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Case No. 105/120 of 1983, decided on 29th September, 1983.

‑‑‑S. 4‑‑Limitation Act (IX of 1908), S. 5‑‑Filing of appeal‑ ‑Condonation of delay‑‑Copy of medical certificate showing civil servant's wife falling ill and he being in disturb mind failing to contact his counsel for submission of appeal in time‑‑Adverse remarks recorded in Annual Confidential Report of civil servant for which appeal filed written in first week of January but conveyed to civil servant in September for which department also at fault and civil servant entitled to concession in such matter‑‑Circumstances, held, justify condonation of delay in filing appeal.

Masud Ahmad Riaz for Appellant.

A.G. Humayun, District Attorney for Respondents.

Mr. Fazal Dad, A.S.I. No. 372, Police Station Shahpur Saddar has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Superintendent of Police, Mianwali 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 7‑9‑1981 and 7‑10‑1982 be set aside and the adverse remarks in question be expunged.

3. Brief facts of the case are that the appellant Mr. Fazal Dad, A.S.I. No. 372, was conveyed the adverse remarks for the period 1‑1‑1980 to 11‑6‑1980 vide order, dated 7‑9‑1981 of Respondent No. 2, as follows:‑

"General remarks.

"This A.S.I. did not enjoy good reputation as I/C P.P. Jandanwala P.S. Kalur Kot, allegations of corruption were probed into, were substantiated and the enquiry papers were sent to S.P. Sargodha for necessary action as he had transferred."

The appellant made a representation to the Deputy Inspector- General of Police, Sargodha Range, Sargodha which was rejected vide his 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 un-avoided 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 unforeseen circumstances of the appellant which were beyond his control. It has been further submitted by the learned counsel for the appellant that the adverse remarks were required to be written in the first week of January, 1981 and conveyed to the appellant immediately, thereafter, but, the same were communicated on 7‑9‑1981. Thus, the respondents have conveyed these adverse remarks to the appellant after lapse of 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 four months.

6. On merits, it has been submitted by the learned counsel for the appellant that the adverse remarks recorded in the A. C. R. are not in accordance with the facts due to the following reasons:

Entry against columns "Readiness to accept responsibility" and "Readiness to expose subordinates", the appellant's counsel has relied on Annexures 'K', 'K‑I. 'K‑II', 'K‑III' and 'K‑IV' attached with the appeal and has pointed out that progress given in these annexures about the work of the appellant, fully justifies that he had been accepting the responsibilities of job. Thus, the observation "Below average" on this account, is without any facts. Similarly, a perusal of above annexures, reveals that the observation against column "Readiness to expose subordinates", is also unjustified and uncalled for. It has been further, clarified by the learned counsel for the appellant that the appellant had efficient control over his subordinates and none of the subordinates working under the appellant committed any irregularity or misconduct which was required to be reported to the higher authorities. Entry against column "Integrity" it has been submitted by the learned counsel for the appellant that this entry was a result of an enquiry instituted against the appellant. It has been pointed out by the learned counsel for the appellant that while deciding this enquiry case of' he appellant, the S.P., Sargodha vide his order dated 11‑7‑1981 had ordered that "The allegations of corruption could not conclusively proved". Thus, the appellant cannot be branded as corrupt and his integrity cannot be doubted. The above unjustified entries have, further, resulted in polluting the mind of the reporting officer to give the appellant un necessarily "class of report" as 'C'. Entry as recorded against "Genera' remarks" it has been argued by the learned counsel for the appellant that these remarks were premature, as the enquiry case had not yet been decided by the competent authority, at the time of writing the A.C.R. by the reporting officer. It was further made known by him that as is clear from the order dated 11‑7‑1981 of the S.P., Sargodha, the allegations of corruption could not be proved against the appellant. Thus on the basis of this order of the competent authority, the observation against the "General remarks" stands nowhere and are liable to be expunged.

7. It has also been submitted by the learned counsel for the appellant that this A.C.R. is for the period 1‑1‑1980 to 11‑6‑1980. During this period he worked for the period 1‑1‑1980 to 26‑3‑1980 as A. S. I., I / C. P.P., Jandanwala, from 27‑3‑1980 to 15‑4‑1980 at Police Lines, Mianwali and 16‑4‑1980 to 11‑6‑1980 on medical leave. The adverse remarks so recorded against the appellant are on the basis of his work as A.S.I. Jandanwala. This period is less than three months. This is only the active period of his service during the period under report when his work could be adjudged. According to the instructions, no A.C.R. is required to be written if the period is less than three months. Thus, this A.C.R. of the appellant is without jurisdiction and is liable to be set .aside on this ground alone.

8. The learned District Attorney has relied on the parawise comments submitted by the respondents on this appeal and also justification given by S.P., Mianwali in his Letter No. 2222, dated 18‑10‑1980 addressed to S.P., Sargodha, offering his comments on the show‑cause notice reply of the appellant. The learned District Attorney has pointed out that the adverse remarks have been fully justified by the above documents and hence they are not liable to be expunged as these have been fully substantiated.

9. 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.

10. As far as merit of the case is concerned, it is clear that the entries have been made in the A.C.R. of the appellant for the year 1980, as a result of working of appellant when he was incharge, P.P. Jandanwala (period 1‑1‑1980 to 26‑3‑1980). There are two Commendation certificates, Copies as Annexure 'L' and 'M', issued by the S.P., Mianwali, to the appellant, just prior his transfer from Jandanwala to Mianwali as follows:‑‑

"Annexure 'L'.‑‑In recognition of good work done during the week 24‑2‑1980 to 3‑3‑1980 and arresting of P.Os etc.

Annexure M'.‑‑In recognition of his good work for the week 24‑2‑1980 to 3‑3‑1980,‑regarding recovery of stolen property."

The appellant was transferred from P.S. Jandanwala in the end of this month i.e. 26‑3‑1980 and the above certificates were issued in the same months for his good work etc. Keeping these certificates in view, it cannot be said that the appellant was not an efficient worker. Hence, the entries made in columns "Readiness to accept responsibility" and "Readiness to expose subordinates" are unjustified and not in accordance with the actual facts. The entry, against the column "Integrity‑‑Corrupt" stands washed of as a result of order passed by the competent authority i.e. S.P. Sargodha dated 11‑7‑1981, wherein it has been held that the allegations of corruption could not be conclusively proved. Thus, the observation against column "Integrity" as corrupt cannot be sustained. Similarly class of report 'C' which has been as a result of the above entries, is unjustified. As far as entry against "General remarks" is concerned, this was premature. It cannot also be sustained, keeping in view the detail order passed by Superintendent of Police, Sargodha, vide his order dated 11‑7‑1981, while deciding the case of alleged illegal gratification against the appellant, as those allegations of corruption could not be conclusively proved. However, the fact of awarding "Censure" in the same order cannot be ignored.

11. The upshot of the above discussion is that the appeal of the appellant is accepted. The impugned orders are set aside. The adverse remarks recorded in the A.C.R. for the period 1‑1‑1980 to 11‑6‑1980 are expunged, except that in the column "General remarks", the factum of the "Censure", as ordered by Superintendent of Police, Sargodha in his order dated 11‑7‑1981, shall be recorded.

There will be no order as to costs.

M. Y. M.

Appeal accepted.

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