Rajasthan High Court - Jaipur
Ashok Bhatnagar vs State Of Rajasthan And Ors. on 13 July, 2001
Equivalent citations: 2002(2)WLC479, 2002(5)WLN372
JUDGMENT J.C. Verma, J.
1. On the anonymous complaint received by the department to the effect that the petitioner was living in a rented house at Jaisalmer which belonged to some prostitute and that the petitioner was having some illicit relations with some other prostitute, a report was called from the Additional Commissioner Excise, Jodhpur. The said Addl. Commissioner made a formal visit to Jaisalmer on 25.10.1996, where the petitioner was posted and on some enquiry being made by such Officer, he found that the petitioner was living in a rented house belonging to one Meena, who was prostitute. The report was sent to Excise Commissioner. In preliminary enquiry after issuing explanation letter to petitioner, the department was of the opinion that the conduct of the petitioner in living in the rented house of some prostitute had tarnished the image of the department, and therefore, the character of the petitioner was termed to be of lose character. The matter did not stop there, but while filling up the ACR of petitioner for the year 1996, on the letter written by one Rajendra Singh Rajvi, Additional Commissioner Excise, the Commissioner Excise had inserted the remarks as under:
He had Loose moral character, which tarnished the image of the department.
2. The above said remarks were communicated to petitioner vide letter dated 27.2.1997 (Ann. 2). The petitioner made a detailed representation dated 28.4.1997, which was rejected vide communication dated 15.7.1997 CAnn. 6). The petitioner is aggrieved against the orders Annexures 2 & 6 and prays that the same be quashed.
3. It is submitted on behalf of the petitioner that the remarks so communicated to petitioner were unjustified and uncalled for bearing civil consequences and virtually amounts to punishing the petitioner as such like remarks may come in the way of petitioner for future promotion. It is further submitted that the remark is not only against the instructions issued by the department but have been made without calling explanation of the petitioner.
4. To support his arguments, the Counsel for petitioner relies on the judgment in case of P.K. Shastri v. State of Madhyapradesh ; State of U.P. v. Yamuna Shanker Misra and Anr. ; S. Ramchandra Raju v. State of Orissa 1994 (Supp.) (3) SCC 424; Union of India and Ors. v. E.G. Nambudiri .
5. The record was called for. From perusal of the record it is clear that prior on 1996 the petitioner had no adverse entry in his ACR, even for the year 1996 there is no adverse entry. The Reporting Officer had reported in APAR of petitioner to be "Good". A separate sheet has been attached signed by one Rajendra Singh Rajvi to the effect that he had made certain enquiries at Jaisalmer for the period 1.4.1996 to 20.6.1996 and he had received certain complaint about the character of petitioner. He had found that the petitioner had some relations with some prostitute and thus he had tarnished the image of the department.
6. So far the work of the petitioner was concerned, the Commissioner had given comments that his work was satisfactory. The Excise Commissioner basing on the letter, which does not bear any memo number or despatch number but only bears the date as 25.1.1997, had in column No. 2, which specifies that the Reviewing Authority can give general remarks about the remarks written by Reporting Officer in regard to any outstanding work perform by the Reportee, had given above said remarks while observing that the performance can be rated as just satisfactory.
7. I have gone through the whole of the proforma, the columns, which is to be filled up by Reporting Officer as well Reviewing Officer while writing ACR about the nature and quality of the work; knowledge of work, rules and procedure; Intelligence; Initiative and creativity; Capacity to handle people; Discipline; Temperament; Job knowledge; Out put; Quality and dependability of work; Ability to communicate; Relations with citizens and their representatives; Physical disability or health problem; Any disciplinary action; measures for improvement; abilities, knowledge, experience and aptitute recommendation of training and development required; attitude towards the weaker section of society and performance; Overall assessment; Assessment of integrity; Remarks of the Reviewing Officer/Authority; Fitness for promotion in turn. These were the columns to be filled up in appraisal to be made by Reporting Officer, which goes to prove the assessment of work on the report of Reporting Officer.
8. The Reviewing Officer is to commence upon the reports made by the Reporting Officer. The Reporting Officer had not commented adversely against the petitioner. Rather there is nothing adverse against the petitioner so far assessment of work and official duties are concerned. The Reporting Officer had signed the reports on 23.1.1997. All columns filled up by Reporting Officer are good or very good. Even Reviewing Officer on 25.1.1997 had not commented against the petitioner, but it seems that after Reporting Officer had sent the papers to Reviewing Officer a letter dated 25.1.1997 written by Rajendra Singh Rajvi, had been placed on record which invited the above said remarks.
9. The object of writing APAR is to make objective assessment of performance of an employee. The duties have been cast as per instructions issued and reproduced in writ petition. The duties have been cast on Reporting Officer to careful in consideration the norms prescribed and/or the duties demanded from the reportee before recording his opinion. He should not form hasty opinions or arrive at conclusions based on insufficient data, much less on hearsay. The Reporting Officer is to make objective assessment of his subordinate. He is supposed to give necessary advice, guidance and assistance to correct their faults. The Adverse remarks are to be recorded in APAR only when the reportee persistently fails to show improvement. The Reviewing Officer is duty bound to consider if he personally knows the work and conduct of the officer. He is to exercise positive and independent judgment on the remarks of Reporting Officer under the various detailed headings in the form of the report as well as on the overall assessment and express clearly his agreement or disagreement with those remarks. This is particularly necessary in regard to adverse remarks, if any, where the opinion of the higher officer shall be construed as the correct assessment. The arbitrary, capricious and baseless remarks are to be avoided.
10. In the present case the Reporting Officer has not made adverse remark at all.
11. In case of P.K. Shastri, (supra) it was held that CRs of an officer are basically the performance appraisal of the said officer and go to constitute vital service record in relation to his career advancement. Any adverse remark in the CRs can mar the entire career of that officer. Therefore, it was necessary that in the event of a remark being called for in the confidential record, the authority directing such remark must first come to the conclusion that the factual situation is such that it is imperative to make such remarks to set right the wrong committed by the officer concerned. A decision in this regard must be taken objectively after careful consideration of all the materials which are before the authority directing the remarks being entered in the CRs.
In case of State of U.P. v. Yamuna Shanker Misra and Anr. (supra) it was observed as under:
The object of writing the confidential reports and making entries in them is to give an opportunity to a public servant to improve excellence. Article 51-A (j) enjoins upon every citizen the primary duty to constantly endeavor to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidentrial reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of performance of the subordinate officer. It should be founded upon facts and circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within the knowledge of such officer. Before forming an opinion to make adverse entries in confidential reports, the reporting/reviewing officers should share the information which is not a part of the record, with the officer concerned. This amounts to an opportunity given to the earring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or corrupt proclivity. If, despite giving such an opportunity, the officer fails to perform the duty or correct his conduct or improve himself, necessarily the same is to be recorded in the confidential report and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.
In case of S. Ramchandra Raju v. State of Orissa (supra) it was held that writing confidential reports bears onerous responsibility on the reporting officer to eschew his objectivity and personal prejudices or proclivity or predilections and to make objective assessment. He should adopt fair, objective, dispassionate and constructive commends/comments in estimating or assessing, the character, ability integrity and responsibility displayed by the officer/employee concerned during the relevant period.
In case of Union of India and Ors. v. E.G. Nambudiri (supra) it was held that as under:
The principles of natural justice are intended to prevent miscarriage of justice and are now applied even to administrative orders which involve civil consequences. Generally, principles of natural justice require that opportunity of hearing should be given to the person against whom an administrative order is passed. The application of principles of natural justice, and its sweep depend upon the nature of the rights involved, having regard to the setting and context of the statutory provisions. Where a statute requires an authority though acting administratively to record reasons, it is mandatory for the authority to pass speaking orders and in the absence of reasons the order would be rendered illegal, where a vested right is adversely affected by an administrative order, or Where civil consequences ensue, principles of natural justice apply even if the statutory provisions do not make any express provision for the same, and the person concerned must be afforded opportunity of hearing before the order is passed. But principles of natural justice do not require the administrative authority to record reasons for the decision as there is no general rule that reasons must be given for administrative decision. Order of an administrative authority which has no statutory or implied duty to state reasons or the grounds or its decision is not rendered illegal merely on account of absence of reasons.
12. In the present case so far appraisal of work of the petitioner was concerned, in regard to his official duties, the Reporting Officer has reported good and very good and even the Reporting Officer has reported him as satisfactory but on some anonymous complaint about the conduct of petitioner, not concerning with his official duties, the opinion had been formed by the Reviewing Officer that he was staying in a rented house belonging to some prostitute. Even assuming it be so, this fact ipso facto cannot be termed to be such a fact which would tarnish the image of the department or the petitioner would be considered to be of immoral character. Avery serious aspersion has been cast on petitioner without considering his representation.
13. The petitioner before making his representation had asked for copy of complaint, however the petitioner tried to cover the facts and made a representation, copy of which is enclosed as Annexure-5. The petitioner has stated in representation that there were as many as five official worker in Jaisalmer in Excise Department and that the office was situated in the locality known as Talaria Pada. He had taken a house on rent adjacent to the office which was close to the market, bus stand and the office as well. He has stated that there is shortage of house on rent, being tourist spot and it was difficult task to get a house on rent in Jaisalmer because of its tourist importance. The house taken by him on rent belong to one Asha Devi. The land lady was staying with her mother in another house situated one Kilometer away from the rented house. There were another tenants living in the ground floor. The petitioner was living at first floor with a separate entrance. It was stated that he had neither relations, nor any connection with any of other tenants and the rent was being sent through the clerk. He mentioned in the representation that the anonymous complaint about certain Meena prostitute or of owning Ambassador car had neither relevancy nor true, as he had not known any Meena owning car. In the detailed representation the petitioner had specifically mentioned that no enquiry was made by any officer, nor he was asked about this fact by any officer, nor he was so informed by Reporting Officer. Rather as per information received by petitioner, the said Enquiry Officer had reported against one Inspector Mr. Dave. He made a grievance that he should have been given an opportunity to explain before writing such most damaging report. He had taken factual as well as legal objections.
14. The representation (Ann. 5) was rejected by one line order (Ann. 766) saying that the adverse report already communicated shall stand. The contention of petitioner is that he had filed detailed representation stating certain facts which should have been considered with detailed order and only one line order that the representation had no merit cannot be said to be in consonance with principles of natural justice.
15. After hearing counsel for parties, I am of the opinion that in peculiar circumstances of this case, where character of an employee has been marked as of 'loose character' and that 'he had tarnished the image of the department', but without any detail or circumstances, which had compulsion on Reporting Officer/Reviewing Officer to pass such remark cannot be sustained in the eyes of law. The petitioner was not told of any ground for warranting such remarks. He had asked for the copy of the complaint, which was refused. After gathering the information from his own sources, the petitioner made representation giving therein the facts, which representation has been rejected without any reason. Even though it is not necessary to pass a reasoned order, but such reasons must prevail on the record. The Courts have invariably held that the instructions were issued by Government that adverse remarks are not to be given lightly or its own subjective opinion, it should be based on facts. Even though the remarks are normally given in regard to official duties but may be in circumstances the reputation of the officer concerned is an important factor for impeaching integrity of officer vis a vis official duties. In the totality of the circumstances, in my opinion, the adverse remark communicated to petitioner in regard to his "loose character and tarnishing the image of department" was not made on any objective assessment, nor there is any material on record to warrant such an assessment except one letter of Additional Commissioner Excise which had been attached with APAR to which Reviewing Officer had agreed. Such action of respondents is definitely not sustainable in the eyes of law and is illegal for casting such aspersion on the petitioner without there being any basis and without any enquiry even against the principles of natural justice; Consequently the adverse remark as contained in Annexure-2 and the order (Ann. 6) of rejection of representation are quashed.
16. For the reasons and discussions made above, the writ petition is allowed with cost. The Annexure-2 and the order (Ann. 6) of rejection of representation are hereby quashed. The cost is assessed as Rs. 5,000/-