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Case No. 104/119 of 1983, decided on 2nd October, 1983.

‑‑‑S.5‑‑Filing of appeal‑‑ Condonation of delay‑‑Civil servant producing medical certificate in support of illness of his wife and being in disturbed mind failing to contact his counsel for submission of appeal earlier‑ Adverse remarks in his Annual Confidential Report relating to calendar year 1979 communicated to him after a lapse of nine months requiring concession for condonation of delay‑‑Grounds advanced, held justify condonation of delay and as such delay condoned.

‑‑‑ Adverse remarks, expunction of‑‑Adverse remarks given to civil servant substantiated from record‑‑Such remarks, held, cannot be expunged.

Masud Ahmad Riaz for Appellant.

A.G. Humayun, District Attorney for Respondents

Mr. Fazal Dad, A.S.I. No. 372 has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Superintendent of Police, Sargodha and the D. I.‑G. , Police, Sargodha Range, Sargodha as respondents.

2. By virtue of this appeal the appellant has prayed that the impugned orders, dated 28‑3‑1981 (Annexure 'A') and final order, dated 7‑10‑1982 (Annexure 'C') be set aside and the adverse remarks in question be expunged.

3. Brief facts of the case are that the appellant was communicated adverse remarks from his Annual Confidential Report for the period from 3‑1‑1979 to 30‑11‑1979, vide order, dated 28‑3‑1981 of respondent No. 2 as follows:‑

The appellant made an appeal to the Deputy Inspector‑General of Police, Sargodha Range, Sargodha which was rejected vide order, dated 7‑10‑1982. Hence this appeal.

4. I have heard the parties. It has been submitted by the learned District Attorney that the representation of the appellant was rejected by the Deputy Inspector‑General of Police, Sargodha Range, Sargodha vide order, dated 7‑10‑1982 and the appellant should have made this appeal to the Tribunal within 30 days of this date, but the appellant has presented his appeal to the Tribunal on 2‑3‑1983. Thus, the appeal is time‑barred by about four months and the appeal is liable to be dismissed on this score alone.

5. On the other hand the learned counsel for the appellant has submitted that he has filed an application under section 5 of Limitation Act for condonation of this delay, wherein full justification has been given for the condonation. He has pointed out that keeping in view the grounds and facts mentioned in the application, there is full justification for condonation of delay. He has elaborated these unavoided circumstances by mentioning that the appellant's wife fell ill as is clear from the photo copy of the medical certificate attached with the appeal. The appellant was, thus, in a disturb mind due to his unavoidable family circumstances and was not in a position to contact his counsel for submission of his appeal earlier. It has also been pointed out by the learned counsel for the appellant that though the impugned order was passed on 7‑10‑1982 but it was got noted from the appellant on 4‑11‑1982. Thus, the period involving for condonation is less than three months and there is every justification for its condonation keeping in view the unforseen circumstances of the appellant which were beyond his control. It has been further submitted by the learned counsel for the appellant that though the adverse remarks. were for the calendar year ending 1979 but the same were communicated to the appellant on 28‑3‑1981 after lapse of months together, though these were required to be conveyed at the most by the end of June, 1980. Thus, the respondents have conveyed these adverse remarks to the appellant after lapse of nine months. Thus the respondents are also at fault for not conveying the adverse remarks in time. A concession could also be given on similar grounds to the appellant for condonation of delay. It has further been contended by the learned counsel for the appellant that the appellant has a strong case on merits. It will be inequitable if this appeal is rejected on the basis that it has been filed late by few days.

6. On merits, it has been submitted by the learned counsel for the appellant that it has been conceded by the respondents in their parawise comments submitted to the Tribunal which reads as follows against para. 1:‑

"This contention of the appellant is further rebutted by the crime figures put up by the S.H.O. Sillanwali about his working which also showed that he was an average type of an officer."

It has also been submitted by the learned counsel for the appellant that there were only 5 cases registered regarding theft of property concerning to the appellant, out of which 3 cases were recovered and the remaining 2 would have also been recovered if the appellant would have not been transferred to Mianwali. The above facts and the concession of the respondents through parawise comments, make it clear that the working of the appellant was average, thus the adverse remarks "Investigation of crime against property Below average" are uncalled for and cannot be sustained. As far as adverse remarks about "Integrity being Controversial"; the respondents in the same parawise comments submitted to the Tribunal on the appeal of the appellant, against para. 2 at page 2, have mentioned as follows:‑

"It is correct that there was no complaint in writing on the record of the appellant for the period of 1979. The assertion of the appellant that there had been no complaint against his integrity in the illaqa was unfounded. As the practice is that members of the general public do not depose against the appellant for obvious reasons in black and white."

It has been pointed out by the learned counsel for the appellant that these remarks make it abundantly clear that there was no complaint 'against the appellant regarding his integrity. His integrity was not controversial, entry made is arbitrary and also been made without applying proper mind and keeping in view the instructions on the subject by the report officer. The learned counsel for the appellant has specifically relied on paras. 2 and 15 the instructions issued by the Inspector‑General of Police, Punjab, in Revised Standing Order No. 32 regarding writing of Annual Confidential Reports and communication of adverse remarks.

7. The arguments of the learned counsel for the appellant advanced in para. 6 above, have been controverted by the learned District Attorney relying on the parawise comments submitted by the respondents on this appeal. He has also referred to letter No. 313‑CRC, dated 11‑5‑1982 of S. P., Sahiwal (the then reporting officer) to the S. P., Sargodha, wherein he has fully justified the adverse remarks. The learned District Attorney has contended that adverse remarks recorded in the A.C.R. are fully, justified and are based on facts.

8. I have given my anxious thought to the arguments of the parties and have also perused the record of this case very carefully. I consider that proper justification has been given by the appellant, in his application filed under section 5 of Limitation Act for condonation of the delay. The arguments advanced by the learned counsel for the appellant for condonation of delay are also convincing. On these grounds, the delay is condoned.

9. As far as merit of the case is concerned, there are three adverse entries made against the appellant. Entry against column "Departmental enquiry instituted against him during the year Nature of allegations and result", the appellant was awarded a censure for delaying case diaries in writing while posted at P. S. Sillanwali. This entry is substantiated from the record, cannot be expunged and, thus, will stand as it is. Entry against column "Investigation of crime against property", S. P., Sargodha, through the parawise comments on this appeal, in para. 1, has mentioned that:‑

"This contention of the appellant is further rebutted by the crime figures put up by the S. H. O. Sillanwali about his working which also showed that he was an average type of an officer. "

Thus, the Superintendent of Police, Sargodha has conceded that the appellant was an average officer. The entry "below average" under this column, thus, has not been substantiated. As far as third entry regarding "Integrity‑Controversial" is concerned, the parawise comments submitted on the appeal do not justify the same as it has been conceded in these comments, para. 2, page 2 that there was no complaint in writing on the record against the appellant. Hence this entry has been made without applying proper mind by the reporting officer and has also not been substantiated.

10. The upshot of the above discussion is that the appeal of the appellant is accepted. The impugned orders are modified as follows:‑

(1) The entry against column "Departmental enquiry instituted against him during the year Nature of allegations and result" will stand as it.

(2) The entry against column "Investigation of crime against property" be read as "average" instead of "below average".

(3) The entry against column "Integrity" is unjustified and be read as "No complaint" instead of Controversial".

There will be no order as to costs.

M. Y. M. Appeal accepted.

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