X-Objections 1-C of 1986 & RSA No. 1791 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH X-Objections 1-C of 1986 & RSA No. 1791 of 1985 Date of decision:29th January, 2010 The State of Haryana and others .......Appellants Versus Lajpat Rai .......Respondent Before: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Sunil Nehra, Addl.A.G.,Haryana, for the appellants. None for the respondent. Ranjit Singh,J(Oral) The State of Haryana is in appeal against the judgment and decree dated 30.07.1983, passed by the trial court and upheld by the first appellate court whereby, the suit filed by the respondent Lajpat Rai for declaration that the adverse remarks recorded in his Annual Confidential Report for the year 1973-74, 1976-77 and 1977-78 be set aside being wholly illegal, unlawful and violative of the Government X-Objections 1-C of 1986 & RSA No. 1791 of 1985 -2- instructions. The facts in brief are that Lajpat Rai plaintiff- respondent was working with the Transport Department of the State of Haryana. While being assessed in his Annual Confidential Report in the year 1973-74, he was conveyed certain adverse remarks recorded by the General Manager, Haryana Roadways, Jind. The remarks were made about the integrity of the plaintiff- respondent. Aggrieved against this, the plaintiff-respondent made representation and thereafter, filed the present suit on 18.05.1978. In the year 1976-77 remarks were again recorded in his Annual Confidential Report that he did not take any interest in his work. His work was found unsatisfactory. Plaintiff-respondent again represented against the same which was rejected. Yet again in the year 1977-78, remarks about the dishonesty were endorsed in the Annual Confidential Report of the plaintiff-respondent. Number of complaints about the dishonesty were received against him while he was working against the post of Store Purchase Assistant. It was mentioned that the article purchased were always under suspicion regarding price and quality. He was also transferred from the seat of Store Purchase Assistant to the Accounts Branch. Representation filed against the said remark was also rejected. In the suit filed, the plaintiff-respondent had made grievance that he was not afforded any personal hearing or was not given any opportunity to explain his position. He X-Objections 1-C of 1986 & RSA No. 1791 of 1985 -3- further pleaded that he was working under Shri M.S.Gaur(PW-1) during the year 1977-78, who while recording his Annual Confidential Report had appreciated the work and conduct of the plaintiff-respondent. Plea further is that Shri M.L.Verma(DW-1) General Manager had recorded the adverse remarks for extraneous reasons. As per the plaintiff-respondent, the General Manager did not comply with the relevant guidelines while recording adverse remarks. It is stated that the Confidential Report for the year 1978-79 was initiated by Shri Rattan Singh (PW-2) Assistant Account Officer, who assessed the plaintiff- respondent good but again Shri M.L.Verma(DW-1) gave him bad report in violation of the guidelines referred to above. Grievance also is made that these adverse remarks were conveyed to plaintiff-respondent after a gap of time and thus, deserved to be expunged on this ground alone. Plaintiff-respondent would also plead that it was necessary for the Recording Officer to make a mention about the incidents and opine about the complaints by stating whether these were true or not. It was accordingly prayed that the remarks deserve to be declared void and nonest. The defendant-State contested the suit and even objected to the jurisdiction of the Civil Court to entertain the suit. Suit was termed bad on account of non-joinder of necessary parties. On merit, it was pointed out that on the representation filed by the plaintiff-respondent, the adverse remarks for the year 1973-74 were expunged. Otherwise conveying of the adverse X-Objections 1-C of 1986 & RSA No. 1791 of 1985 -4- remarks was admitted. The allegation of bias on the part of Shri M.L.Verma(DW-1) while endorsing the reports was denied. The delay in conveying the remarks, as alleged was conceded, but it was pointed out that the name of the plaintiff-respondent was duly considered for promotion but he was not found fit. The trial proceeded on the following issues: “1. Whether the adverse remarks out of the Annual Confidential Reports of the plaintiff for the year 1976-77and 1977-78 are illegal, unlawful etc. on the grounds alleged in the plaint? POO 2. Whether the plaintiff is entitled to the mandatory injunction as prayed for?OPP 3. Whether the civil court has jurisdiction to entertain the suit?OPP 4. Whether the suit is bad on account of non joinder of the necessary parties?OPP 5. Relief.” On the basis of evidence led and the averments made, the trial court decided the issue nos. 1 and 3 in favour of the plaintiff-respondent. Issue no. 2 and 4, however, were decided in favour of the appellant. The State then filed an appeal against this judgment which was dismissed. Plaintiff-respondent had X-Objections 1-C of 1986 & RSA No. 1791 of 1985 -5- filed a cross objection, and the same were also dismissed. The State has therefore, filed this Regular Second Appeal. Here also, the plaintiff-respondent has filed Cross Objection to contest the finding of issue nos. 2 and 4. Though this Regular Second Appeal was admitted in the year 1985, but till date no substantial question of law has been framed. Learned State counsel, however, would contend that a substantial question of law in regard the jurisdiction of the Civil Court to interfere in the Annual Confidential Report would arise in this case. As per the counsel, even breach of any instruction if found, would not be a justification for Civil Court to interfere in recording of the Annual Confidential Report or the remarks therein, as that primarily is a subjective assessment of the person who has to carry out this assessment. This question of law indeed would arise in this case. It is noticed that the trial court got carried away by the evidence given by the witnesses examined by the plaintiff- respondent who had initiated some reports on him. Noticing that the plaintiff-respondent was graded good, very good by them, it was held by the trial court that there was no document on the basis of which the General Manager M.L.Verma(DW-1) could mention that the plaintiff-respondent did not take interest in his work. It is also noted that no such incidents were mentioned nor any office order produced on the file to indicate the nature of work done by the plaintiff-respondent. Even comments on some X-Objections 1-C of 1986 & RSA No. 1791 of 1985 -6- letters which were placed to show that the work of the plaintiff- respondent was not satisfactory were made. Ex.D-1 to D-5 refers in this regard. The trial Court analyzed the contents of the letter to return a finding as is recorded by it. Most unfairly, the trial court has even gone to the extent saying that the honesty of the plaintiff was better known to Shri M.S.Gaur(PW-1) and Shri Rattan Singh(PW-2) who were immediate Supervisory Officer of the plaintiff-respondent and accordingly, the trial court has found fault with the assessment made by Shir M.L.Verma(DW-1). This approach adopted by the trial court is legally unsound. It is an accepted position that assessment of a work of an employee is done by person under whom an employee works. Shri M.S.Gaur(PW-1) and Shri Rattan Singh(PW-2) had given their assessment about the assessment of the plaintiff-respondent. General Manager was to review and accordingly, he gave his assessment which could not be legally differed in the manner as is done on the ground as noticed by trial court. Trial court has acted, as if it was the appellate authority to assess the correctness of the assessment. This approach is not legally acceptable. The scope of interference by a Civil Court in such like matter is well settled. The Courts are not to act as appellant authority. Interference in assessment can be on very limited ground which are well recognized. The trial court apparently has gone much beyond its jurisdiction to set aside the Annual Confidential Reports, initiated on the plaintiff-respondent X-Objections 1-C of 1986 & RSA No. 1791 of 1985 -7- on the ground that assessment was not correct. The reason that there was some delay in communicating these adverse remarks to interfere in the report again is not legally proper. Merely because there was delay in conveying some adverse remarks and even if these were not conveyed within the time stipulated under any executive instructions, would not vitiate the assessment as such. Some interference may be called for in such like cases where a person is put to some prejudice because of non communication of adverse remarks, when one is denied an opportunity to represent against the report. Certainly, in such cases also it would not be appropriate to set aside the assessment as such. It is not appropriate to say what sort direction in such cases can be issued as it is not one of the issues arising in this case. Learned State counsel however, is justified in placing reliance on 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 does not get vitiated. It is also observed in this case that recording of Annual Confidential X-Objections 1-C of 1986 & RSA No. 1791 of 1985 -8- Report being a matter of subjective 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 viewed 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 X-Objections 1-C of 1986 & RSA No. 1791 of 1985 -9- 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. The allegation of bias or prejudice were made against Shri M.L.Verma(DW-1), but he was not impleaded as a party in person. No evidence was led to substantiate this aspect of the averment and it can thus safely be said that these assertions were made in the plaint without any basis. The trial court had thus, interfered in granting the relief of setting aside the assessment in the Annual Confidential Reports which was beyond its limit. The first appellate court also failed to appreciate these aspect of jurisdiction of the Civil Court to interfere in such matters. The appellate court, however, rightly held that Shri M.L.Verma(DW-1) could differ with the assessment as per his own subjective satisfaction. The finding of the trial court on issue nos. 2 and 4 upheld by the first appellate court, however, are justified. It has rightly been held that the plaintiff-respondent had claimed relief of promotion without impleading the effected parties and thus, this relief was rightly declined. This would now become meaningless, as even the consideration will have to be done by the authorities concerned afresh and while doing so the case would have to be reconsidered by taking into account the Annual Confidential Reports and the remarks which were ordered to be expunged. The Regular Second Appeal, thus, is allowed, judgment X-Objections 1-C of 1986 & RSA No. 1791 of 1985 -10- and decree under appeal is set aside. The cross objection filed by the plaintiff-respondent would stand rejected. There shall be no order as to costs. [RANJIT SINGH] Judge 29th January, 2010 Shivani Kaushik