MUHAMMAD ILYAS LODHI (MEMBER).---Appellant, Dr. Muhammad Mazahir, feeling aggrieved by following adverse remarks recorded by the Reporting Officer in Part V, (a) Pen-Picture, (b)
Counseling and (c) Assessm ent of performance and Countersigning Officer in Part VII (a) in the ACR Dossier for the year 1992, communicated to him (through a letter dated 20-5-1993) on 3-7- 1993:- Part V (a) Pen-Picture:- Dr. Mazahir Alain, never got settled with his posting at POF Havelian and has been using all possible means for getting away here. His performance as GDMO POF has been unsatisfactory. He avoids responsibility and does not take interest in office work and cares not even for the good name of his noble profession. He is not prepared to share the duty of providing medical cover during silent hours despite being repeatedly to do so. He is irregular in time keeping and quite often keeps away from his place of duty in POF Hospital Havelian without permission and even intimation to his officer incharge for not related to his performance as GDMO and making lobbing against his seniors one way or the other."
(b) Counselling.-- "Yes, advised to settle at POF Hav. Hosp observe timings, perform duty and share it during off duty hours for medical cover, not to leave place of duty without permission and without legitimate requirements so on.
(c) Assessm ent of 12erformance.-- Preceding columns refer."
Part VII (a).-- "Dr. Muhammad Mazahir Alam's attitude towards service has been very casual from the very beginning. He has never taken his duty seriously. He has been counseled, advised and warned personally by me many times but to no effect. He is highly irresponsible and non- cooperative to the extent of disobedience. His behavior is unbecoming of an officer/Doctor. He seems to be incorrigible and a misfit for the medical profession."
The appellant filed a departmental appeal on 1-9-1993 to the Chairman, POF, Wah to which he received no reply--hence this appeal on 28-11-1993.
2. Briefly the facts of the case are that after graduation from the King Edward Medical College, Lahore, the appellant was appointed GDMO (B-17) on regular basis in December, 1989 and posted at POF Wah. The appellant and his wife both were transferred to POF, Sanjwal, District Attock on 12- 5-1990. In September, 1991, the appellant and his wife were again transferred simultaneously to POF Dispensary Havelian and POF Hospital Wah respectively. In January, 1992 the appellant was elected unopposed Executive Member of POF Officers `Association and worked for the welfare for Officers'
Community.
3. The appellant appeared himself argued that the impugned ACR had been written/countersigned by officers who were not authorised by law to do so as explained under para 2.33 of "A Guide to Performance Evaluation" wherein it has been clearly mentioned that the report should be initiated by the next higher officer and countersigned by an officer higher than the Reporting Officer both being concerned with the work of officer reported upon. The same procedure has been adopted by the POF Wah vide their office letter dated 17-12-1991, as such respondent No. (Managing Director, POF Havelian) who initiated his ACR for the year, 1992, has never been designated his Reporting Officer and the impugned ACR was written illegally by three steps higher officer who was not concerned with the work of the appellant and is in-violation of rules. He further argued that under para. 2.33, the Countersigning Officer must be a next higher officer of the Reporting Officer, but the ACR has been countersigned by the officer who was not a higher Officer of Reporting Officer which is also violation of rules. He submitted that Reporting Officer has endorsed adverse entries in all parts of the impugned ACR Dossier in a sweeping manner as shortcomings/lapses were never communicated to him during the period (18th May to 31st December, 1992) and no warning/counseling was issued as such gradation of Reporting Officer "Below Average" in many parts of the ACR dossier and recording of adverse entries in Part V by him are illegal and are liable to be expunged.
4. The appellant also contended that remarks in Part VII by the Countersigning Officer are unjustified, unlawful and arbitrary under the rules. He was not competent to countersign appellant's ACR for the year 1992 being not a higher officer than the Reporting Officer. The Counter-signing Officer has been working at a distance of about 60 k.m. Away from the office of the appellant and he never seen appellant's working, as he has endorsed his entries/remarks without any knowledge and the appellant was also never counseled by the Countersigning Officer and no warning whatsoever (is on record) was issued to the appellant during the whole year of 1992. The appellant prayed that the appeal be accepted expunging all the adverse remarks in the ACR Dossier of 1992.
5.The legal Advisor argued that the report has been written as per provision of para. 2.33 of "A Guide to Performance Evaluation" and it is legally correct, justified and written within the jurisdiction of the competent authority. He submitted that since there was no Medical Superintendent in the Hospital of POF Havelian and countersigned by C.O. POF Hospital being next higher officer and higher than the Reporting Officer as per provision of rules, relying office orders dated 23-10-1991 and 17-2-1993. These office orders have been modified vide their letter dated 13-3-1993 and 6-4- 1993 wherein it has been confirmed that in the absence of Medical Superintendent, POF Hospital, report may be initiated by the Managing Director, POF Havelian and countersigned by Commanding Officer, POF, Havelian. He further argued that the appellant being Medical Officer posted at Havelian frequently leaves the station and is never available in the evening resulting into difficulty and non---availability of the Medical Officer in the evening, he has been given verbal warning from time to time not to leave the station. The Legal Advisor submitted that the appellant has no case and prayed that the appeal be dismissed.
6. We have heard both the parties and perused the record. The format of ACR along with "A Guide to Performance Evaluation duly approved by the Government and adopted by the POF, the instructions about the writing and countersigning the ACR dossier are as under:- "2.33. The report should be initiated by the next higher officer and countersigned by an officer higher than the reporting officer both being concerned with the work of officer reported upon."
The format of ACR adopted by the POF remained in practice till 17-12-1991 and followed the same guidelines but on 17-12-1991 amended the guidelines as under:-- Category Reporting OfficerCountersigning Officer2nd Counter-- signing Officer "SE/Civil Sanjwal/ Havelian.C.E.W MD/Sanjwal/Hvn D.O.P.
GDMO/ Sanjwal/ HavelianMS/Sanjwal HavelianMD/Sanjwal/ HavelianCO/POF Hospital MS/Sanjwal Havelian CO/POF HospitalMD/Sanjwal/ Havelian.CA.O Specialist in BS-20 C.O./POF Hospital"CA.O Chairman The departmental representative could not satisfy us that on what authority, the Chairman, POF, Wah has changed the said policy of writing the ACRs and why two non-professional officers have written and countersigned the ACR. We are of the view that the Chairman, POF cannot change/amend the policy/guidelines unilaterally without approval of the Federal Government.
7. The remarks conveyed to the appellant are also not about his professional in-competency but are about his attitude and his leaving the station in the afternoon. The departmental representative failed to prove any departmental action ever taken against him on this charge under the Government Servants (Efficiency and, Discipline) Rules, 1973. The departmental representative also could not produce any complaint about his professional conduct or inefficiency that patients at POF Havelian are not satisfied with his professional day to day functions.
8. During the course of hearing it has been revealed that the appellant being active member of Officer's Association is undesirable person under the eye of the Management and is transferred from one place to another. The Project Manager, POF Havelian being the part of the Management seems to be fed up on his being too vocal member of the Officers' Association, therefore, has passed the adverse remarks against him in the ACR.
9. In view of the above, we are of the view that since no disciplinary action has ever been taken against the appellant on the charge of leaving the station after duty hours, or about his carelessness, therefore, the Reporting Officer should have not inserted the adverse remarks about his leaving the station etc. In the eyes of justice such action amounts to condemn a person unheard and is bad in law. We, therefore, accept the appeal set aside the remarks from the ACR dossier of 1992, which shall now reads as "Average/Satisfactory" and fit for promotion. Ordered accordingly.
10. No order as to costs.
11. Parties be informed.
RANA RIFAT SAEED (MEMBER): --12. My learned brother/Member has commented in paras. 7 and 9 that without a departmental or disciplinary action against the appellant, the adverse remarks should have not bon written by the reporting officer. I do not agree with the views of my learned brother, as for writing a good or bad/adverse report, there is no need of first taking a disciplinary action against the appellant and then writing an ACR. I also do not subscribe to his observations in paras. 6 and 7 i.e. That the Chairman, POF, who is a Maj.-General/It.-General and is equivalent or of a higher status than the Secretary to the Federal Government, should not make a policy for writing and countersigning the ACRs. I do not find compelling reasons to alter the said policy for writing ACRs in POF, because the appellant could not convince for a change in the policy set forth by the Department.
13. In paras. 3 and 4, my learned brother/Member has observed that neither the said ACR has been written by an authorised reporting officer, nor it has been countersigned by a correct countersigning officer and this is violation of the rules. He has, besides other reasons, accepted the appeal and set aside the adverse remarks from the ACR of 1992 which shall now reads as `average/satisfactory` and `fit for promotion'. If an ACR is written as `good' or `bad/adverse' by a wrong and un-authorised reporting officer and countersigned again by a wrong and un- authorised countersigning officer, the lawful complexion of the ACR will still be as a non- maintainable ACR. Whether such an ACR is good or adverse, it shall be violative of the rules unlawful and non-- maintainable and mere by setting aside the adverse remarks from the said ACR shall not make it as a lawful and maintainable ACR.
14. I am, therefore, in favour of setting aside the whole ACR and remand the case to the respondent-Department with the directions to get report for 1992 of the appellant written and countersigned by correct reporting and countersigning officers. , ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---This matter has come up before me under clause (b) to subsection (2) of section 3A of the Service Tribunals Act, 1973 as there is difference of opinion between learned Members Mr. M. Ilyas Lodhi and Mr. Rana Rifat Saeed.
15. I have gone through the leading judgment of my brother Mr. M. Ilyas Lodhi, Member who has come to the conclusion that officers who were not authorised to have recorded/initiated the ACR of the appellant, could not record adverse remarks, and as such while accepting the appeal, has upgraded the adverse remarks to `Average/satisfactory' and `fit for promotion'. Mr. M. Rana Rifat Saeed, Member has remanded the matter on the ground that the reporting officer and the countersigning officers were not competent to have recorded the ACR. He has, therefore, set aside the whole ACR of 1992 and remanded the case to the respondent department to get the report written and countersigned by correct reporting and the countersigning officer.
16. I have gone through the judgments of my learned brothers. It is evident that both the Members are unanimous in their opinion that the adverse remarks were not given by proper reporting and countersigning officers. Therefore, I most respectfully disagree with Mr. M. Ilyas Lodhi, Member to the extent that the report is upgraded. In my view, the whole ACR of the appellant is nullity in the eyes of law and there is unanimous decision for which I also agree. Since the whole ACR is to be re- written, I feel that question of upgradation of the adverse remarks does not arise. I, therefore, agree with the findings of Mr. Rana Rifat Saeed, Member that the case be remanded to the respondent- Department with the direction that whole ACR of the appellant for the year 1992 be got written by proper reporting officer and the countersigning officer in accordance with the rules.
ORDER OF THE TRIBUNAL By virtue of proviso (b) to subsection (2) of section 3A of the Service Tribunals Act, 1973, the order of the Tribunal is that the case is remanded to the respondent-Department with direction that the ACR of the appellant for the year 1992 may be got written, by proper reporting officer and countersigning officer in accordance with the rules. 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.