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Case No. 295/1831 of 1982, decided on 21st February, 1983.

Adverse remarks in A.C.R.‑ Countersigning authority referring to events of subsequent year in which remarks recorded for past year‑Such remarks further not substantiated by facts on record Remarks, held, illegal, void ab initio hence not sustainable‑Plea of limitation not being relevant in case of ab initio void impugned order ignored by Service Tribunal‑Punjab Service Tribunals Act (IX of 1974). S. 4.

Masud Ahmed Riaz for Appellant.

Haroon‑ur‑Rashid Cheema, District Attorney for Respondents.

Mr. Muhammad Sharif, Assistant Food Controller, District Food Controller Office, Faisalabad has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Deputy Director, Food, Sargodha Region; Sargodha and the Director Food, Punjab, Lahore as respondents.

2. By virtue of this appeal, the appellant has prayed that the adverse remarks in the Annual Confidential Report for the year ending 1978, contained in letter dated 15‑4‑1979 (Annexure A ) and upheld in orders dated 11‑2‑1980 and 17‑5‑1982 be directed to be expunged as these remarks are void ab initio because the countersigning officer could not take notice of occurrence of 1979 in the A.C.R. for the year 1978.

3. ‑Brief facts of the case are that the appellant, Mr. Muhammad Sharif, was conveyed the adverse remarks from his A.C.R. for the yeas 1978 vide letter dated 15‑4‑1979 (Annexure A) under entry No. 12, "General Remarks by Higher Officers" as follows :‑

"Integrity not fair. More interested in Rationing work for ulterior motives. On transfer from "Rationing" to District side, he brought numerous "Safarishes" to me."

The appellant made an appeal against these adverse remarks which was disposed off/rejected by the Director of Food, Punjab, Lahore vide his order dated 11‑2‑1980 (Annexure J'). The appellant made another review petition which was also disposed off/rejected by Deputy Director Food, Sargodha Region, Sargodha vide his endorsement dated 20‑10‑1981 conveyed to the appellant vide his No. 3600, dated 17‑5‑1982. Hence this appeal.

4. We have heard the parties. The learned counsel for the appellant has argued that the impugned order dated 15‑4‑1979, is void ab initio, as the countersigning officer had made entry in the A.C.R. for the year 1978 for the occurrence which took place in the year 1979. The appellant was transferred on 26‑3‑1979 and making of observations of this transfer in the A.C.R.' for 1978, were uncalled for, defunct, illegal and thus void ab initio. The learned counsel for the appellant further submitted that if the record of this case is perused, it will be clear that the appellant did not make any "safarish" for cancellation of his transfer to the Deputy Director as is clear from the letter of the Rationing Controller, Faisalabad addressed to the Deputy Director Food, Sargodha Region, Sargo dha, wherein it has been mentioned that no representation whatsoever was made by the appellant for cancellation of his transfer; but it was a request from the Rationing Controller, Faisalabad to allow the appellant a little time to complete the pending enquiries. It is also mentioned in the same letter that the appellant did not show any eagerness for his continuance on the rationing side. Thus it is clear that the adverse remarks were given by the countersigning officer without any basis and facts. On the other hand the learned District Attorney submitted that the appeal is time‑barred and is not maintainable. He argued that the appeal of the appellant was finally disposed off on 11‑2‑1980, conveyed to him on 18‑3‑1980 by respondent No. 1 and he should have filed an appeal to this Tribunal within one month after conveying of this decision to the appellant. Thus submitting of any review petition to the respondents after that, did not help the appellant and his appeal is time‑barred by more than two years as he had filed this appeal to the Tribunal on 14‑6‑1982. These arguments of the learned District Attorney, were rebutted by the appellant's counsel that there is no time limit for a "void" order as has already been held by this Hon'ble Tribunal and by the Supreme Court of Pakistan. Furthermore. the appeal of the appellant was finally rejected on 17‑5‑1982, Refer (Annexure L) and the appeal was filed to the Tribunal on 14‑6‑1982, within one month of this rejection order, hence the appeal is well within time.

5. We have given our anxious thoughts to the arguments of the parties and have perused the record of this case carefully. We have also perused the Memo. No. S R E‑I (FI‑Sharif)‑79/7374, dated 23‑9‑1979 of the Deputy Director Fdod, Sargodha Region, Sargodha, which are the comments of the countersigning officer on the appeal of the appellant submitted to Director Food, Punjab, Lahore. Para 2 of which is reproduced as below :‑----

"(2) Mr. Muhammad Sharif, Foodgrains Inspector was transferred from the office of the Rationing Controller, Faisalabad to District Food Controller, Faisalabad, vide endst. No. SRE‑I (FI‑155‑79/ 2195 dated 28‑3‑1979 as a result of a number of complaints. It was a simple change of building and 'the transfer had the least effect on the official, in so far as pay etc. is concerned. But instead of complying with the orders, he began to bring "safarish" to the Deputy Director Food for cancellation of the transfer orders. He was warned through the Rationing Controller, Faisalabad to relinquish charge of his duties in Rationing Controller's office, and join the District Food Controller's Office, Faisalabad, but he used delaying tactics and on the other hand continued bringing pressure on the Deputy Director Food for cancellation of transfer orders. The special remarks recorded in 'the ACR of the official was the outcome of the said action on the part of the official."

The above para proves that the matter of the transfer was pertaining to March, 1979 and it did not concern the year 1978. There is also another letter of Rationing Controller, Faisalabad addressed to the Deputy Director Food, Sargodha Region, Sargodha, Memo. No. EB/RC/3099, dated 6‑6‑1979 on the same subject. The second para of which is reproduced below for ready reference :‑‑

"At the time of my taking over charge as Rationing Controller, Faisalabad on 3‑2‑1979, Mr. Muhammad Sharif was working as Rationing Inspector (Enforcement). During this short span of time I found him dutiful and efficient official. His conduct was also found quite satisfactory. On receipt of his transfer orders to District Food Controller side vide your Endst : SRE‑I (FI‑155)‑79/2195 dated 28‑3‑1979 he did not make any written representation whatso ever for cancellation of transfer. I personally requested on telephone only to allow a little time to complete the pending enquiries. It was due to this reason that he could not be relieved till 8‑4‑1979. He himself apparently did not show eagerness for his continuance on the Rationing side."

This letter clearly shows that the appellant was detained on the request of the Rationing Controller, Faisalabad to complete pending enquiries and was relieved subsequently on 8‑4‑1979. It has been clearly mentioned in this letter by the Rationing Controller, Faisalabad that the appellant did not show any eagerness for his continuance on the Rationing side.

6. From the letter of the countersigning officer i.e. Deputy Director Food, Sargodha Region, Sargodha who recorded the adverse remarks in the A.C.R. for the year 1978 (ending 31st December, 1978) it is clear that the appellant was transferred on 28‑3‑1979. It is also clear from the letter of the Rationing Controller, Faisalabad mentioned above that the appellant was detained, by him and also the appellant did not show any eagerness for his continuance on the Rationing side. Thus the adverse remarks given by the countersigning officer in the A. C.R. of the appellant for the year 1978, ending 31st December 1978, are without any foundation, basis, uncalled for and arbitrary. The countersigning officer who has recorded these adverse remarks, has himself ‑failed to justify the same while making his comments to the Director Food Punjab, Lahore on the appeal dated 13‑5‑1979 of the appellant vide his Memo. No. SRE (FI Sharif)‑79/7374, dated 23‑4‑1979 as mentioned in the above paras. Thus we hold that the adverse remarks given in the ACR of 1978 of the appellant are illegal, void ab initio and cannot be sustained.

7. As far as legal objection of learned District Attorney regarding filing of the appeal not in time is concerned, we need not go into the details of this objection as we have held. above that the adverse remarks so recorded are illegal, void and there is no need to consider the time limit in case of such void orders. Thus, this objection has no legal force and is not worth consideration.

8. Keeping the above analysis in view, we accept the appeal and direct that the adverse remarks of the appellant recorded in his A.C.R. for the year 1978, be expunged.

There will be no orders as to costs.

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