REGULAR SECOND APPEAL NO.2182 OF 2009 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 01, 2010 Ram Karan .....Appellant VERSUS Haryana State and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Ms. Preeti Khanna, Advocate, for the appellant. Mr. Deepak Jindal, DAG, Haryana, for the State. **** RANJIT SINGH, J. Following adverse remarks were recorded in the report of Ram Karan for the period from 4.8.2005 to 22.2.2006:- “1. Integrity: Dishonest 2. Reliability: Unreliable 3. General Remarks: There were complaints of his nexus with Satta/gambling criminals while posted in P.S.Udyog Vihar, Gurgaon.” He accordingly filed a suit to challenge the said adverse remarks on the ground that these were illegal and unlawful. He also challenged the order whereby his representation against the adverse REGULAR SECOND APPEAL NO.2182 OF 2009 (O&M) :{ 2 }: remarks was rejected and communicated to him on 6.9.2007. The suit filed by the appellant-plaintiff was decreed and declaration issued to the effect that adverse remarks communicated to him and the order rejecting his representation were illegal, unlawful and against the instructions of the Government and not binding on the appellant-plaintiff and, thus, be expunged. The State filed an appeal against this judgement and the first Appellate Court has reversed the finding given by the Trial Court and has allowed the appeal. The appellant is now before this Court through this present Regular Second Appeal. Learned counsel for the appellant would contend that except for the impugned adverse entry, the entire service record of the appellant had been clean and rather he has been receiving commendation certificates from various higher authorities. The counsel would further contend that till some concrete evidence of corruption was available, the adverse remarks could not have been recorded in this manner. The counsel would also contest the finding/observation by the first Appellate Court that recording of ACR is a matter of subjective satisfaction of the authority concerned and the Courts can not go into the correctness of the same. Accordingly, the counsel submits that the following two substantial questions of law would arise in this case for consideration of this Court:- “a. Whether the lower appellate court erred in holding that being a matter of subjective satisfaction, judicial review of adverse entries was excluded altogether, no matter how arbitrary or unfounded or suffering from wednesbury unreasonableness? REGULAR SECOND APPEAL NO.2182 OF 2009 (O&M) :{ 3 }: b. Whether the lower appellate court failed to appreciate that adverse entry having serious implications on the career of a civil servant, cannot be recorded without fair just and reasonable procedure consistent with Articles 14, 16 and 21? The learned counsel first contends that the view taken by the first Appellate Court that recording of annual confidential report is purely a subjective satisfaction of the officer writing report for which the Courts have no jurisdiction to interfere would not be correct and sound proposition of law. In support, reference is made to the case of State of U.P. Vs. Yamuna Shanker Misra and another, 1997 (4) Supreme Court Cases 7. In this case, Hon'ble Supreme Court appears to have made general observations stressing the need to write reports and overall assessment accurately on the basis of facts. The Court has, thus, observed that:- “The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon facts or circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting REGULAR SECOND APPEAL NO.2182 OF 2009 (O&M) :{ 4 }: officers writing confidential should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite being given such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him.” The observation that though sometime it may not be part of record but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge may need notice. No ratio can be culled out from this case as is being urged by the counsel. Rather in this case, the finding by the High Court that adverse remarks smacked of arbitrariness was not upheld. The dispute in this case was found to be not surviving. Reference is then made to the case of State of Haryana Vs. Karan Singh, 2002 (1) RSJ 109 where it is observed:- “He should have given some reason why he was suspecting his integrity. He should have given some instance showing lack of integrity in him. There was no complaint against him from any passenger or the checking staff that he had charged bus fare from certain passengers, did not issue them tickets and had mis- REGULAR SECOND APPEAL NO.2182 OF 2009 (O&M) :{ 5 }: appropriated the bus fare.” In the present case, reasons are given while endorsing adverse remarks. Even instance is mentioned. Reliance is also placed on Head Constable Randhir Singh Vs. State of Haryana and others, 2002 (1) RSJ 115. Here the remarks recorded on the basis of allegation of corruption was for which the person was exonerated in the departmental enquiry. In this background, the adverse remarks were held liable to be quashed. Learned counsel would also refer to the case of Dev Dutt Vs. Union of India, 2008 (8) Supreme Court Cases 725, where again general observations have been made that fairness and transparency in public administration requires that all entries whether poor, fair, average, good or very good in annual confidential report of public servant whether in civil, judicial, police or any other State service (except the military) must be communicated to him within a reasonable period so that he can make a representation for its up-gradation. There is no plea in the present case that the adverse remarks as recorded were not communicated. This judgment in Dev Dutt's case (supra), thus, may not have any applicability. Strong reliance is placed on the observations made by the Hon'ble Supreme Court in the case of M.S.Bindra Vs. Union of India and others, 1998(7) Supreme Court Cases 310. Hon'ble Supreme Court observed as under:- “While viewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the REGULAR SECOND APPEAL NO.2182 OF 2009 (O&M) :{ 6 }: available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim “nemo firut repente turpissimus” (no one becomes dishonest all of a sudden) is not unexceptional but still it is salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of “doubtful integrity”, it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only, then there is justification to ram an officer with the label “doubtful integrity”. Two principles seem to have been enunciated in this case. It is held that the judicial scrutiny of any order imposing compulsorily retirement is permissible if the order either is malafide or arbitrary or if it is based on no evidence. It is noticed that principle of natural justice may have no place in the context of compulsory retirement but it does not mean that if the version of the delinquent REGULAR SECOND APPEAL NO.2182 OF 2009 (O&M) :{ 7 }: officer is necessary to reach the correct conclusion, the principles can be deviated on the assumption that other material alone need to be looked into. In this case, the Hon'ble Supreme Court has also held that while evaluating the material, the reviewing authority should not all together ignore the reputation held by the officer. In this context, it is observed that any conclusion about the doubtful integrity should not be based on mere hunch. To explain that the authorities will not have absolute discretion concerning subjective satisfaction, reference is made to Khurdiram Das Vs. State of W.B., (1975) 2 SCC 81. This judgment, in my view, would not have any applicability in the present case. The availability of judicial review about subjective satisfaction are made in this case having regard to the provisions governing preventive detention. It is observed that the basic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority: if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. The question involved here was subjective satisfaction of the detaining authority to pass an order of preventive detention. The availability of judicial review in such cases on various grounds is made in the context of subjective satisfaction being the requirement of law to pass a detention order. To say that assessment made by an officer who has overseen the work of an employee would not be immune from judicial review or open to judicial scrutiny would amount to assuming power by the Court to REGULAR SECOND APPEAL NO.2182 OF 2009 (O&M) :{ 8 }: itself to assess the officers. Reference here can be made to the case of Amrik Singh Vs. State of Haryana, 1995 (4) RSJ 269. As is observed in this case, while exercising jurisdiction under Article 226, the High Court does not act as a Court of appeal while making an adjudication on administrative matter and the Courts interference in such like matters is on limited grounds like violation of law, malafide or patent arbitrariness. It has rightly been observed by the first appellate Court that in essence recording of ACR is of subjective satisfaction of the officer recording the same and is an administrative act. It has been found as a matter of fact that in the present case, the remarks were not based only on hunch but was on the basis of a complaint made by supervisory officer and the S.H.O about the nexus of the appellant with Satta/gamblers, which led to transfer of the appellant also from District Gurgaon to District Mohindergarh. Here the observations in the case of M.S.Bindra (supra) may be noticed. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim that no one becomes dishonest all of sudden is not unexceptional but still it is salutary guideline to judge human conduct, particularly in the field of Administrative Law. Though the authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held but to dunk an officer into the puddle of doubtful integrity, it is not enough that the doubt fringes on a mere hunch. The test of preponderance of probability for reasonable man is laid down and then it would be justified to ram an officer with the label of “doubtful integrity”. Reference here can also be made to the cases of High REGULAR SECOND APPEAL NO.2182 OF 2009 (O&M) :{ 9 }: Court of Judicature of Allahabad through Registrar Vs. Sarnam Singh and another, 2000(1) RSJ 356 (SC), where the High Court view about giving opportunity of hearing before recording adverse entries was not approved. It is observed as under:- “......We uphold the findings of the High Court, but do not subscribe to the view that before an adverse entry was recorded in the Character Roll, an opportunity of hearing was, by any principle, required to be given to the respondent.......” Similar view was expressed in R.L.Butail Vs. Union of India, 1970 (2) SCC 876. In this case, it is held that rules do not provide for nor require an opportunity to be heard before any adverse entry is made. Making of an adverse entry is not equivalent to imposition of a penalty which would necessitate an enquiry or the giving of a reasonable opportunity of being heard to the concerned Government servant. In this regard, Major General IPS Dewan Vs. Union of India, 1995 (3) RSJ 293 is also relevant. It may be relevant to make reference to the cases of Vijay Parkash Versus State of Haryana 2000(1)S.C.T.1076, Dharam Singh Versus State of Haryana 2001(2)S.C.T.1139 and Om Parkash, Conductor Versus State of Haryana and others 2006(2) S.C.T.408. In Vijay Parkash case(supra), it is held that the recording of an Annual Confidential Report is subjective assessment of public servant and if there is any breach of instructions of the government while recording confidential report, the confidential report REGULAR SECOND APPEAL NO.2182 OF 2009 (O&M) :{ 10 }: does not get vitiated. It is also observed in this case that recording of Annual Confidential Report being a matter of subjection satisfaction of concerned officer in very nature of things, the correctness thereof cannot be gone into by civil court. While taking this view, the court has placed reliance on Kuldeep Singh Versus The State of Punjab, 1992(5)S.L.R.189. In this case it is held that “recording of annual confidential reports is subjective and administrative nature. The breach of administrative instructions which are in the nature of guidelines for the internal consumption by the officers at the time of recording of annual confidential reports and expunction of adverse remarks etc. do not confer upon the officer concerned a right to challenge in the Court of law”. In Dharam Singh's case(supra) this court has view that the Court cannot go into the correctness of a confidential report and the only remedy available to an official is to file a representation under the Rules/Instructions which the appellant therein had availed and had been rejected. In Om Parkash's case(supra) a similar view was taken to hold that recording of Annual Confidential Report is within the exclusive domain of the Reporting Officer and is within his subjective satisfaction. It is observed that unless some malafides are proved against the Reporting Officer, the interference would not be justified. To similar effect is the view in the case of State of Punjab and Anr. Versus Bakhtawar Singh 2002(4)S.C.T.1026 where it is observed that Civil Court can quash adverse remarks recorded in ACR only if the same are result of malice, ill will or spite of the officer towards the officer commented upon. REGULAR SECOND APPEAL NO.2182 OF 2009 (O&M) :{ 11 }: There is, thus, no merit in the appeal and the same is accordingly dismissed. February 1, 2010 ( RANJIT SINGH ) khurmi JUDGE