Himachal Pradesh High Court
Between vs Superintendent Of Police on 17 June, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 17th DAY OF JUNE, 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No.2887 of 2019
Between:
BHUPINDER PAL SON OF SHRI PARAM DEV, R/O
VILLAGE DRUBAL, PO KOT, (TUNGAL) KOTLI,
DISTRICT MANDI, H.P. PRESENTLY WORKING AS
ASI IN IRB PANDOH, DISTRICT MANDI, H.P.
....PETITIONER
(BY MR. ONKAR JAIRATH ADVOCATE WITH MR.
MR. PRASHANT SHARMA AND MR. AJEET
SHARMA, ADVOCATES)
AND
1. STATE OF H.P. THROUGH SECRETARY(HOME)
GOVT. OF H.P. SHIMLA-2.
2. THE DIRECTOR GENERAL OF POLICE,
SHIMLA, H.P.
3. INSPECTOR GENERAL, CENTRAL RANGE
MANDI, DISTRICT MANDI, H.P.
4. SUPERINTENDENT OF POLICE, KULLU,
DISTRICT KULLU, H.P.
....RESPONDENTS
(MR. SUDHIR BHATNAGAR, ADDITIONAL
ADVOCATE GENERAL).
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the
following:
ORDER
In the year 1983, petitioner was initially appointed as constable with the respondent-Department and was promoted to the ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 2 post of A.S.I. on 14.07.2000. While he was posted as ASI in the office of Superintendent of Police, Kullu, FIR was lodged on 13.6.2005 .
against a foreigner namely, Kozi Tateno (Japanese) and the petitioner under Section 13(2) of the Prevention of Corruption Act and Sections 201, 212, 217 and 120-B of IPC. Department after having placed the petitioner under suspension on 13.06.2005 initiated departmental inquiry. Inquiry Officer submitted the report stating therein that since the criminal case has been registered against the petitioner, he should not be proceeded departmentally on the same set of charges.
Aforesaid report of inquiry was accepted by the Commandant, 1st Indian Reserve Battalion, Mangarh, District Una on 29.1.2007 vide Annexure P-2. Subsequently, petitioner was acquitted in corruption case vide judgment dated 22.08.2008/23.08.2008 passed by learned Special Judge, Kullu, District Kullu, H.P.(Annexure P-1). After acquittal of the petitioner in criminal proceedings, departmental inquiry was initiated on 16.6.2005 against the petitioner on the same set of charges. Interestingly, respondent No.3 after hounourable acquittal of petitioner in criminal proceedings, again directed respondent No.4 on 30.11.2009 to hold fact findings inquiry that in what manner pass port was handed over to Kozi Tateno. The fact finding inquiry was conducted by Superintendent of Police, Kullu, who submitted his report on 21.1.2010. On the basis of the report of fact finding inquiry, fresh inquiry was ordered to be instituted against the petitioner on 9.4.2010. However, same was withdrawn on 4.5.2010 and thereafter ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 3 again fresh inquiry was instituted against the petitioner on 3.6.2010.
However, petitioner was again absolved by the inquiry officer on .
6.6.2011. The Departmental Promotion Committee met on 28.10.2011, wherein name of the petitioner was recommended for promotion to the post of Sub Inspector, however, when the matter went for approval of the recommendations of the Departmental Promotion Committee, respondent No.2 instead of approving the same, instituted fresh inquiry to be conducted by the Deputy Superintendent of Police (Headquarters) Kullu, District Kullu, H.P.
2. Being aggrieved and dissatisfied with the aforesaid action of respondent No.2, petitioner herein filed writ petition bearing Civil Writ Petition No.1145 of 2012-E, praying therein for following reliefs:
"i). That the impugned order dated 22.2.2012 contained in Annexure P-13 vide which the respondent No.2 has ordered for fresh departmental inquiry may kindly be quashed and set-aside.
ii). That the respondents may be directed to expunge the adverse entry in ACR which was entered due to court case in the year 2006 as the petitioner has now been acquitted form the charges by the competent court of law as well as by the departmental inquiry.
iii) That the respondents may be directed to grant the all service benefits which has wrongly been withheld by the respondents due to the court case."
3. This Court vide judgment dated 7.5.2013 quashed and set-aside the order of fresh inquiry issued by respondent No.2 and directed the respondents to accord the necessary approval to the ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 4 recommendations of the Departmental Promotion Committee held on 28.10.2011 to promote the petitioner to the post of Sub Inspector .
from due date with all the consequential benefits. In terms of aforesaid judgment rendered by this Court petitioner though was promoted to the post of Sub Inspector, but with effect from 22.5.2010, whereas he was entitled to such promotion from 17.7.2008 i.e. when he was honourably acquitted in the criminal proceedings initiated against him.
4. On inquiry, it transpired that petitioner has not been given promotion with effect from 17.7.2008 on account of adverse entry in the ACR for the period of 2005-06, wherein it stands recorded that "one criminal case is registered against the petitioner". Being aggrieved and dissatisfied with the action of the respondents in as much as petitioner was not given promotion from due date, he filed representation to Director General of Police, Himachal Pradesh (Annexure P-9), praying therein to expunge adverse remarks made in his ACR pertaining to the year 2005-06 on account of his hounourable acquittal in the criminal case. However, aforesaid representation of him was rejected vide order dated 11.8.2010 (Annexure P-10) on the ground that the petitioner was acquitted because the prosecution could not prove the case against him beyond reasonable doubt. Apart from above, authority while passing order dated 11.8.2010, also recorded in the order that the then Superintendent of Police, Kullu had made adverse comments against ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 5 the petitioner in his ACR on the basis of his personal knowledge leading to registration of case against the petitioner and stands by .
these comments even after the acquittal of the officer in the corruption case registered against him.
5. Being aggrieved and dissatisfied with the aforesaid order dated 11.8.2010 (Annexure P-10), petitioner approached this Court in the instant proceedings, praying therein for following reliefs:-
"i) That the respondents may be directed to expunge the adverse entry in ACR which was entered due to r court case in the year 2006 as the petitioner has now been acquitted from the charges by the competent court of law as the said order has attained the finality.
ii) That the petitioner may be confirmed from 1.12.2005 when his juniors were confirmed.
iii) That the respondents may further be directed to comply with the order dated 7.5.2013 and promote the petitioner from the date when his juniors were promoted.
iv) That the respondents may be directed to grant all the consequential benefits including the seniority from the date of confirmation i.e.1.12.2005.
v) That Annexure P-8 and P-10 may kindly be quashed and set-aside."
6. It is pertinent to take note of the fact that prior to filing of the petition at hand, petitioner had filed CWP No.3304 of 2010 in this Court, laying therein challenge to order dated 3.6.2010 vide which, the respondents again initiated departmental inquiry after acquittal of the petitioner in criminal case. In the aforesaid case, ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 6 petitioner besides seeking quashment of order dated 3.6.2010, also prayed that respondents be directed to expunge the adverse entry in .
ACR, which was entered due to court case in the year 2006. However, this Court having taken note of letter dated 14.6.2011, placed on record by learned counsel for the petitioner, wherein it stood recorded that the petitioner stands absolved of the charges framed against him in the disciplinary proceedings, closed the proceedings and ordered that consequences to ensue.
7. However, as has been taken note hereinabove, that though petitioner was acquitted in criminal as well as departmental proceedings, but yet he was denied promotion to the post Sub Inspector from due date i.e. 17.7.2008 on account of adverse entry in his ACR pertaining to the year 2005-06. Since representation having been filed by petitioner for expungement of adverse entries in the ACR for the year 2005-06, stands dismissed vide order dated 11.8.2010 (Annexure P-10), he is compelled to approach this Court in the instant proceedings, praying therein for the reliefs, as have been reproduced hereinabove.
8. Reply to the petition stands filed on behalf of the respondents, wherein facts, as have been notice hereinabove, have not been disputed. However, in para-9 of the reply, respondents have submitted that in compliance of judgment /order dated 7.5.2013 the petitioner has been approved for promotion to the rank of Sub Inspector with effect from 22.5.2010. Respondents have further ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 7 averred in the reply that plea of the petitioner that he was entitled for promotion w.e.f.17.7.2008 is incorrect because his ACR for the year .
2005-06 was adverse and the impact of adverse ACR remained up to September, 2009. It has been stated in the reply that Deputy Inspector General of Police, Central Range Mandi, while deciding the representation of the petitioner, observed that the then Superintendent of Police, Kullu had made adverse comments against the petitioner in his ACR on the basis of his personal knowledge about the work performance leading to registration of case against the petitioner and these comments stand even after acquittal of the officer in the corruption case registered against him.
9. Having heard learned counsel representing the parties and perused the pleadings adduced on record by the respective parties, this Court finds that there is no dispute that in column No. 16 of the form of confidential report pertaining to the period 1.4.2005 to 1.2.2006, there is an adverse entry (Annexure P-7), which reads as under:-
"Charged with corruption in a criminal case & departmentally."
10. Apart from above, Superintendent of Police has also given remarks to the following effect that "he was accused of corruption and in my own personal capacity I do not have a good opinion of him". It is not in dispute that aforesaid entry with regard to corruption case as recorded in column No.16 of the form of confidential report (Annexure ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 8 P-7) is based upon registration of corruption case against the petitioner i.e. FIR lodged against him as well as foreigner namely Kozi .
Tateno on 13.6.2005, wherein he was charged under Section 13(2) of the Prevention of Corruption Act and Section 201,212, 213 and 120-B of IPC.
11. Careful perusal of judgment dated 22/23.8.2008 passed by learned Special Judge, Kullu, District Kullu, H.P.,(Annexure P-1) reveals that petitioner was acquitted of the charges framed against him under Sections 201,212, 217 and 120-B of IPC and Section 13(2) of the Prevention of Corruption Act. Though, repeatedly attempt was made by the respondent-department to initiate disciplinary proceedings on the same allegations as were part of FIR, but nothing ever came to be proved against the petitioner even in departmental proceedings and as such, he was acquitted in both the criminal as well as disciplinary proceedings. Similarly, it is not in dispute that meeting of Departmental Promotion Committee was held on 28.10.2011 for promotion to the post of Sub Inspector and the name of petitioner was also recommended for promotion. Though, petitioner was recommended for promotion, but recommendation of Departmental Promotion Committee were not approved by respondent No.2, rather he instituted fresh inquiry, which subsequently came to be quashed and set-aside by this Court vide judgment dated 7.5.2013 passed in CWP No.1145 of 2012-E, as a consequence of which, recommendation of Departmental Promotion ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 9 Committee held on 28.10.2011 subsequently came to be approved.
But since petitioner was not promoted from due date i.e. 17.07.2008, .
he inquired the matter and found that he has been not given promotion from due date i.e. 17.7.2008 for the reasons that there is adverse entry in his ACR pertaining to the year 2005-06. Since petitioner was honourably acquitted in both the criminal as well as departmental proceedings, he made representation to the competent authority, praying therein to expunge adverse entry. However, as has been taken note hereinabove, aforesaid prayer made on behalf of the petitioner was rejected for the reason, as has been noticed hereinabove.
12. In the aforesaid backdrop, there appears to be merit in the contention of learned counsel for the petitioner that once petitioner was honourably acquitted in departmental as well as criminal proceedings, entry with regard to registration of corruption case recorded in the ACR pertaining to the year 2005-06 ought to have been expunged.
13. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while justifying the action of the respondents in rejecting the representation, vehemently argued that apart from recording factum with regard to registration of corruption case the then Superintendent of Police, Kullu has also recorded in the ACR that as per his personal knowledge petitioner was accused of corruption and he has not good opinion of him and as such, his acquittal in criminal proceedings is of ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 10 no consequence because that entry still stare at him. Mr. Bhatnagar further submitted that otherwise also relief sought in the instant .
petition is hit by principal of constructive res-judicata. He stated that before filing petition at hand, petitioner had approached this Court by way of CWP No.3304 of 2010, praying therein for issuance of direction to the respondents to expunge the adverse entry in the ACR for the year 2005-06 but such plea of him was not accepted.
14. However, in the totality of facts and circumstances, as detailed hereinabove, this Court finds no merit in the afore submission of learned Additional Advocate General for the reasons that though petitioner in his earlier writ petition No.3304 of 2010 had prayed for issuance of direction to the respondents to expunge adverse entry in the ACR pertaining to the year 2005-2006, but before such plea of him could be decided by the Court below on its own merit, aforesaid writ petition filed by the petitioner came to be closed vide judgment dated 3.11.2011, perusal whereof reveals that this Court having taken note of the fact that petitioner has been absolved of the charges against him in the disciplinary proceedings closed the petition, but definitely at no point of time returned findings, if any, with regard to second relief made in the petition i.e. direction to expunge the adverse entry. Had court returned any finding qua aforesaid plea/relief prayer/sought by the petitioner, this court would have permitted the respondents to raise plea of res-
judicata ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 11
15. At this stage, Mr. Sudhir Bhatnagar, learned Additional Advocate General further argued that at no point of time petitioner .
ever came to be acquitted honourably, rather his acquittal is on technical ground and as such, benefit, if any, otherwise cannot be availed of judgment of acquittal recorded in his favour. However, having carefully perused the judgment dated 22.08.2008 (Annexure P-1) passed by learned Special Judge, Kullu, this Court sees no reason to be persuaded by aforesaid submission made by learned Additional Advocate General because if judgment is read in its entirety, it clearly suggests that prosecution was unable to prove that petitioner indulged in corrupt practice while unauthorizedly releasing pass port in favour of foreign national during pendency of criminal case against him and he made an attempt to destroy the evidence.
16. Mere use of expression by learned trial Court in para-29 of the judgment that prosecution has been not able to prove complicity of petitioner beyond reasonable doubt cannot be construed acquittal of the petitioner on technical grounds. Otherwise, in para-31, Special judge has acquitted the accused of the charges under Sections 201, 212, 213, 120-B IPC and Section 13(2) of the Prevention of Corruption Act. Till the time there is nothing to show that acquittal of the petitioner came to be recorded on technical grounds, acquittal recorded in his favour is necessarily required to be held as a hounourable acquittal, as a consequence of which, any entry recorded in the ACR with regard to registration of criminal case ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 12 requires to be expunged. As has been taken note hereinabove, in the ACR pertaining to the year 2005-06, it has been recorded in column .
No.16 that "charged with corruption in a criminal case and departmentally". With the acquittal of the petitioner in criminal and departmental proceedings aforesaid entry made in column No.16 of the ACR pertaining to the period from 1.4.2005 to 1.2.2006 is not sustainable.
17. Expression 'hounourable' acquittal has been not defined anywhere, but such expression came to be discussed and reported in the judgment passed by Hon'ble Apex Court in S.Bhaskar Reddy and another versus Superintendent of Police, and another (2015)2 Supreme Court Cases 365, wherein it has been held that if Court below has recorded the finding of fact on proper appreciation and evaluation of evidence on record and has held that the charges framed in the criminal case are not proved against the accused, it shall be deemed to be hounourable acquittal. In the aforesaid judgment Hon'ble Apex Court has held that it is difficult to define precisely what is meant by the expression "honorably acquitted".
When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. It would be profitable to take note of paras No.21 to 23 and 26 herein- below:-
::: Downloaded on - 24/12/2022 09:26:51 :::CIS 13"21. It is an undisputed fact that the charges in the criminal case and the Disciplinary proceedings conducted against the appellants by the first respondent are similar. The appellants have faced the criminal trial before the Sessions Judge, Chittoor on the charge of murder and other offences .
of IPC and SC/ST (POA) Act. Our attention was drawn to the said judgment which is produced at Exh. P-7, to evidence the fact that the charges in both the proceedings of the criminal case and the Disciplinary proceeding are similar. From perusal of the charge sheet issued in the disciplinary proceedings and the enquiry report submitted by the Enquiry Officer and the judgment in the criminal case, it is clear that they are almost similar and one and the same. In the criminal trial, the appellants have been acquitted honourably for want of evidence on record. The trial judge has categorically recorded the finding of fact on proper appreciation and evaluation of evidence on record and held that the charges framed in the criminal case are not proved against the appellants and therefore they have been honourably acquitted for the offences punishable under 3 (1) (x) of SC/ST (POA) Act and under Sections 307 and 302 read with Section 34 of the IPC. The law declared by this Court with regard to honourable acquittal of an accused for criminal offences means that they are acquitted for want of evidence to prove the charges.
22. The meaning of the expression "honourable acquittal"
was discussed by this Court in detail in the case of Deputy Inspector General of Police & Anr. v. S. Samuthiram[3], the relevant para from the said case reads as under :-
"24. The meaning of the expression "honourable acquittal"
came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
(Emphasis laid by this Court) ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 14 After examining the principles laid down in the above said case, the same was reiterated by this Court in a recent decision in the case of Joginder Singh v. Union Territory of Chandigarh & Ors. in Civil Appeal No. 2325 Of 2009 (decided on November 11, 2014.
.
23.Further, in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. (supra) this Court has held as under:-
"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles there from". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
24. (emphasis laid by this Court) Further, in the case of G.M. Tank v. State of Gujarat and Ors.(supra) this Court held as under:-
26. We have answered the alternative legal contention urged on behalf of the appellants by accepting the judgment and order of the Sessions Judge, in which case they have been acquitted honourably from the charges which are more or less similar to the charges levelled against the appellants in the ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 15 Disciplinary proceedings by applying the decisions of this Court referred to supra. Therefore, we have to set aside the orders of dismissal passed against the appellants by accepting the alternative legal plea as urged above having regard to the facts and circumstances of the case."
.
18. Though, the personal opinion recorded by Superintendent of Police in remarks column is of no consequence, but even otherwise same is based upon the fact that accused was charged with the corruption case as has been recorded in the remarks column.
Otherwise also, approach adopted by the authorities against the petitioner while deciding his representation is not free from bias because no cogent and convincing reasoning has been assigned for not accepting the prayer made on behalf of the petitioner, rather by stating that the then Superintendent of Police had personal knowledge with regard to conduct of the petitioner, efforts has been made to defeat the rightful claim of the petitioner, to which he has become entitled after his being honourably acquitted in criminal case vide judgment dated 22.8.2008.
19. Reliance is placed upon the judgment rendered by Hon'ble Apex Court in State of Gujarat and another versus Suryakant Chunilal Shah (1999)1 Supreme Court Cases 529, wherein it has been held as under:-
"27. The whole exercise described above would, therefor, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a Govt. Servant or that he had lost his efficiency and had ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 16 become a dead wood, he was compulsorily retired merely because of his involvement in two criminal case pertaining to the grant of permits in favour of take and bogus institutions. The involvement of a .
person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may, however, hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee.
28. There being no material before the Review Committee, in as much as there were no adverse remarks in the character roll entries, the integrity was not doubted at any time, the character roll entries subsequent to the respondent's promotion to the post of Asstt. Food Controller (Class II) were not available, it could not come to the conclusion that the respondent was a man of doubtful integrity nor could have anyone else come to the conclusion that the respondent was a fit person to be retired compulsorily from service. The order, in the circumstances of the case, was punitive having been passed for the collateral purpose of his immediate removal, rather than in public interest. The Division Bench, in our opinion, was justified in setting aside the order passed by the Single Judge and directing reinstatement of the respondent."
20. Division Bench of Punjab and Haryana High Court in C. W. P. No. 15070 of 1993 - Des Raj vs. State of Haryana and others, decided on 28.11.1994, quashed the adverse entry pertaining to doubtful integrity in the ACR of the petitioner therein, on the ground that no reasons had been recorded nor any material produced before ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 17 the Court to justify the recording of the adverse entry regarding doubtful integrity, by holding as under :-
.
".....In the present case, the respondents have completely failed to produce any material before the Court to justify the adverse remarks made by respondent no. 4 regarding the integrity of the petitioner. The respondents have not produced any written complaint or record indicating that oral complaints were received against the honesty and integrity of the petitioner and he had made a record of the same in some file of the department. In this fact situation, it has to be held that the adverse report regarding integrity has been made by respondent no. 4 without any basis and, therefore, his action will have to be held as arbitrary and unreasonable apart from being unfair."
21. Similarly, in C. W. P. No. 11695 of 1993 - D. N. Dalal vs. The State of Haryana etc., decided on 30.11.1994, while relying on the same circulars, as quoted above, it was held by a Division Bench of this Court as under :-
"A perusal of the above quoted extracts of the circulars shows that while recognising the importance of the entries made in the annual confidential reports in general and remarks relating to honesty and integrity of the officials in particular, the Government has made it obligatory for the concerned officers to be careful while recording adverse remarks relating to integrity. The Government has emphasised that the reporting officer should fortify with reasons his remarks relating to integrity of an official. It has been further emphasised that non-committal remarks or baseless remarks should not be made by the reporting officers. The Government has gone to the extent of observing that truth about the subordinates should be known to the reporting officers and should be brought to the notice of the higher authorities. We may observe that though the instructions issued by the Government do not have the force of law, the administrative authorities subordinate to the Government as also the Government are bound to act in accordance with these instructions. A minor deviation from the procedural aspect of the instructions may not by ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 18 itself be sufficient to vitiate the adverse remarks, but a whole sale or wanton breach of the instructions may lead to an inference that the remarks have been made without application of mind or the same are baseless. It may also .
indicate arbitrariness and casualness in the approach of the reporting/reviewing officer. It cannot be over emphasised that the column regarding integrity is most vital both to the Government servant as well as the public service. It is well recognised that the integrity of a public servant is as important as his efficiency. A dishonest public servant or one whose integrity is doubtful may cause greater injury to the public interest than an inefficient public servant. Adverse remarks regarding integrity ordinarily constitute sufficient material for superseding a senior official at the time of promotion, for withholding of the efficiency bar and can be used for retirement before superannuation. Therefore, it is imperative that the column regarding integrity is filled with greatest care and caution. If the adverse remarks regarding integrity are found casual, perfunctory or cryptic or where it is found that the adverse entries have been made for extraneous considerations or there is non application of mind, the Court will have to scrutinise the challenge to such remarks with greater seriousness.
xx xx xx xx xx xx .....
..... Though entries in the annual confidential reports are made by a competent officer on the basis of subjective satisfaction, such subjective satisfaction has to be arrived at after an objective assessment of the material available with the reporting officer or reviewing officer. As and when adverse remarks are challenged in a Court of law, it becomes an onerous duty of the respondents to place before the Court full material which is available with them in justification of the adverse remarks. In Union of India and others vs. E. G. Namburdiri A.I.R. 1991 S.C. 1216, the Supreme Court has held that even though a decision on representation against the adverse remarks need not contain reasons, the administrative authority is not at liberty to pass orders without there being any reason for the same. In the present case the respondents have completely failed to produce any material before the Court to justify the adverse remarks made by respondent No. 3 regarding the integrity of the petitioner. The respondents have not produced any written complaint or record indicating that oral complaints were received against the honesty and integrity of the petitioner or that ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 19 respondent No. 3 had received any other information casting doubt on the integrity of the petitioner and he had made a record of the same in some file of the department. In this fact situation it has to be held that .
the adverse report regarding integrity has been made by respondent No. 3 without any basis and, therefore, his action has to be held as arbitrary and unreasonable apart from being unfair."
22. At this stage, learned Additional Advocate General has placed reliance upon the judgment rendered by Hon'ble Punjab and Haryana High Court in case titled Davinder Singh versus State of Haryana and others, 2011(4) SLR 211, to state that entry in the Annual Confidential report with regard to the doubtful integrity need not be supported by any accompanying record or detailed reasons and such an entry can be based on personal knowledge of the Reporting/Reviewing Officer. The relevant paras No. 11 to 13 of the aforesaid judgment are as under:-
"11. Apart from the view of the Letters Patent Bench and the Division Bench, Hon'ble the Supreme Court in the case of State of State of U.P. v. Yamuna Shanker Misra v. Yamuna Shanker Misra, (1997) 4 SCC 7, has categorically laid down that the entry in the Annual Confidential Report with regard to the doubtful integrity need not be supported by any accompanying record or detailed reasons and such an entry can be based on personal knowledge of the Reporting/Reviewing Officer. It is, thus, established that the view taken by the learned Single Judge suffers from inherent malady of imposing restriction on the Reporting Officer for recording integrity doubtful entry. It is trite to mention that in a large number of cases there is lack of proof and material to reach a conclusion that the integrity of ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 20 the employee is doubtful. More than often it is seen that the interest of the State are marginalised at the instance of a beneficiary of an illegal act which is facilitated by the public .
servant on extraneous consideration including acceptance of illegal gratification from the public and no one comes forward because there are no adversary to the public servant and the person who has obtained undue favour by paying illegal gratification. If a magistrate acquits an accused on extraneous consideration who would come forward. The accused would be happy. The State represented by a Public Prosecutor would feel helpless. However, the Reporting Officer during the reporting period keep on hearing such illegal activities of the public servant and on the basis of his subjective satisfaction he may have to reach an extreme conclusion that the public servant is indulging in corruption. In fact, this is the precise reason that expression 'doubtful' has been added with the expression 'integrity'. Had it been the case that there is material to impeach the integrity of the officer then a full-fledged departmental inquiry or criminal action could be initiated and the result in such cases would be dismissal of the employee not simple pre-mature retirement which earns him all retiral benefits. For the aforesaid view we place reliance on the observation of the Division Bench of this Court in the case of Puran Singh Puran Singh v. State of Punjab v. State of Punjab, 1981 (1) SLR 338. The nature, substance, purpose and scope of AC 338 R is fundamentally different than the departmental inquiry. Speaking for a Division Bench of this Court, Chief Justice S.S. Sandhawalia made following learned observations:
"Whilst the former is specifically for the internal assessment or estimate of the performance of a public servant by his superiors over the period of one year, the latter is intrinsically intended as the foundation for taking ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 21 a punitive action against him if the charges come to be proved. The very nature and purpose of the two are consequently distinct and separate and to confuse them .
as either identical or similar, would to my mind be patently erroneous. An annual confidential report is in essence subjective and administrative whilst a departmental enquiry is inevitably objective and quasi judicial."
12. Therefore to insist on material, objectivity and reasons for recording 'integrity doubtful entry' is not within the legal parameters. Hence, the view taken by the learned Single Judge would not be sustainable.
13. Coming back to the reasoning adopted by the learned Single Judge, it has been held that the basis for adverse remarks has come to an end because the writ petitioner ASI Davinder Singh was not even arrayed as an accused in Criminal Case No. 143-1/08, filed in pursuance to FIR No. 4, dated 3.1.2007, although he was initially involved in the same. The learned Single Judge further felt that he was also exonerated in the departmental inquiry and, therefore, the basis for adverse remarks has come to an end. It has also been pointed out that the order rejecting the representation made by the writ petitioner was non-speaking and cryptic and counseling has been suggested after awarding the punishment. The learned Single Judge opines that there was no material before the reporting authority for recording an entry of integrity doubtful, which was requirement of instructions dated 12.12.1985."
23. Subsequently aforesaid judgment came to be distinguished by Hon'ble High Court of Punjab and Haryana in case titled Sunil Dutt vs. The State of Haryana and others passed in LPA ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 22 No.224 of 2012, decided on 12.10.2012,wherein it has been held as under:
.
"Insofar the judgment relied upon by the learned State counsel in Davinder Singh's case (supra) is concerned, in that case, Davinder Singh was appointed as a Constable in Haryana Police. The said official was conveyed adverse remarks in which his honesty was recorded as "doubtful". His representation was rejected on 29.05.2008 which order was challenged by him by way of writ petition but during the pendency of the writ petition, a show cause notice was served upon him proposing to retire him compulsorily in public interest which was put into effect, as a result of which the said official challenged the order of compulsory retirement by way of separate writ petition. He had submitted that one FIR No.4 dated 03.01.2007 was registered against him under Sections 344, 383 and 34 IPC at Police Station GRP, Hisar but in the final report, he was not named as an accused nor summoned by the Court and the Chief Judicial Magistrate, Bhiwani, acquitted him on 06.12.2008 in the said case and in the departmental inquiry also, he was eventually conveyed with the punishment of Censure on 16.07.2008. In the said case, grievance of the said official was that the adverse remarks were recorded in violation of Government instructions dated 12.12.1985 which requires that if adverse remarks of `doubtful integrity' are to be recorded then the reporting officer must clearly state that the officer is suspected of corruption or is believed to be corrupt. This opinion should also be supported by reasons by the reporting officer. The learned Single Judge agreed to the contention of the said official by placing reliance on instructions dated 12.12.1985 which requires recording of reasons in support of an entry concerning doubtful integrity, but the Division Bench ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 23 found the view of the learned Single Judge unsustainable holding that to insist on material, objectivity and reasons for recording 'integrity doubtful entry' is not within the legal .
parameters.
As a matter of fact, the judgment relied upon by the learned State counsel in Davinder Singh's case (supra) is not applicable to the facts and circumstances of the present case in which reasons have been disclosed by the reporting officer in his order dated 09.09.2008 in which he has specifically said that because of the registration of criminal case against the appellant on account of accepting bribe he has been found to be dishonest and below average. Thus, all the remarks in the annual confidential report for the period 01.04.2006 to 31.03.2007 have originated from the registration of the criminal case under the P.C. Act in which the appellant has been honourably acquitted and has been exonerated for the said charge in the departmental inquiry. Thus, in our considered opinion, the judgment relied upon by learned counsel for the appellant in Randhir Singh, ASI's case (supra) is fully applicable instead of the judgment relied upon by the learned State counsel in Davinder Singh's case (supra)."
24. At this juncture, this Court deems it fit to take note of para para 19.18.3 of Handbook on personnel matters Vol-II, which reads as under:-
"19.18.3 Adverse entries relating to a specific incident.
A question has been raised wither an adverse entry relating to a specific incident can be made in a Government servant's confidential report without giving him an opportunity of showing cause against him especially when his work and conduct during the year or ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 24 the period under report have otherwise been found to be satisfactory. The conclusions reached in this connected are as under:-
.
i) Adverse entries relating to specific incidents should ordinarly not find a place in ACR, unless in the course of departmental proceedings, a specific punishment such as censure has been awarded on the basis of such an incident.
ii) Even if the reporting officer feels that although the matter is not important enough to call for departmental proceedings it is important enough to be mentioned specifically in the confidential report of the officer concerned, he should, before making such an entry, satisfy himself that his won conclusion has been arrived at only after a reasonable opportunity has been given to the officer reported on to present his case relating to the incident.
iii) Confidential reports should, as a rule give a general appreciation of the character, conduct and qualities of the officer reported on and reference to specific incidents should be made, if at all, only by way of illustration to support adverse comments of such a general nature, e.g. inefficiency, delay, lack of initiative or judgment etc."
25. Careful perusal of aforesaid provision clearly reveals that adverse entry relating to specific incidents should ordinarly not find a place in ACR, unless in the course of departmental proceedings, a ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 25 specific punishment such as censure has been awarded on the basis of such an incident. Since in the case at hand though at first instance .
there is/was no requirement, if any, for Reporting Officer to take note of registration of corruption case in the ACR being solitary incident but even if same was recorded, same cannot be allowed to sustain for the fact that no punishment ever came to be awarded to the petitioner in criminal as well as in departmental proceedings.
26. Consequently, in view of the detailed discussion made hereinabove, this court finds merit in the present petition and accordingly same is allowed and order dated 11.08.2010 (Annexure P-10) is quashed set aside and adverse entries recorded in column No.16 and the remarks column in the ACR pertaining to the year 2005-06, are expunged. Consequences to follow. Pending application(s), if also, stands disposed of.
17th June, 2022 (Sandeep Sharma),
(shankar) Judge
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