Rajasthan High Court - Jaipur
Kishorilal Mathur vs State Of Rajasthan on 11 August, 1997
Equivalent citations: 1997(2)WLN225
Author: B.S. Chauhan
Bench: B.S. Chauhan
JUDGMENT B.S. Chauhan, J.
1. Petitioner, who is a judicial officer and a member of the Rajasthan Judicial Service, has challenged the adverse entries recorded in his annual confidential report for the year 1991, communicated to him vide letter dated 8.2.1993 contained in Annex. 1 to the writ petition and additional adverse entry for the same year vide letter date 19.3.1993 contained in Annex. 5 to the petition.
2. Petitioner was posted as a Civil Judge cum Chief Judicial Magistrate, Jaisalmer from 6.6.1990 to 10.1.1992. After his transfer from Jaisalmer to Churu, the learned Inspecting Judge of Jaisalmer made the inspection of the Court at Jaisalmer on 27.4.1992 and made the inspection note, which is contained in Annex. R/l to the counter affidavit filed by the respondents. Learned District Judge also submitted the inspection report, which forms part of Annex. 1 to the petition. On the basis of that, aforesaid adverse entries were made in petitioner's A.C.R. Adverse entry communicated to the petitioner vide letter dated 8.2.1993 reads as under:
The record of CJM Court was found in a mess. No register was properly maintained. There was no control over office. Returns sent were based on no data. It is not known how figures of disposal and institution were worked-out. Processes were not issued for months together. It appears that no effort was made by the officer to effectively control the working of the office. His control over office was very poor. Figure of disposal was given Without record. Bad officer.
3. Subsequently, vide letter dated 12.3.1993, the respondent No. 2 communicated the petitioner that in continuation of the earlier remarks made vide letter dated 8.2.1993, the entry made below, may also be treated as a part of that letter:
He lacks control over the staff and work. The work of CJM Court was found in mess. No proper maintenance of Registers was there and the figures of disposal and pendency that were shown in the returns was not based on record. On account of all this the Court of CJM, Jaisalmer could not be inspected by the Hon'ble Inspecting Judge. From the above, the only conclusion to be drawn is that he was a rackless officer having no administrative control. His judgments were also notupto mark. He is a below average officer.
4. Being aggrieved, petitioner made a representation dated 13th April, 1993 contained in Annex. 9 to the petition and the same was rejected by this Court vide order dated 13th May, 1993 contained in Annex. 10 to the petition. Being aggrieved and dissatisfied, the same adverse entries and rejection of his representation vide order dated 13th May, 1993 have been challenged in this writ petition.
5. Heard Shri M.R. Singhvi learned Counsel for the petitioner and Shri Sangeet Lodha learned Counsel for the respondent No. 2.
6. Main thrust of the argument of Shri Singhvi learned Counsel for the petitioner is that the adverse entries are very vague and are not based on any evidence/material and the same have not been recorded objectively, fairly and dispassionately as it has not been communicated by the respondents what was the material on the basis of which the said adverse entries have been made; that the representation of the petitioner was rejected by the competent authority by a non speaking order; that the said adverse entries have been communicated at a very belated stage i.e., after a lapse of period of two years; and that once the petitioner has been promoted to the Rajasthan Higher Judicial Service even on adhoc basis, the said adverse entries stood expunged/washed off.
7. The object of writing the confidential report is to give an opportunity to the officer to remove deficiency and to improve the quality and efficiency of public service. (Vide S. Ramachandra Raju v. State of Orissa and Ors. 1994 (5) J.T. 459; State Bank of India and Ors. v. Kashinath Kher ; Sukhdeo v. Commissioner Anvavati Division ; and in State of U.P. v. Yamuna Shanker Misra and Anr. 1997 (4) J.T. 1.)
8. Shri Singhvi submits that the said entries do not reveal what was the material and Registers which the learned Inspecting Judge found not maintained and if the Registers were not produced before him, how could he reach the conclusion that the registers had not been properly maintained. Petitioner's representation against the said adverse entries runs to 180 pages. Petitioner has annexed with representation a large number of documents. We have perused the same and it is abundantly clear from them that most of the registers were not maintained properly. Inspection report made by learned District Judge which forms part of the record, makes it clear that a large number of registers, required to be maintained by him, had not been maintained. Inspection note contained in Annex. R/1 reveals an alarming situation, which reads as under:
It is most unfortunate that the Court of Chief Judicial Magistrate, Jaisalmer has been created in the year 1974 and before the present Presiding Officer joined here, not a single Register was properly maintained. Various Malkhana articles have not been disposed of for the past 15 years and the Malkhana Register itself is not properly maintained. Summonses and warrants etc. have not been issued for the last about 4-5 years in various cases. It is not known how the returns were submitted to the High Court when the Institution and Disposal Registers of the cases are not properly maintained. An effort has been made now by the present Presiding Officer to maintain the Registers. It is unfortunate that the consignment has not taken place for years together. It is not known how many FIRs are pending. It is not known how much cases have been disposed of and how much cases are pending in this Court. In various cases, order sheets have not been drawn for the years together. Actually, a special team needs to be deputed to bring the work upto the mark and to get the correct picture as to how many cases are pending and how many cases have been disposed of and whether the cases which have been shown as disposed of, have actually been disposed of or not and they need to be consigned to the record or not. In number of cases, the accused persons have been shown as absconding for the past number of years but actually, the summonses and warrants have not been issued to them and, therefore, their attendance could not be secured for number of years.
9. No doubt, the said report contained in Annex. R/1 is not in respect of the tenure of the petitioner alone and the sorry state of affairs has been given for a period of about four to five years. However, it will not exonerate the petitioner from his responsibility as he himself neither could improve the position nor he could stall the registers during his posting, which had not been opened by his predecessor in office. The inspection report and the documents filed by the, petitioner himself, contain sufficient material to form the opinion for recording adverse entry. About 24 Registers have been produced by the respondent No. 2 before us and after going through the same cursorily, we found as under:
(i) Register No. 1: Register for Misc/Crim Cases: Date of disposal is not recorded in Col. No. 7 of the Register;
(ii) Register No. 23 Regular Crl. Cases Entries of Disposal i.e., date of decision, Police Station, sections attracted, name of the accused convicted or acquitted etc. not mentioned in many cases. No of offence in Col. 12 & class of Record in Col. 13 not mentioned:
(iii) Register No. 24 regarding Regular Cri/Cases disposed: Details of number of persons convicted /acquitted, details of punishment given to different accused not properly entered from Col. Nos. 4 to 34;
(iv) Peshi Register (39): Not properly maintained. All cases not noted. In some cases purpose not indicated. Next dates are not noted in many of the cases;
(v) Court fees (Register No. 38): Not maintained from 31.1.1991 to 17.9.1992. Earlier to it, totals were not made;
(vi) Register No. 34 Institution Register of regular Civil Cases: Entries of disposal not properly made;
(vii) Register No. 36 Institution Register of Execution Applications: Entries in Col. Nos. 6 to 12 not property made;
(viii) Register of LAR: Maintained but not properly; and
(ix) Register No. 41 Misc. Cri./Cases relating to other cases: No entry between 1.9.1991 to 31.12.1991. From 4.1.1991 to 31.8.1991, disposal entries are not made at all.
10. After going through the record, we reach the unescapable concussion that the adverse entries are neither vague nor it can be said that the same are based on no evidence/material and, therefore, the judgments in O.P. Jain v. the High Court of Judicature for Rajasthan 1990 (2) RLR 257 and Ratanlal Agarwal v. High Court of Judicature for Rajasthan, 1995 (3) WLC 428, which have been relied upon by Sri Singhvi and wherein it has been held that adverse remarks should not be vague and should be based on some material, are not applicable in the instant case.
11. Mr. Singhvi next urged that the order of the competent authority contained in Annex. 10 is a non speaking order and the fate of an officer cannot be decided in a "cursory manner" without any application of mind. To fortify the said submission, reliance is placed on judgments in Satya Narain Shah v. The High Court of Judicature for Rajasthan 1996 (2) WLC 180; and Vaidya Ganpati Lal Harit v. State of Rajasthan 1990 (2) RLR 664 wherein it has been held that the competent authorities are under the obligation to pass a speaking and reasoned order. However, in Union of India. and Ors. v. E.G. Nambudiri 1991 (2) J.T. 285, the Apex Court observed as under:
Order of an administrative authority which has no statutory or implied duty to state reasons or the grounds of its decision is not rendered illegal merely on account of absence of reasons... The Superior authority while considering the representation of a Govt. servant against adverse remarks, is not required by law to act judicially, it is under no legal obligation to record or communicate reasons for its decision to the Govt. servant. The decision, rejecting the representation does not adversely affect any vested right of the Govt. servant not does it visit him with any civil consequences. In many cases having regard to infinite variations of circumstances, it may not be possible to disclose reasons for the opinion formed about the work and conduct or character of the Govt. servant....The superior authority was not obliged to write detail judgment or order giving details of the warnings or the material on which he formed opinion.
12. It is also settled law that when the competent authority agrees with the report of the enquiry officer or other authority, we are of the considered opinion that there is no need to record the reasons. (Vide Ramkumar v. State of Haryana ; S.N. Mukherjee v. Union of India and Ors. ; Somdutt Dutta v. Union of India and Ors. AIR 1989 SC 414, and State Bank of Bikaner and Jaipur v. Prabhu Dayal Grower . Thus, we find no force in this submission also. In the instant case, the competent authority i.e. Hon'ble Chief Justice has rejected the representation of the petitioner concurring with the learned Inspecting Judge, who had given a detailed explanation for turning down the said representation as is evident from Annex. 10.
13. It has vehemently been argued by Shri Singhvi that fair procedure has not been adopted by respondent No. 2 while recording the impugned adverse entries. In support of his submission, reliance has been placed on the judgment of the Apex Court in State of U.P. v. Yamuna Shanker Misra (supra), wherein it has been observed as under:
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. Inspite of the opportunity given if the officer/employee does not improve then it would be an obvious fact and would from material basis in support of the adverse remarks. It should also be mentioned that he had given prior opportunity in writing for improvement and yet was not availed of so that it would form part of the record....Before forming an opinion to be adverse, the reporting/officers writing confidentials should share the information which is not a part of the record with the officer concerned have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If despite giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him.
14. The aforesaid observations made by the Hon'ble Supreme Court run counter to the law laid down by the Apex Court In E.G. Nambudiri's case (supra), which has been approved by a larger bench of the Hon'ble Supreme Court in Chandra Gupta and Ors. v. Union of India and Ors. . The Court has emphasized very much on the confidentiality of the record as it has been observed that if it is communicated even of the officer/employee concerned, it will lose its confidentiality. The concerned employee has a right to make representation after the adverse entry is communicated to him. The said judgment in Chandra Gupta's case has been followed by a Division Bench of this Court in The High Court of Judicature for Rajasthan v. Tek Chand "D.B. Civil Special Appeal (Writ) No. 371 of 1994" decided on 24.1.1996 recording the following conclusions;
A confidential report is intended to be a general assessment of work performance and integrity of the officer concerned. These reports have always an element of secrecy and only to be disclosed to the officer for making suitable representations....The adverse entries are not required to mention specific instances and omission of such instances would not invalidate the entry.... If the reporting officer is required to refer to all the material and sources of information of forming an opinion about the officer, then concept of confidentiality is given a good bye...this Court while sitting under Article 226 is not sitting as a Court of appeal but it has to examine whether the adverse remark is the result of victimization or arbitrariness on the part of the reporting officer....the order rejecting the representation need not be a reasoned one nor any opportunity is to be given to the officer concerned before giving the entries.
15. In State of U.P. v. Ram Chandra Trivedi , the Hon'ble Supreme Court has held as under:
It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case, as observed by this Court in Union of India v. K.S. Subramanian Civil Appeal No. 212 of 1975 decided on July 30, 1976 is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.
16. It is evident from the judgment in Yamuna Shanker Misra's case (supra) that the earlier judgments of the Apex Court have not been considered. Thus, we follow the judgment in E.G. Nambudiri's case (supra) approved and followed by the larger Bench of the Hoh'ble Apex Court in Chandra Gupta's case (supra). We are in full agreement with the observations made by the Division Bench of this Court in Tekchand's case (supra) and find no substance in this contention also.
17. It is further submitted that the adverse entries have been communicated at a very belated stage and in support of this submission, reliance is placed on the judgments of this Court in Ram Avtar Khandelwal v. High Court of Judicature for Rajasthan, through its Registrar 1992 (2) WLC 587 and Tek Chand v. The High Court of Judicature for Rajasthan 1994 (2) WLC 688. We find no force in this submission also for the reason that in the aforesaid cases, the entry had been communicated after a lapse of several years. In the instant case, no doubt it was conveyed after a lapse of two years but the same cannot be said to be fatal. We fail to understand as in what manner, delay has caused prejudice to the petitioner. Moreover, in the aforesaid cases, the delay was inordinate and the facts of this case are quite distinguishable. The aforesaid cases have been considered by the Division Bench of this Court in Jhavar Prakash v. Rajasthan High Court 1995 (2) WLC 517, wherein it has been observed that:
It has to be decided in the facts and circumstances of each case as to whether delay in communicating of adverse remarks would result the vitiating the remarks itself and on that count, the remark deserves to be quashed or not. What is the reasonable time within which the remark should nave been communicated will also have to be decided in the facts and circumstances of each case.
18. Moreover, the Division Bench of this Court in Tek Chand's case (supra) has observed as under:
In the absence of any factual foundation of any prejudice having been caused to the respondent, we hold the delay in communicating the adverse entry could not be fatal.
19. Mr. Singhvi has submitted that as the petitioner has been promoted in Rajasthan Higher Judicial Service in Jan. 92 and has been allowed to continue on the post for more than five and a half years, though on adhoc basis, the adverse entries cannot be taken into consideration for his confirmation or regular selection to the Higher Judicial Service or for any other purpose in future. At this stage, we are not in a position to anticipate whether respondent No. 2 would consider it washed-off or not nor we are inclined to go into this issue at this stage. However it is open to the petitioner to take appropriate steps accordingly, if the need be arisen.
20. In view of the above, the petition is devoid of any merit and hence accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs.