R.S.A.No. 2802 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2802 of 2009 (O&M) Date of decision: 8.10.2009 State of Haryana and another ......Appellants Versus ASI Gurmail Singh .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Ms.Maloo Chahal, DAG, Haryana Mr.R.P.Vig, Advocate, for the respondent. **** SABINA, J. Plaintiff ASI Gurmail Singh filed a suit, which was decreed by the Civil Judge (Jr.Divn.), Ambala Cantt vide judgment and decree dated 26.3.2007. In appeal, the said judgment and decree were upheld by the District Judge, Ambala vide judgment and decree dated 2.5.2009. Hence, the present appeal by the defendants . Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. In brief, plaintiff filed suit with the allegations R.S.A.No. 2802 of 2009 (O&M) 2 that plaintiff joined as constable in Police Force on 1.5.1975. After passing recruitment training, he passed lower school course from Police Training College, Madhuban, during the Sessions 1978-79 and was brought on list 'C' w.e.f. 1.4.1979 and promoted as Head Constable on 20.8.1981 and confirmed as Head Constable on 1.3.1988. Plaintiff passed intermediate School Course from Police Training College, Madhuban and put in list 'D' on 3.11.1989 and was promoted as Assistant Sub Inspector w.e.f. 25.11.1993, which rank he held till 2.4.2002, when plaintiff was compulsorily retired by defendant No.2 under orders from Director General of Police, Haryana, Panchkula. Feeling aggrieved by the orders of compulsorily retirement, plaintiff filed civil writ petition No.5941 of 2002 in the Hon'ble High Court of Punjab and Haryana, and vide judgment dated 19.8.2002, the aforesaid writ petition was allowed. The defendants feeling aggrieved filed review petition bearing No.393 of 2002 in the Hon'ble High Court of Punjab and Haryana, which was dismissed on 7.3.2003. Despite orders of Hon'ble High Court, plaintiff was not allowed to join duty. It was submitted that defendant No.2 conveyed adverse remarks recorded for the period from 20.6.1998 to 14.1.1999 vide memo No.2893/PA dated 8.6.1999 on the R.S.A.No. 2802 of 2009 (O&M) 3 allegations that plaintiff snatched money from public and an FIR bearing No.28 dated 29.1.1999 under Section 384 of the Indian Penal Code stood registered against him in Police Station Ambalka Cantt for misappropriation of jamatalashi amount. Plaintiff filed representation to the Director General of Police against adverse remarks submitting that adverse remarks have been recorded illegally and arbitrarily and that he had never received any adverse entry to his dis-credit during 26 years of his service. Vide communication No.3716/PA dated 1.7.2002 plaintiff was informed that representation/ review petition stood rejected on 1.7.2002. It was submitted that remarks were recorded primarily on the basis of FIR No.28 dated 29.1.1999 under Section 384 of the Indian Penal Code. Investigating Officer of the said case submitted report to the Magistrate recommending cancellation of the said FIR and Judicial Magistrate vide order dated 25.7.2001 accepted the cancellation report. It was submitted Director General of Police issued directions to defendant No.2 to hold Regular Departmental Enquiry regarding aforesaid FIR No.28 dated 29.1.1999 and recording of adverse remarks. It was submitted that Enquiry Officer after enquiry also did not find any material and, thus, recommended for filing of R.S.A.No. 2802 of 2009 (O&M) 4 enquiry as charge was not substantiated by any evidence. It has further been submitted that defendant No.2 in a similar manner, on the recommendation of the then Sessions Judge, Ambala, got registered FIR No.9 dated 30.1.1999 under Section 384 of Indian Penal Code against SI Jee Ram, and that FIR also stood cancelled. It was further submitted that no adverse remarks were recorded against said Jee Ram on the basis of FIR. It has further been submitted that through plaintiff was similarly placed as SI Jee Ram, however, defendant No.2 recorded adverse remarks only against plaintiff, while no such adverse remarks for the period in question were recorded against SI Jee Ram. Thus, discriminatory approach was adopted by the Authorities. In addition, adverse remarks recorded against the plaintiff were against the mandate of instructions issued by Government vide letter No.1485/ASI/61/7762 dated 1.3.1961. It has further been submitted that Director General of Police while declining the review petition/representation on 1.7.2002 did not accord any opportunity of personal hearing. Thus, rejection of representation has caused gross mis-carriage of justice. Notice under Section 80 of CPC being issued and getting no relief, plaintiff came up with the suit. R.S.A.No. 2802 of 2009 (O&M) 5 3. Notice being issued defendants appeared and filed written statement admitting the recruitment of plaintiff, his completion of training and clearing Lower School Examination, inter-mediate school examination and having placed in list ‘C’ and then list ‘D’. The compulsory retirement of plaintiff including his filing of Writ Petition and same being allowed and filing of Review Petition have been admitted. Recording of adverse remarks were admitted submitting that representation filed by plaintiff for the period from 20.6.1998 to 14.1.1999 was rightly incorporated as there were allegations of plaintiff having snatched money from people and recording FIR No.28 dated 29.1.1999 stood registered for misappropriation of jamatalashi amount. It was also admitted that FIR was recommended for cancellation and cancellation stood accepted by the Court. It was also admitted that department enquiry was initiated. Fact of SI Jee Ram being similarly situated has also been admitted. Filing of representation and its rejection was admitted. Denying other allegation, dismissal of suit was prayed.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled to the injunction as prayed for? OPP R.S.A.No. 2802 of 2009 (O&M) 6 2. Relief. After hearing learned State counsel and learned counsel for the respondent, I am of opinion that the present appeal deserves to be dismissed. Admittedly, plaintiff was working with the defendant as a Constable. He was promoted as Head Constable on 20.8.1981 and was confirmed as such on 1.3.1988. The plaintiff was compulsorily retired by defendant No.2. The plaintiff challenged the said order vide CWP No.5941 of 2002 and the said order was set aside. Defendant No.2 also conveyed adverse remarks to the plaintiff with regard to the period from 20.6.1998 to 14.1.1999 which reads as under:- “ He snatches money from the people and a case FIR No.28 dated 29.1.1999 under Section 384 IPC has been registered against him in Police Station Ambala Cantt. For misappropriating the amount of Jama Talashi.” So far as the criminal case is concerned, after investigation, a cancellation report was submitted by the Investigating Agency and the same was accepted by the Magistrate. The sole basis for making the adverse remarks in the Annual Confidential Report (“ACR” for short) of the plaintiff was registration of the criminal case against him. Since in the said case, a cancellation report had been submitted which had been accepted by the Magistrate, the Courts below rightly held that the basis which R.S.A.No. 2802 of 2009 (O&M) 7 formed the recording of ACR stood demolished. A departmental enquiry conducted against the plaintiff was also filed vide order Ex.P-1. Although recording of ACR is subjective satisfaction of the competent authority yet when the basis for recording the adverse remarks in the ACR is no longer in existence, the Courts below rightly held that the adverse remarks in the ACR of the plaintiff were liable to be expunged. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 08 , 2009 anita