Salman Ansari Member.--The appellant is aggrieved by the impugned order dated 29.07.2008, whereby, adverse remarks in the ACRs of the appellant for the period from 31.05.2007 to -31.12.2007 were conveyed, against which he preferred a representation on 06.09.2008 which has remained un-responded, hence this appeal with the prayer to expunge the adverse remarks in the ACR of the appellant for the said period and declare the same to have been recorded in violation of rules and are without any substance.
2. We have heard the arguments of the learned counsel for appellant as well as departmental representative for the respondents and have also perused the record minutely.
3. Learned counsel for the appellant contended that the appellant was appointed as Assistant Director (Legal) FIA through Federal Public Service Commission on 05.11.2002. He joined his duties as Assistant Director/Legal FIA (BPS-17). There had been no Minor & Major penalty to the discredit of the appellant. The appellant while posted at Hyderabad with duel charge of Sukkur as Assistant Director (Legal) FIA, he had been conveyed adverse ACR for the period from 31.05.2007 to 31.12.2007 recorded by the Deputy Director FIA, Hyderabad as Reporting Officer and endorsed by the Director FIA, Karachi Zone as Countersigning Officer vide letter dated 29.07.2008, the adverse ACR are reproduced as under: i) IN PART-1V. Column-1"All the cases shown as convicted (Officer's performance onare in fact plead guilty cases.
Not a the job..... ) single case ended in conviction as a result of his actual performance. The opinion in case and inquiries is always given after lapse of sufficient time. In order to avoid un-necessary delay, the important cases are sent to FIA Zonal Office Karachi with suggestion to seek legal opinion from DD/Law.
(ii) IN PART-W. Column-7 "Not yet fit for promotion"
(Fitness for promotion)
(iii)IN.PART-V. Column-1I know the officer very well An (Assessm ent of the CSO) average type of office. Not yet fit for promotion The Reporting Officer has recorded adverse ACR against the appellant in Part-IV for the period from 31.05.2007 to 31.12.2007 and has stated that all the cases shown convicted actually were based upon pleading guilty of the accused person and not on the basis of actual performance.
The Reporting Officer never issued any kind of communication by way of letter before recording such adverse remarks against the appellant. The Reporting Officer also did not indicate the cases number and inquiry reference which were given/sent to the appellant and were returned after lapse of sufficient time. The entire adverse remarks by the Reporting Officer are not supported with any documentary proof.
4. That the remarks referred to above are of sweeping nature and can be leveled against any sub- ordinate. It is a universal law for recording ACR that if the controlling officer is going to record adverse ACR against any subordinate, he is bound by law to inform the concerned officer through letters for reformation and "A Reporting Officer while reporting on his subordinate should be as circumspect 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 particularity whether any of the defects reported have already been brought to the notice of the office concerned and also whether he has not taken steps to remedy them".
In Par-IV against column-7 regarding 'Fitness for Promotion' the Reporting Office has recommended for promotion to the appellant, whereas the Countersigning Officer against Sub- para (iii) has recorded "not yet fit for promotion" without any documentary proof. The Countersigning Officer has reported in Part-V against the column-1 that "I know the officer very well. An average type of officer. Not yet fit for promotion" Such remarks recorded by the Countersigning Officer are also evasive and not supported by any iota of evidence. While appellant was posted as Assistant Director (Legal) FIA Hyderabad, dual charge of Sukkur has also been given to the appellant and due to such reason the appellant has to work at two different places which are situated more than 200 Miles away to each other. The appellant had to appear before different Courts and defend the cases of the State but even than throughout in service there had been no lethargic attitude and non interest in working.
5. Learned counsel for the appellant further argued that the appellant has been reported as average for the period under report w.e.f 31.05.2007 to 31.12.2007 by the Reporting Officer and the Countersigning Officer, whereas the appellant's ACE for the period from 01.01.2007 to 30.05.2007 is good and the appellant has not been reported as adverse and likewise for the previous period of service w.e.f 05.11.2002 till date. The appellant was never reported against by the Reporting Officer or by the Countersigning Officer. It is not possible that an officer for a specific period of 07 months became average and is. Not delivering the goods and performance as had been required by the course of the appellant as such the adverse remarks against the appellant for specific period are tainted with malice and not supported with any iota of evidence. The adverse ACR recorded by the Controlling Officer and Countersigning Officer is inconsistent with their own remarks. The appellant at one side has been reported as honest and on the other hand the appellant by the Countersigning Officer has been stated as not yet fit for promotion. The adverse remarks recorded by the Reporting Officer and Countersigning Officer are not compatible to the performance and output of the appellant.
6. Learned counsel for the appellant further contended that the adverse remarks in question are without any basis and justification. He contended that the adverse remarks for the period from 31.05.2007 to 31.12.2007 for 07 months conveyed to the appellant on 29.07.2008 after a lapse of about 07 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 PLC (CS) 278, SBLR 2005 TR 16, 1984 PLC (CS) 67, 1992 PLC (CS) 732, KLR- 2006 L&SC 212, 2012 TD (Service) 395, 1992 PLC (CS) 1034 and PLJ 2008 TRC (Services)
143. Reliance is placed on 1996 SCMR 256, wherein it was held that: "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."
7. Departmental representative relying on the written comments filed on behalf of the respondents and reiterated that the ACR of the Officer during the period of 31.05.2007 to 31.12.2007 has been issued on the basis of explanation dated 15.02.2007 thus the allegation of the office for recording adverse remarks in a sweeping manner is not correct. As per Rule 3.3. (iii)(b) A guide to Performance Evaluation which is reproduced below:- "When any adverse remark is made in the Evaluation Report of any officer a copy of the whole report should be furnished to him at the earliest opportunity and in any case within one month from the date the report is countersigned, with a D.E. Letter a copy of which should be signed and returned by him as acknowledgment of the report. A serious view should be taken of failure on the part of the officials concerned to furnish a copy of the report containing adverse remarks to the officer reported upon with the stipulated period. Nevertheless, the adverse remarks should be communicated to the officer concerned even at belated stage".
' The charges in explanation dated 15.02.2007 and charge sheet was reflection of inefficiency and misconduct of the officer and his claim for working with 'intelligible sense of confidence and will power was not correct'. The appellant while posted at FIA Crime Circle, Hyderabad with dual charge of Sukkur has committed following acts of omission/ commissions amounting to the misconduct under the Removal from Service (Special Powers) Ordinance, 2000, reproduced as under:- "(i) Deputy Director, FIA Sukkur directed him to submit trial position of Case FIR No. 01/02 of FIA Sukkur, but he failed to comply with the orders and on 23.01.2097 left the station without prior permission. The Director FIA, Karachi Zone issue explanation memo. Bearing No. FIA/DKZ/F1R- 01/02/SukB-1941-42 dated.
15.02.2007 but he failed to submit reply to the above explanation.
(ii) The Deputy Director, FIA Hyderabad while his letter No. FLA/Hyd/R/892 dated 07.03.2007 reported that on 06.03.2007 A.D. (Legal) Zakir Hussain Khan was personally called and directed to submit up to date information regarding pending trial cases but he deliberately failed to obey such orders and left the office without permission and did not turn-up till 07.03.2007. On being contacted, he intentionally avoided to attend' his cell phone.
(iii) That the Deputy director, FIA Hyderabad further, reported that he failed to provide required data in respect of Court Cases, proclaimed offenders and Court absconders for the purpose of preparation of incoming inspection.
(iv) It is reported that A.D (Legal) Zakir Hussain Khan is a habitual absenting and do not attend the office after Court work despite repealed directions/ instructions issued by Deputy Director, FIA Hyderabad.
(v) The Director FIA, Karachi Zone issued another explanation memo. Bearing No. FIA/DKZ/B-3053- 555 dated 14.03.2007 to which he submitted reply after a delay of fifty days. The reply found unsatisfactory.
(vi) The above act amounts to misconducts on the part of A.D. (Legal) Zakir Hussain Khan warranting departmental action, as defined u/S. 2(b) of the Removal from Service (Special powers)
Ordinance, 2000."
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. In absence of any reasonable explanation for not communicating the adverse remarks within prescribed period of one month, the civil servants having alleging bias, prejudice and partiality against the Reporting Officer and. Countersigning Officer holds good. In 1999 PLC (C.S)
1278, it was held that: "Countersigning Officer, in order to override such adverse remarks had to positively say so--If the countersigning officer expressed his inability to record any remarks, such adverse remarks by Reporting Officer would hold good"
9. That the Reporting Officer in the ACR under consideration as at Part-IV column-7 (i) found the appellant "Fit for promotion" while the Countersigning Officer as at Part-V column-1 found the appellant "Not yet fit for promotion" and the reasons given are "1 know the officer very well. An average type of officer": This shows there is contradiction in the findings of the Reporting Officer who is in a better position to assess the actual performance and working of the appellant, which the Countersigning Officer under the circumstances was not in a position to judge the working and performance of the appellant considering the remarks as reproduced above of the Countersigning Officer also taking into consideration that for the period of 01.01.2007 to 30.05.2007, it has not been denied by the respondent that the performance of the appellant was good and no report was adverse, but it was only for the period thereafter being 31.05.2007 to 31.12.2007. That the adverse remarks have been reported made against the appellant by the Countersigning Officer.
Considering that the explanation was called on 15.02.2007 from the appellant. Hence, for such explanation how was it possible to given adverse remarks for the period mentioned above and not for the period prior to 31.05.2007. That taking into consideration the case law relied upon by the learned counsel for the appellant. We have arrived at the conclusion that there was no cogent justification for the adverse remarks given for the period from 31.05.2007 to 31.12.2007 and hence, in view of the above discussions, the appeal is therefore accepted with no order as to costs and the adverse remarks passed against the appellant for the period from 31.05.2007 to 31.12.2007 are hereby expunged. This appeal stands disposed of accordingly.
10. Parties be informed accordingly.