' MEHMOOD MAQBOOL BAJWA, CHAIRMAN.--- While evaluating performance of the appellant from 1st of January to May, 1996, serving as Civil Judge 1st Class, Rajanpur, the learned District and Sessions Judge, Rajanpur being Reporting Officer recorded adverse remarks in Parts-V and VI of Annual Confidential Report opining about his bad reputation, having close liaison with the public- at-large (particularly with litigants), living beyond his ostensible means and resources, maintaining Toyota Corolla Car and involvement in criminal litigation being supporter of the accused of same cases.
' In column of counselling (Part-V(b)), it was concluded that despite advise to isolate himself from the activities referred to in the column of pen picture (Part-V(a)) there was no improvement.
' It was also observed that appellant should not be posted in Multan and Dera Ghazi Khan Division and Rahimyar Khan District.
' In para-VI of the Report, integrity of the appellant was doubted stamping him "Reported to be corrupt" and with this background, it was concluded that he is not yet fit for promotion.
2. The remarks about conduct, behaviour and integrity were endorsed by the learned countersigning authority.
3. Adverse remarks were communicated to the appellant through letter No, 1153/RHC dated 22nd of April, 1999.
4. The appellant filed representation for expunction of adverse remarks but it proved to be a futile exercise as the competent authority after deliberation rejected the representation through decision dated 20th of July, 2002 duly communicated through letter No, 1088/RHC dated 1st of August, 2002.
5. By preferring present appeal under Section 5 of The Punjab Subordinate Judiciary Service Tribunal Act, 1991 (XII of 1991), the appellant has questioned the legality and validity of adverse remarks and decision of competent authority rejecting the representation on legal as well as factual premises.
6. Disputing the legality of adverse remarks and decision, while seeking help from Instruction No,2 about writing Confidential Reports, it was submitted that the Report should have been initiated in the first week of January of a calendar year to be countersigned by the higher authority within next one week.
' Referring to the case of appellant, it was submitted that Report was initiated on 9th of March, 1998 by the Reporting Officer after expiry of period of more than two years. Further submitted that it was countersigned by the learned countersigning authority on 20th of April, 1999.
' Argued that in the circumstances, adverse remarks and decision endorsing it has caused prejudice to the appellant. Violation of instructions in the opinion of learned counsel for the appellant is sufficient to set aside the remarks and decision.
' Attributing bias and malice to the Reporting Officer, it was contended with vehemence that appellant and Reporting Officer belong to two different religious sects and the Reporting Officer in an informal meeting preached his religious point of view which was objected to by the appellant, pleading his view point causing source of annoyance which resulted in nursing grudge by the Reporting Officer, reflected while recording the Evaluation Report.
' Continuing the arguments, learned counsel for the appellant banked upon the report of inquiry concluded on 29th of August, 1997 by the then learned District and Sessions Judge, Sialkot and submitted that though similar allegations were made against the appellant but the learned Inquiry Officer concluded that charges could not be established.
' Argued that in the circumstances, adverse remarks particularly accusation of bad reputation loses its sanctity.
' Referring to the remarks contained in Part-.V(a) (pen picture), it was submitted that remarks are self-contradictory and without foundation. Allegation of involvement in criminal cases of the appellant was repelled with the plea that it got no back and supporting material.
' Similarly, allegation of approaching the Reporting Officer by a group of lawyers having association with a particular political party on behalf of appellant for allocation of a particular police station was controverted with the contention that Police Station Kot Mithan Sharif was already allocated to the appellant along with four other police stations of Tehsil Rojhan and Rajanpur.
7. Referring to the disposal of work done by the appellant, it was contended that appellant gave outstanding output which was not questioned by the Reporting Officer.
' Admitting the payment of telephone bill to the tune of Rs,70,645/-, it was submitted that bill was paid under the dictate of judgment dated 31st of January, 2003 made by the Service Tribunal after withdrawal of suit for declaration deciding the appeal of appellant bearing No,02 of 2002, converting the major penalty of compulsory retirement into minor penalty of censure, which judgment was assailed before the Apex Court by the respondent but without any success as Civil Appeal No, 1677 of 2003 was dismissed on 14th of December, 2006.
' Seeking indulgence, it was prayed that while accepting the appeal, adverse remarks and decision of learned competent authority be set aside.
8. Controverting the arguments advanced, learned counsel for the respondent though admitted delay in recording adverse remarks but stated that instruction banked upon is directory in nature and as such, its non-compliance would not advance the plea of appellant. To substantiate the contention, reliance was placed upon "Ch. Shabbir Hussain and others v. Registrar, Lahore High Court, Lahore and others" (PLD 2004 Supreme Court 191).
' Replying the argument with reference to bias and malice attributed to the learned Reporting Officer, it was contended that there is a bald allegation levelled which by itself is not sufficient to prove the same.
' Referring to different parts of Confidential Report, particularly Parts-H and IV and few columns of Part-III, it was submitted that learned Reporting Officer rated the appellant in Box "A" which is sufficient to reject the contention of appellant suggesting ulterior motive to the Reporting Officer.
' Making reference to Part-V (pen picture) containing adverse remarks, our attention was drawn to the first comment appreciating disposal of cases by appellant and with this background, it was submitted that had there been malice on the part of Reporting Officer, appellant would not have been rated as "A" in different columns with acknowledgment of his good disposal.
' Continuing the arguments and referring to remarks in Part-VI, particularly with reference to the "integrity [clause(c)]", it was argued that the learned Reporting Officer rated the appellant as "Reported to be corrupt" and being District and Sessions Judge had many sources to know the integrity of the judicial officer.
' Also seeking help from the Report of Inquiry dated 29th of August, 1997 conducted by the District and Sessions Judge, Sialkot, it was submitted that charge regarding living beyond ostensible sources stands proved in view of excessive telephone bill.
' Referring to the conduct of appellant at different stages and places of posting, it was submitted that opinion formulated by the Reporting Officer qua the integrity, conduct and behaviour of appellant is unexceptionable.
9. Conscious consideration has been given to the arguments advanced.
10. At the very outset, appellant pleaded delay in recording Annual Confidential Report by the Reporting Officer and its endorsement by the learned countersigning authority.
11. Instructions about Confidential Reports were circulated through W.P. Government letter No, S(R)-3542-S&GAD 4-8/65-SO-XIII dated 12th of February, 1968.
' According to Instruction No,2, Confidential Report for a calendar year shall be initiated in the first week of January by the initiating authority and forwarded to the higher authority in the same week who is supposed to give its remarks within one week.
' The learned Reporting Officer initiated report on 9th of March, 1998 for the period commencing from 1st of January, 1966 to May, 1996 and the learned countersigning authority endorsed the remarks on 20th of April, 1999.
' Admittedly, there is a violation of Instruction No,2.
' In the circumstances, question for consideration is to determine the consequences of violation.
' Matter came up for adjudication before Apex court in "Lahore High Court, Lahore through its Registrar v. K.M. Sohel" (2001 PLC (C.S) 1253) and it was held that instructions given in the notification for recording Annual Confidential Report are directory in nature and noncompliance of time would entail no consequences. Proposition was again examined by the Apex Court in the case of "Ch. Shabbir Hussain and others v. Registrar, Lahore High Court, Lahore and others" (PLD 2004 Supreme Court 191) and it was held at pages-212 and 213 as follow:- "The question was determined again in the case of Syed Tathir Hussain She razi v. The Governor of the Punjab (1990 SCMR 1510) and it was held that delay in recording adverse remarks does not affect their efficacy or legality. The dictum was reiterated in Lahore High Court, Lahore through Registrar v. K.M. Sohel (2001 PLC (C.S.) 1253) as well as an unreported judgment of this Court titled Ch. Muhammad Wakil v. Punjab Subordinate Judiciary Tribunal, Lahore High Court (C. P. No,I 170 of 1998) decided on 12-10-1999. In view of this settled legal position and well known pre-occupation of the District and Sessions Judges and Judges of the High Court with ever increasing judicial work we feel no hesitation in holding that delay in initiating A.C.Rs, of some of the appellants and conveying adverse remarks to them is immaterial and cannot obliterate the adverse remarks in question. The contention that the time schedule has been prescribed so that remarks are based on the performance of the officer during the relevant year and not any subsequent even stands repelled in view of the observations made in the case of Ehsanul Haq Sethi."
In view of the settled proposition, delay in recording adverse remarks, its endorsement as well as its communication by itself would be of no legal consequences.
' Argument as such though submitted with vehemence is misconceived and ill-founded.
12. Allegation of bias and malice was attributed to the Reporting Officer.
' To substantiate the allegations, it was argued that appellant and Reporting Officer belongs to different religious sects and learned Reporting Officer in an informal meeting expressed his point of view on certain religious issues contrary to the faith of appellant who as such expressed his view resulting in annoyance, displeasure and grudge, demonstrated in the Confidential Report.
' In para (4) of the Representation, and Para (7) of memorandum of appeal, objection was raised.
13. Malice in common parlance means active ill will, desire to harm another or to do mischief, intentional doing of something which is unlawful and the state of mind with which an act is committed and from which the intent to do wrong may be inferred.
' The expression has been defined in Black's Law Dictionary (Sixth Edition) as follow:- ' The intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will an evil intent. A condition of mind which prompts a person to do a wrongful act wilfully, that is, on purpose, to the injury of another, or to do intentionally a wrongful act towards another without justification or excuse. A conscious violation of law (or the prompting of the mind to commit it) which operates to the prejudice of another person.
A condition of the mind showing a heart regardless of social duty and fatally bent ou mischief----."
14. Prior to dealing with the contention of appellant on the mootlE point, it is desirable to add that it is easy to attribute malice but difficult to prove.
' Same question was examined by the Apex Court in "The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others" (PLD 1974 Supreme Court 151) and it was held at page-170 as follow:- "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (1), mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case."
' The view was endorsed in the case of "Ch. Shabbir Hussain" (PLD 2004 Supreme Court 191).
' It was held in "Khawaja Ahmad Hassaan v. Government of Punjab and others" (2005 SCMR 186) that it is one of most difficult tasks to prove mala fides but not impossible.
15. Keeping in view the definition of expression and yardstick to prove, now we will examine the contention of appellant attributing malice to the Reporting Officer.
16. The appellant in para (4) of the representation and para (7) of the memorandum of appeal attributed malice to the Reporting Officer who according to the appellant belongs to different religious sect and once in an informal meeting, the Reporting Officer expressed his views which were bonafidely dissented, causing annoyance to him resulting in recording adverse remarks.
' Perusal of both the paragraphs does not reveal the time, year and venue of said informal meeting.
It is also not known who were present in that meeting. Topic under discussion was also not disclosed.
' Since the particulars referred to were not disclosed, therefore, IF alleged malice cannot be inferred.
17. Allegation of malice can be examined from another angle as well.
' Adverse remarks were recorded by the learned Reporting Officer in Part-V [clauses (a) to (c)] , Part-VI (a) to (c) of the Report.
' Perusal of Part-II of the ACR (personal qualities) and Part-IV (proficiency in job) reveals that appeflant was rated in Grade-A. In Part-III (Attitudes) in column Nos.1, 3 and 10, he again was considered "good", putting him in Grade-B (average) in other columns, overall grading him as average.
' In Part-V (pen picture) in which adverse remarks were given in detail, the Reporting Officer acknowledged the appellant good in his job. The first sentence with which remarks were initiated reads as follow:- "The. Officer under report was good in his job so far as disposal of cases was concerned."
(underlining is ours)
' Remarks given by the Reporting Officer in Part-II to Part-IV and in Part-V, which has been reproduced gives an irresistible conclusion to negate the allegation of the appellant.
' If the Reporting Officer had malice against the appellant, he should not have rated him in the mode and manner as he did. It cannot be presumed that while giving his opinion in Part-V and Part-VI, he was dominated by some ulterior motive but simultaneously acted with fairness while recording remarks in Part-II to Part-IV.
' It is unsuccessful and afterthought attempt on the part of appellant to save himself from the consequences.
18. Matter can be examined from another angle as well.
' Remarks under challenge were endorsed by the learned Inspection Judge being countersigning officer.
' Perusal of the contents of representation and memorandum of H appeal clearly reveals that no bias or malice was attributed to the countersigning authority.
' Opening paragraph of representation (Annex-D) and para (4) of the appeal just suggests that "remarks recorded by the learned Reporting Officer and the "Honourable countersigning authority" are based on disinformation whispered by the personally prejudiced, biased displeased and annoyed element of the local bar who fell offended........... "
' Admittedly, the remarks referred to cannot suggest "Malice-infact" against counter signing authority.
' The countersigning authority being Inspection Judge got II different sources to verify the opinion of Reporting Officer.
19. It was also argued that as per instruction, counselling was not made to the appellant as no proof in writing is available.
' The Reporting Officer in Part-V(b) has categorically stated that appellant was advised to abstain from aforesaid irregularities and as such objection is misconceived.
' Even otherwise, requirement is directory as held in "Ch. Shabbir Hussain and others v. Registrar, Lahore High Court, Lahore and others" (PLD 2004 Supreme Court 191).
20. During the course of arguments, learned counsel for the appellant relied upon the conclusion drawn by the then learned District and Sessions Judge, Sialkot (Inquiry Officer) in the inquiry report dated 29th of August, 1997 and pleaded that the inquiry report is sufficient to rebut the adverse remarks. Reliance was also placed upon the judgment handed down on 31st of January, 2003 delivered in Service Appeal No,02 of 2002 preferred by appellant, whereby appeal was partly allowed and decision of competent authority regarding compulsorily retirement of appellant though notification dated 13th of November, 1999 was set aside and penalty of censure was awarded to him. It was also pointed out that respondent preferred appeal before the Apex Court but same was dismissed on 14th of December, 2006.
21. Prior to dealing with the argument, it is desirable to make reference to the status of judicial officer, different from other Government/ civil servants.
' Similar proposition was examined by the Hon'ble Supreme Court of Pakistan in "Qari Ahmed Jan v.
Government of Balochistan through S&GAD Quetta and 3 others" (2003 PLC (C.S.) 1078) and it was held at page-1084 as follow:- "It is the duty of a Judicial Officer to maintain the image and dignity of judiciary so that the high expectations of the people from judiciary should not be damaged by his conduct and work. The holder of a Judicial Office must be extra careful, honest and straightforward and should not act and behave in a manner which may lower the image of the judiciary in the estimation of people and create doubt in the minds of a common person regarding the integrity and fairness of the Judicial Officer in his private and public life. The Judicial Offices being very sensitive, the decree of vigilance of a person holding such an office should be much more to that of any other person in the Society."
' Again dealing with the same proposition, it was held in the case of "Ch. Shabbir Hussain" (PLD 2004 Supreme Court 191) at page-211 as under:- "However, before proceeding to determine the questions involved in these appeals we deem it necessary to observe that although all the civil servants are bound to be honest having unblemished integrity, the Judicial Officers are supposed to excel in this trait of character in view of the sacred and sensitive nature of their duties and the pivotal position which justice occupies in Islam according to the following verse of the Holy Qur'an: -- " '0' You who believe, the maintainers of justice, bearers of witness for Allah's sake though it may be against your ownselves or your parents or near relations, be he rich or poor, Allah is most competent to deal with them both, therefore, do not follow your low desires lest you deviate, and if you swerve or turn aside then Allah is aware of what you do." (Sura 4, Verse 135)."
' We may also advantageously make reference to the opinion of learned Service Tribunal of Sindh expressed in "Saad Salam Ansari V. Chief Justice, High Court of Sindh Karachi" (2006 PLC (C.S.) 938) in which it has been held at page 942 as follows:- "The conduct of the Judicial Officer must not, in any case be ventured to be equated with the conduct of an ordinary civil servant, as the Judicial Officers are bestowed with the Power of adjudicate to rights of the people and the matters involving life and liberty of citizens. By very nature of the duty cast upon the judicial officers, they are not only expected, but required to demonstrate unimpeachable character, high integrity, and transparency in their actions coupled with nobility and dignity as compared to other civil servants. The Judicial Officers found/and/or believed to be involving in corrupt practices, and those infested with inefficiency could not be allowed to go scot-free, as it is essential to rid the subordinate judiciary of mess and pollution".
22. Perusal of the Inquiry Report reveals that inquiry was initiated against the appellant on the charge of persistent reputation of being corrupt and involvement in immoral activities.
' No doubt, the Inquiry Officer in para (7) of the Report concluded that charges against the appellant could not be established which though prima facie support the contention of the appellant as argued but para (8) of the Inquiry Report is also important in which Inquiry Officer dealt with the allegation of installation of telephone at the residence of appellant, its excessive use resulting in issuance of bill for a sum of Rs,70,645/- in a period of less than 8-months of the installation and failure of the appellant to pay the bill. After discussing evidence, it was concluded that said charge has been established. With this conclusion, it was held by the Inquiry Officer that the appellant was living beyond his means. Relevant conclusion at page-12 is re-produced for ready reference: - "It is not the claim of the accused officer that he was overcharged or the telephone bill was exaggerated or that he disputed and challenged these telephone charges. On the other hand, his version is that he has required the telephone department to recover the amount from him on easy installments. As such, he impliedly concedes having excessively used the telephone, the charges of which ironically were more than the pay he was getting as Civil Judge. In these circumstances, I feel no difficulty in reaching a conclusion that it establishes that accused Civil Judge was living beyond his means and this conduct was prejudicial to the good order of service discipline.
Accordingly under section 3(c)(ii) of The Efficiency and Discipline Rules, he shall be deemed to corrupt for assuming a style of life beyond his ostensible means".
' No doubt, the punishment proposed by the Inquiry Officer regarding compulsory retirement of appellant from service was endorsed by competent authority but Service Appeal No,02 of 2002 preferred by him was accepted partially by the learned Punjab Subordinate Judiciary Service Tribunal on 31st of January, 2003 converting the major penalty of compulsory retirement into minor penalty of censure subject to withdrawal of civil suit and payment of outstanding telephone bill within one month, failing which the appeal shall stand dismissed.
' In para (3) of the judgment, the learned Tribunal concluded that non-payment of telephone bill is not denied by the appellant which is a serious matter and a conduct which is unbecoming of a Judicial Officer. It was also observed by the learned Tribunal that appeal was going to be dismissed but premium was granted regarding conversation of penalty in view of decision of Service Appeal No, 01 of 2000 titled "Zulfiqar Ali Khan Safi v. Registrar, Lahore High Court, Lahore".
' The judgment of learned Tribunal was upheld by the Apex Court as is evident from order dated 14th of December, 2006 made in Civil Appeal No,1677 of 2003.
23. No doubt, penalty imposed upon the appellant was modified but conclusion of Inquiry Officer regarding living of appellant beyond his ostensible means was not disturbed.
' While making comments in the pen picture, one of the remarks was living of the appellant beyond his known means which in the circumstances stands established.
24. However, allegation of keeping the car was answered in negative in the Inquiry Report regarding which remark was also made in "pen picture". Premium has to be granted to the appellant to the extent.
25. The Reporting Officer also rated the appellant as "Reported to be corrupt". Though while concluding para (7) of The Inquiry Report, Inquiry Officer concluded that charges (including persistent reputation being corrupt) could not be established but in para (8) of the Report (page- 12), while holding the appellant living beyond his ostensible means, it was concluded that he is corrupt within the meaning of Section 3(c) (ii) of The Punjab Civil Servants (E&D) Rules, 1999 which substantiate the remarks of Reporting Officer stamping the appellant "Reported to be corrupt".
26. Remarks given by the Reporting Officer regarding living of appellant in a rented premises at the rate of Rs .5000/- per month are to be ignored in view of conclusion of Inquiry Officer in para No, 6 of the Inquiry Report.
27. Rest of the remarks given by the Reporting Officer duly endorsed by the learned countersigning officer under the heading of "pen picture" in the absence of any contrary material, particularly in view of the failure of appellant to prove malice against appellant and omission to suggest same allegation against learned countersigning authority cannot be interfered. The remarks are unambiguous, unbiased and appears to be result of personal observation of Reporting Officer and learned countersigning officer.
28. It is further to be noted that there is nothing on record to suggest even remotely that the integrity and reputation of the Reporting Officer was not above-board. The appellant did not raise any such objection. Question of malice attributed to appellant has already been dealt with by us.
' In the circumstances, we feel no hesitation to conclude that the remarks recorded by the Reporting Officer duly endorsed by the learned countersigning authority except those, reference of which has been made M in paras (24) and (26) of the judgment are based on facts, and have to be accepted we are fortified in our view by the dictum laid down in "F.Q. Matiullah Khan Alizai v.
Chief Secretary, Government of N.W.F.P. And 5 others" (1994 SCMR 722) nd "Ch. Shabbir Hussain and others v. Registrar, Lahore High Court, Lahore and others" (PLD 2004 Supreme Court 191).
29. Epitome of above discussion is that appeal preferred by appellant subject to exceptions contained in paras. (24) and (26) of the judgment is dismissed.