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Appeal No. 213(R) of 1985, heard on 2nd October, 1986.

--- Adverse remarks in Annual Confidential Report--Countersigning Officer not supporting such remarks--Such countersigning Officer being Head of Department, his views, held, could not be brushed aside--Views of such countersigning Officer would be more relevant and unbiased.

---S.5--Appellate jurisdiction of Service Tribunal, exercise of--Where Annual Confidential Report of civil servant was not supported by countersigning Officer who was also Head of Department--Service Tribunal would expunge such remarks in its appellate jurisdiction.

Aitzaz Ahsan for Appellant.

Syed Asghar Hussain for Respondents.

Dates of hearing: 28th May and 2nd October, 1986.

--Mr. Sami-ur-Rehman, the appellant ex-Superintendent of Police, District Rahim Yar Khan, P..injab, has come in appeal against the impugned order, dated 4th September, 1984, rejecting his appeal for expunction of adverse remarks in his Annual Confidential Report for the year 1982.

2. The appellant was posted as Superintendent of Police in Rahim Yar Khan with effect from 20th July, 1981 and served there till January, 1984. During this period his Annual Confidential Reports for the years 1981 and 1983 were graded 'Good' whereas he was given an average report for the year 1982 with adverse remarks by the Deputy Inspector General of Police, Bahawalpur Range Bahawalpur (respondent No.3). The extracts of adverse remarks of the Annual Confidential Report for the year of 1982 were communicated to the appellant by the Inspector- General of Police, Punjab (respondent No.2) through a D.O. Letter No. S/7776/83, dated 4th August, 1983. Respondent No.2 communicated the adverse remarks to the appellant in routine without giving his own views in respect of the working of the appellant. However, on receipt of the D.O. Letter the appellant made a representation to the Chief Secretary to the Government of the Punjab (respondent No. 1.) . Before respondent No.1 considered the case for expunction of adverse remarks he asked for the views of respondent No.2, on the representation of the appellant. The views expressed by respondent No.2 as a countersigning Officer were contrary to the adverse remarks recorded by respondent No.3. However, respondent No.1 deemed it appropriate to reject the appeal vide impugned order, dated 4th September, 1984.

3. It was contended by the learned counsel for the appellant that the circumstances which seemingly forced respondent No.3 to record the adverse remarks in the Annual Confidential Report for the year 1982 are not justifiable. The performance of the appellant during the year 1981 which was also the first year of his independent charge was recorded as 'Good' by respondent No.3. During the year 1982 unfortunately the appellant had his leg fractured in an accident and therefore, remained bed-ridden for about four months. Naturally during this period it could not be expected of the appellant to be just as active physically as before. But in spite of his illness there is no evidence on record that the appellant did not do his best under the circumstances to discharge his duties. It was submitted by the learned counsel for the appellant that the District of Rahim Yar Khan is a border District of the Province of the. Punjab and it has its own peculiar problems of inter-provincial crimes. The uneven demarcation of geographical boundaries of the district creates an uncomfortable situation for the district police to combat crime especially the infiltration of criminals of Sind province and criminals from across river Indus. The District Police as such is faced with the prevention and detection of crime within the district and to ward off criminals intruding from the border area. The culprits from border area use the technique of hit and run. It was contended by the learned counsel for the appellant that in spite of this background this is well-known to the Administration that the crime rate in the District was kept well under control. A table of comparative figures of the Dacoity and Robbery is summarised below:

Decoit Robber

1973 - 36

1974 - 32

1975 1 8

1976 - 20

197 7 - 11

1978 1 11

1979 2 11

1980 2 11

1981 1 4

1982 3 10

It is evident from the above that the registered cases in the District during 1982 were not so alarming and compare favourably with the previous years.

4. It was argued by the learned counsel for the appellant that while considering the registration of criminal cases in the District there was an apparent effort to exaggerate the factual position to make it look rather bleak. The following examples would be sufficient to illustrate this point:

(a) Murder of Colonel Barkat on the National Highway. This happened on 29-1-1981 in the area of Police Station Saddar Rahim Yar Khan. This is the period when the appellant was not yet even posted as Superintendent of Police, Rahim Yar Khan.

(b) The dacoity in Police Post Ahmedpur Lumma.

This case was registered in 1983 and, therefore, has no bearing on the performance of the appellant in year, 1982.

5. It was further contended that it would be totally unfair to conclude that the registration of the cases go to prove that the appellant had no control over the situation in the District. As a matter of fact what is more important in this case is whether the investigations in the case of the registered cases were carried out effectively so as to submit the challans for trials in the Court. The analysis of the investigation of the registered cases would reveal that there was not a single case which was not detected and properly dealt with under the law. It has been brought out previously that the control of crime in this border District is a difficult task. However, no stone was left unturned by the District police under the direction of the appellant to apprehend the culprits as soon as possible and bring them to the book. It was submitted that according to the record the position of the crime was well under control for the year 1982. In all 4,081 cases were registered as against 4,559 cases reported during the year 1981 which depicts a decrease of 478 cases. Also, under the head "Crime against persons as per record in the year 1982, cases were recorded as against 1981. This clearly shows that the contention of respondent No. 2 in this regard is not supported by facts. This may be his general impression which led him also to indulge in exaggeration.

6. It was further argued that the contention of respondent No.3 as regards the receipt of applications during the year 1982 does not seem to prove anything cogent. It was submitted that the appellant received 1,050 applications during the year under review, which works out to about 84 applications in a month. It may be that due to illness of the appellant the Range D.I.-G. may have as well received a good number of applications but this does not in any way prove his inaccessibility to the people. If the appellant remained bed-ridden during the year 1982 which was beyond his control, it should not be concluded that he was not available to take decisions and give direction to his subordinates. Any other conclusion would only be figment of one's imagination to say the least.

7. It was contended that during the year 1982 there was no untowards incident which has been quoted by respondent No.3 to prove his point of view that the appellant was either acting as a camp follower or took hasty decisions to decide the cases. If anything such qualities of the appellant should have been displaced both during the years 1981 and 1983. It cannot be expected that such serious handicaps of the appellant as mentioned in the list of adverse remarks for the year 1982 could have suddenly cropped up in the personality of the appellant and then disappeared without leaving a trace in the year 1983. It only goes to prove that these remarks were rather unfounded and not based on facts. There appears to be an error of judgment on the part of respondent No.3, while assessing the appellant.

7. It was strongly contended by the learned counsel for the appellant that respondent No.3 was probably not very serious when he recorded his remarks regarding the factor of "reliability under pressure" in respect of the appellant as 'below average'. This is regarded as a serious slip because the adverse remarks are not once again supported by any specific instance. As a matter of fact if the reliability of the appellant was so low as to be recorded 'below average' then it should i have been natural for respondent No.3 to ask for an immediate posting of the appellant out of the district. The alarming crime situation as depicted by respondent No. 3 which apparently made him to record the adverse remarks in the C.R. of the appellant should have also resulted in the appellant's immediate removal rather than allowing him to continue to hold the charge of the district.

8. The learned counsel for the appellant strongly contended that it was not correct to assume that respondent No.2 agreed with respondent No.3 while communicating the adverse remarks to the appellant respondent No.2 merely conveyed the remarks while signing the C.R. form in. a routine manner in the hope to sort out this matter when a representation by the appellant is received. This mental attitude of respondent No.2 is apparent from his remarks recorded in the C.R. for the year 1982.which are appended below:

"Convey the underlined and in brackets ( ) in red ink."

This only shows that respondent No.2 was not yet sure whether to record his agreement or disagreement with the reporting officer till he had heard the story from the other side. Once the representation of the appellant was received, respondent No.2 did not hesitate to record his views, which are very positive and contradict the views of respondent No.3. It makes a strong case for the expunction of the remarks in the C.R. of the appellant without any doubt.

8. We have heard the learned counsel for the respondent-department who contended that two good reports of the appellant by respondent No. 3 for the years 1981 and 1983 go to prove that there was, no mala fide on the part of respondent No.3 to record an adverse report for the year 1982: On the other hand it showed that respondent No.3 remained fair and recorded only what he observed. It was further argued that as far as the competent authority was concerned it was up to him to accept or reject the views expressed by respondent No.2 and his exercise of discretion cannot be challenged.

9. It was further argued that since the letter conveying the views of respondent No.2 is signed by a Staff Officer, it was not sure if the remarks were those of respondent No.2. This fact was later. checked and found to be as desired. It was respondent No.2 who had approved his remarks on the file. The letter was signed by the Staff Officer in routine.

10. We have gone through the record presented by the respondent Department and we have also gone through the adverse remarks of the reporting officer and also the comments and views expressed by respondent No.2. We have observed that respondent No.2 has not supported the views of respondent No. 3, the reporting officer of the appellant. In fact respondent No. 2 has tried to prove that the performance of the appellant during the year 1982 remained just as good as it was in the previous year i. e. 1981. Respondent No.2 had also reflected on the crime situation of the District and concluded that there was nothing so alarming as to force respondent No.3 to record the adverse remarks. It has, however, not been made clear as to why respondent No.2 did not disagree with respondent No.3 in the first instance when he conveyed the adverse remarks to the appellant. But this should not stand in the way of a just and a fair analysis of the case. In our opinion, it may be that respondent No.1 considered it appropriate to ignore the positive remarks of respondent No. 2, but under no circumstances the importance of these remarks can be minimised. Also, respondent No.2 is the Head of the Police Department in the Province whose views cannot be brushed aside so easily. respondent No-2 has an overall picture of the Province in mind while countersigning the reports of a large number of officers under his control. This is an important responsibility to discharge in respect of writing C . Rs. In our opinion his views are more relevant and unbiased. While exercising discretion one must remain judicious. It should not result in jumping fron one extreme to another. A minor slip on the part of an intermediary officer should not be made a basis to take a decision quite otherwise. If necessary respondent No.2 could have been asked to explain his role.

11. In view of the above statement of facts, we, therefore, in exercise of the powers conferred on the Tribunal under section 5(1) of the Service Tribunals Act, 1973 accept the appeal and expunge the adverse remarks recorded in the Confidential Report of the appellant for the year 1982. We further direct that respondent No.2 be asked to up grade the 'over all grade' in the C.R. for 1981 of the appellant appropriately after action for expunction of the remarks is implemented.

12. No order as to costs.

A.A.

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