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Case No. 546/930 of 1984, decided on 12th May, 1985.

‑‑S. 4‑Appeal against adverse remarks in A. C. R.‑Respondent Department though vigorously followed by District Attorney failing to supply relevant record enabling Tribunal to verify facts as stressed by appellant‑Tribunal in circumstances, taking view that respondent‑department was unable to rebut contention of appellant that impugned remarks were factually contrary to facts on record‑Impugned remarks, in circumstances, expunged.

P L D 1977 Lah. 924 rel.

Muhammad Aslam Sheikh for Appellant.

A. G. Humayun, District Attorney for Respondents.

Muhammad Ayub, Assistant Excise and Taxation Officer, Faisalabad has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the respondents as mentioned.

2. By virtue of this appeal the appellant has prayed that the adverse remarks in his A.C.R. for the period from 1st July, 1982 to 31st December, 1982 communicated to the appellant vide memo. No. 3468‑83/988‑E (E&T) II, dated 3rd October, 1983 by respondent No. 2, be expunged and the final order, dated 23rd May, 1984 also be set aside.

3. Brief facts of the case are that the appellant was communicated the following adverse remarks by the Director‑General, Excise and Taxation, Punjab, Lahore, vide his memo., dated 3rd October, 1983, as follows :-

"He failed to dig out the arrears of Property Tax suppressed by one Excise and Taxation Inspector namely Sarfraz‑ul‑Haq as an Internal Auditor. His checking of Entertainment duty at Tandlianwala was found questionable where entertainment duty to the tune of Rs. 58,999.80 was allegedly evaded.

Decision of which is awaited.

Just Satisfactory.

Supression of Property Tax arrears and Evasion of Entertainment Duty at Tandlianwala have been taken place due to his lack of supervision. Needs much improvement.

The official did not depict the correct demand of Property Tax in spite of repeated instructions till the end of his tenure in Faisalabad."

The appellant made a representation against the above remarks and the representation of the appellant was rejected by the Government as conveyed vide memo., dated 23rd May, 1985 of the respondent No. 2. Hence this appeal.

3. I have heard the parties i. e., Mr. Muhammad Aslam Sheikh, Advocate for the appellant and Mr. A. G. Humayun, District Attorney assisted by the representative of the respondents, on behalf of the respon dents.

4. It has been argued by the learned counsel for the appellant that as far as the adverse remark "he failed to dig out the arrears of property tax suppressed by one Excise and Taxation Inspector Sarfraz-ul‑Haq", is concerned the appellant was incharge of six heavy tax circles which included 12,500 taxable and large number of non‑taxable property units. The appellant completed the internal audit of 5 Circles out of 6 Circles by the end of October, 1982 leaving behind 6th one which was to be taken up by him in November, 1982 in accordance with his schedule of audit but the sixth circle (Sheikhupura Road, Incharge Mr. Sarfraz‑ul‑Haq, E & TI) was withdrawn from the appellant's charge and this was the reason due to which the sixth circle could not be audited and in December, 1982, the appellant was transferred from Faisalabad to Mianwali. As far as the adverse remarks. "His checking of entertainment duty at Tandlianwala was found questionable and the entertainment duty to the tune of Rs. 58,999.80 was allegedly evaded" it has been submitted by the learned counsel for the appellant that he was not at all responsible for the same. Mr. Muhammad Yaqub Shah, Inspector was the Incharge at the Tandlian wala at the relevant time. The accounts were checked by him and his superior officer E. T. O., Excise and Taxation Officer, Faisalabad as well. The dispute of alleged evasion of the entertainment had arisen due to cutting/overwriting/erasing done by the Inspector in the record. This dispute/appeal of the effected party was heard by the Director, Excise and Taxation, Sargodha/Faisalabad Division and if the decision given by the said Director is perused, it will be clear that the appellant was not at fault. Regarding the other adverse remark "Just satisfactory", it was pointed out by the appellant's counsel that keeping in view the Government instructions for writing of the A. C. R. this remark is not adverse and should have not been conveyed to the appellant. Furthermore, the remark "Suppression of Property‑Tax arrears and Evasion of Entertainment duty at Tandlianwala have been taken place due to his supervision. Needs much improvement" is the same adverse remark which has already been mentioned at para. No. I of the adverse remarks and has been repeated unnecessarily. As far as the last remark "the official did not depict the correct demand of property -tax in spite of repeated instructions till the end of his tenure in Faisalabad" is concerned, it has been pointed out by the appellant's counsel that this remark is of a general nature and according to the Government instructions on the subject, such vague and general remarks cannot be recorded in the A. C. R. of the civil servant.

5. On the other hand the learned District Attorney has relied upon the parawise comments submitted by the respondents in extenso and has submitted that the respondents have fully substantiated the adverse remarks record in the A. C. R. Therefore, there is no justification for expunction of the same.

6. This case was heard at Faisalabad Circuit on 30th March, 1985. Judgment was reserved and the decision was to be communicated to the parties. The representative of the respondents was required and directed at the time of hearing of the case to submit the complete record of this case i. e., registers showing the arrears of property‑tax suppressed by Sarfraz‑ul‑Haq, Inspector. Faisalabad and record of evasion of entertainment duty at Tandlianwala, alongwith the complete dossier of the appellant, to verify the justification or otherwise given by the appellant's counsel. The respondent Department has failed to supply the record till today in spite of the fact that matter has been vigorously followed by the learned District Attorney. A copy of the letter No. 50/DA/85, dated 23rd April, 1985 of the learned District Attorney issued to the Secretary to Government of the Punjab, Excise and Taxation Department, Lahore is also reproduced below :‑

7. This Tribunal has already in similar circumstances in case of Rashid Iqbal v. Superintendent of Police, Faisalabad and 2 others Case No. 135/615 of 1984, decided on 16th September, 1984 as follows :‑

"This case was heard at Faisalabad Circuit on 12th August, 1984, judgment was reserved and the decision was to be communicated to the parties. On this date the learned District Attorney and the representative of the Department were directed to submit the complete record of this case so that the facts of this case could be verified from the record. ' The respondent‑department has failed to supply the record till today in spite of the facts that this matter has been vigorously followed by the learned District Attorney with the respondents. Thus, it is absolutely clear that the respondents are hesitant to produce the record which might go against them. This finds support from the decision of the Lahore High Court in a case of Police Official reported as Syed Qazir Hussain Shah v. Inspector‑General of Police, Punjab and 3 others P L D 1977 Lah. 924. Relevant portion of the judgment is reproduced below :‑

"4. We called upon Mr. Muhammad Akhtar learned counsel for the respondents to produce the enquiry file and. personal file of the petitioner Since the enquiry file has ;been withheld, for whatever reason, we are constrained to observe that the enquiry in this case has not been held in accordance with the above‑mentioned rules."

A similar view was taken while deciding Case No. 396/926 of 1984, Zulfiqar Hussain Shah v. Deputy Inspector‑General of Police, Faisalabad Range and Superintendent of Police, Faisalabad, decided on 25th April, 1985. In view of the above judgments I 'am inclined to take same view in the present case. The respondents have not been able to justify the remarks in question by producing the relevant record asked for by this Tribunal. The only conclusion which could be drawn is that the respondents have not been able to rebut the contention of the learned counsel for the appellant that the adverse remarks are factuallay contrary to the facts on record.

9. The upshot of the above discussion of the case is that the adverse remarks so recorded in the A.C.R. of the appellant for the period from 1st July, 1982 to 31st December, 1982 are expunged and the impugned orders are set aside.

There will be no order a: to costs.

A. E.

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