' S. ABDUL JABBAR KHAN (CHAIRMAN)-Ghazanfar Ali Malik, Chief Officer, Zila Council, has filed this appeal under section 4 of the Punjab Service Tribunal Act of 1974 wherein he has impleaded Secretary to Government of the Punjab, Local Government and Rural Development Department Lahore, as respondent.
2. By virtue of this appeal it has been prayed that the appeal be accepted and adverse remarks contained in the memorandum dated 25th June, 1980, Annexures 'A' & 'B' be expunged.
3. Brief facts of the case are that the appellant was posted as Administrator, Municipal Committee, Jhelum in 1972 till March, 1973. After this he was transferred to some other assignment and came back again to the same Municipal Committee in the capacity of Administrator in May, 1977 and remained there till 24th July, 1978 when he was again transferred and posted as Administrator Municipal Committee, Kasur. In this way his work came under assessment with, two Reporting Officers i,e, Malik Jahangir Khan, Deputy Commissioner, Jhelum from May, 1977 to 20th August, 1977 and Lt.-Col. (Ret) M. Asghar Khan, Deputy Commissioner, Jhelum, from 21st August, 1977 to 24th July, 1978. The appellant was conveyed adverse remarks about the Annual Confidential Report for the period from 21st August, 1977 to 21st December, 1977 vide D.
0. No LCS (Cof) 1 (57)/79, dated 25th June, 1980. He was also further communicated adverse remarks recorded in his ACR from the period I st January, 1978 to 24th July, 1978 which were recorded by Lt.-Col. (Rtd.) M. Asghar Khan, vide his D.
0. Letter No LCS (Conn 1 (57)/79, dated 25th June, 1980. The appellant made a representation to the respondent against the aforesaid adverse remarks but the same stood rejected by him vide his letter No LCS (Ad mn) 1 (57)/79, dated 5th October, 1981. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as the learned D A assisted by the representatives of the department and have taken into consideration the parawise comments as well as the comments of the reporting officer i,e, Lt. Col. (Rtd) M. Asghar Khan.
5. The Learned counsel for the appellant has submitted that the ACR recorded by Lt.-Col. (Rtd.) M.
Asghar Khan were against the instruction of the Government and were also contrary to the facts so stated by him. Learned counsel has made further grievance that the adverse remarks for the period from 21st August, 1977 to 31st December, 1977 and for the period from 1st January, 1978 to 24th July, 1978 were absolutely identical without difference of 'comma` or 'full stop' which would clearly show that these were written at one and the same time, a procedure absolutely contrary to instruction No, 2 contained in the booklet of instructions about confidential reports. It has been further submitted that this procedure has caused prejudice to the case of the appellant as if the ACR for the first period has been written in January, 1978 then the appellant would have been entitled to the benefit of instruction No, 41 which requires that in such circumstances the person so reported against be placed under another reporting officer. He has also urged that those reports were conveyed to him in a belated manner, i,e, after 2 1/2 years which itself would reflect on the conduct of the reporting Officer. The learned counsel has further submitted that the ACR for the preceding period i,e,, May, 1977 to 20th August, 1977 recorded by Malik Jahangir Khan, Deputy Commissioner, Jhelum and countersigned by the Commissioner, Rawalpindi Division was absolutely in favour of the appellant. He has further pointed out that another confidential report for the succeeding period from 24th July, 1978 to 31st December, 1978 recorded by Mr. Hafiz Akhtar, Deputy Commissioner Kasur and countersigned by Commissioner Lahore Division, Lahore were also good. According to learned counsel it would be unbelievable that a person who was considered to be efficient by the reporting officer suddenly became inefficient during a particular period and thereafter again became efficient. While adverting to the merits of the case the learned counsel submitted that the personal of the file which was processed after the representation of the appellant to the higher authorities would clearly establish that what the reporting officer has commented to justify his stand would demolish his allegations and would prove to the contrary.
6. On the other hand the learned DA has adopted the comments of the department and has submitted that the reporting officer Lt.-Col. (Rtd.) M. Asghar Khan has fully justified his observation regarding the assessm ent of appellant's work and conduct therefor, the same may be maintained.
7. We have given our anxious thought to the arguments raised by both the parties and to satisfy ourselves of the factual position we have gone through the file by which the case of the appellant was processed before a final decision was taken by the respondent. The record of this case reveals that the reporting officer has based his comments mainly about the inefficiency and careless conduct of the appellant about the auctioning out the Cattle Mandi of the Municipal Committee Jhelum. He has categorically stated in his comments as under :-
(1) I took over as Deputy Commissioner, Jhelum. Cattle Mandi had permanently been given on lease to an influential individual who was making tons of money by paying a meagre amount of Rs, 50,000 per year.
(2) 1 in consultation with Martial Law Authority got this Cattle Mandi auctioned for an amount about eighteen times more than the amount is paid by the individual.
(3) Mr. Ghazanfar Ali, in his appointment as Administrator, M. C. Jhelum worked hand in glove with the owner of Cattle Mandi and created hurdle by persuing the individual in going to the High Court and then to the Supreme Court to undo the auction.
8. What we have to see is whether the comments of the reporting officer as given above are based on facts or these are only figments of his imagination. We have perused the file of the M. C. Jhelum regarding this issue and find as under :-
(1) The Cattle Mandi was established in 1949 and license for the sale of animals therein was granted to Mr. Muhammad Saleem Shahzada for Rs, 5,000 per annum.
(2) Mr. Ghazanfar Ali was posted as Administrator, M. C. Jhelum in 1972 and during his posting the licence fee was, for the first time, enhanced to Rs, 50,000 per annum. This arrangement continued upto 1977.
(3) Mr. Ghazanfar Ali remained posted in M. C, Jhelum till March, 1973 but the said arrangement of Rs, 50,000 continued till 1977 and no efforts were ever made during his absence by anyone to increase the licence fee thereof from Rs 50,000 per annum.
(4) Mr. Ghazanfar Ali was again posted in M. C. Jhelum in May, 1977. There was a proposal for putting the Cattle Mandi to open auction after the expiry of the term of the contract ending 30th June, 1977. The representation dated Ilth May, 1977 from the licensee Mr. Azmatullah son of Muhammad Saleem Shahzada addressed to the Government was received by Mr. Ghazanfar Ali from the Government for his comments. The comments offered by him (page 140 of the M. C. File) were to the effect that the Cattle Mandi must be put to open auction and the existing arrangement to renew its licence every year should (5) be dispensed with as it was not in the interest of the M. C.
The recommendations made by Mr. Ghazanfar Ali were ultimately approved by the Government vide his No, SO IV (LG)- 12 (18)/77, dated 1st August, 1977 (Page 184 of M. C. File).
(6) Lt.-Col. (Rtd.) M. Asghar Khan had not yet taken over as Deputy Commissioner, Jhelum at that time.
(7) In persuance of the decision of the Government, the case was processed by Mr, Ghazanfar Ali.For open auction of the Cattle Mandi and was submitted to the Deputy Commissioner, Jhelum (Mr. Jahangir Khan). Auction notice to the press was released on 13th August, 1977 before taking over by Lt.-Col. Asghar Khan as Deputy Commissioner Jhelum and the open auction of Cattle Mandi was held on 24th August, 1977 by a Committee appointed by the Deputy Commissioner, Jhelum, headed by the Additional Deputy Commissioner, Jhelum.
(8) Lt.-Col. Asghar Khan bad taken over as Deputy Commissioner and the highest bid received for Rs, 8,76,000 was thus approved by him in his capacity as Deputy Commissioner, Jhelum on 24th August, 1977.
9. The record also reveals that the appellant from the very start opposed Mr. Azmat Ullah son of Muhammad Saleem Shahzada and thus succeeded to get the Mandi auctioned openly. It is also on the record that it was through the efforts of the appellant that Azmat Ullah could not succeed to secure a stay order of the open auction and his efforts also failed in the High Court as well as in the Supreme Court.
10. In view of the established facts on the record which were lucidly pointed out by those who processed this case when the representation of the appellant was being considered we have no alternative but -to hold that the comments so offered by the reporting officer stand fully contradicted. We fail to understand why the respondent did not consider the established facts of this issue and chose to reject the recommendation of his subordinates, who clearly pointed out that the remarks of the reporting officer were based on misconception and were liable to be expunged. If the respondent would have taken pains and had controverted the facts so stated above by his subordinates or was in a position to show that the file of the Cattle Fair was against the facts so stated then he should have given his reasons in respect and we would have accepted the same. In the present case we do not find any reason given on behalf of the respondent to controvert the facts on the record which clearly prove that the observations of the reporting officer were incorrect.
11. In view of the above analysis of the factual position which was the cause of the adverse entries by the reporting officer we will now advert to the legal points so raised by the learned counsel for the appellant as well. We are constrained to observe that both the adverse entries are identical in nature without a difference of 'comma' or 'full stop' and thus are persuaded to accept the arguments of the learned counsel that these were given at one and the same time. It is a matter of common knowledge that none can reproduce without a difference of 'comma' and lull-stop' if the same is done after a lapse of one year. I we also take into consideration the arguments raised about the delay in conveying the adverse reports which according to the instructions laid down were to be communicated immediately so that the person so adversely reported be asked to improve his conduct or to explain the same. We have further noted that the appellant has got an unblemished record of service and immediately before his first adverse entry by Lt.-Col. M. Asghar Khan, Malik Muhammad Jahangir Khan, Deputy Commissioner found the work of the appellant good. It is also on the record, that when the appellant was transferred to Kasur after receiving the impugned adverse entries he got another good chit from Mr. Hafiz Akhtar, Deputy Commissioner, Kasur, countersigned by the Commissioner Lahore Division, Lahore. In this way the argument of the learned counsel for the appellant seems logical that the present two adverse entries given to the appellant by Lt.-Col. M. Asghar Khan were based on misconception of facts or some confusion in his mind which did not allow him to assess the work of the appellant in true prospective.
12. In view of the above, we are of the considered opinion that these two impugned adverse entries by the same reporting officer conveyed to the appellant after a delay of 2 1/2 years cannot be allowed to stand in his ACR. We, therefore, direct that the same to be expunged.
13. The result is we accept the appeal and set aside the impugned entries as of no legal effect.
However, the parties will bear their own costs.