Punjab-Haryana High Court
State Of Punjab And Anr. vs Bakhtawar Singh on 25 September, 2002
Equivalent citations: (2003)133PLR477
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. In ACR for the period 1.4.1991 to 31.3.1992 recorded upon the work and conduct of ASI Bakhtawar Singh by the Commandant, 27th Battalion, PAP Jalandhar Cantt., the following adverse remarks appear:-
1.
Honesty Corrupt
2. Reputation for fair dealing with the public & accessibility of public Below Average.
3. General power of control and organising ability Below Average
4. Personality & initiative Poor
5. Preventive and detective ability.
Below average
6. Defects, if any and whether these have been brought to the notice of officer concerned through any other communication.
There was complaint of corruption against him. He was warned vide this office No. 476 dt. 7.1.1992. He could not create even a single source during his stay at Ajnala.
2. AS) Bakhtawar Singh challenged the adverse remarks appearing in his ACR for the year 1.4.1991 to 31.3.1992 by means of suit for declaration filed by him in the civil court at Amritsar. It was alleged by him that these remarks were recorded without any basis. These are ill founded, erroneous, misconceived, conjectural and required to be expunged. It is alleged that he was enrolled in the Police Department on 17.5.1977. He was never commented upon adversely either before or after this period. He was highly devoted and dedicated to the service of the department. He created many informers who used to supply information to him when he was posted in Ajnala Circle which helped him in unravelling the activities of the terrorists even at the risk of his own life. He never gave any cause of complaint which could impinge upon his reputation for honesty or shadow his detective ability. In the ACR, there is an observation that there was complaint of corruption against him but that was without any basis. He made representation against the adverse remarks recorded in the ACR to DIG, PAP Jalandhar Cantt. His representation was rejected out of hand through an non speaking order by the DIG, PAP, Jalandhar Cantt. While recording adverse remarks in his ACR, the Commandant, 27th Battalion, PAP Jalandhar Cantt. did not take into account the instructions and directions issued by the government which have to be borne in mind by the reporting authority while recording adverse remarks in one's ACR.
3. State did not contest the suit despite service. State was therefore proceeded ex-parte. Vide order dated 12.12.1994. Subordinate Judge First Class, Amritsar dismissed the plaintiffs suit. Plaintiff went in appeal which was allowed by Additional District Judge, Amritsar vide order dated 5.2.1996. Not satisfied with the decision of Additional District Judge, Amritsar, State has come up in this regular second appeal in this Court.
4. Learned Deputy Advocate General for the State of Punjab submits that the recording ACR is a matter of subjective satisfaction of the reporting authority. Civil Court has no jurisdiction to go into the correctness or otherwise of the remarks recorded in the ACR by the reporting authority. In support of his submission, he seeks support from Vi-jay Parkash vs. State of Haryana, 2000(2) R.S.J. 172 where it was held that the recording of annual confidential report being a matter of subjective satisfaction of the concerned officer, in the very nature of things, the correctness thereof cannot be gone into by the civil Court. In Kuldip Singh v. State of Punjab, 1992(5) S.L.R. 189, a Division Bench of this Court held that recording of annual confidential report is a matter of subjective satisfaction of the concerned officer and in the very nature of things the correctness thereof could not be gone into by the civil Court. The breach of administrative instructions which are in the nature of guide-lines for the internal consumption by the officers at the time of recording of annual confidential reports and expunction of adverse remarks etc. do not confer upon the officer concerned a right to challenge in the Court of law. Recording of annual confidential reports is a subjective assessment of the public servant conducted in the shape of confidential report. If there is any breach of the instructions of the government while recording confidential report being a matter of subjective satisfaction of the concerned officer in the very nature of things the correctness thereof cannot be gone into by a Civil Court. A superior officer may make certain re-
marks while assessing the work and conduct of the subordinate officer based on his personal supervision or contract. It will indeed be difficult, if not impossible, to prove by positive evidence that a particular officer is dishonest but those who have had the opportunity to watch the performance of the said officer in close quarters know of the nature and character not only of his performance but also of the reputation the such officer enjoys".
5. Learned Deputy Advocate General further submits that against the recording of adverse remarks in his ACR, his remedy was to represent to the higher authorities. In this case, he represented but his representation was rejected. In Dharam Singh v. State of Haryana,3 2001(2) R.S.J. 16, it was held that the court cannot go into the correctness of the confidential report and only remedy available to the employee is to file a representation under the rules/instructions which the appellant availed of and the same rejected by the higher authorities. Learned State Counsel thus submits that civil court has no jurisdiction to expunge the adverse remarks appearing in the ACR of a government servant. The remedy is to represent to his own departmental authorities against those remarks.
6. Learned counsel for the respondent submits that the civil Court has jurisdiction to undo the adverse remarks in one's ACR if they had been recorded without any basis. He submits why civil court shall have no jurisdiction to expunge adverse remarks appearing in one's ACR when the whole career of an employee depends upon the ACR as it reflected his performance over the years. He submits that an employee cannot be kept nailed on the basis of an adverse remark for all times to come when there is no basis for such adverse remarks.
7. He further submits that this point that civil court has no jurisdiction to expunge the adverse remarks appearing in one's ACR was not raised in the courts below as such this point cannot be raised for the first time in second appeal before this Court. In support of this submission, he seeks support from Ramendra Kishore Biswas v. State of Tripura and Ors. A.I.R. 1999 S.C, 294.
8. In this case, the Commandant, 27th Battalion, PAP Jalandhar Cantt. has made an adverse comment almost upon every aspect touching his personality as a police officer. In the column of honesty, the Commandant, 27th Battalion, PAP Jalandhar Cantt. has commented upon him that he is corrupt. In the column touching his ability so far as prevention and detection is concerned, the comment is "blow average". In the column of "personality and initiative", the comment is "poor". How could this court substitute the opinion of the Commandant, 27th Battalion, PAP Jalandhar Cantt. with its own opinion and say that his ability so far as prevention and detection is concerned, is good, very good or outstanding. How could this court say about his honesty that he is very honest when the Commandant under whom he worked says that he is corrupt. Recording of ACR is the subjective satisfaction of the reporting authority.
9. Learned counsel for the respondent submits that before recording adverse remarks, the officer should have brought to his notice the defects in his working so that he could improve. In support of this submission he seeks support from Sukhdeo v. The Commissioner Amravati Division, Amravati and Anr., JT 1996(5) SC 477 where it was held that it would be salutary that the controlling officer before writing adverse remarks would give prior sufficient opportunity in writing by informing him of the deficiency he noticed for improvement. In spite of the opportunity given if the officer/employee does not improve then it would be an obvious fact and would form material basis in support of the adverse remarks, it should also be mentioned that he had given prior opportunity in waiting for improvement and yet was not availed of so that it would form part of the record.
10. It would bear repetition that in this case there is hardly any column left where the respondent has not been adversely commented upon. Adverse comments cover full one year i.e., 1.4.1991 to 31.3.1992. During the course of one year the Commandant must have had the occasion to see him work constantly. After having seen him work constantly, the Commandant formed certain impressions which impressions he incorporated in his ACR.
11. Learned counsel for the respondent submits that remarks recorded in the ACR should have been supported by some material. He submits that as for instance, there is no basis for recording him corrupt in the ACR. in support of this submission, he seeks support from Avtar Singh v. State of Haryana and Ors., 1995(3) R.S.J. 262 where it was held that where the reporting officer has not clearly mentioned in the ACR that the petitioner is suspected of corruption or is believed to be corrupt and has also not indicated that integrity of the petitioner is doubtful mere integrity doubtful being basis of oral complaints regarding honesty would be unsustainable.
12. Learned counsel for the respondent further submits that as upon ACR record depends the career of a government servant, the reporting officer is required to observe utmost restraint and carefulness while recording adverse remarks. While recording adverse remarks, his approach should be highly objective. In support of this submission, he seeks support from P.K. Shastri v. State of M.P. and Ors., 1999(4) R.S.J. 83.
13. Civil Court has jurisdiction to quash adverse remarks appearing in one's ACR but only if they are absolutely uncalled for and based upon malice, ill will or spite of the reporting officer towards the officer commented upon.
14. In this case, the Commandant had the occasion to watch his work and conduct continuously for a year. During this period, he must have formed impressions about his work and conduct and he incorporated those impression in his ACR.
15. For the reasons given above, this appeal is allowed. Judgment and decree passed by Additional District Judge, Amritsar dated 5.2.1996 are set aside while those passed by Sub Judge, First Class, Amritsar dated 12.12.1994 are restored. In consequence, the suit is dismissed. No order as to costs.