' MUHAMMAD AKHTAR SHABBIR (CHAIRMAN).---This appeal arises out of the facts that the appellant had been conveyed adverse remarks in his A.C.R. For the period from 10-4-1997 to 1-9-1997 entered in his C.R. Dossier by the Reporting Officer, wherein, column (a) of Part. V (Penpicture) the following adverse remarks had been made by the Returning Officer, the then District and Sessions Judge, Gujranwala:-- "An officer who was easily accessible to litigant public as well as to the section of lawyers who were known as experts in the trade of consent' decress. He never behaved like a judicial officer",
2. On being conveyed these remarks, the appellant filed a representation before the Administrative Committee of Lahore High Court for expunction of these remarks which was rejected and the appellant had been intimated accordingly, vide latter No,1014/R.H.C. Dated 30th July, 2002 by the Registrar Lahore High Court, Lahore, which .Brought the appellant in appeal before this Tribunal.
3. Learned Counsel for the appellant contended that the adverse remarks had been entered by the Reporting Officer in the C.R. Dossier of the appellant at the time when he was not the immediate Boss/Reporting Officer, much after the expiry of four years which is clear violation of the instruction of the Punjab ESTA Code. Further contended that these remarks do not pertain to the integrity of the appellant and these were with regard to the judicial decisions of the appellant which required the documentary proof.
4. On the other hand, 'learned counsel for the respondent vehemently opposed the arguments of the learned counsel for the appellant contending that delay in entering the adverse remarks against the judicial officer per se is no ground for interference by this Tribunal and that instructions contained in the ESTA Code are only directory in nature which will not vitiate the remarks. He placed his reliance on the cases of Lahore High Court Lahore, through its Registrar v. K.M. Sohel (2001 P.L.C. (C.S.) 1253) and Government of the Punjab and another v. Ehsanul Haq Sethi (PLD 1986 SC 684). Further contended that the Reporting Officer has entered the remarks in the A.C.R. Of the appellant for the period' in dispute when he was the Reporting Officer immediate Boss of the appellant though these remarks were entered after about four years. Further contended that the remarks with regard to the consent decrees passed by the appellant were rightly entered, as the Reporting Officer was the Appellate Authority for that period.
5. We have considered the arguments advanced by the learned counsel for the parties and perused the record.
6. The adverse remarks conveyed to the appellant were for the period w,e,f, 10-4-1997 to 1-9-1997, which have been entered by the Reporting Officer on 8-9-2001 when the Reporting Officer was posted as Judge of the Accountability Court. Lahore, these remarks were for the period when the appellant was subordinate to the Reporting Officer.
7. The time frame envisaged by the Instruction No,2 of the Punjab Estacode. Vol-I reads as under: "The report shall relate to as 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 the 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 Servants during the calendar year to which they 'relate. Otherwise, consciously or sub- consciously subsequent events can contribute towards the formation of opinion in respect of the past year. Thus the reports should be completed within the month of January each year.
8.. The question for determination is as to whether the delay in writing A.C.Rs, and later conveying the adverse remarks can vitiate the adverse remarks. A mater on this subject had come up before a Full Bench of the Apex-Court for consideration in the case titled as Government of the Punjab and another v. Ehsanul Haq Sethi (PLD 1986 SC 684). In this case, it was observed by the apex Court as under:-- "As for the time schedule, Instruction No,2 provide that it should be initiated within the prescribed time, that is, the first week of January and should relate to a calendar year. The purpose is two-fold, firstly, that subsequently events may not consciously or unconsciously contribute in the formation of the opinion in respect of the reporting year, and, secondly that the cases for promotions and appointments cannot be properly judged in the absence of up-to-date Annual Confidential Reports, which results in frustration amongst the Government Servants."
' This dictum was reiterated in another case titled as Lahore High Court through Registrar v. K.M.
Sohel 2001 PLC (C.S.) 1253 as well as in an unreported judgment of the Hon'ble Supreme Court of Pakistan in the case titled as Ch. Muhammad Wakil v. Punjab Subordinate Judiciary Tribunal Lahore High Court and lastly in Civil Appeal No,8/2002 alongwith many others wherein the Hon'ble Supreme Court has observed as under:-- "In view of this legal position and well known, preoccuption of the District and Sessions Judges and Judges of the High Court with ever increasing judicial work we feel no hesitation in holding that delay in initiating A.C.Rs, of some of the appellant and conveying adverse remarks to them is immaterial and cannot obliterate the adverse remarks in question. The contention that the time schedule has been prescribed so that remarks are based on the performance of the officer during the relevant year and not any subsequent event stands repelled in view of the observations made in the case of Ehsanul Haq Sethi."
9. The Hon'ble Supreme Court has laid down that delay in initiating A.C.Rs of the judicial officers is immaterial but it would not mean that the Hon'ble Supreme Court has given an open licence to the Reporting Officer for an inordinate delay, it must be a reasonable delay as laid down in the case of Ch. Saeed Ahmad v. Federation of Pakistan through Secretary, Finance Division, Islamabad and two others (1996 SCMR 256). In this case adverse remarks w,e,f, 1-1-1984 to 14-7-1984 were communicated to the petitioner Ch. Saeed Ahmad on 4-10-1988. The Countersigning Officer on 28- 2-1985 endorsed these remarks. His representation was rejected and appeal too was dismissed. He approached the Hon'ble Supreme Court. In para 9 of the judgment, the Hon'ble Supreme Court has observed as under:-- "It is true that according to the rules the A.C.R. For the year is to be completed' within the prescribed, period, but if there is some delay, it will not completely vitiate the remarks. However, depending on the facts and circumstances longer unexplained delays may adversely reflect upon the authenticity of such adverse remarks. The principle, therefore, which can safely be enunciated, is that adverse remarks should be communicated within the prescribed period and if there is any unreasonable delay the authorities should explain it with sufficient reasons, so that such remarks may be accepted as unbiased and effective. In the present case there is hardly any reasonable explanation for such delay. There seemed to be some confusion in the mind of the authorities which were trying to justify non-communication by stating that the remarks were not adverse."
I0. Same view was adopted by a Full Bench of the Horeble Supreme Court in case titled as Director Small Industries Department Quetta and 2 others v. Hameedallah Khan (1995 SCMR 768) by holding that longer and unexplained delays, however (on the facts and circumstances), could reflect upon the authenticity of such adverse remarks. Same view was also adopted in another case titled as Chief Secretary, Government of Punjab, Lahore and two others v. Muhammad Saeed Zafar and another (1999 SCMR 1587). In this case the adverse remarks against Muhammad Saeed Zafar petitioner for the period w,e,f, 1-1-1995 to 9-9-1995 recorded on 3-10-1996 were communicated on 16-2-1997 after the lapse of 4-1/2 moths. It was held in para 3 of the judgment as tinder:- "It is well settled law that adverse remarks should be communicated within reasonable period.
Hence there was unreasonable delay in communicating the adverse remarks to the respondent.
The departmental authorities failed to explain each day's delay before the Tribunal. There being no reasonable explanation for not communicating the adverse remarks within the prescribed period the Tribunal was right in not upholding such remarks and expunged the same."
11. The decisions/dictums as laid down in the cases referred to in the preceding paragraph are of the Supreme Court., it has also been settled in the case of Gulzada v. Muhammad Usman through Legal heirs and 6 others (PLD 1990 SC 465) that the. Supreme Court in a different Bench cannot sit in appeal on the decision of another Bench even if the second Bench is larger than the other one.
Decision in both situation are that of the Supreme Court.
12. In the case in hand, the question is not of delay in conveying the adverse remarks to the appellant but the point in issue is that these remarks were entered in the A.C.R. After about lapse of four years of the period of remarks and that too with regard to the consent decrees passed by the appellant as judicial officer which were challengeable through appeal or revision before the District Judge and the High Court.
13. At the time of entering the adverse remarks by the Repo ting Officer, he was neither the District and Sessions Judge, Gujranwala/Reporting Officer nor the judgments referred in the remarks were before him and there was no record before him whethet the consent - decrees passed by the appellant had been set-aside by him or by any other Appellate Authority and whether it was the result of mala fide or for ill-gotten benefit of the appellant.
14. This legal and factual aspect of the' case that the Reporting Officer entered adverse remarks in the A.C.R. Of the appellant after the lapse of four years had not been brought to the notice of the Countersigning Officer though the time prescribed for recording of the A.C.Rs, in the month of January is not mandatory. The District and Sessions Judge or the Judge of the High Court may enter the remarks with regard to any period of subordinate Judicial Officer served under the Reporting Officer other than the mentioned time even in delayed period, but according to the judgments of the Supreme Court referred (supra) it would not mean that the time be extended to un-limited period meaning thereby for years and years. In cases of ,Ehsanul Haq Sathi and K.M.
Sohel (supra), the period of conveying the adverse remarks was not spreading over years. Period of making entries in the. C.R. Dossier and conveying the same may be months or one year or so but not four years. It is quite a longer time, which is' contrary to the principle of reasonable A time.
Reasonable period cannot be spread over to years. Making entry in the C.R. Dqssier of the judicial officer after the expiry of a period of four years would not fulfil the requirements of natural justice.
15. The arguments are further strengthened by the dictum, as laid down in the case of Sheikh Mahmood Ahmed v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad (PLD 1987 SC (AJ&K) 21). In this case, the judgment of the Service Tribunal dated 2-6-1984 was challenged raising the objection that the judgment was announced by the Tribunal after a long time of hearing the arguments. The Hon'ble Judges of the Supreme Court
(AJK) observed as under:-- "The first question which is to be resolved is as to whether the judgment delivered after such a long time after hearing the arguments can be said to be valid judgment in the eye of law. It is settled law that a judgment in a civil case or for that matter in an appeal before the Service Tribunal is to be delivered soon after hearing the arguments. If there is a considerable interval between hearing the argument and announcing the judgment, it cannot be said that the judgment was delivered soon, after hearing the parties. It is not conceivable that arguments advanced one year earlier in an appeal could be fresh in the memory of the Tribunal at the time of writing judgment.
Assuming that the learned members of the Tribunal might have taken notes of the arguments advanced by the counsel for the parties, the fact remains that it could not be possible for them to have taken notes in such a detail so as to cover all the points involved in the case. It is' common experience that despite the notes taken at the time of the arguments, many details are left unnoted for the reasons that the same would remain in the memory of the Court or the Tribunal.
We are of the view that the judgment announced after the expiry of a considerable time, as in the present case, would be deemed to be a judgment delivered without hearing the parties concerned."
' Hon'ble Chief Justice of the Supreme Court (A.J & K) Raja Muhammad Khurshid Khan has further observed "that Court after the case has been heard shall pronounce judgment in open Court. Either at once or on some future day, of which due notice shall be given to the parties or their pleaders.
The words "future day". I am of the view means reasonable future day and not any day which can reasonably be construed as unreasonable. I am thus, of considered view that an unreasonable delay between hearing of argument and the delivery of judgment unless explained by exceptional or extraordinary circumstances is highly undesirable." This view has also been adopted by the Supreme Court of Pakistan in the case of Ali Khan Subanpoto v. Federation of Pakistan and others (1997 SCMR 1590), wherein it has been observed that the Service Tribunal, however, is not free to pronounce judgment at its sweet-will, whenever it likes even after considerable delay---Question as to what period will be reasonable for pronouncing judgment in a particular appeal before Tribunal will depend on the facts of each case and the legal points involved therein. No universal application can be laid down. Same view was further followed by the Hon'ble Supreme Court in case of Juma Khan and others v. Mst. Bibi Zenaba and others (PLD 2002 SC 823). The Hon'ble Judges of the Supreme Court, in this case has supported the view of the Judges of the Supreme Court (AJ&K) in case of. Sheikh Mahrnood Ahmed (supra) by observing that no inflexible rule of law prescribing a period can be laid down for the pronouncement of a judgment after conclusion of the arguments. It would always be just and proper to pronounce the judgment within a reasonable period after notice to the parties.
16. The opinion of the Reporting Officer that the appellant was easily accessible to litigant public as well as to the section of lawyers who were known as experts in the trade of consent decrees cannot be accepted, as while he was the Appellate Authority of the appellant. He did take any action or pointed out defects in his judgment passing the consenting decrees and why he kept silent for four years and why he has not reported this matter to the High Court for initiating proceedings for legal action against appellant.
17. In view of the above discussion and by following the dictum laid down in the cases referred to by the learned counsel for the appellant, we are constrained to accept the appeal. Resultantly, the adverse remarks entered in the C.R. Dossier of the appellant for the period 10-4-1997 to 1-9-1997 stand expunged.