1. SAHIBZADA MUHAMMAD FARIDUN KHAN (MEMBER).-- Inayatullah Khan was a PCS Officer of the Judicial Branch in the N.-W.F.P. and was posted as District and Sessions Judge, Mansehra, during the year 1981 when a show-cause notice was served on him under the Efficiency and Discipline Rules, 1973 on 12th/16th December, 1981 by the Chief Justice of Peshawar High Court in his capacity as Authorised Officer. After getting reply of the officer, the Chief Justice/Authorised Officer submitted the case to the Governor/Authority for orders and the Governor/Authority by his order dated 23-2-1982 ordered the removal of Inayatullah Khan from service with immediate effect.
2. Inayatullah Khan filed a Review Petition to the Authority but his Review petition was rejected on 24- 6-1982. He, therefore, filed an appeal in this Tribunal on 15-7-1982 questioning the order of his removal from service. The Tribunal observed that the only ground on which a show-cause notice was issued to the appellant and for which he was removed from service was that there were some adverse reports against him in his Annual Confidential Record. The Tribunal after the careful examination of the Confidential Record of the appellant concluded that so far as the punishment is concerned, the appellant has been treated harshly and accepted appeal to the extent that the punishment of his removal from service was converted into one of compulsory retirement on 12-3- 1984.
3. Inayatullah Khan the appellant filed a Civil Appeal No, 7-P of 1988 in the Supreme Court of Pakistan against the judgment of the N.-W.F.P. Service Tribunal, Peshawar dated 12th March, 1984 whereby the penalty awarded to the appellant of removal from service was converted into one of compulsory retirement. Simultaneously the Government of N.-W.F.P. also filed a Civil Appeal No, 8-P of 1988, challenging the same order of the Service Tribunal whereby the appeal of Inayatullah Khan was accepted to the extent stated above.
4. Leave to appeal was granted to the appellant in Civil Appeal No, 7-P of 1988 to consider whether the impugned judgment of the Service Tribunal was a proper and legal disposal of the appeal filed before Supreme Court of Pakistan. Since leave was granted in the case of the appellant on this point, it was likewise granted to the N.-W.F.P. Government in Civil Appeal No, 8-P of 1988.
5. After hearing counsel for Inayatullah Khan and learned Advocate-General, N.-W.F.P., the Hon'ble Judges, Supreme Court of Pakistan noted that in the case of the appeal namely Civil Appeal No, 7- P of 1988 the Tribunal has only passed a casual order which does not appear to be either well considered or a reasoned one. The appeal was allowed and remanded to N.-W.F.P. Service Tribunal, Peshawar for deciding that afresh after hearing the parties. Appeal No, 8-P of 1988 filed by the N.- W.F.P. Government was also disposed of accordingly.
6. We have heard the learned counsel for the appellant as well as learned special Government Pleader assisted by the representatives of the department and have perused the record of this case minutely with their assistance. Inayatullah Khan the appellant was appointed as Civil Judge on 26th April, 1966. He was promoted as Additional District Judge in December, 1973. Subsequently in 1978 he was promoted as District Judge. According to learned counsel a show-cause notice was sent to him in December, 1981 pertaining to two adverse entries in his A.C.Rs, in 1972 and in 1974. It was argued that if there was an adverse entry in 1972, its effect should be considered to have been washed away because the appellant was promoted in 1973 as Additional District Judge despite the said adverse entry. So far as the second adverse entry is concerned, it was argued that that too should have been considered as of no consequence as the appellant was further promoted as District Judge in 1978.
7. In addition to the above two adverse entries in the Annual Confidential Reports for the years 1972 and 1974 he was also charged in the show-cause notice for complaints against his integrity, irresponsible conduct and number of warnings issued to him. From the perusal of the record produced by the department and minutely examined by us in their presence as well as in the presence and consultation of the Special Government Pleader nothing was proved against the integrity, irresponsible conduct and warnings issued to the appellant. In fact it transpired from the record made available that the appellant had a clean record of service. During the entire period of his service till his removal from service on 23-2-1982 no enquiry of any sort had ever been constituted against the appellant for corruption etc. Even the entry in his A.C.R. for the year 1972 which had been considered as an adverse report contained nothing which could be strictly termed as an adverse-report, rather the appellant was considered fit for promotion. The adverse entry in the A.C.R. for the year 1974 against the appellant could also not be substantiated because the report is contradictory. The Reporting Officer had stated in 1974 that he was watching the appellant for the last three years whereas the same Reporting Officer had initiated the A.C.Rs, of the appellant for the years 1972 and 1973, whereas he had given the appellant no adverse reports in the A.C.Rs, for both preceding years. These facts were discussed at length and had been admitted by the learned Special Government Pleader N.-W.F.P. in the presence of the representatives of the concerned Administrative as well as attached department. The Reporting Officer should have sufficient evidence to substantiate the adverse remarks recorded in the A.C.R. of a subordinate, whereas in this case there was no such evidence available.
8. In view of the above we are of the considered opinion that as these entries pertain to the years 1972 and 1974 were not even communicated to the appellant in time, but after a lapse of 7 to 9 years and that too without any substantial evidence, could not be taken for disciplinary action against him. Furthermore we find that the Reporting Officers who recorded these entries in the A.C.Rs, of the appellant for the years 1972 and 1974 are either dead or retired and the respondents in the case have failed to justify the assessm ent of the said entries against the appellant, therefore, these entries are liable to be ignored. We are further in accord with the learned counsel for the appellant that despite these two entries on his record in the years 1972 and 1974, the appellant was promoted as Additional District and Sessions Judge in December, 1973 and as Sessions Judge in 1978, therefore, action under Efficiency and Discipline Rules, 1973, on the basis of entries on his Character Roll relating to years 1972 and 1974 would be highly unjustified.
9. In the light of the above analysis of the entire case and the service history of the appellant, we hereby accept the appeal, set aside the impugned order and direct that the appellant be reinstated forthwith with all the back benefits due to him. There will be no order as to costs. Appeal accepted, and the file be consigned to the record room.