SARFRAZ HASAN (MEMBER). --Muhammad Sadiq, Sub-Divisional Officer, Bhiki Link, Sub-Division, Farooqabad has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Secretary, Irrigation and Power Department as respondent.
2. By virtue of this appeal Muhammad Sadiq had prayed that adverse remarks for the years 1975 and 1980 conveyed to him vide impugned letter, dated 4-12-1983 may be set aside.
3. The facts of the case are that vide his demi-official letter No. Estt.(CONF.)20/83, dated 4-12-1984, Deputy Secretary (Administration), Irrigation and Power Department conveyed to the appellant an attested copy of the relevant portion of his Annual Confidential Reports for the period mentioned below:--
(a) 1-1-1975 to 31-12-1975.
(b) 1-1-1980 to 2-7-1980.
(i) Not yet fit for promotion, but likely to become fit in course of time.
(ii) Requires lot of grinding to be a good officer.
By Reporting Officer.
(i)---------he allowed unauthorised construction at Shakrilea due to which he was suspended and punished with stoppage of increment under (E & D) Rules. Needs strict watch and control. By the Reporting Officer.
(ii) I consider his appraisal under items 2, 6, 10 and 11 of Part II as below average and accordingly his general assessm ent in Part III as below average. His conduct was found to be irresponsible. He is not trustworthy either.
By Countersigning Officer.
The appellant submitted a representation to the respondent against the abovementioned adverse remarks. However, no decision on the representation was conveyed to the appellant although a period of 90 days had expired. Hence, this appeal.
4. We have heard the learned counsel for the appellant and learned District Attorney and have also perused the record with their assistance.
5. The learned counsel for the appellant submitted the following main points:-
(i) The impugned adverse remarks were conveyed to the appellant after many years. This was contrary to the mandatory provisions of the rules contained in the book-let entitled "Instructions about Confidential Reports."
(ii) According to para. 2 of the booklet entitled "Instructions about Confidential Report," time of schedule has been laid down for recording adverse remarks that the remarks are based on the performance of Government servant during the calendar year to which they relate. Otherwise consciously or subconsciously, subsequent events can contribute towards the formation of opinion in respect of the previous year. However, the report for the year 1-1-1980 to 2-7-1980 was recorded on 5-11-1981 and 22-11-1981.
(i.e) According to para. 34 of the abovementioned booklet, timely communication of report containing adverse remarks was of paramount importance. However, in this case the report for the year 1975 was communicated after a delay of nearly 8 years in December, 1983. Similarly, the report for the period 1-1-1980 to 2-7-1980 was also conveyed in December 1983.
(iv) According to para. 34 of the abovementioned booklet, the authorities responsible for communication of adverse remarks should ensure that the whole report containing the adverse remarks is communicated to the Government servant concerned at the earliest opportunity.
However, in this case the whole report for the period 1-1-1975 to 21-12-1975 and 1-1-1980 to 2-7-1980 containing the adverse remarks was not communicated. Instead, only Parts II and IV containing the adverse remarks was communicated. Thus, the appellant was not in a position t---know the good remarks given to him in the preceding portion of these reports. He was, therefore, handicapped in his defence.
(v) According to amendment, dated 17-7-1982 of para. 37 of the abovementioned booklet, if the report containing adverse remarks was not communicated or if communicated, there was no record of its having been communicated and acknowledged by the civil servant concerned, the adverse remarks should be ignored for purpose of promotion and premature retirement." In this particular case, the adverse remarks for the years 1975 and 1980 had not been conveyed to the appellant by 17-7-1982 when the abovementioned amendment was made and, therefore, the adverse remarks communicated to him on 4-12-1983 could not be considered as adverse.
(iv) In the report for 1975, the appellant has been graded as average officer in Part III. Thus, the appellant had fulfilled the minimum requirements expected from an officer. Therefore, the remarks "requires lot of grinding to be a good officer" could not be treated as adverse.
(vii) Although the whole report for the year 1975 had not been conveyed to the appellant, it is presumed that the appellant was given good or satisfactory remarks against specified columns in Part II. This presumption is well based because no adverse remarks from Part II have been conveyed to the appellant. Therefore, the adverse remarks recorded under the head 'Pen Picture' are in consistent with remarks recorded in the main report.
(viii) Similarly, the remarks "Not yet fit for promotion, but likely to become .Fit in course of time" were underlined and treated as adverse in the report 1975 although there was no justification for it.
Keeping in view his seniority, promotion in 1975 was premature.
(ix) In the report for the year 1980, the first Countersigning Officer has differed with the Reporting Officer and has down-graded the Reporting Officer's appraisal under items 2, 6, 10 and 11 of Part II as below average`. Similarly, the countersigning officer has down, graded the Reporting Officer's assessm ent in Part III as below average. However, the countersigning officer has failed to quote any specific instance of unsatisfactory work and give reasons why he has differed from the Reporting Officer.
(x) The appellant's report for the period 1-1-1980 to 2-7-1980 was initiated on 5-11-1981. Therefore, a number of subsequent events influenced the formation of opinion about the appellant's work relating to the year 1980.
6. The learned District Attorney adopted the comments filed by the respondent and submitted that the adverse remarks given to the appellant were justified and his appeal may therefore, be rejected.
7. We have given anxious thought to the submissions made by both sides. On going through the record of the case, we are constrained to observe that in this case Government orders regarding timely writing A of Annual Confidential Report and communication of adverse remarks have been ignored. In this connection, attention is invited to para. 33 of the Booklet entitled "Instructions about Confidential Reports" which provides as follows:- "It is emphasized that the Annual Confidential Reports contained the assessment of the superior officers about a civil servant's character. If the confidential reports of a civil servant contains any adverse remarks, whether remediable or not, a copy of the whole report should be furnished to him at the earliest opportunity with a D.O. Letter, a copy of which should be signed and returned by the servant concerned in acknowledgement of the report. It is essential that the civil servants should be given a fair deal by communicating to them the whole report containing adverse remarks so that they may endeavour to remove the defects and improve their performance or be in a position to represent where necessary."
By withholding the whole report, the appellant was denied reasonable opportunity to represent and defend himself properly. However, the adverse remarks cannot be expunged merely on the ground that the competent authority has not complied with Government instructions regarding communication of adverse remarks. Nevertheless, the Department cannot be absolved of its responsibility in this behalf and it remains under obligation to comply with Government orders contained in para. 33 of the booklet entitled "Instructions about) Confidential Report".
Government Orders contained in para. 2 of the booklet entitled "Instructions about the Confidential Reports" provides as follows:- "The report shall relate to a calendar year. It shall be initiated in the first week of January by the initiating authority and forwarded to the higher authority in the same week. The higher authority shall give its remarks within one week. In case it is necessary to send the report to a third authority it will be sent to that authority immediately. The final authority shall also record its views within a week. Time schedule has been laid down so that the remarks are based on the performance of Government servant during the calender year to which they relate. Otherwise, consciously or subconsciously subsequent events can contribute towards the formation of opinion in respect of past year. Thus, the reports should be completed within the Month of January each year."
Similarly, Government orders contained in para. 5 of the abovementioned booklet provide as follows:- "Action when a reporting officer or a subordinate is trans--ferred.--I the reporting officer is transferred during the course of a calendar year he should be required to write a report if his transfer occurs more than two months from the date, the last report was due. Such reports must be written before relinquishing charge. The reports shall be sent to the higher authority when all the reports for the years have been written. If a subordinate is transferred during the course of a calendar year and he has worked for more than two months under the reporting officer then the latter shall record his opinion. In case he is being transferred from the jurisdiction of the higher authority then the views of the higher authority shall be obtained and forwarded to the Department/ Office where a subordinate has been transferred."
I n this particular case, the report for the period 1-1-1980 to 2-7-1980 was recorded on 5-11-1981 by the Reporting Officer and on 22-11-1981 by the countersigning officer. However, the adverse remarks contained in this report cannot be expunged on this basis only unless it is proved that subsequent events contributed to the recording o these adverse remarks in respect of his performance during the previous calendar year.
As regards the adverse remarks contained in the report for the period 1-1-1975 to 31-12-1975, attention is invited to the following:-
(i) In the abovementioned report, the remark "Not yet fit for promotion, but likely to become fit in course of time" has 'been underlined by the competent authority and conveyed to the appellant as adverse remarks. The learned counsel for the appellant has submitted that at the time of recording this remark the appellant was not due for promotion in view of his seniority and therefore this remark could not be treated as adverse. This is proved by the fact that exactly the same observation has been made about 5 years later in the report for the period 1-1-1980 to 2-7-1980 but this remark has not been underlined as adverse by the competent authority. Therefore, there was no justification to treat these remarks as adverse in 1975.
(ii) In the report for the period 1-1-1975 to 31-12-1975 the reporting officer had graded the appellant as an average officer. This was not an adverse grading. Therefore, the countersigning officer's observation "requires lot of grinding to be a good officer" could not be treated as adverse. The appellant had already earned the satisfactory grading of "average" and his inability to earn the higher grading of "good" could not be treated as adverse. Under the circumstances, there was no justification to treat this observation of the countersigning officer as adverse. At the most, it could be treated advisory in nature.
8. Keeping in view the detailed analysis of the case given above, we are of the opinion the remarks.
Not yet fit for promotion, but likely to be come fit in course of time" in the appellant's report for the period 1-1-1975 to 31-12-1975 should not be treated as adverse. Similarly, the remarks of the countersigning officer "requires lot of grinding to be a good officer" In the same report should not be treated as adverse. At the most, it can be treated as advisory in nature. This part of the appeal relating to the adverse remarks contained in the report for the period 1-1-1975 to 31-12-1975 is, therefore, accepted.
As regards, the adverse remarks contained in the report for the period 1-1-1980 to 2-7-1980, the appellant has been denied a reasonable opportunity to represent and defend himself properly.
Without access to the whole report, it was not possible for the appellant to know what grading the reporting officer had given him under items Nos.2, 6, 10 and 11 of Part II and on what basis, if any, the counter--signing officer had down-graded him as below average. However, the adverse remarks contained in this report cannot be expunged merely on the ground that the whole report had not been communicated to the appellant. At the same time the Department cannot be absolved of its responsibility to comply with the Government orders contained in para. 33 of the booklet entitled "Instructions about the Confidential Reports" and give the appellant a fair chance to represent and defend himself properly. We, therefore, direct that the whole report in respect of the period 1-1-1980 to 2-7-1980 be communicated to the appellant in accordance with the Government's standing order on the subject. On communication of the whole report, the appellant shall have a right to represent against the adverse remarks. This part of the appeal is therefore disposed of accordingly.
There will be no order as to costs. Judgment be communicated to the parties.
M.Y.H/89/Lb.S