C.W.P.No.11971 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.11971 of 2010(O&M) Date of decision : 06.12.2011 Sunil Dutt ....Petitioner Versus State of Haryana and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present : Mr. S.K.Redhu, Advocate for the petitioner Mr. Sunil Nehra, Sr. DAG, Haryana MAHESH GROVER, J. The petitioner has filed the instant petition with a prayer that the writ in the nature of Certiorari be issued to quash the impugned order dated 7.9.2007 vide which adverse remarks have been recorded and conveyed to the petitioner and also to quash the subsequent orders dated 29.12.2009 vide which his appeal against the aforesaid adverse remarks has been rejected. He has also prayed that subsequent order dated 2.4.2010 passed on a second appeal filed by him be also quashed. The grievance of the petitioner is that adverse remarks as contained in Annexure P-4 were conveyed to him and these remarks were solely based on an incident of alleged corruption indulged in by him regarding which a case has been registered under Section 7 and 13 (1)(d) of the Prevention of Corruption Act in which he was acquitted after having faced the trial. The matter was also inquired into departmentally but the petitioner was exonerated in the same and the inquiry proceedings were C.W.P.No.11971 of 2010(O&M) 2 consigned. The following are the remarks conveyed to the petitioner:- “In the confidential report of ASI Sunil Dutt No. 164/GGN for the period from 1.4.2006 to 31.3.2007 the following adverse remarks have been recorded:- 1. Honesty Dishonest 2. Moral Character Below average 3. Reputation regarding encourage Below average cooperation and proper behaviour with public 4. Relability Not reliable 5. General remarks An officer of below average category” Learned counsel for the petitioner with reference to Annexure P-10 which is the order passed on his representation has stated that the solitary material against him was the one which led to the registration of a case against him under the Prevention of Corruption Act and in which he had been acquitted honorably and once such an acquittal has been awarded and there being no other material, the adverse remarks could not be permitted to stand and deserves to be expunged. Reliance has been placed by the learned counsel for the petitioner on decisions of this Court rendered in case titled as Ranbir Singh Vs. State of Haryana and others 2009(2) RSJ 485 wherein this Court has observed as follows:- “14.The contention on behalf of the State Government is that compulsory retirement is not a punishment and it is a matter by which the establishment could dispense C.W.P.No.11971 of 2010(O&M) 3 with dead wood and compulsory retirement ought not to be understood as casting of any aspersion at all. Counsel for the petitioner responds to this argument by pointing out that compulsory retirement itself is indeed a form of punishment if it is inflicted on the basis of pendency of a criminal case. The Court is bound to examine whether the relevant materials have been taken into account at the time when the order is passed. We have already pointed out to the fact that the only relevant consideration at the time taken up as a subject of compulsory retirement is the pendency of the criminal case and the acquittal by the criminal court and the ultimate exoneration of the petitioner in the departmental proceedings are not even in the file. The Hon'ble Supreme Court said in State of Gujrat versus Suryakant Chunilal Shah (1999) SCC 529 that pendency of criminal cases was not sufficient to doubt a person's integrity. It depend on the nature of criminal case. It interfered with the decision of compulsory retirement, holding, however, that there was a collateral purpose of removing the employee. This Court has cautioned in Amrik Singh versus State of Haryana 1995 (4) RSJ that there is an onerous obligation placed on the reporting or other authority, who makes adverse remarks regarding integrity of an officer and he has to be extracautious, careful, while making adverse entry pertaining to integrity. It is indeed doubtful whether the Superintendent of Police had even properly noticed the adverse entries, since his note to the IG of Police refers to them as for the period from 01-04-2004 to 03- C.W.P.No.11971 of 2010(O&M) 4 12-2004, when actually it is for the period from 01-04-2001 to 03-12-2001. Even if this was to be taken merely clerical error, it would still be seen that the ultimate acquittal of the petitioner in the criminal case had not been communicated to his Superior Officer at all. Even the fact that the departmental enquiry exonerated him does not find mention in the note sent to the Inspector General of Police. Having regard to the fact that the only incident of pendency of criminal case had formed the solitary basis both for the adverse entry as well as for the order affecting compulsory retirement, we find that non consideration of acquittal in the criminal case and the exoneration of the charges in the departmental proceedings vitiates the ultimate decision.” Likewise, reliance has also been placed on case titled as Sham Sunder Mongia Vs. Housing Board Haryana 1994(1) SCT 161 wherein this Court has observed that once the punishment awarded has been set aside in appeal, the adverse remarks cannot be permitted to stand if they are based on same incident on which punishment was alleged. Likewise reliance has been placed upon a decision of this Court dealing with the compulsory retirement of an employee which was based on a criminal case and punishment of stoppage of two increments in which case the employee was acquitted observed that the entry of doubtful integrity could not stand and the order of compulsory retirement was quashed. The underlying principle propounded in these judgments is that once the adverse remarks which are based on an incident involving allegations regarding which petitioner stands exonerated then the adverse C.W.P.No.11971 of 2010(O&M) 5 remarks cannot be permitted to stand. As against this learned counsel for the respondent has stated that recording of ACR is the subjective satisfaction of the recording officer which should not be interfered with unless the same are held to be mala fide. Reliance has been placed on decisions rendered by this Court in cases titled as Harjinder Pal Singh Vs. Punjabi University reported as 2003 (1) SCT 148, Charanjit Singh Vs. Union of India and others reported as 2004(1) PLR 839, Om Parkash, Conductor Vs. State of Haryana and others reported as 2006(2) SCT 408, D.D.Sharma Vs. State of Haryana reported as 1996(3) SCT 780, Dharam Singh Vs. State of Haryana reported as 2001(2) SCT 1139, State of Punjab & Anr. Vs. Bakhtawar Singh reported as 2002 (4) SCT 1026 and RSA no. 2935 of 2009 titled as Head Constable Amar Singh Vs. State of Haryana and others decided on 11.3.2010. I have considered the assertions and counter assertions respectively made by the learned counsel for the petitioner and respondents Annexure P-4 are the remarks which have been conveyed to the petitioner and are adverse to him. A perusal of the same does not reveal that they are based on any allegations of corruption which led to the registration of FIR against the petitioner, however, they do describe the petitioner as dishonest and also officer below average and un-reliable. It is in the decision rejecting his representation that there is some material to suggest that it relates to the incident of alleged corruption in which the petitioner faced trial as also some information provided to the petitioner under the query posed by him in Right to Information Act but this itself does not conclusively establish that this was the sole reason to declare the petitioner as dishonest. Even if it is C.W.P.No.11971 of 2010(O&M) 6 so the remaining columns also do not reflect upon the petitioner flatteringly as he has been described as an officer below average and unreliable, which necessarily does not lead to an inference that it is based solely on the incident leading to his trial in a case under Prevention of Corruption Act. The Division Bench of this Court in case titled as Harjinder Pal Singh Vs. Punjabi University reported as 2003 (1) SCT 148 has observed as follows:- “6. After considering the rival contentions of the parties we are of the considered opinion that there is no merit in this writ petition. Recording of the ACR is the subjective satisfaction of the reporting officer. Until and unless it is shown that the recording of the remarks was arbitrary of mala fide, we are not inclined to interfere in the same. Admittedly, Dr. Hazare Singh was the controlling officer of the petitioner and he had made the subjective satisfaction with regard to the work and conduct of the petitioner. It is the stand of the University that the behaviour of the petitioner with Class III and Class IV employees was not proper. We all know that unless the establishment works as a team there cannot be success in its working. Even the petitioner himself admits that there was non-execution of the order which actuated Dr. Hazare Singh to change his opinion regarding the work of the petitioner. If on account of the lack of interest the work of the University has suffered or if the University has suffered financially, there was no bar on the part of the reporting officer to say that the employee does not accept the extra C.W.P.No.11971 of 2010(O&M) 7 responsibilities. There is nothing on the record to show that the remarks recorded by the reporting officer was arbitrary or mala fide one or that it was based on no circumstance.” Likewise in Charanjit Singh Vs. Union of India and others reported as 2004(1) PLR 839, another Division Bench of this Court observed as follows:- “5. We have considered the submissions of the learned counsel for the parties. We are of the considered opinion that the recording of the ACR cannot be said to be without reference to the relevant material. WE have perused the record and find that there is sufficient relevant material for recording the ACR. The instances of misconduct quoted above clearly indicate the conduct which is against the good order and discipline of the force. In the order dated 25.7.2000, it has been clearly observed that the Officer's habit of using abusing language has further been corroborated by other material. The petitioner also could not produce any evidence in support of the stand taken by him. It is a settled proposition of law that when the ACRs are based on relevant considerations, and there is material on the record to support the conclusion, the High Court would not substituted its own opinion for the opinion of the administrative body. In such matters, the scope of judicial review is limited to the examination of the decision making process. The High Court does not sit in appeal over the decision itself. Correctness or otherwise of the decision itself is not the scope of judicial review. We have also pursued the C.W.P.No.11971 of 2010(O&M) 8 preliminary enquiry report. We find that there is sufficient material in support of the conclusion reached by the respondents. In view of the above, we find no reason to interfere.” For the aforesaid reasons, when the ACR of the petitioner has been recorded by an officer according to his own subjective satisfaction and in the absence of any mala fides against the petitioner, the instant petition is held to be without any merit and the same is hereby dismissed. December 6, 2011 (Mahesh Grover) rekha Judge