1997 in Part-VIl the learned Countersigning Officer recorded adverse remarks as "He did not enjoy good reputation. He has since resigned from service". These remarks were communicated to the appellant vide letter dated 13-5-2000 who filed representation against the same for expunging of adverse remarks before the respondent which was rejected vide order dated 12-6-2001. Appellant then filed this appeal on 13- 7-2001 under section 5 of the Punjab Subordinate Service Tribunal Act. 1991, which was dismissed vide order dated 4-4-2002 as having become infructuous.
Service Appeal No,49 of 2001
3. In the ACR of the appellant pertaining to the period 9-7-1997 to 31-12-1997 in Part-VII the learned Countersigning Officer recorded adverse remarks as "The remark in the pen-picture look like a joke and is wholly irrelevant, He did not enjoy good reputation. He has since resigned from service".
These remarks were communicated to the appellant vide letter dated 13-5-2000 who filed representation against the same for expunging of adverse remarks before the respondent which was rejected vide order dated 12-6-2001. Appellant then filed this appeal on 13-7-2001 under section 5 of the Punjab Subordinate Service Tribunal Act, 1991, which was dismissed vide order dated 4-4-2002 as having become infructuous.
Service Appeal No,52 of 2002
4. In the ACR of the appellant pertaining to the period 1-1-1996 to November, 1996 in Part-VII the learned Countersigning Officer recorded adverse remarks as "An officer of doubtful integrity". These remarks were communicated to the appellant vide letter dated 30-3-2000 who filed representation against the same for expunging of adverse remarks before the respondent on 4-5- 2000 which was rejected vide order dated 30-7-2002. Appellant then filed this appeal on 13-7-2001 under section 5 of the Punjab Subordinate Service Tribunal Act, 1991.
5. Brief facts relevant for decision of these appeals are that appellant was appointed as Civil Judge on 23-11-1985. In the year 1998 while posted as Civil Judge Ist Class-cum-Judicial Magistrate section 30 Mandi Yazman District Bahawalnagar he allowed an application under section 249-A, Cr.P.C. for the acquittal of accused in case titled 'The State v. Shaukat Ali and others' after hearing the parties. Being dissatisfied complainant of said case filed an Appeal No,11 of 1999 in the Lahore High Court at Bahawalpur Bench which was fixed on 28-1-1999 wherein appellant was summoned.
On the fixed date appellant appeared before the learned Single Judge in Chambers who as stated was in a very aggressive mode. It is not disputed that the learned Single Judge in Chambers of Lahore High Court at Bahawalpur Bench directed the appellant either to tender his resignation or to face the dire consequences.
6. Shorn of unnecessary details appellant as stated tendered his resignation under protest on 8-3- 1999 which was accepted vide notification dated 16-3-1999. The appellant also lodged an application dated 15-3-1999 for withdrawal of his resignation which was received in this Court on 18-3-1999. The appellant preferred representation against the issuance of the notification dated 16- 3-1999. His representation was rejected by the respondent vide order dated 20-4-1999. After rejection of the representation appellant preferred Service Appeal No,44 of 1999 before this Tribunal which was dismissed vide judgment dated 9-5-2002. The said judgment was assailed by the appellant before the Hon'ble Supreme Court of Pakistan through Civil Appeal No,15544 of 2004.
Simultaneously orders dated 4-4-2002 passed by this Tribunal in the above captioned Service Appeals Nos.48 of 2001 and 49 of 2001 were also assailed by the appellant before the Hon'ble Supreme Court of Pakistan vide Civil Petitions Nos.2471-L and 2472-L of 2002. The Hon'ble apex Court vide order dated 10-6-2010 allowed the appellant's Appeal No,1544 of 2004 along with Civil Petitions No,2471-L and 2472-L of 2002. Accordingly impugned judgment dated 9-5-2002 passed by this Tribunal was set aside and consequently notification issued with regard to acceptance of resignation of the appellant was set aside and he was reinstated into service without back benefits.
Simultaneously Civil Petitions Nos.2471-L and 2472-L of 2002 were converted into appeals and allowed by the Hon'ble apex Court in the following manner:--- "In view of above decision C.P.L.As. Nos.2471-L and 2472-L of 2002 with regard to adverse remarks conveyed to the petitioner, the same are converted into appeals, the orders dated 9-5-2002 passed in Appeals Nos.48 and 49 of 2001 passed by Punjab Subordinate Judiciary Service Tribunal, Lahore, are set-aside, consequently these appeals are also allowed. Service Appeals Nos.48 and 49 of 2001 filed by the appellant shall be deemed to be pending before the Punjab Subordinate Judiciary Service Tribunal, Lahore which appeals will be disposed of on merits, after hearing both the parties."
7. Contention of learned counsel for the appellant is that in all the above noted ACRs Reporting Officers/District and Sessions Judges concerned have evaluated his performance as a good, honest officer fit for promotion in his turn in the relevant columns of Part-VI; that the learned Countersigning Officer in the ACRs for the period 1-1-1997 to 1-7-1997 (Service Appeal No,48 of 2001) and ACR for the period 9-7-1997 to 31-12-1997 (Service Appeal No,49 of 2001) passed the impugned remarks that he does not enjoy good reputation which has no meaning in the eye of law; that even the date of recording of said remarks by the learned Countersigning Officers is not mentioned in the relevant column of Part-VII; that the impugned adverse remarks passed by learned Countersigning Officer in ACR pertaining to the year 1997 were conveyed to the appellant after lapse of 2-1/2 years; that appellant has unblemished career of 14 years before the adverse remarks; that the learned Countersigning Officer of the ACR for the period 1-1-1996 to November 1996 (Service Appeal No,52 of 2002) recorded adverse remarks "an officer of doubtful integrity" on 21-1-2000 i.e, after four years of the relevant period whereas learned Countersigning Officer himself had superannuated in the year 1997; that the impugned remarks about integrity of the appellant are unfounded and without reasons. He has made reliance upon Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others (1997 SCM R 1749).
8. On the other hand learned counsel for the respondents contends that in the absence of any proved mala fide qua the Countersigning Officer appellant being judicial officer has no case to question the credibility of the assessment on the ground of delay in writing the ACRs and conveying the adverse remarks; that the judicial officers remain under the supervisory jurisdiction of the High Court vis-a-vis their judicial work and conduct in terms of Article 203 of the Constitution of Islamic Republic of Pakistan, 1973. He added that evaluation in the ACRs is based on credible information and personal observation of the Countersigning Officers as Inspection Judges and it is not necessary that it must be based on tangible material. Takes reliance upon (i) Government of the Punjab and another v. Ehsanul Haq Sethi (PLD 1986 SC 684), (ii) Shabbir Hussain v. Registrar Lahore High Court (PLD 2004 SC 191), (iii) Inam Ullah Khan, Additional District and Sessions Judge v.
Lahore High Court Lahore through its Registrar (Civil Petition for Leave to Appeals Nos.2792-L and 2793-L of 2000) and (iv) Saeed Ifzal Agral Ex-Civil Judge v. Lahore High Court Lahore through its Registrar (C.P.L.A. No,549 of 1986).
9. We have heard learned counsel for the parties and carefully gone through the record.
10. In this case the appellant was forced to resign on 8-3-1999. The Hon'ble Supreme Court of Pakistan in its order dated 10-6-2010 in the appellant's Civil Appeal No,1544 of 2004 along with Civil Petitions Nos.2471-L and 2472-L of 2002 has made a categorical observation in this regard in paragraph No,26(vii) which reads below:- "26(vii). It was not disputed that a learned Judge of the Lahore High Court Lahore has called the appellant in chambers and directed him either to tender resignation or to face the dire consequences. It can thus safely be inferred that it was not a voluntary resignation but tendered under undue force and coercion."
11. Record reveals that all the three impugned adverse remarks subject-matter of the above captioned appeals were recorded by the learned Countersigning Officers in the year 2000 i.e, after forced resignation of the appellant. Both the learned Countersigning Officers prima facie seem to have been inspired by the appellant's resignation. It is not denied that the appellant throughout his 14 years service record as judicial officer earned good reports from his Reporting/Countersigning Officers. Even in the above quoted ACRs for the years 1996 to 1997 both the Reporting Officers evaluated the appellant as a good honest officer fit for promotion on his turn. There was no instance of appellant's corruption during the relevant period i.e, in the years 1996 to 1997. As per general principle presumptions are always positive unless proved otherwise. It is settled principle of law that a person is innocent until proved guilty beyond any reasonable doubt. The Hon'ble Apex Court in the case of Inspector-General of Police Punjab Lahore and 2 others v. Rana Altaf Majid (1994 SCM R 1348) has observed as under:--- "Although evaluation of a subordinate by a Reporting Officer or Countersigning Officer is a matter of subjective assessment and not an objective evaluation and the Service Tribunal or the Court as a 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 is condemned he should be put to notice to show that he may have an opportunity to act and conduct himself in a manner which may eliminate the possibility of malicious allegations against him."
' In this case there is nothing on the record to show that appellant was ever administered any warning or counseling by the Reporting Officer or the Countersigning Officer with regard to his integrity. There is nothing on the record on the basis whereof it could be said that appellant had generally or persistently a reputation of being corrupt. Before recording of the impugned remarks the appellant has unblemished judicial career of about 14 years and has earned good reports from his Reporting/Countersigning Officers throughout therefore in the absence of any plausible reason the impugned remarks of the learned Countersigning Officers have resulted in grave prejudice to the appellant.
12. In view of the above discussion there is no need to dilate further. Suffice it to say that above captioned appeals are liable to succeed on the grounds that the remarks given by the learned Countersigning Officer suffer from vagueness resultantly we accept the above captioned appeals and direct the expunction of questioned adverse remarks from the ACRs of appellant pertaining to the years 1996 and 1997.