Regular Second Appeal No.2762 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2762 of 2011 Date of Decision:-14.9.2011 Satnarain Bansal ...Appellant Versus Chairman Board of Governors/Chairman Managing Committee, Vaish Technical Institute, Rohtak and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.N.K.Malhotra, Advocate for the appellant. M ehinder S ingh S ullar , J . (Oral) The contour of the facts, culminating in the commencement, relevant for deciding the instant regular second appeal and emanating from the record, is that Satnarain Bansal son of late Mata Deen-appellant-plaintiff (for brevity “the plaintiff”) was initially appointed as Lab Attendant on 19.8.1975 and was working as Workshop Instructor in Auto Mobile Department of Vaish Education Society, Rohtak. The competent authority of the Society was not satisfied with his working and recorded adverse remarks for the years 2001-02, 2002-03 and 2003-04 in his service record. 2. The plaintiff claimed that the adverse remarks were invalid, baseless and recorded and conveyed in violation of the instructions issued by the Government of Haryana. The representation made by him was turned town by the competent authority on the ground of limitation. It was claimed that although he was suspended, without conveying any order of suspension, still, suspension allowances were not regularly paid to him, despite repeated request and representation in this regard. 3. According to the plaintiff, the memorandums No.4960 and 4961 dated 9.12.2005 were issued to him for imposing major penalty under Rule 7 of the Regular Second Appeal No.2762 of 2011 -2- Punishment and Appeal, Rules 1987 (hereinafter to be referred as “the Services Rules”). He asked the Management to withdraw the indicated Memorandums, but in vain. 4. Levelling a variety of allegations and narrating the sequence of events, in all, the plaintiff claimed that the adverse remarks for the years 2001-02 (conveyed, by means of letter dated 4.2.2003 (Ex.P1)); 2002-03 (conveyed, by way of letter dated 3.3.2004 (Ex.P2)) and 2003-04 (conveyed, by virtue of letter dated 29.11.2004 (Ex.P3)) are illegal, his representation was arbitrarily dismissed and disciplinary proceedings for imposing major penalty were wrongly initiated against him. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of declaration, with a consequential relief of permanent injunction, restraining his employer, Chairman of Board/Managing Committee of Vaish Technical Institute and others respondent-defendants (for short “the defendants”), not to take any action on the basis of adverse remarks, conveyed to him and on the memorandums dated 9.12.2005 for initiation of disciplinary proceeding for imposing major penalty in this relevant connection. 5. The defendants contested the suit and filed their joint written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, jurisdiction of civil court, mis-joinder & non-joinder of necessary parties cause of action and locus standi of the plaintiff. It was claimed that Vaish Technical Institute is an aided institute and is run by defendant Nos.1 and 2. The ACRs were rightly recorded by the competent authority (Principal of the Institute), on the basis of performance of plaintiff and subjective satisfaction of the reporting authority. According to the defendants, the plaintiff did not improve himself, despite receiving letters (Ex.P1 to Ex.P3), by means of which, the adverse remarks were conveyed to him well in time. The ACRs were forwarded for review to the reviewing authority and then to the accepting authority. The representation submitted by the plaintiff was stated to have been rightly rejected by the Board of Regular Second Appeal No.2762 of 2011 -3- Governors/Managing Committee. It was claimed that firstly, he was suspended and after taking a lenient view, on his tendering apology, he was reinstated, but again he was suspended for his misconduct, mis-behaviour and willful absence from duty from 21.9.2004 to 4.10.2004 and regular departmental inquiry was initiated. The subsistence allowance was stated to have been regularly paid to him. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 6. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- 1. Whether the adverse remarks recorded by the defendants in ACR of the plaintiff for the year 2001-02, 2002-03 and 2003-04 conveyed to the plaintiff vide letter dated 4.2.2003, 3.3.2004 and 29.11.2004 are illegal, null and void, baseless, without any substance and liable to be set aside ? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled for decree for permanent injunction as prayed for?OPP 3. Whether the plaintiff has no cause of action and locus standi to file the present suit?OPD 4. Whether the civil Court has no jurisdiction to entertain and try the present suit?OPD 5. Whether the suit of the plaintiff is bad for non-joinder and mis-joinder of necessary parties?OPD 6. Relief. 7. The parties to the lis, produced on record the oral as well as documentary evidence, in order to substantiate their respective pleaded cases. 8. The trial Court, after taking into consideration the entire evidence on record, dismissed the suit of the plaintiff, through the medium of impugned judgment and decree dated 8.4.2010. 9. Aggrieved by the decision of the trial Court, the plaintiff filed the appeal, which was dismissed with costs as well, by the Ist Appellate Court, by virtue of impugned judgment and decree dated 22.12.2010. Regular Second Appeal No.2762 of 2011 -4- 10. The appellant-plaintiff still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present regular second appeal. 11. After hearing the learned counsel for the appellant-plaintiff, going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant regular second appeal in this respect. 12. Ex facie, the argument of learned counsel that the defendants have wrongly rejected the representations of the plaintiff and since his ACRs cannot be implemented and used against him in the departmental proceedings for imposing major penalty, so, the Courts below committed a legal mistake in dismissing his suit, is neither tenable nor the observations of Hon'ble Apex Court in case Gurdial Singh Fijji v. The State of Punjab and others 1979(1) S.L.R. 804 and of this Court in case Om Parkash, Conductor v. State of Haryana and others 2006(2) R.S.J. 634, relied on behalf of the plaintiff, are at all applicable to the facts of the present case, wherein Ist case the integrity certificate was not issued to the employee on the ground of adverse report in the confidential roll, for the year 1966-67. The ACRs were conveyed and the employee made the representation, which was referred by the Government to Sh.Sewa Singh, retired District and Sessions Judge, who recorded the adverse remarks. The District Judge required that reference be routed through the High Court. The Government then made a reference to the High Court, requesting it to obtain the comments of District Judge. The High Court replied that it was not its practice to call for comments of District Judge on the representation of an officer against whom, adverse remarks were made. In the absence of comments of the reporting officer, the Government decided that a suitable note may be placed on the character roll of the employee alongwith confidential report for the year 1966-67. On the peculiar facts and in the special circumstances of that case, it was observed that “the issuance of integrity certificate cannot be denied to Regular Second Appeal No.2762 of 2011 -5- the appellant therein on the basis of such ACRs.” 13. Similarly, in 2nd case, it was observed that “recording of ACR is within the exclusive domain of the Reporting Officer and is within his subjective satisfaction unless some mala fides are proved against the Reporting Officer.” Possibly, no one can dispute with regard to the aforesaid observations, but, to me, the same would not come to the rescue of the plaintiff in the instant controversy. 14. As is evident from the record that the plaintiff has filed the suit, challenging the initiation of departmental proceedings against him, for imposing the major penalty, on the ground that the adverse remarks were wrongly recorded, conveyed and his representation was arbitrarily rejected. On the contrary, the defendants claimed that the recording of ACRs was based on misconduct, non- performance of the plaintiff and on the basis of subjective satisfaction of the competent authority. The departmental inquiry was rightly initiated against him on the basis of his misconduct, mis-behaviour and absence from duty from 21.9.2004 to 4.10.2004 as per Service Rules. 15. What is not disputed here is that the object of writing confidential report is to give an opportunity to the official to improve the efficiency, discipline and also to improve the quality & excellence of his performance of duty. The ACRs are always based on subjective satisfaction of competent authority and civil Court cannot sit over the ACRs as an appellate authority, unless the same are perverse and mala fide. In the instant case, no evidence, muchless cogent, is forthcoming on record even to remotely indicate any mala fide on the part of Reporting Officer in this connection. 16. Moreover, it is not a matter of dispute that the indicated ACRs were duly conveyed, vide letters (Ex.P1 to Ex.P3) and plaintiff submitted his consolidated representation (Annexure P4) for three consecutive years on 21.4.2005. That means, since he has not made any representation within the stipulated period, so, he has accepted the ACRs. Moreso, when the representation Regular Second Appeal No.2762 of 2011 -6- was duly considered and rejected by the defendants. Above-all, the defendants are well within their power to initiate domestic inquiry with regard to misconduct/mis- behaviour of the plaintiff and absence from duty. The present suit to that extent is premature. 17. Likewise, the trial Court, after taking into consideration the entire evidence on record in the right perspective and limitation of jurisdiction, has rightly negatived the claim of the plaintiff. Not only that, the decision of the trial Court was upheld by the Ist Appellate Court, by means of impugned judgment dated 22.12.2010, which, in substance, is (paras 18 & 19) as under:- “18. The record further reveals that against the adverse remarks, the plaintiff submitted consolidated representation dated 21.2.2005 (Ex.P4). The said representation was rejected by the defendants vide order dated 17.3.2005 (Ex.P5) by observing that the representation being time barred stands rejected. The plaintiff has failed to prove that how he could have represented after the prescribed period of 45 days and three months. In the circumstances, no fault can be found with the order of the defendants whereby representation of the plaintiff was rejected being time barred. Moreover, it is not the plea of the plaintiff that adverse remarks were not conveyed to him well in time. 19. The decision regarding subjective satisfaction of competent authority while recording adverse remarks in the ACRs of plaintiff cannot be commented upon in this lis. The remedy to represent against the same, as discussed above, was not availed by the plaintiff within the prescribed period. Moreover, it is settled law that the entries in the ACRs are made on the subjective satisfaction of the reporting authority and the very purpose of writing the ACR is to give an opportunity to the official/officer to remove the shortcomings in his work and to improve the quality of his work. Learned Trial Court while dismissing the suit has rightly followed the decisions in Dharam Singh Vs. State of Haryana, 2001 (2) R.S.J. 16 (P&H) in which the Hon'ble High Court of Punjab and Haryana has held that - “3.... the court cannot go into the correctness of the confidential report and the only remedy available to an official is to file a representation under the rules/instructions of the concerned department/institute. This exercise had been carried out by the appellant as he had filed representations against the adverse remarks to the higher authorities and they had all been rejected.” and Charanjit Singh Vs. Union of India and others, 2004(2) RSJ 156 in which it has been held that - Regular Second Appeal No.2762 of 2011 -7- “5..... when the ACRs are based on relevant consideration and there is material on record to support the conclusion, the High Court would not substitute 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 of the administrative body is not the scope of judicial review.” In the above said circumstances, the rest of the evidence needs not to delve into.” 18. The learned counsel for the appellant-plaintiff did not point out any material, much less cogent, to contend as to how and in what manner, the impugned judgments and decrees are illegal and would invite any interference in this relevant connection. 19. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, they have recorded the above-mentioned concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-plaintiff, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this behalf. 20. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiff to assail the findings of the Courts below in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on his behalf, in this relevant direction, have already been duly considered and dealt with by the Courts below. 21. Sequelly, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is Regular Second Appeal No.2762 of 2011 -8- beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 22. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-plaintiff. 23. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 14.9.2011 Judge AS Whether to be referred to reporter?Yes/No