R.S.A.No. 239 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 239 of 2009 (O&M) Date of decision: 2.12.2009 EHC Ram Niwas ......Appellant Versus State of Haryana and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Rajesh Khandelwal, Advocate, for the appellant. Ms.Maloo Chahal, DAG, Haryana. **** SABINA, J. Plaintiff-appellant filed a suit for declaration, which was dismissed by the Civil Judge (Jr.Divn.), Hisar vide judgment and decree dated 13.12.2006. In appeal, the said judgment and decree were upheld by the District Judge, Hisar vide judgment and decree dated 7.11.2008. Hence, the present appeal by the plaintiff. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 5 of its judgment, are as under:- R.S.A.No. 239 of 2009 (O&M) 2 “2. Brief facts of the plaintiff's case are; that he had joined the department of police as constable on 23.8.1982 at Narnaund and he has been performing his duties quite diligently and was awarded more than 20 Commendation Certificates during this period. The plaintiff was informed by Superintendent of Police, Hisar, vide letter, vide letter No. 447/Steno dated 22.6.2004 that there were adverse remarks against him regarding his integrity in his annual confidential report pertaining to the period 4.10.2003 to 31.3.2004 and for ready reference the requisite entries are reproduced as under:- 1. Discipline Indisciplined 2. integrity Dishonest 3. Reliability Most unreliable 4. Moral Character Below Average 5. General remarks below average official. Needs close supervision. Facing a D.E. for connivance with different types of criminals. 3. Subsequently, the plaintiff had made a representation before Inspector General of Police, Hisar Range. Hisar for expunging these adverse remarks but the same was rejected by the worthy Inspector General of Police, Hisar, Range, Hisar vide his order NO. 24575/DSO/13A/2004 dated 14.10.2004. The plaintiff had further made a representation before Director General of R.S.A.No. 239 of 2009 (O&M) 3 Police, Haryana Panchkula and the same was also rejected vide order No. 12391/E-II/Dated 6.7.2005. 4. It is further alleged that a preliminary inquiry was got conducted against him by Superintendent of police, Hisar from District Inspector, Hisar vide letter dated 10.3.2004 on the allegations that during his posting at Police Station, City Hansi, he had relations with the criminals and was involved in illegal activities District Inspector had submitted his report on 14.10.2004 while maintaining that the allegations leveled against the plaintiff are correct and subsequently plaintiff alongwith EHC Raj Kumar No. 25/Hisar was placed under suspension by Superintendent of Police, Hisar and a regular departmental inquiry was ordered against them vide letter No. 3918-25 dated 17.3.2004. The inquiry was marked to Deputy Superintendent of Police, Hisar, who had submitted his findings while declaring the plaintiff and EHC Raj Kumar guilty of charges and consequently Superintendent of Police, Hisar had awarded the punishment of stoppage of four annual increments with permanent effect vide his office order No. 385-89/Steno dated 1.6.2004. The plaintiff had filed an appeal against the said punishment order before Inspector General of police, Hisar and the same was also rejected by order R.S.A.No. 239 of 2009 (O&M) 4 dated 22.6.2004 and the plaintiff had further preferred a revision petition against the said order and the same was accepted by worthy Director General of Police Panchkula vide order dated 21.12.2004 on the ground that there was no evidence against the plaintiff. It is further alleged that in view of the findings given by Director General of police, Panchkula and adverse remarks recorded in annual confidential report of the plaintiff are liable to be expunged. Moreover, the plaintiff had remained posted at Police Station, City Hisar from 16.2.2004 to 17.3.2004 i.e. only for one month and the period of one month is not sufficient and adequate to assess the work and conduct of the officer or official as well as, his integrity and liability within such a short period. It is further alleged that adverse remarks recorded in the annual confidential report of the plainiff are not based on any evidence and the same have been made in casual manner and against the statutory provisions of law. Hence the same are liable to be expunged. On these assertions, the suit was filed. 5. Notice of the suit was issued to the defendants, who put their appearance and filed joint written statement taking preliminary objections, It is alleged that Superintendent of Police, Hisar had come to R.S.A.No. 239 of 2009 (O&M) 5 know that the plaintiff had connived with criminals of various types and the matter was got enquired vide letter No. 3550 dated 10.3.2004 through the then District Inspector of Police Hisar and after having conducted a thorough inquiry he has submitted his report dated 14.10.2004 while maintaining that the allegations leveled against the plaintiff were true. The competent authority thereafter ordered regular departmental inquiry vide order No. 3918-25 dated 17.3.2004 and the same was entrusted to the then Deputy Superintendent of Police, City, Hisar who had also found the plaintiff guilty of charges. Later on the competent authority had passed the punishment order against the plaintiff and as such it is evident from the record that adverse remarks are based on concrete evidence and the authenticity of the report is not challengeable. It is further asserted by the defendants that the plaintiff was given proper opportunity to prove his version but he had failed to do the same and consequently the punishment order was passed against him. It has been further averred by the defendants that the plaintiff had remained posted at Police Station City Hansi from 7.3.2002 to 17.3.2004 and the reporting officer had remained Superintendent of Police, Hisar, w.e.f. 3.10.2003 to 18.3.2005 and as such sufficient R.S.A.No. 239 of 2009 (O&M) 6 period was available with the reporting authority to assess the work and conduct of the plaintiff. With these averments the defendants have prayed for dismissal of the present suit.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the adverse remarks made in the Annual Confidential Report of the plaintiff for the period w.e.f. 4.10.2003 to 31.3.2003 given by defendant No. 4 are illegal, malafide and are liable to be expunged?OPP 2. Whether the order dated 14.10.2004 passed by defendant No. 3 by which representation of the plaintiff was rejected, is also liable to be set aside?OPP 3. Whether the order dated 6.7.2005 passed by defendant No. 2 by which rejecting the representation, is also illegal, malafide and liable to be set aside?OPP 4. Whether the suit of the plaintiff is not maintainable ?OPD 5. Relief. The plaintiff had filed a suit for declaration that the adverse remarks incorporated in his Annual Confidential Report (for short “ACR”) for the period from 4.10.2003 to 31.3.2004 be expunged. Learned counsel for the appellant has submitted that the R.S.A.No. 239 of 2009 (O&M) 7 ACR in question was recorded by Superintendent of Police, Hisar without any basis. Vide order dated 21.12.2004, Director General of Police, Hisar had set aside the order, whereby punishment of stoppage of four increments with cumulative effect had been passed against the plaintiff as it was a case of no evidence. Hence, the remarks in the ACR were also liable to be expunged. In support of his arguments, learned counsel has placed reliance on the decision of this Court in Bhajan Singh vs. Bahal Singh 1967 SLR 601, wherein it was held as under:- “6. Learned counsel has then contended that the observations made in the confidential report of the petitioner (Annexure 'H') which have been quoted in an earlier part of this judgment, and the warning administered to him therein and on April 17, 1965 (Annexure 'C') are mala fide and should be quashed. Without entering into the allegations of mala fide, I think the Superintendent of Police had no jurisdiction to administer a warning to the petitioner (warning itself being a punishment), on allegations which were still pending inquiry before the departmental authorities. Same applies to the observations in the confidential report relating to the Chuchakwas liquor taking incident. For the foregoing reasons I set aside and quash the order dated April 17, R.S.A.No. 239 of 2009 (O&M) 8 1965 (Annexure 'C') administering warning to the petitioner and direct that the portion relating to the Chuchakwas incident from the confidential report (Annexure 'H') shall also be deleted.” Learned counsel for the appellant has also placed reliance on the decision of this Court in Rohtas Singh vs.State of Haryana 2002 (1) SCT 604, wherein it was held as under:- “6. Learned counsel for the petitioner argued that the remarks of the Deputy Inspector General are based on the anonymous complaint and when he was charge sheeted for the said remarks should be expunged. Actually anonymous complaint should not have been given any attention while writing annual confidential report.” 9. If the corruption case against the petitioner was not proved, the respondents should not have based adverse remarks on the same. Moreover, the case of the respondents is that the controlling officer who recorded the adverse remarks was well aware of the petitioner having illicit connections with the sellers of liquor. When this information had come to the notice of the controlling officer atleast the petitioner should have been confronted with the same before recording of adverse remarks against him as held in the case of R.S.A.No. 239 of 2009 (O&M) 9 State of U.P. vs. Yamuna Shanker Misra and another, 1997 (2) SCT 234 (SC): 1997(2) SLR 311. Learned State counsel, on the other hand, has submitted that the recording of remarks in the ACR was a separate matter. The Superintendent of Police, after observing the work and conduct of the plaintiff, had recorded the ACR. Merely because the order of punishment had been set aside vide order dated 21.12.2004, the remarks in the ACR were not liable to be expunged. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Ex.P-1 is the ACR, which has been reproduced in the earlier part of this judgment. The representation filed by the plaintiff was dismissed vide order Ex.P-2 dated 14.10.2004 by Inspector General of Police, Hisar Range, Hisar. A departmental inquiry was also conducted against the plaintiff with regard to the allegations that he was mixed up with criminals like gamblers, ladies of suspicious characters involved in sex trade and other type of criminals on the allurements of getting money from them illegally. After the departmental inquiry, order dated 1.6.2004 was passed, whereby four increments of the plaintiff was stopped with cumulative effect. Appeal filed by the plaintiff was dismissed by the Appellate authority vide order dated 9.10.2004. However, in a revision vide order Ex.P-4 punishment order was set aside by Director General of Police, Haryana. The object of writing the annual confidential report is to give an opportunity to the officials to remove deficiency and to R.S.A.No. 239 of 2009 (O&M) 10 inculcate discipline. It also seeks to serve improvement of quality and excellence and efficiency of public service. The officer while recording the report should show objectivity, impartiality and fair assessment without any prejudices whatsoever with the highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. In order to avoid demoralization of the officers which would be deleterious to his efficacy and efficiency of public service, the confidential reports should be written by a superior officer of highest rank. There should be another higher officer in the rank above the officer who has written confidential report to review such report. The defects and deficiency brought home to the officer, are means to the end of correcting himself and to show improvement towards excellence. The confidential report, therefore, should contain the assessment of the work, devotion to duty and integrity of the officer concerned. The aforesaid entries indicate and reflect that the higher officer has assessed the reputation of the officer, his honesty reliability and general reputation gathered around the officers performance of the duty and short falls in that behalf. It is sad that a sense of irresponsibility prevails in many of the officers. It is a settled proposition of law that mere absence of reasons in the order rejecting the representations of an officer against adverse confidential report is no ground for quashing the order of rejecting representations. Such orders are administrative R.S.A.No. 239 of 2009 (O&M) 11 orders and are not quasi-judicial orders, and, therefore, no reasons are required to be given while passing such administrative orders. The recording of annaul confidential report is a matter of subjective satisfaction of the concerned officer and the same cannot be judged by this Court. This Court shall certainly interfere where the confidential reports were recorded by an officer who was not competent to do so a nd had recorded the reports in contravention of the rules. In case the plaintiff can allege and prove malice against the officer who had recorded the annual confidential report, then again the case of the plaintiff is likely to succeed. In the present case, the plaintiff has neither pleaded nor proved that the concerned officer who recorded the confidential reports was not competent to record the same. The Superintendent of Police, after observing the work and conduct of the plaintiff, has recorded the ACR. The Superintendent of Police was the best person to have assessed the work and conduct of the plaintiff and the ACR recorded by him is a matter of satisfaction of the said officer and the same cannot be judged by this Court. There is nothing on record to suggest that the officer, who had recorded the ACR had any malice against the plaintiff. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiff. The departmental inquiry with regard to the charges of misconduct was a separate matter and the punishment order has been set aside against the plaintiff vide order R.S.A.No. 239 of 2009 (O&M) 12 Ex.P-4. However, the recording of ACR is a separate issue. The ACR has been recorded by the competent officer, after observing the work and conduct of the plaintiff, in his official capacity. The judgments relied upon by the learned counsel for the appellant fail to advance the case of the appellant. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 02, 2009 anita