Sunday, 5 October 2014

Adverse Remarks Effect in ACR's

PLJ 2013 Peshawar 260 (DB)
Present: Mr. Justice Mian Fasih-ul-Mulk, Chairman and Mrs. Justice Irshad Qaiser, Member.
ABDUL RAUF KHAN, PRESENTLY POSTED AS ADDL. DISTRICT & SESSION JUDGE, DIR LOWER--Appellant
versus
REGISTRAR, PESHAWAR HIGH COURT, PESHAWAR--Respondent
S. A. No. 78 of 2011, decided on 22.12.2012.
KPK Sub-ordinate Judiciary Service Tribunal Act, 1991--
----S. 5--Judicial Officer--Adverse remarks--Expunction of adverse entries recorded in ACRs--Delay of about 3/4 years--Question of--Whether appellant was fair and honest during performance of duty--Validity--Adverse remarks were admittedly and there was nothing during entire carrier that any of appellant's reporting officer had made any adverse comments regarding his judicial performance and conduct--During periods under report appellant had never been subjected to any of inquiry or any disciplinary proceedings--Neither warring nor any counseling had been issued before initiation of adverse report and grading ACR--Adverse remarks of ACR were communicated after lapse of more than four years without giving any cause of delay--Since entry in column of integrity involves honesty, character and conduct of an officer, therefore, it was responsibility of authority to explain and give reasons of adverse entry but committee did not give clear picture--Such entries could not be termed as adverse--Registrar had not collected any evidence regarding integrity of appellant nor anything was pointed out to him even today--Where as there was nothing on record which might prove anything adverse to professional efficiency and attitude of appellant--Appellant in discharge of his judicial function had committed any unprofessional Act--Due to good performance additional charge of assignments were entrusted which reflected confidence of chief justice upon appellant and it was a type of commendation--If High Court had failed to explain then it would result into grave prejudice to appellant and remarks given in adverse report suffer from vagueness--Appeals were allowed.          [Pp. 264, 265 & 268] A, B, C, D, E & H
Civil Services--
----Promotion--It is settled principle that promotion has to be made on basis of seniority cum fitness--Seniority depends upon seniority list which was circulated annually where a fitness depends upon different factor including efficiency, performance, qualification of ACRs, professional out put.     [P. 266] F
KPK Service Act, 1973--
----S. 9--Civil service--Promotion--Any one can be denied promotion--Holding of promotion is punishment--Denying promotion to civil servant amounts to punishment and admittedly no punishment can be imposed without any charge sheet and inquiry--No one can be declared unfit for promotion on basis of just presumption and assumption.          [P. 267] G
Mr. Amjid Ali, Advocate for Petitioner.
Mr. Abdul Samad Khan, Advocate for Respondent.
Date of hearing: 22.12.2012.
Judgment
Mrs. Justice Irshad Qaiser, Member.--This judgment shall also dispose of Subordinate Judiciary Service Appeals No. 79, 80 and 81 of 2011 filed by Abdul Rauf Khan appellant, a judicial Officer/Member of Subordinate Judiciary, praying for expunction of adverse entries recorded in his ACRs/PERs by Administration Committee of Peshawar High Court, Peshawar and conveyed to him by the Registrar, Peshawar High Court, Peshawar as detailed below for the years 2006, 2007, 2008 and 2009.
Subordinate Judiciary Service Appeal No. 78/2011 under Sections 5 of Khyber Pukhtoon Khwa Subordinate Judiciary Service Tribunal Act, 1991, has been filed against the adverse remarks for the period 2006 communicated to the appellant vide reference Letter No. 996/Confidential dated 23.12.2011 with the following remarks:--
(i)         Integrity.                                  Not above board.
(ii)        Pen Picture.                              Stinking.
(iii)       Overall grading.                       Below Average.
(iv)       Fitness for promotion.             Not fit
2.  Service Appeal No. 79/2011 under Section 5 of the Khyber Pukhtoon Khwa Subordinate Judiciary Service Tribunal Act, 1991 has been filed against the adverse remarks for the year 2007 communicated to the appellant vide reference Letter No. 995/Confidential dated 23.12.2010. Same remarks and wording.
3.  Service Appeal No. 80/2011 under Section 5 of the Khyber Pukhtoon Khwa Subordinate Judiciary Service Tribunal Act, 1991 is against the adverse remarks for the period 2008 communicated to the appellant vide reference Letter No. 994/Confiedneital dated 23.12.2010. Same remarks and wording.
4.  Service Appeal No. 81/2011 under Section 5 of Khyber Pukhtoon Khwa Subordinate Judiciary Service Tribunal Act, 1991 for the period 2009 communicated to the appellant vide reference Letter No. 993/Confidential dated 23.12.2011. Same remarks and wording.
5.  As per averment of the appellant, he filed his representation dated 02.02.2011, against the said adverse entries but these were not disposed of by the Authority/Administration Committee of the Peshawar High Court with in the prescribed period of 90-days as required under Section 5(a) of the Khyber Pukhtoon Khwa Subordinate Judiciary Service Tribunal Act, 1991, therefore, he filed present appeals under Section 5 Khyber Pukhtoon Khwa Subordinate Judiciary Services Tribunal Act, 1991. Notice was issued to respondent who contested the appeal by submitting written reply.
6.  We have heard the learned counsel for the appellant as well as Mr. Abdul Samad Khan, advocate specially engaged by the respondent for this purpose.
7.  Learned counsel for the appellant vehemently argued that the reports of the respondent for the year 2006 and onward (i.e. 2006 to 2008) have been written after the lapse of about three/four years and for the year 2009 after one year. That one of the Hon'ble member of the said Committee was not remained Judge of the Peshawar High Court,Peshawar in the years 2006, 2007, 2008 and till the end of September, 2009. That the Committee has written the reports in its discretionary jurisdiction but without consulting the previous service record of the appellant as well as the available record at that time. That the discretion has not been exercised in accordance with the essential conditions such as open policy statement, open rules, finding, reasons etc. That under the "instructions of performance evaluation report" issued by the Government of Khyber Pukhtoon Khwa which are applicable to the case of appellant counseling/warning to the officer under report, before recording any adverse entries in his annual ACR/PER is ones right and that the appellant has not been served with any such warning/ counseling, either by the reporting officer or by countersigning authority or for that matter the Committee.That the communication of the adverse entries after the delay of about 3/4 years is the glaring violation of the relevant rules and instruction and they are required to be quashed. Reliance was placed on 1996 SCMR 256 and 1999 SCMR 1587. That appellant has earned 12 good reports before the year 2006 as well as two reports subsequent to the reports of period under appeals.
8.  On the other hand, the appeals were opposed by the respondent while arguing that the instruction are just instruction having no mandatory effect rather the same are directory in nature and non-compliance of the same regarding the time entails no consequence. Moreover it was argued that no exception can be taken of the said entries. That the appellant was reported upon as per law and rules on the subject and keeping in vide his overall performance and reputation. That he has been evaluated objectively as per law and rules and there is no ambiguity in his evaluation.
9.  From the record it reveals that appellant started his carrier as Civil Judge in the year 1994 after being selected by the Public Service Commission. He was promoted as Senior Civil Judge on 2002 and to that of AD&SJ on the year 2003.
10.  It is admitted facts that entries in the ACRs/PERs are the most important and material documents which ultimately effect the future, promotion and reputation of the officer. This recording of ACRs/PERs by the superior of a Civil Servant is a responsible and important job and at that time the officer reported upon is 100% at the mercy of his superior because after being recorded, the same becomes a basic document while considering for promotion of a civil servant. Thus "performance evaluation" can be termed as a system for making judgment about performance of an official at various levels by his superiors and is basic guideline for selection and promotion. The confidential reports rendered by reporting and countersigning officer constitute the most important basis of evaluation. Thus in view of its important character, the cause of justice demand that every entry in the ACRs/PERs of a civil servant must be based on facts and figures and not in vacuum. The report should give a clear picture of the officer reported upon, unambiguously.
11.  Admittedly the Hon'ble Peshawar High Court, Peshawar has not so far framed rules, guidelines and instruction regarding writing of ACR/PERs and in the absence of the same one has to follow the already existing instructions issued by the Government of Khyber Pukhtoon Khwa for Civil Servants which have not been discarded by the Peshawar High Court, and are in field.
12.  Para No. 3 of the instruction prescribes manner of writing the report by reporting officer. Para No. 3.7. asks for warning/counseling that the same may be insured in all cases before initiating any adverse report or grading the ACR. Para No. 5.2 of the instruction for writing ACR, has prescribed the time for communication of remarks before the end of June of each year.
13.  Admittedly the adverse remarks are for the years 2006 to 2009 and there is nothing on record during his entire carrier that any of the appellant's reporting officer has made any adverse comments regarding his indicial performance and conduct. Moreover during the periods under report appellant had never been subjected to any of the inquiry or any disciplinary proceedings. Neither warring nor any counseling has been issued before initiation of adverse report and grading the ACR/PER. Adverse remarks of ACR/PER were communicated after the lapse of more then four years without giving any cause of delay. All these facts reveals that the mandatory instruction noted above have not been observed at the time of writing of impugned ACRs and now heavy duty is cast on this tribunal to analyses these entries critically keeping in view the available record and the instruction laid down by the Government in this respect, binding on the reporting officer.
14.  In the instant appeals there are four types of remarks, firstly regarding integrity "not above board". According to Black's Law Dictionary the term integrity means soundness or moral principle and character, as shown by one person dealing with other in making or performance of contracts, and fidelity and honestly in the discharge of trusts. It is synonymous with "Probity" "honesty" and uprightness. Now the question arises whether the appellant was fair and honest during the performance of his duty? Since the entry in the column of `integrity' involves the honesty, character and conduct of an officer, therefore it was the responsibility of the authority to explain and give the reasons of the adverse entry but the committee did not give the clear picture. They have not brought an iota of substance which can prove that appellant's conduct or performance was based on dishonesty or mala fide. There is nothing on record of the appellant in the entire period of his service that whether he has been subjected to any complaint/inquiry relating to question  of  integrity.  During  the  period i.e. 1994 to 2005, he has never received any adverse ACR. In number of cases this Tribunal while discussing this remarks "integrity not above board" has already held "the same when put the litmus test does not seem to be objective in nature rather it reflects ambiguity. It seems that not above board means equal to board/average which can not be treated below average or below board or below normal line of reputation". Thus, these entries cannot be termed as adverse. The respondent has not collected any evidence regarding the integrity of appellant nor any thing was pointed out or communicated to him even today at the time of arguments.
15.  Secondly regarding pen picture the remarks are "Stinking", the dictionary meaning of which is "a strong, offensing smell, to emit an offensive smell
"              ". In this respect the Bench is unable to understand the remarks in the column of pen picture "stinking" is not giving any meaning i.e. what is stinking, why this type of derogatory word has been used by the Respondents. No explanation either oral or documentary has been given by the learned counsel for the respondent. Even during Court query he could not explain these remarks. By adding of this wording the intention and the mind of the respected Committee is unreadable, hence the same cannot be termed as objective in nature and in this way the "instruction on performance of evaluation report' have not been followed.
16.  Thirdly regarding over all grading, the appellant has been assessed as "below average". Where as there is nothing on record which may prove anything adverse to the professional efficiency and attitude of the appellant. There is nothing on record to show any thing adverse that appellant in discharge of his judicial function had committed any unprofessional act. To show his performance, appellant has produced the performance efficiency chart alongwith his appeal. Against which the respondent has not raised any objection rather in his reply it is simply stated it is a matter of record which means that they have admitted the correctness of the record produced by appellant.
17.  According to the chart pertaining to the Swat period the total cases instituted are "938". Total disposal is "964" which come to 103% while he was posted in Matta total cases instituted are 245 and total disposal is 176 which comes 72%. During Mardan period total cases instituted are 904, disposal is 679 and percentage 75%. These disposals have not been denied by respondents. Appellant also annexed the orders showing the grant of increment/honoraria and award etc. to the appellant which shows that the performance of the appellant was above average and the grant of different rewards in the shape of advance increment and honoraria proves that due to his good performance and efficiency the authority was pleased to reward the appellant. Record further  shows  that  due  to  his  good  performance  additional charge of difference assignments were also entrusted to him which also reflect the confidence of the Hon'ble Chief Justice upon the appellant and it was a type of commendation. According to the chart and record produced by the appellant and not rebutted by respondent, the appellant has performed his duties to the entire satisfaction of his superior. There is nothing on record that any complaint etc. was made by his immediate officer i.e. District and Sessions Judge or by local bar and general public including litigants. There is nothing that he was confronted with any complaint by his superior, before communicating the same adverse remarks spreading for a period of 4 years i.e. 2006, 2007, 2008 and 2009. Nothing on record to show any thing adverse that appellant in discharge of his judicial functions has committed any illegal Act. According to appellant that during the periods under report he remained punctual, efficient, alert to the best of satisfaction of all and had never violated any discipline. Respondent was not able to deny the assertion made by appellant in his memo. of appeal and representation submitted by him. Thus we are afraid that how over all grading of the appellant was assessed as adverse during the relevant period? Even today the representative of the respondent or their counsel failed to justify the said assessment and adverse the professional efficiency of appellant.
18.  Lastly, appellant has been assessed in the reports as not "fit for promotion". It is settled principle that promotion has to be made on the basis of seniority-cum-fitness. Seniority depends upon seniority list which is circulated annually where as fitness depends upon different factors including efficiency, performance, quantification of ACRs, professional out put etc.
19.  During the course of arguments learned counsel for the appellant has taken us through the record collected by him in respect of his performance and the award/reward given to him for his good performance as well as the comments/reply filed by the respondent. After careful perusal we do not find any thing in respect of the fact that appellant is inefficient or his performance is not upto the mark. He has given the detail of the judgments and orders passed by him during the period under report.
20.  In Para No. "E" of his memo. of appeal appellant has specifically pointed out his performance and stated that he has maximum number of disposals and about 90% of his decisions were upheld and maintained by the Hon'ble Peshawar High Court. In response of this para, the respondent simply stated "pertains to record and to be substantiated by the appellant". They were not able to deny the contention of appellant and to prove that he is inefficient and his performance is not upto the mark. None of his judgment, as written by him  was  pointed  out  to  be unprofessional. During the whole tenure of his service he was never/ever communicated any show-cause, charge sheet or explanation, neither any complaint whatsoever was marked/communicated to him for explanation. If for the sake of arguments he had any such deficiency then it was required to be communicated to him in the shape of explanation etc before the writing of such like adverse remarks in the ACR, on which the future of a civil servant depends. The need to communicate such remarks to the concerned is based on the salutary principles of natural justice that no one should be condemned with out being heard (i.e. Audi Alteram Partam). Para No. 3.7 of instructions on "performance of evaluation report" also ask for warning/counseling that the same may be communicated in all cases before initiating any adverse report or grading of ACR. But in the present case the principle of natural justice and the relevant rules have been violated. Now the question arises that whether in such situation any one can be denied promotion, which is a term and condition of service defined in Section 9 of Khyber Pukhtoon Khwa Service Act, 1973 and according to Section 4(1)(9)(ii) of Khyber Pukhtoon Khwa Government Servant (Efficiency and Discipline) Rules, 1973, with holding of promotion is a punishment. Denying promotion to civil servant amounts to punishment and admittedly no punishment can be imposed without any charge sheet and inquiry. No one can be declared unfit for promotion on the basis of just presumption and assumption. The record, which could not be rebutted by respondents, speaks otherwise. There is noting that appellant is in-efficient and his performance was not upto the mark. It is also important to note that appellant has been considered fit for promotion by the present Hon'ble Administration Committee in its DPC meeting held on 12.05.2012 and the relevant extract of the minutes of the meeting was communicated by Registrar/respondent to appellant vide Letter No. 8134/Admn: dated 30.05.2012 which is reproduced as under "Mr. Abdul Rauf Khan considered fit for promotion provided his previous adverse remarks are expunged by the Tribunal" it means that present committee had considered the record and came to the conclusion that the performance, professional achievements and work etc of the appellant are all up to the mark; therefore, the Committee has considered him fit for promotion. In such view of the matter we are constrained to disagree with the remarks recorded in the column.
21.  It also appears from the very date of the communication of report by respondent on 23.12.2010 that the reports pertaining to period from 2006 to 2009 contained the same wording and were written after the lapse of 4 to 5 years without giving any cause of delay and thus violated the relevant instruction. According to which the communication of entries after the delay of about 3 to 4 years is the glaring violation of the instructions. Reference in this respect if made to 1996 SCMR and 1999 SCMR 1587 where in it is held by the august Supreme Court of Pakistan that the subject remarks required to be communicated to the Civil Servant within reasonable period and in the absence of any reasonable explanation for not communicating the same within the prescribed period, the same required to be quashed. It is also important to point out that appellant has performed his duty as Civil Judge/Senior Civil Judge/Additional District and Sessions Judge from 1994 to 2005 and has admittedly earned 12 good reports before 2006 as well as two reports subsequent to the report of period under appeals. Being so, the respondent is duty bound to explain as to how all of a sudden, there was a change in the conduct and behaviour of the appellant. It is held by superior Courts that if the respondent failed to explain then it would result in to grave prejudice to the appellant and the remarks given in the adverse report suffer from vagueness. It is the consistent view of Hon'ble Apex Courts that the basic objective of rendering confidential report is to provide permanent record in order to obtain complete picture of an employee attitude toward service for judging him in the following area:--
a.         Efficiency, capacities and qualities.
b.         Suitability for promotion etc including further retention in service.
Reference is made to 1997 SCMR 1749 where in it is held:--
"In no case an officer reported upon is to be kept ignorant of the dissatisfaction of his superior officer with regard to the discharge of his duties. A reporting officer while reporting on his subordinate should be as circumspect as possible. He must be clear and direct and not ambiguous and evasive in his remarks and avoid exaggeration and gross under statement. He should also state with particularity whether any of the defects reported have already been brought to the notice of officer concerned and also whether he has or has not taken step to remedy them".
22.  For the reasons recorded above there is no legal justification to upheld the adverse remarks recorded against appellant, which stand expunged hence all the four appeals, are allowed.
(R.A.)  Appeals allowed

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