Punjab-Haryana High Court
Dharamvir Singh vs State Of Haryana on 5 October, 2015
Author: Deepak Sibal
Bench: Deepak Sibal
C. W. P. No. 20171 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. W. P. No. 20171 of 2010
Reserved On : August 21, 2015
Pronounced On : October 05, 2015
Dharamvir Singh .... Petitioner
vs.
State of Haryana and others .... Respondents
CORAM : HON'BLE MR. JUSTICE DEEPAK SIBAL.
* * *
To be referred to Reporters or not ?
Whether the judgment should be reported in the digest ?
* * *
Present : Mr. P. L. Verma, Advocate
for the petitioner.
Mr. Harish Rathee, Senior DAG, Haryana.
* * *
DEEPAK SIBAL, J. :
Through the present petition, the petitioner seeks quashing of order dated 25.05.2010 (Annexure P-4), whereby his appeal, against adverse remarks for the period 01.04.2006 to 31.03.2007, has been rejected. He further seeks a direction to the respondents to expunge the adverse remarks for the period 01.04.2006 to 31.03.2007, doubting his integrity, conveyed to the petitioner through order dated 01.06.2007. MONIKA 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 2
A few uncontroverted facts may be noticed.
While the petitioner was serving the respondent - State of Haryana as a Head Constable, an FIR dated 09.12.2006, under Sections 7, 8, 13/49 of the Prevention of Corruption Act, 1988 was lodged against him. In the trial which ensued, he was acquitted through order dated 13.08.2009 passed by the Special Judge, Gurgaon, by holding as under :-
"9. For the reasons recorded above, I am of the view that the prosecution has failed to bring home guilt to all the accused. Therefore, they are acquitted of the charge framed against them. Copy of this judgment be sent to Director, General State Vigilance Bureau, Panchkula to examine the role of EHC Mukesh Kumar PW6. On enquiry, if it is found that he has made a false statement before the court with a view to help the accused which appears to be so, then necessary disciplinary action be taken against him. File be consigned to the record room."
I am informed by counsel for the parties that the above referred order has attained finality.
MONIKA On the basis of the above corruption charges, the petitioner was 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 3 also proceeded against departmentally. However, vide order dated 22.10.2009, the Deputy Commissioner of Police, Headquarters, Gurgaon exonerated him by holding as under :-
"In view of the above enumerations, there seems to be no logic of punishing the defaulter unreasonably and unnecessarily as this action would be sheer miscarriage of natural justice. The same will also mar his service career. Therefore, I am disinclined to impose the proposed punishment upon him and thus hereby order to file the instant departmental enquiry. In my considered view, this action of mine shall meet the ends of justice in this case.
A copy of this order be delivered to the defaulter, free of cost, and order be booked accordingly.
The official is finally deemed reinstated from the date of his suspension.
His suspension period is treated as period spent on duty for all intents and purposes and he will be entitled to get full pay and MONIKA allowance for the same."
2015.10.07 11:15I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 4
The above order has also become final.
While the above referred proceedings were pending, on 01.06.2007, the petitioner was conveyed an adverse Annual Confidential Report (ACR), a relevant extract of which is as under :-
"1. Discipline : Indisciplined.
2. Integrity : Dishonest.
3. Reliability : Unreliable.
4. Moral Character : Below Average.
5. General Remarks : A "below average" official."
The above quoted adverse remarks pertain for the period from 01.04.2006 to 31.03.2007.
The petitioner filed an appeal against the conveyed adverse remarks, which was dismissed by the Commissioner of Police, Gurgaon. It is the above action on the part of the respondents, which gave a cause to the petitioner to knock the doors of this Court for the reliefs, as referred to earlier.
The precise case of the petitioner is that the criminal proceedings lodged against him through FIR dated 09.12.2006, registered under the Prevention of Corruption Act, 1988 and the departmental proceedings initiated against him for the same reason were the only cause for recording of the adverse entry pertaining to doubtful integrity and once he had been honourably acquitted by the Special Judge, Gurgaon and MONIKA exonerated in the departmental proceedings, the adverse entries pertaining 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 5 to his doubtful integrity would have no legs to stand on and on this count alone, they were liable to be expunged. While responding to above submissions made on behalf of the petitioner, learned counsel appearing on behalf of the State has submitted that a perusal of the comments of the Officer, who recorded the adverse remarks against the petitioner qua his doubtful integrity, as submitted by him to the Commissioner of Police, Gurgaon, through his letter dated 28.12.2009 (Annexure R-1), clearly shows that the adverse entries in the petitioner's ACR in question were based on estimation of his work in addition to the case of corruption, for which he was tried in a criminal Court. The relevant portion of his comments are reproduced below :-
"Para-1 The contents of this para are baseless and without any force. In view of judgment date 03-03-1997 of the Hon'ble Supreme Court of India in Special leave Petition No. 4013 of 1997 - Swantantar Singh V/s State of Haryana and others, a reporting officer is competent to record adverse remarks in the ACR of his subordinates even on simple observation of his work and conduct of the MONIKA representationist during the period under 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 6 report was not found up to the mark. The adverse remarks under report were based on virtual estimation of his work and conduct in addition to the case FIR No. 76 dated 09-12-09 u/s 7, 8, 13, 49/88 of P. C. Act, PS Pataudi, as stated by the representationist.
Para-2 In reply to para-11 it is submitted that the undersigned has no concerned with the acquittal of representationist in the above cited case by the Hon'ble Court of Spl. Judge Gurgaon on 13-08-09. The adverse remarks were recorded after fully estimation of his work and conduct. His general reputation towards integrity was not fair in the department as well as in the public. He was apprised for the same on a number of occasions with verbal warning to improve himself.
xx xx xx xx MONIKA Para-4 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 7 The contents of this para have
no force. He cannot seek any relief for his shortcomings observed and detected during the period under report on the base of clean chit given by the Hon'ble Court in the above cited case as well as in the D. E., as on close supervision the work and conduct of the representationist was not found up to the mark during the period under report. [Emphasis supplied]"
It is true that the petitioner has been acquitted by the trial court with regard to the charges of corruption inflicted upon him. He has also been exonerated in the disciplinary proceedings initiated against him. However, the officer, who has recorded the entry of doubtful integrity against the petitioner, against whom there is no allegation of mala fide, is categoric that the entry was not solely based on the criminal case and the departmental inquiry against the petitioner and was on account of the general reputation of the petitioner, which was not found to be above board qua his integrity.
No reasons or material, which formed the basis of the adverse entry, are forthcoming.
In the absence of reasons and any material, whether the adverse MONIKA entry of doubtful integrity recorded against the petitioner can be sustained, 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 8 is the only question, which needs to be adjudicated.
Before proceeding further with the matter, it would be appropriate to refer to the circular dated 04.10.1956 issued by the State of Punjab, of which the present State of Haryana was a part of at that time and the circular dated 12.12.1985 issued by the Government of Haryana, which provide that when an adverse entry in the ACR doubting the integrity of an officer is to be made, it should generally be fortified by reasons as ill- considered remarks in this respect may result in mischief and do more harm than good. The relevant extracts of both the circulars dated 04.10.1956 and 12.12.1985 are reproduced below :-
"Instructions dated 04.10.1956 :-
Report regarding integrity :
A special mention should invariably be made regarding the integrity of the officer to which Government attach the greatest importance. It should be clearly stated if the officer is suspected of corruption or is believed to be corrupt and his opinion should generally be fortified by reasons, which may be in the possession of the reporting officer. Any ill-considered remarks in this respect may do a lot of MONIKA mischief and harm, on the other hand, the 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 9 reporting officer must be quite honest and frank and discuss an officer's worth from the point of view of his integrity openly and frankly in the column 'Defects, if any' or elsewhere. Government observed that reporting officers are still following the practice of making non-committal remarks like `no complaint'. Government viewed this with disfavour and desired that the practice of making non-commital entries in the column relating to integrity should cease. Reporting officers should give a definite opinion on the integrity of their subordinates while writing their confidential reports. Further, instances have come to the notice of the Government in which even though officers are being proceeded against for serious forms of corruption, their confidential reports for the same periods certify their integrity to be good. It is felt that contradictions of this type arise only because the reporting MONIKA officers are failing in their duty to make 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 10 entries in the column relating to integrity forthrightly and without hesitation. In case an officer has been given a good report for integrity, which is later proved to be wrong, the reporting officer will run the risk of earning Government' displeasure. Ordinarily, the inference would be that either he did not exercise proper supervision or he was in dishonest collusion with his subordinate. The intention of Government is that the truth about subordinate should be known to reporting officers and brought to the notice of higher authorities. This would not, however, justify the entering of ill-considered remarks based on inadequate observation.
Instructions dated 12.12.1985 :- Report regarding integrity :
xxx xxx xxx xxx
2. In spite of these clear
instructions on the subject, it has come to the notice of the Government that the MONIKA reporting officers are still making non- 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 11
committal remarks against the column of integrity in ACRs. Remarks regarding integrity are highly important and any ill- conceived remarks in this regard can cause lot of damage to the official concerned."
After considering the above quoted circulars, a Division Bench of this 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 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 MONIKA 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 12 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."
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 MONIKA reasons his remarks relating to integrity of 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 13 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 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 MONIKA approach of the reporting/reviewing officer. 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 14
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- MONIKA application of mind, the Court will have to 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 15 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 MONIKA without there being any reason for the same. 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 16
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 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."
From the above referred judgments rendered by two Division Benches of this Court, it is clear that the Court, while referring to the circulars dated 04.10.1956 and 12.12.1985, have quashed adverse entries MONIKA pertaining to doubtful integrity on the ground that there was no material or 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 17 reasons to back them.
A converse view is found to have been expressed by another Division Bench of this Court in L. P. A. No. 362 of 2011 - Davinder Singh vs. State of Haryana and others, decided on 11.05.2011. After considering the circular dated 12.12.1985, this Court has held that the instructions concerning recording of ACR were not justiciable and enforceable in the Courts of law and that the circulars were meant for internal use of the department. On merits, it was held that to insist on material, objectivity and reasons for recording entry `integrity doubtful' were not within the legal parameters. On facts, which were rather close to the facts of the case in hand, an FIR had been lodged against the petitioner therein, but later the criminal proceedings had been ordered to be dropped. The departmental inquiry, which was conducted, also resulted in his exoneration. In spite of this, the Division Bench upheld the adverse entry with regard to doubtful integrity entered in his ACR, which was backed by no reason or material. The relevant extracts of the judgment are reproduced below :-
"10. It, thus, stands established that the instructions concerning recording of ACR are not justiciable and enforceable in the Courts of law, which in fact, are meant for internal use of the department.
MONIKA xx xx xx 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 18 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 MONIKA been suggested after awarding the 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 19 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.
xx xx xx 15. A perusal of entry at Sr. No. 1 would reveal that against the column of 'Honesty' the remark recorded is 'Doubtful' without any qualifying reasons or material. The question which calls for consideration is whether the reporting officer is influenced by the registration of a criminal case or departmental inquiry as concluded by the learned Single Judge. It is not possible to accept the conclusion that the reporting officer was influenced by any of the aforesaid two factors because in the column concerning honesty doubtful no such factors have been mentioned. Therefore, it is conjunctural and presumptuous for the learned Single Judge to reach such a MONIKA conclusion and the same is not borne out 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 20 from the record and, hence, it cannot be presumed to be a fact and no finding on that basis could have been recorded by the learned Single Judge.
16. The account of an officer with regard to his assessment is spread over for whole period of one year and it cannot be considered to confine only to one instance or the other. It has already been held in the preceding paras that it is the subjective satisfaction of the reporting officer which finds reflection in the ACR. It is sometime said that the recording officer or reviewing/appellate authority do not right the ACR of the officer because the ACR are written by the officers themselves. Such a phrase has been coined only for the reason that the reporting/reviewing officers only make the assessment as per the performance of the officer without any bias nor for any other reason. Therefore, the honesty doubtful comments would not evaporate MONIKA either on exoneration of the delinquent 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 21 officer in the departmental inquiry or on account of dropping of his name in the investigation pursuant to FIR No. 4, dated 3.1.2007."
To the same effect is another Division Bench judgment of this Court in L. P. A. No. 94 of 2010 - The Punjab and Haryana High Court at Chandigarh though its Registrar (Rules) vs. Dewan Chand & others, decided on 21.12.2013, wherein the Division Bench has held that the material, on the basis of which, an adverse entry in the ACR, doubting the integrity of an officer, can be both tangible or intangible from any source. The relevant extract of the judgment is reproduced below :-
"16. In view of the above, the material, the basis of ACR, can be tangible or intangible information from any source. Thus, the recording of ACR on the subjective satisfaction of the Administrative Judge cannot be permitted to be disputed by the petitioner."
The above views expressed by the Division Benches of this Court in Des Raj's case (supra) and D. N. Dalal's case (supra) are divergent to what has been held by Coordinate Benches in Davinder Singh's case (supra) and Dewan Chand's case (supra). The Division MONIKA 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 22 Bench judgments in Des Raj's case (supra) and D. N. Dalal's case (supra) do not find notice of in the later judgments rendered in Davinder Singh's case (supra) and Dewan Chand's case (supra).
Learned counsel for the petitioner has relied upon a Division Bench judgment of this Court in L. P. A. No. 224 of 2012 - Sunil Dutt vs. State of Haryana and others, decided on 12.10.2012, which, according to him, covers his case in his favour. I have gone through Sunil Dutt's case (supra) and find that the facts therein were distinct to the facts of the case in hand as in that case, after recording the adverse entry of `integrity doubtful' , the Reporting Officer had disclosed in a letter, in which he had specifically stated that the adverse entry was only because of registration of a criminal case against the appellant therein. It is in the background of that fact, on the acquittal of the appellant therein in the criminal case and his exoneration in the departmental inquiry, the adverse entry doubting his integrity was quashed by this Court. In contradistinction, so far as the case in hand is concerned, the Reporting Officer, through his comments dated 28.12.2009, has specifically stated that the adverse remarks entered by him doubting the integrity of the petitioner are in addition to the criminal case registered against the petitioner under the Prevention of Corruption Act, 1988. It is further stated in his comments that the Reporting Officer had found the general reputation of the petitioner to be bad and after scrutinising his entire work and conduct, he had formed a definitive opinion MONIKA 2015.10.07 11:15 I attest to the accuracy and authenticity of this document C. W. P. No. 20171 of 2010 23 doubting his integrity. Thus, according to me, the judgment in Sunil Dutt's case (supra) is distinguishable.
In view of the divergent views expressed by two Division Benches of this Court in Des Raj's case (supra) and D. N. Dalal's case (supra) on one hand and Davinder Singh's case (supra) and Dewan Chand's case (supra) on the other hand, as also for the reason that the issue involved in the case in hand arises in several cases and thus, is of great import needs to be authoritatively settled. Thus, in my opinion, the matter needs to be referred to a larger Bench, for which the same be placed before Hon'ble the Acting Chief Justice for appropriate orders.
( DEEPAK SIBAL ) JUDGE Pronounced On : 05.10.2015 monika MONIKA 2015.10.07 11:15 I attest to the accuracy and authenticity of this document