MUHAMMAD SAJID MEHMOOD SETHI, J. / MEMBER. Through instant appeal, appellant has assailed vires of order dated 03.04.2019, passed by respondent No.1, whereby appellant's representation for expunction of remarks recorded in his Performance Evaluation Report ("PER") was declined.
2. Brief facts of the case are that vide letter dated 07.04.2018, appellant was communicated remarks recorded by the then District and Sessions Judge, Sheikhupura, in his PER regarding period from 01.01.2016 to 13.08.2016. Appellant filed representation but the same was declined vide impugned order dated 03.04.2019. Hence, instant appeal.
3. Learned counsel for appellant submits that general allegation of "a late corner who likes to avoid duty", in its nature and essence, is not only a stigma on future career of appellant but also constitutes adverse remarks. Adds that these remarks, even otherwise, are vague and without reference to any particular instance justifying formulation of the opinion, thus, same are liable to be expunged. He has placed reliance upon Malik Azhar-ul-Haq v. Registrar, Lahore High Court, Lahore [2012 PLC (C.S.) 1208].
4. On the contrary, learned Legal Advisor of respondent No.1 submits that the remarks are advisory, which were issued as a caution so that appellant may correct himself. Adds that appellant was served explanation letter dated 18.01%2016 and in response, he tendered unconditional apology vide reply dated 21.01.2016, therefore, appellant is estopped to approach this Tribunal and instant appeal is liable to be dismissed.
5. Arguments heard. Available record perused.
6. Appellant is aggrieved of the remarks appearing in his PER for the period from 01.01.2016 to 13.08.2016, which according to him being "adverse remarks" are problematic for his service career whereas stance of respondent No.1 is that the remarks were "advisory" for improvement of the appellant. For ease of reference, the remarks in question are reproduced as under:- Pen Picture ".... but generally a late corner who likes to avoid duty"
Counseling "Counselled but no progress"
No doubt, appellant tendered unconditional apology as argued by learned Legal Advisor for respondent but we have gone through the explanations tendered by appellant which show that appellant was late on two occasions by 10 minutes and one hour respectively, however, he duly intimated regarding his short leave. The unconditional apology, in the given circumstances, does not suggest that appellant was habitual late corner who liked to avoid duty.
7. Law on the subject is very clear that mere caption of the remarks is not the determining factor, rather nature and essence of the remarks would lead to the conclusion as to whether these remarks are "advisory" or "adverse". Adverse remarks indicate the defects or deficiencies in the quality of work or performance or conduct of a civil servant except the words in the nature of counsel or advice. Adverse remarks could be deciphered from the words used by the reporting officer in his remarks and the impact those words might have on the reputation and general image of the officer. Adverse remarks do not become advisory even if the reporting officer calls them advisory or the authority treats them so. Moreover, advisory remarks, at the time of promotion of the civil servant, would become adverse and carry stigma if it is found that despite the advice the officer did not make any improvement. Reference can be made to Government of the Punjab and another v. Ehsanul Haq Sethi (PLD 1986 Supreme Court 684), Engineer Jameel Ahmed Malik v.
Pakistan Ordinance Factories Board, Wah Cann through Chairman and others [2004 PLC (C.S.)
130 Supreme Court], Malik Azhar-Ul-Haq v. Registrar, Lahore High Court, Lahore [2012 PLC (C.S.)
1208 Punjab Subordinate Judiciary Service Tribunal] and Government of A.P. rep. by Chief Secretary v. Madanlal, IPS and another [2003(1) S.C.T.627].
In the case of Madanlal supra, Andhra Pradesh High Court observed that 'adverse remark' means a remark, which indicates the defects or deficiencies in the quality of work or performance or conduct of an Officer, but does not include any word or words in the nature of counsel or advice to the Officer.
In the case of Malik Azhar-ul-Haq supra, the appellant had prayed for expunction of remarks "some stinking news about integrity of the appellant have started pouring in, he should be careful (advisory)" recorded against him by the Inspection Judge. The Tribunal apparently by considering the words used by the reporting officer in his remarks and the impact those words might have on the reputation and general image of the officer, considered those remarks to be adverse even though the word advisory was clearly written against them by the reporting officer.
8. In view of the foregoing, we are of the candid opinion that remarks in question are "adverse" and cannot be considered "advisory" by any stretch of imagination. The available record does not provide basis or direct evidence for the remarks i.e. generally a late comer who likes to avoid duty.
It is also not discernible from record that any counseling or warning was ever issued to appellant alarming him for the alleged lapse of being late repeatedly.
9. Resultantly, this appeal is allowed and impugned order is set aside. Consequently, impugned remarks stand expunged.