1. JUDGMENTMALIK MUHAMMAD PARVEZ KHAN, (CHAIRMAN.) - Appellant has preferred the present appeal against the order dated 13.8.1987 of respondent No.1 vide which the adverse remarks were entered in his ACR for the year, 1986 by him. He has also challenged the subsequent order dated 10.1.1988 of respondent No.3 through which his departmental appeal dated 20.9.1987 was rejected.
2. According to the appellant he was posted as Prosecuting Inspector Police at Lakki; District Bannu in the year,1986. Prior to it he had already served there but under different circumstances as this time the DSP, Mr. Zahiruddin who was on enmical terms with him due to personal reasons was after his carier and at his instance respondent No. 1 gave him the adverse remarks.He made a representation to respondent No.3 but the same was dismissed without hearing him. This practice invogue is against the principles of natural justice and the Islamic Law.He was not given any warning/explanation about his conduct during the period under reference.The adverse remarks would block his promotion.It so happened that respondent No.1 awarded a reward of Rs.200/-with recommendatory certificate to the appellant on 18.1.1986 for his over all good performance and the period in question covers the period under report surprisingly.The court may direct the respondent No.1 to place before it the Kacha Register maintained by him which contains the activities of the subordinate officials including the appellant for the year, 1986.Similarly respondent No.3 was bound to furnish the appellant with the copy of the whole report and not the particular part effecting him adversely.He placed on the record the copies of the FIRs No. 5 and 6 dated 13.1.1981 of Police Station Takht Nasratti, District Karak regarding the enmity between the appellant and the said Mr.Zahiruddin, DSP.
3. Together with the appeal there was an application for condonation of delay in filing appeal on the ground that he was awfully busy in performing his duties and accordingly could not approach the Tribunal in time.Since the impugned order is mala fide, void and illegal,therefore, the delay may be condoned in the interest of justice.
4. The respondents submitted the written statement denying the allegations of the appellant and alleging therein that the appeal is not maintainable as the appellant has not exhausted the departmental remedy before approaching the Tribunal, that the appeal is barred by time and that Tribunal, has got no jurisdiction. Further it was asserted that a DSP being always a junior officer than the S.P. He could not be in a position to influence the S.P. In awarding the adverse remarks to a subordinate officer. DSP Mr. Zahiruddin had got no enmity with the appellant and he was not instrumental in spoiling the carrier of the appellant. The remarks were the resuIt of the personal observation and knowledge of the S.P.There is no law obliging the respondents to give notice of personal hearing to the appellant. The departmental appeal contains all the grounds on which the aggrieved person relies and the authority assess the same before passing the order upon it.The same was done in the present case. The appellant was verbally warned by respondent No 1 on many occasions to mend his way. The reward of Rs.200/- along with the certificates was in recognition of his work during the year, 1985 whereas the adverse remarks relates to the year, 1986 The Katcha Register maintained by respondent No.1 is confidential document and cannot be produced in court in the public interest.The ACRs are prepared under rules, 13 ; 17 and only the adverse remarks are to be conveyed to the concerned officer and not the whole report.
5. Learned counsel for the appellant argued that ACR is such a precious document on which the entire carrier of an officer depends.It affects his seniority,promotion and further retention in service besides other co- related matters and before giving adverse remarks to an officer, the Reporting Officer as well as the Countersigning Officer are legally bound to warn/counsel him for his acts/omissions during the period under report. A perusal of the impugned remarks wuold show that his honesty was treated as doubtful and in the pen picture it was endorsed that "on occasions complaints were received against him for maintaining relations with the bad-characters of Lakki City".The Reporting Officer according to the learned counsel for the appellant was, therefore, bound to call explanation of the appellant as and when he received complaints against him but the record shows that no action was taken against the officer.His integrity was labelled as doubtful but the Reporting Officer kept quiet and mum during the whole year and at the end of the year he mentioned this fact in the ACR.Learned counsel further argued that Mr. Zahir-ud-Din the then DSP Lakki was not on good terms with the appellant so he persuaded the Reporting Ofiicer to give the appellant adverse remarks in order to spoil his carrrierAccording to the counsel since the ACR effects the terms and conditions of service of an officer, therefore, it is incumbent upon the appellate forum to summon the aggrieved person at the time of deciding the appeal/representation regarding the expunction of the adverse remarks.This was not done in the case and it is only known to the authority as to whether he applied him mind to the facts ot the case and the averment in the representation while deciding the same or not. According to the learned counsel for the appellant since the impugned order was mala fide, void and bad in law, therefore, the delay in filing the appeal may be condoned in the interest of justice.
6. On the other hand learned Special Public Prosecutor assisted by PDSP Bannu argued that appellant deserved the remarks given to him by respondent No.1 who had no enmity with him and who cannot be deemed to be under the pressure of Mr. Zahir-ud-Din DSP. There is no provision for personal hearing in the rules in such like matters. Over and above the appeal is barred by time and it may be dismissed solely on this ground.
7. We have given our patient hearing to the arguments and have gone through the record produced by the representative of the department.
8. There is no denying the fact that appeal was preferred with a considerable delay but the court is empowered to condone the same if the situation demands so and in the present case we are sure that there are sufficient grounds to excuse the delay. It is an admitted fact that the ACR is such document which effects the entire carrier of an employee so while writing the same, the Reporting Officer and the Countersigning Officer is not only responsible to his good conscious but also under the doctrine of natural justice a person must be treated fairly and judiciously and may not be condemned un-heard. They are supposed to comment upon various aspects of his personality very carefully. The ACRs may not be given on the basis of nepotism, favourism.And likes and dis- likes. The officer may not be liked by a Roporting Officer or a Countersigning authority but at the same time so far his performance, integrity, competence and other traits are concerned, he may be quite upto the mark. Therefore the ACR may not be written in a haphazard and clumsy manner.
9. It must represent the true stale of affairs during the period under report and in any case it may not reflect any happening in the year in which it is written. The Initiating authority or the Countersigning authority is responsible to call for his explanation in case if any complaints is received by them.
10. Mere writing that complaints were received during the period under report would not absolve the authority from the responsibility of writing the ACR in its true sense. What happened in the present case is that he was treated as an officer of 'B' category which presupposes his promotion in his turn. No-where in the impugned ACR he was treated as an officer of 'C' category by the Reporting Officer, notwithstanding the fact that he was labelled to be a dis-honest officer,having contacts with persons of bad character of the area. Surely if we take into consideration the adverse remarks then the Reporting Officer was legally bound to call for the explanation of the officer concerned and if not satisfied to warn him and also initiate enquiry against him if the appellant had not improved himself. This was not done in the instant case. On a look of the record of the officer we have come across the previous reports in which he was either marked a 'A' or 'B' and his performance was appreciated by his Immediate Officer throughout. It is strange to note that how the officer became dis-honest and an associate of bad characters of Lakki City for a period of 3 months only while prior and after that he received the good reports from different officers. Similarly an adverse ACR as we held earlier spoils the carrier of an officer therefore just like other departmental proceedings/enquiry so in the case of representation against the adverse remarks the appellate forum must summon the aggrieved person and hear him before the decision on his appeal/representation is made.Besides this not the adverse remarks but the entire ACRs,whether good or bad must be communicated to the officer in order to encourage him to work more efficiently and honestly and also to give him a chance to improve his defects Of course ACR guides a person so he must be aware of his good as well as bad aspects for the period under report.
11. Further-more the term average may be deleted from the ACR of the officers because in certain cases a good officer will get an average ACR from the hands of his superior who is not happy with him.It is experienced that an officer/having to his credit average ACRs will not be promoted to the next higher post, if the same falls vacant. The columns in the ACR may be cither very good or good or poor.The delay caused in filing the appeal is hereby condoned.By accepting the present appeal we remand the case to respondent No.3 who will summon the appellant within 3 months from today and made an appropriate order on the representation of the appellant, in .The light of the findings made above.In case if appellant is not called upon to explain his position within the stipulated period, the adverse remarks shall automatically stand expunged from the ACR.Parties are however left to bear their own costs and file be consgned to the record room.