' S. ABDUL JABBAR KHAN (CHAIRMAN).-Since common questions of law are involved in the titled three appeals so these are being disposed of by a single judgment in the interest of expediency.
2. In the appeal of Mubarak Ahmad Bedar he has prayed that the adverse remarks contained in his Confidential Reports for the period 1st January, 1970 to 18th December, 1970, 17th March, 1972 to 26th July, 1972 and 27th July, 1972 to 31st December, 1972 conveyed to him by the Secretary, Communications and Works Department, vide impugned order dated 22nd September, 1977 be ordered to be expunged, because his representation for their expunction filed on 14.November, 1977 has since been rejected by the Government, vide impugn order dated 30th September, 1980.
3. In Appeal No, 218/1029 of 1981, Muhammad Farooq Chauhan has prayed that the adverse remarks contained in his Annual Confidential Report for the year 1979 for the period from 1st January, 1979 to 15th April 1979 and from 16th April, 1979 to 27th November 1979 conveyed to him, vide Communications and Works Department letter dated 8th November, 1980 be directed to be expunged because his representation filed on 20th December, 1980 had not been disposed of by the respondent although the prescribed period of 90 days had expired.
4, In his second appeal No, 299/717 of 1980 he has requested that the adverse entities in his A. C. Rs, for the period 1st January, 1971 to 19th June, 1971 20th June, 1971 to 31st December, 1971, 1st January, 1973 to 28th May, 1973 and 4th October 1974 to 31st December, 1974; communicated to him, vide C & W Department' letter dated 26th January, 1980 be ordered to be expunged because his representation filed on 25th February, 198b had not been disposed of by the respondent although the specified period of limitation had expired.
5. We have heard Mr. M. A. Riaz, Advocate, on behalf of Mubarak Ahmad Bedar and Mr. F. K. Qureshi on behalf of Muhammad Farooq Chauhan while the respondent was represented by Mr. H. R.
Cheema, District Attorney, Lahore. Mr. M. A. Riaz has argued that the adverse remarks had been conveyed to him in violation of the instructions contained in paragraph 34 of the Booklet entitled "Instructions about Confidential Reports" published by SGA & 1 D and the instructions dated 12th July, 1969 printed at pages 392-393 of 0 & M Establishment Manual, Volume I, 1974 Edition He has submitted that since the instructions of the Department had force of rules under section 2i of the Civil Servants Act. 1974 so their violation would render the impugned adverse remarks and on the representation as illegal, ultra vires, void and inoperative the rights of the appellant. In this behalf he has relied upon 1981 P C (SC) 345 Rafique Ahmad v. G. Police (1), 1980 PLC (C S) 262, 1980 PLC (C S) 558 and on the case of Ghu/am Muhammad v. Deputy Commissioner Sheikhupura Appeal No, 338/513 of 1979, decided by this Tribunal on 8th April, 1981, On merits he has submitted that the adverse remarks on the 'Power of Expression' termed as "below average" for the period from 1st January 1970 to 18th December, 1970 Is unjustified because he has never been adversely reported in the past in this behalf. Regarding the remarks that the appellant should improve his supervision and quality of his work he has submitted that this report was only for a period of five months and is in violation of the instructions. In the other two appeals of Muhammad Farooq Chauhan, Mr. F. K.
Kureshi has adopted the arguments of Mr. M. A. Riaz Adv. On legal plane and he has chosen not to argue on facts. On the other hand, the learned District Attorney has argued that the cases relied upon by the appellants are not relevant with the present appeals because the facts of those cases are distinguishable with the facts of the present appeals; so this Tribunal should not follow those judgments. He has submitted that although at paragraph 34 instructions dated 12th July, 1969 was issued by the SGA & ID to ensure timely communication of adverse remarks to the civil servants to enable them to file representations if so advised, and to improve upon their work and conduct, are only directory in nature and are not mandatory. In this behalf he has relied upon Qazi & Qazi Limited v. Sind Labour Court (2), Karachi Stevedoring Co. Limited v. Sind Labour Court (3), Muller & Phips (Pakistan) Limited v. District Magistrate, Karachi (4), Chief Commissioner, Karachi v. Jameel Ahmad (5), Pakistan Petroleum Works Pederation v. Burmah-Shell Oil Storage etc. (6) and Sutlej Cotton Mills Limited Okara v. Industrial Court of West Pakistan, Lahore (7), in support of his arguments that any violation of the instructions which are only directory in nature would not render the orders as null and void. To show that these instructions are merely directory in nature he has submitted that it is nowhere specified that if the adverse remarks are not communicated within the prescribed time the same are to be ignored. The only effect of the late communication of remarks as contained in those instructions is that the officer delaying the remarks is liable to disciplinary action. In this behalf he has also relied upon the instructions issued by SGA&I Department, vide letters No, SOR-IV (S &GAD) 14-2/72, dated 1st January 1981 and No, SOR-III (S & GAD) 14-2/72, dated 9th June, 1973. On merits in the case of Mubarak Ahmad Bedar the learned District Attorney has submitted that the adverse remarks recorded for the period from 17th March, 1972 to 28th July, 1972 have already been expugned by the Department while the remarks for the other two periods have been justified in the comments by the Reporting Officer, offered on the representation of the appellant for the expunction of adverse remarks.
7. We have examined the record of the cases and have minutely considered all the arguments of the parties with keen interest. We have also examined the judgements so relied upon by the parties. In the cases relied upon on behalf of the appellants there were violations of mandatory injunctions by the Reporting Officers which rendered the said reports {{FOOT NOTE}}
(1) 1980 PLC 384 (2) PLD 1976 Kar. 79
(3) PLD 1976 Kar. 1091 (4) PLD 1974 Kar. 261
(5) PLD 1961 SC 145 (6) PLD 1966 SC 479
(7) PLD 1966 SC 472 {{FOOT NOTE}} ' as void and the remarks were expunged by the Tribunal. For instance, in the case of Syed Abid Hussain Sherazi (1), the remarks were expunged because the Reporting Officer was not competent to record the Confidential Report of the appellant for the full period under report because he had been posted only for one month while the remarks were recorded for a period of about seven months. In the case of Rafique Ahmad v. I.G. Police Punjab (2), the appeal was accepted on facts because the adverse remarks in the absence of any specific instance being quoted by the Reporting Officer in his report or the comments on the representation for expunction of adverse remarks, these could not be justified and were not liable to be maintained in terms of para. 44 of the Booklet `Instructions about Confidential Reports' which had the force of rules under section 23 of the Punjab Civil Servants Act, 1974. Similarly, in the other two reported cases the facts were also distinguishable and are not relevant to the appeals before us. The only relevant case in this behalf is that of Ghulam Muhammad wherein we have accepted the appeal on the ground that the remarks were recorded and conveyed late after the prescribed period in violation of the instructions printed at page 355 of the 0 & M Establishment Manual, 1974 Edition. Since the cases cited on behalf of the respondents were not earlier relied upon in the said case so we have decided to examine the effect of the recording of the reports after the expiry of the prescribed period and the late communication of the adverse remarks in the light of the cases relied upon on behalf of the respondent and the instructions dated 1st January, 1981 and 9th June, 1973. In the cases of Qazi & Qazi Limited and Karachi Stevedoring Co. Limited, the Labour Court had decided the appeals after the expiry of prescribed period of 7 days in violation of the conditions , contained in Section 25-A of Industrial Relations Ordinance, 1969. So it was held by the High Court that such instructions were merely directory and their non-compliance not vitiative of decision because section 25-A was silent about the consequences which would follow in case the decision was not given by the Junior Labour Court within the prescribed period. Similarly in the case of Muller & Phips (Pakistan)
Limited, the fact was that there was a provision in para 7(1) of Martial Law Order, 1972 (Zone `D') No, 52 which laid down that the Arbitrator shall after holding such enquiry as he deemed fit, make an award in writing and announce it within seven days of the appearance of the parties before him. In this case the Arbitrator had given the award after the expiry of the prescribed period and the Karachi High Court held that while prescribing the time limit since no consequences are provided for not complying with it therefore, inspire of the use of the word 'shall' the direction as to the time within which the public official has to perform his duty should be construed as directory. In this case their Lordships have relied upon the cases reported as PLD 1961 SC 145, PLD 1961 SC 479 and PLD 1966 SC 472 wherein the Hon'ble Supreme Court while construing section 15(1) of the Industrial Disputes Act XIV of 1947, which prescribes time limit in relation to the award which was made after three months held that the consideration of time will not operate to take away the jurisdiction which is intended for the purpose of securing expedition of the adjudication. Since no consequences for the violation of the law or any instruction were provided in the cases referred to above the said provisions were held to be directory in {{FOOT NOTE}}
(1) 1980 PLC (C S) 384 (2) 1981 PLC (C S) 345 {{FOOT NOTE}} ' nature and got mandatory. The violation of any directory instruction or law does not vitiate the orders passed thereunder, while the violation of the mandatory instructions or law would render the orders passed there under as vitiating and void. So in this view of the matter we have to examine the nature of instructions contained in paragraph 34 and other instructions relied upon by the parties. What we find from their perusal is that whereas the violation of the instructions on the part of the Authority not complying with them or complying the same late had rendered them liable to disciplinary action but there is no provision as to the treatment which is to be given to the report itself. However, in the letter dated 9th June, 1971 there is the following instruction in sub-para. 3 which is reproduced hereunder verbatim for the sake of convenience :- "The remarks from the year 1968 onwards, even if not communicated should not be ignored. As soon as the failure of communication comes to the notice the remarks should be communicated and the officer given an opportunity to represent for their expunction."
7. In view of the said Instruction which has the force of rules under section 23 (2) of the Punjab Civil Servants Act, 1974 and the cases relied upon on behalf of the respondents we hold that the instructions contained in para. 34 of the Booklet, 'Instructions about Confidential Reports' and other instructions referred to in this context, are merely directory in nature and their violation do not render the adverse remarks as illegal and void. Consequently, the argument of the appellants that the reports having been written and communicated after the expiry of the prescribed period would render the report as void is repelled and is overruled. After we have discussed these appeals on legal plane we would consider the appeals on facts. In the appeal of Mubarak Ahmad Bedar since the adverse remarks for the period from 17th March, 1972 to 24th July, 1972 have been expunged by the Government so the appeal has become infructuous to that extent. Regarding the other remarks, we have carefully examined the comments offered by the Reporting Officers on the representation of the appellant. Mr. Ashfaq Hassan has, while justifying that the 'power of Expression' of the appellant was "Below Average", stated that the appellant was in the Research Station for almost a year without producing any report or paper and has not furnished any proof in respect of Good Power of Written Expression. This would show that by rating the 'Power of Expression' as "Below Average" the Reporting Officer had only considered the Power of Writing of the appellant and not that of 'Speech', which is not relevant for the job of the appellant. Similarly, Mr. S. I.
A. Shah has also justified his remarks for the period from July 1972 to December, 1972. In this connection he has pointed out that even the Governor/MLA was highly displeased and concerned about the stagnant works on the Gujranwala Dual Carriage way and unsatisfactory, slow performance and quality of work on Gujranwala Circular Highway. He has also quoted other instances in his comments dated 10th and 27th September, 1980. As such, we see no justification for expunction of adverse remarks on facts as well.
8. In the appeals of Muhammad Farooq Chauhan, the learned counsel preferred not to argue the case on merits. But we have examined the record ourselves. In Appeal No, 299/717 of 1980 we have observed that the adverse remarks for the period from 4th October, 1974 to 31st December, 1974 are for a period of less than three months, which are against the relevant Instruction No, 4 which lays down that the minimum period during which an officer is expected to form a judicious opinion about the work of his subordinate for the purposes of writing the report on his work and conduct has been prescribed as three months and the report recorded in respect of period less than the minimum prescribed period is to be ignored. So the remarks for the said period are expunged.
9. The result is that while the appeal of Mubarak Ahmad Bedar and Appeal No, 218/1029 of 1981 of Muhammad Farooq Chauhan are dismissed the Appeal No, 299/717 of 1980 of Muhammad Farooq Chauhan is partially accepted as indicated above. However, there will no order as to the costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.