' MUHAMMAD ILYAS LODHI (MEMBER)---The appellant, Khizar Hayat has come up in appeal under section 4 of the Service Tribunals Act, 1973 for expunction of adverse remarks recorded in his Annual Confidential Report for the period from 1-1-1993 to 31-8-1993. The adverse entries were communicated to the appellant on 10-3-1994 against which a representation was made on 21-3- 1994 and after having received no reply on expiry of 90 days, the appellant approached this Tribunal on 20-7-1994 for redressal of his grievance.
2. The brief facts of the case are that the appellant was appointed as Catering Officer (B-16) in F-6, Rebuild Factory PAC Kamra on 13-2-1980. In the ACR for the period from 1-1-1993 to 31-8-1993, he was graded 'Average' which was communicated to him on 10-3-1994. He filed a departmental appeal to the Managing Director on 21-3-1994 to which he received no reply. Hence this appeal before the Tribunal on 20-7-1994.
3. The learned counsel for the appellant argued that the impugned ACR is absolutely illegal without lawful authority and mala fide as the Reporting Officer does not have any lawful authority to record the remarks in question against the appellant's ACR. He submitted that the Countersigning Officer is also of same grade to which Reporting Officer belongs. The impugned ACR is violative of the principles of natural justice as it was communicated to him after 70 days of its recording. He submitted that the remarks "unusually proceeded on sick leave/earned leave are absolutely incorrect and unsupported by any record. During this period (1993) there is only one sick report and availing of sick leave on medical ground is not a misconduct and no adverse remarks can be recorded on such ground. He submitted that if for any reason the authority competent to grant leave is dissatisfied with a medical opinion they can refer the case to a Medical Board for second opinion which was not done in his case as such the medical opinion given by the Medical Specialist shall be considered to be satisfactory. The learned counsel argued that the appellant has 14 years unblemished record of service and the impugned ACR has been recorded and reported by the Reporting Officer purely on mala fide as the appellant was directed by the Reporting Officer to attend to private works of the said Reporting Officer which was an unlawful order and the appellant has been punished only for disobeying the said illegal order of the Reporting Officer. The impugned ACR is not sustainable in the eye of law and has been manoeuvred only to deprive the appellant for promotion to the next grade. He prayed that the impugned ACR may please be set aside and order be expunged in the interest of justice.
4. The learned counsel for the respondent-department argued that the ACR of the appellant has been written by the Reporting Officer in his official capacity and reflected levels without any mala fide as the Reporting Officer was his Officer Incharge during the period from 1-1-1993 to 31-8-1993.
He submitted that the contention of the learned counsel for the appellant that the Reporting Officer and Countersigning Officer are of same grade is not correct as the initiating Officer i.e, Statistical Officer is subordinate to that of Countersigning Officer i.e, Director of Technical Service. There is no bar if both the authorities are the same scale. It is the appointment or subordination which are matters and not the scales. He further submitted that the appellant had been advised to take interest in his duties and mend his attitude towards service which he failed to improve himself. The contention of the appellant that he availed only once his sick leave is also wrong. He reported sick eight times during ACR period i.e, 1-1-1993 to 31-8-1993 and he was granted Excused Duty for five times. Apart from such Excused Duty he remained admitted in Hospital with effect from 22-6-1993 to 4-7-1993 (13 days) followed by 10 days sick leave for "Hypertension". On the contrary his past tarnished record speaks itself of his indifferent behaviour towards service. He also argued that the appellant was never asked to carry out private assignments by the Reporting Officer. In the disciplined Organization, it is out of imagination to compel a junior to accomplish private job.
Regarding his leave problems, he was accommodated wherever it was possible depending upon the exigencies of service. He submitted that the appellant has no case and the adverse entires made in the ACR of 1993 are not in violation of rules and his appeal is liable to be dismissed.
5. We have examined the record and the impugned ACR. The remarks recorded by Reporting Officer are vague and are of advisory nature. The sick leave supported by medical certificates duly approved by the authority need not to be mentioned in the ACR dossiers and remarks on sick leave are not considered to be an adverse effect. The Reporting Officer has also not quoted any specific time about the delinquent behaviour of the appellant nor he has substantiated the charge by providing any warning issued in the reporting year. Moreover, the same Reporting Officer has also recommended the appellant for promotion on his own turn in the year 1992.
6. In view of the ACR for the year 1992 the adverse remarks for the year 1993 cannot be considered as an objective assessm ent. Besides above, the Countersigning Officer has also not underlined the remarks with red ink as required under the rules. In the judgment of Saadat Ullah Mian v. Secretary, Government of the Punjab (1988 PLC (C.S.) 560) it was held that the "remarks recorded by the Reporting Officer not underlined in red ink by Countersigning Officer as communicated could not be treated as approved by Countersigning Officer".
7. Relying on the judgments reported as 1983 PLC (CS) 303, 1986 PLC (CS) 117, 1990 PLC (C.S.) 820 and 1990 PLC (C.S.) 111, we are of the view that the remarks are of advisory nature and should not be treated as adverse and also keeping in view the report of the previous year, he may also be considered fit for promotion on his turn. The appeal is disposed of accordingly.
8. No order as to costs.
9. Parties to be informed.