Punjab-Haryana High Court
Davinder Singh V. State Of Haryana And ... vs State Of Haryana And Others V. Davinder ... on 11 May, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision: May 11, 2011
1. L.P.A. No. 362 of 2011 (O&M)
in C.W.P. No. 476 of 2009
Davinder Singh v. State of Haryana and others
(Appellant) (Respondents)
2. L.P.A. No. 589 of 2011 (O&M)
in C.W.P. No. 476 of 2009
State of Haryana and others v. Davinder Singh
(Appellants) (Respondent)
3. L.P.A. No. 590 of 2011 (O&M)
in C.W.P. No. 21197 of 2008
State of Haryana and others v. Davinder Singh
(Appellants) (Respondent)
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. R.K. Malik, Senior Advocate,
for the appellant in LPA No. 363
1. To be referred to the Reporters or not? Yes
2. Whether the Judgment should be reported in the
Digest
M.M.
M.M. KUMAR, J.
1. This order shall dispose of aforementioned three appeals. LPA No. 362 of 2011 has been filed by the writ petitioner- ASI Davinder Singh, whereas LPA Nos. 589 and 590 of 2011 have been preferred by the appellant-State of Haryana against the common judgment dated 27.9.2010 rendered by the learned Single Judge, allowing CWP Nos. 21197 of 2008 and 476 of 2009 filed by the petitioner. The learned Single Judge has set aside the adverse remarks of 'doubtful integrity' recorded in the Annual Confidential Report of the petitioner for the period from 26.4.2006 to 31.3.2006, L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 2 which was communicated vide order dated 23.5.2007. Besides this, the learned Single Judge has also quashed the order of compulsory retirement, dated 2.1.2009. He has been reinstated into service without any back wages from the date of compulsory retirement till reinstatement. However, he has been held entitled to notional benefits of increments or any other benefit which might have been available to him had he been in service and revision of pay etc., if any, for the purposes of fixation of salary on reinstatement.
2. The facts are not disputed. On 12.12.1978, the petitioner-Davinder Singh was appointed as a Constable in the Haryana Police. During his service career of 29 years, he is stated to have earned 31 commendation certificates including two certificates during the period adverse remarks have been recorded against him i.e. from 26.04.2006 to 31.03.2007. On 23.5.2007, the petitioner was conveyed the adverse remarks for the aforesaid period. In the column at Sr. No. 1, against the heading of 'Honesty' the remark recorded is 'doubtful'. The petitioner made a representation, which was rejected vide order dated 29.5.2008. The petitioner challenged the order dated 29.5.2008 in CWP No. 21197 of 2008. However, during the pendency of the said petition, a show cause notice dated 21.7.2009 was served upon him proposing to compulsorily retire him in public interest under sub- rule (2) of Rule 9.18(2) of the Punjab Police Rules, 1934 (as applicable to the State of Haryana) [for brevity, 'the Rules'] and amended from time to time. On 4.8.2008, the petitioner submitted reply to the said show cause notice. On 23.12.2008, the Director General of Police, Haryana, passed an order compulsorily retiring L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 3 the petitioner from service and forwarded the same to the Government for approval as required under Rule 9.18 (2) of the Rules. The said order was communicated to him vide letter dated 31.12.2008. Accordingly, he was retired with effect from 31.12.2008, vide a subsequent order dated 02.02.2009. The petitioner challenged the said show cause notice and the order of compulsory retirement in CWP No. 476 of 2009.
3. It is pertinent to mention here that an FIR No. 4, dated 3.1.2007, under Sections 344, 383 and 34 IPC was registered at Police Station GRP Hisar against the petitioner and others. However, in the final report submitted to the Court under Section 173 Cr.P.C. he was not named as an accused nor summoned by the Court. On 6.12.2008, the Chief Judicial Magistrate, Bhiwani, acquitted him in the said case. A departmental enquiry was also conducted against him, which eventually culminated into the punishment of Censure, vide order dated 16.7.2008..
4. The precise grievance of the petitioner with regard to the adverse remarks was that the same were recorded in violation of the 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.
5. The learned Single Judge has come to the conclusion that the Reporting Officer has recorded the adverse remarks against the petitioner being influenced by registration of FIR No. 4, dated 3.1.2007 and holding of the departmental inquiry against the L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 4 petitioner. No other material has been referred for recording the adverse entries. It has further been concluded that the representation of the petitioner has been rejected by the Inspector General of Police, Railways and Technical Services Haryana, by a cryptic and non-speaking order dated 29.5.2008. With regard to the order of compulsory retirement, the learned Single Judge has noticed that the petitioner has been compulsorily retired by taking into consideration the adverse remarks, FIR No. 4 dated 3.1.2007 and two departmental inquiries. In one Departmental Enquiry, he has been awarded punishment of stoppage of one increment without cumulative effect whereas in the other inquiry punishment of stoppage of one increment with cumulative effect has been converted into Censure by an order dated 16.7.2008, passed by the Appellate Authority i.e. Inspector General of Police, Railways & Technical Services, Haryana. The view of the learned Single Judge is discernible from the perusal of following paras of the impugned judgment which reads thus:
" The petitioner has placed on record order dated
06.12.2008 passed by the learned Chief Judicial Magistrate, Bhiwani, in Criminal Case No. 143-1/08 filed pursuant to FIR No. 4 dated 03.01.2007 in which the petitioner was initially involved. The petitioner has not been arrayed as an accused. Even the two persons who are arrayed as an accused have been acquitted. It is also admitted fact that in the Departmental Enquiry as well the petitioner has been exonerated. Thus, the very L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 5 basis for adverse remarks against the petitioner disappears.
Apart from the above, the petitioner has also relied upon government instructions dated 12.12.1985. The relevant instructions relating to reporting in respect of doubtful integrity requires that the Reporting Officer must clearly state if the officer is suspected of corruption or is believed to be corrupt and this opinion generally should be formulated by reasons which may be in possession of the Reporting Officer.
From the adverse reports noticed herein above, it can be conveniently inferred that FIR No. 4 dated 03.01.2007 and the Departmental Proceeding are the reasons for doubting the integrity of the petitioner. In so far other aspects relating to his efficiency etc. are concerned perhaps no interference may be warranted. No material has been referred to except the FIR and the Departmental Proceedings. Even the reasons for such an opinion are not recorded or disclosed in the reply. In view of the outcome of the criminal proceedings and the Departmental Enquiry noticed above, the adverse remarks regarding integrity of the petitioner, are not substantiated by any material and, thus, not justified.
The Appellate Authority also did not bother to record any reasons for rejecting the representation which has been dealt with in a most casual manner. Even in the reply, no grounds have been disclosed for L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 6 rejecting the representation of the petitioner. It is also noticed that while communicating the adverse entries, counseling to the petitioner to remove his defects was suggested. This clearly establishes that at no stage the petitioner was given counseling or apprised of his defects. Thus, the advise or counseling after awarding punishment amounts to putting the cart before the horse."
6. Having heard learned counsel for the parties and perusing the paper books we are of the considered view that the matter is no longer res integra.. The learned Single Judge has placed reliance on instructions dated 12.12.1985 (P-6 with LPA No. 590 of 2011) which requires recording of reasons in support of an entry concerning doubtful integrity. A similar question came up for consideration before the Letters Patent Bench of this Court in the case of State of Haryana v. Lalit Kumar Gupta, Gupta, 1993(4) SLR 702.
702 The Letters Patent Bench disapproved the view taken by the learned Single Judge in that case which was based on consolidated instructions adopted by the State of Haryana in the year 1972. Those instructions are similar to the instructions dated 12.12.1985 in contents and substance. According to both set of instructions an adverse report regarding integrity doubtful was required to be fortified with reasons for it. The consolidated instructions of 1972 regarding confidential reports, as noticed by the learned Single Judge in the case of Lalit Kumar Gupta v. The State of Haryana, 1988 (5) SLR 9, 9 reads thus:
L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 7
"It should be clearly stated if the officer is suspected of corruption or is believed to be corrupt and this opinion should generaly 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 mischief and harm. On the other hand, the 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. xxx xxx xxx xxx xxx xxx 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 Government in which even though the 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 reporting officers are failing in their duty to make entries in the Columns 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's displeasure. xxx xxx"
7. A bare perusal of instructions dated 12.12.1985 (P-6 with LPA No. 590 of 2011) would reveal that in the said instructions after reproducing the same para of the consolidated instructions, it has L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 8 been emphasised that reports regarding integrity ought to have been recorded in conformity with those instructions. Thus, it could be inferred that the instructions of 1972 and that of 1985 are pari materia to each other. In both the instructions the requirement stated is that the Reporting Officer must record reasons and discuss the material for recording doubtful integrity of an officer. However, the Letters Patent Bench in Lalit Kumar's case (supra) has concluded that such a mandate is not sustainable in the eyes of law which may require recording of reasons in support of entry concerning doubtful integrity. Moreover, these instructions are not justiceable and cannot be relied upon in a Court of law. The view of the Letters Patent Bench reads thus:
"6. Turning next to the instructions of government referred to by the learned Single Judge, it must be appreciated that these are but guidelines only and do not provide any justifiable cause for enforcement of them in proceedings under Article 226 of the Constitution. In any event, in the context of the circumstances here, no occasion is provided to impute any infirmity to the adverse remarks for 1967-68 and 1969-70 on account of these instructions."
8. For more elaborate discussion on the issue reference may be made to another Division Bench judgment of this Court rendered in the case of State of Punjab v. Janak Raj Jain, Jain, (1987) 1 I.L.R. 412 (P&H).
(P&H) The Division Bench after holding that the function of recording ACR is, in essence, subjective and administrative, proceeded to hold that the correctness of the opinion expressed by L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 9 the recording officer could not be gone into by the Courts. The view of the Division Bench is discernible from the following observations:
"......the recording of annual confidential reports is, in essence, subjective and administrative. The recording of such reports is in the sheer public interest and in a large governmental organisation, the same would be imperative, and equally, its confidential nature must also be maintained to a certain extent. Once that is so, either on the basis of a larger public policy or usually in compliance with the Government Instructions on the point, the superior officers are enjoined and indeed duty bound to put down their subjective assessment of the public servants conducted in the shape of a confidential report. A superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact. 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 to know the nature and character not only of his performance but also of the reputation that such officer enjoys. The recording of the annual confidential report being, therefore, a matter of subjective satisfaction of the concerned officer in the very nature of things the L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 10 correctness thereof could not be gone into by a civil Court and the suit was, therefore, not maintainable."
9. The Division Bench further found that the instructions are in the nature of guidelines and for internal consumption by the officers who are engaged in recording the ACR but the same cannot be enforced in Court of law. The aforesaid view flows from the following observations made by the Division Bench in Janak Raj Jain's case (supra):
(supra) "...if the adverse reports are recorded in violation of the executive instructions, they suffer from serious infirmity but at the same time there is no gain saying that the civil Court cannot substitute its own remarks in place of that of the reporting officer. At the most, the authority concerned may be directed by the Court to record remarks in accordance with the law which may or may not be possible after the lapse of time spent in Courts.
Moreover, the instructions issued in regard to recording of confidential reports are not statutory in nature. They are in the nature of guidelines and instructions for internal consumption by the officers for recording the annual confidential reports. Of course, the Officers would follow such instructions and in case there is a violation thereof, it would be for the reviewing authority on a representation by the aggrieved employee to go into the matter to give necessary relief to him if so satisfied, but at the same time the said instructions cannot be enforced in a Court of law."
L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 11
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.
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 U.P. v. Yamuna Shanker Misra, Misra, (1997) 4 SCC 7, 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 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 L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 12 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 v. State of Punjab, Punjab, 1981 (1) SLR
338. 338 The nature, substance, purpose and scope of ACR 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 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."L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 13
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.
14. The stage is now set to deal with the approach adopted by the learned Single Judge. It would first be appropriate to examine the ACR for the period from 26.4.2006 to 31.3.2007, which has been conveyed to the petitioner vide letter dated 23.5.2007 (P-1 with LPA No. 590 of 2011) and the same is set out below:
"1 Honesty Doubtful 3 Moral courage and Lacking readiness to expose the malpractices of L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 14 subordinates 4 Reputation for fair Not proper dealing with the public and accessibility to the public 9 Personality and Not proper initiative 10 Power of Loose command 11 Interest in modern Does not possess methods of investigation and modern police methods 12 Preventive and Not proper detective ability 13 Working Lack of experience experience of Criminal Law and procedure 14 Reliability Not reliable 16 Does Does not remain/ stay official/officer remain at H.Qrs.
or not after office hours 19 Defects if any and Was placed under suspension whether those due to involvement in FIR No. 4 were brought to dated 3.1.07 U/s 384/342/34 his notice through IPC GRPS Hisar along with any letter others and departmental enquiry was initiated vide memo No. 1567-78/A-1 dt.
9.1.07. Departmental enquiry was initiated vide memo No. 1599-605/A-1 dated 9.1.07 due to non registration of the complaint in time.
General Remarks Unable employee in police department L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 15 ASI Davinder Singh No. 607/GRP apprised of the above said adverse remarks and be instructed to remove these defects. Signature with date of the employee be obtained on the second copy, attached herewith and the same may be sent to this office as an acknowledgement."
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 conclusion and the same is not borne out 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 L.P.A. Nos. 362, 589 and 590 of 2011 (O&M) 16 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 either on exoneration of the delinquent 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.
17. As a sequel to the above discussion, the appeals filed by the State of Haryana i.e. L.P.A. Nos. 589 and 590 of 2011 are allowed, whereas L.P.A. No. 362 of 2011 filed by the petitioner is dismissed. Accordingly, the judgment dated 27.9.2010 passed by the learned Single Judge is set aside and the writ petitions, namely, CWP No. 21197 of 2008 and 476 of 2009 are dismissed.
A copy of this order be placed on the files of all the connected appeals.
(M.M. KUMAR) JUDGE (A.N. JINDAL) JINDAL) May 11, 11, 2011 JUDGE PKapoor