CIVIL WRIT PETITION NO.14087 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 07, 2011 Hayat Singh .....Petitioner VERSUS Union of India 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: Mr. Rajeev Anand, Advocate, for the petitioner. Ms. Renu Bala Sharma, Advocate, for respondents-UOI. **** RANJIT SINGH, J. The petitioner is working as a Commandant (Engineer), Transport Battalion, Indo-Tibetan Border Police Force (for short, “ITBPF”) at Chandigarh. He has approached this Court for quashing the adverse remarks recorded in his Annual Confidential Report for the period 17.11.2003 to 31.3.2004 on the ground that these were recorded due to malafides and personal bias carried against the petitioner by his Initiating Officer. The petitioner has also challenged the order dated 6.5.2009 whereby his representation against the said adverse remarks was rejected, which according to the petitioner was done in an arbitrary, unreasonable and unjust manner. The petitioner belongs to a technical cadre and claims to CIVIL WRIT PETITION NO.14087 OF 2009 :{ 2 }: have maintained an outstanding record of service. He was responsible for maintenance and construction activities in the Unit. As per the petitioner, his Initiating/Reporting Officer had pressurized him to regularise the irregularities committed in maintenance and construction work initiated without codal formalities, for which the special audit and enquiries were conducted. The petitioner, however, refused to obey this unlawful command, which according to him, has led to endorsing these adverse remarks in the said Annual Confidential Report of the petitioner. This report was only for a period of four and a half months. The petitioner has accordingly filed the present writ petition to challenge the same. On 17.11.2003, the petitioner had reported to his Unit located at Karera (Madhya Pradesh). His predecessor on the post had already been relieved when he joined duties and accordingly the charge of the post was not handed over to the petitioner in a proper manner. No list of engineering works pending construction was handed over to him. As per the petitioner, many irregularities were committed prior to the date of joining of the petitioner in the construction that had been carried out. The Commanding Officer thereafter pressurized the petitioner to process the bills for repair of diesel generator, which was pending since June 2003. A payment of `84,000/- had been made from the private/regimental funds whereas the expenditure was to be incurred under the head of `maintenance'. The petitioner requested for calling his predecessor for due handing/taking over of pending construction work. The petitioner also insisted on necessary codal formalities for processing the bills for release of payment. For this, respondent No.5 was CIVIL WRIT PETITION NO.14087 OF 2009 :{ 3 }: putting pressure on the petitioner, to which he did not succumb. Respondent No.5 thereafter allegedly started harassing the petitioner due to some alleged discrepancies and shortcomings in the engineering works, which were purely technical in nature and outside the scope of observation by the Commandant being a non-technical person. The petitioner then had to make a request for interview with Director General, which further agitated respondent No.5, who then made allegations against the petitioner of disobedience of lawful command and unbecoming attitude. Apprehending that respondent No.5 would spoil his career, the petitioner had given detailed explanation in advance to the authorities but no reply was received. Even the disciplinary proceedings were initiated against the petitioner but no evidence could be so marshaled. The petitioner, however, continued to perform his duties with dedication and devotion. The petitioner then received his assessment through letter dated 28.6.2004, assessing him as below average with doubtful integrity. The petitioner was also described as disobedient and one who was lacking in discipline. The petitioner filed a detailed representation, which was partly accepted and the adverse remarks regarding doubtful integrity were expunged, whereas the remaining remarks were retained. The petitioner subsequently was considered for promotion on 28.11.2008 but was overlooked due to this report. When the petitioner represented against the same, he was apprised that his representation against the report has already been rejected. The petitioner has accordingly approached this Court for setting-aside of this report. CIVIL WRIT PETITION NO.14087 OF 2009 :{ 4 }: Respondents have filed reply controverting the pleas raised by the petitioner. It is stated that while the petitioner was posted at Karera (M.P.) certain discrepancies and irregularities were found in the work conducted by the petitioner in various construction works. On learning about these irregularities, an enquiry was ordered to be conducted by Director General, ITBP. The petitioner made efforts to wriggle out of the same and even called the defaulting contractors with 3 tractor trolleys to conceal the defects in the works. A confidential report was issued to him to desist from doing so and for his non-cooperative attitude. The petitioner was found not serious to complete his work within stipulated time, for which he was advised to improve his conduct. Still, he did not show any improvement and was not found serious in completing the work within the stipulated time. On enquiry, it was also revealed that the petitioner had written numerous anonymous complaints to the Director General and various organisations against the inspecting officers. Despite shortcomings being pointed out, the petitioner showed lack of interest, for which even verbal instructions were issued. On this basis, the impugned report was initiated. The adverse remarks recorded therein reads as under:- i. Initiative, drive and resourcefulness Below average and it is not in the interest of the force. ii. Analytical ability Poor iii.Decision making Below average iv.Supervisory ability He does not have supervisory ability. He flows suspended SI (O) and favours him for his wrong deeds. v. Potential for growth Negative CIVIL WRIT PETITION NO.14087 OF 2009 :{ 5 }: vi.Integrity aspect Integrity is doubtful vii.General assessment Is disobedient, favours the defaulters in absence of commandant, he lacks in discipline and his integrity is doubtful. The petitioner represented against the adverse A.C.R on the ground that these were recorded due to extraneous consideration. His remarks regarding integrity doubtful were expunged while the remaining remarks were retained. The petitioner filed yet another representation on 17.5.2008, when he was apprised that his earlier representation has already been rejected. Accordingly, it is stated that the allegation of bias or malafides are made up and rather the petitioner has been rightly assessed having regard to his performance and so no case for interference to set- aside the report is made out. The adverse remarks recorded in the confidential report have already been noticed above. Remarks regarding doubtful integrity have been expunged. The petitioner has a grievance against the remaining remarks which have been retained and in this regard has pleaded that these were due to malice and bias on the part of respondent No.5. To substantiate the allegation of bias, the petitioner has pleaded that the charge of the post was not properly handed over and the deficiencies pertained to the period prior to his joining. To support the allegations of bias and malice, the petitioner has only stated that respondent No.5 was pressurizing him to regularise these irregularities and when the petitioner did not CIVIL WRIT PETITION NO.14087 OF 2009 :{ 6 }: agree to the same, this report has been initiated. This fact has been denied and detailed reasons have been disclosed in the reply for which these remarks were endorsed in the A.C.R of the petitioner. When asked to show the averments made to substantiate the aspect of bias/malafides, the counsel referred to Annexures P-1 to P-5. A perusal of these annexures would not even remotely show the allegations of bias or malice on the part of respondent No.5 against the petitioner. Annexure P-1 is a memorandum issued by the Additional Deputy Inspector General (Engineers), who conducted the technical inspection and had noticed the discrepancies recorded in the memo. Annexure P-2 is office order apparently issued by the petitioner and can not advance the case of the petitioner regarding allegation of malafides or bias. Annexure P-3 is a memorandum issued by the Commandant, where it is recorded that the petitioner had refused to pay the electricity bill and produced it before the Commandant. The Commandant had also noticed that the petitioner had not followed instructions and had opened the tender of those defaulting firms, whose integrity was under clout. The petitioner was accused of disobeying the order of ADIG (Engineer) and had also failed to carry out work of fixing loose wiring in various barracks. The petitioner was accordingly advised to refrain from non-cooperative attitude and told to work for the interest and betterment of the organisation. The petitioner has not shown in any manner that the facts are not true or are made up one. Annexure P-4 is a request to the Director General for audience. Annexure P-5 is again a memorandum issued by the CIVIL WRIT PETITION NO.14087 OF 2009 :{ 7 }: Commandant asking the petitioner to take care of the electricity of the campus, which had not improved despite repeated instructions. The petitioner was also accused of disobeying the lawful command etc. These documents, in my view, would not prove or substantiate any bias or malice on the part of respondent No.5. These are communications addressed to the petitioner in the course of official business requiring him to do his work. The Commandant, in my view, was well within his right to point out the defects and the discrepancies in the functioning of the petitioner and seeing the defiance on his part, ultimately assessed him accordingly in the Annual Confidential Report. No doubt, the report which is written due to any malafides and is adverse to the interest of an employee, may be interfered with while exercising judicial review. Reference in this regard can be made to the case of Amrik Singh Vs. The State of Haryana, 1995 (3) S.C.T. 617. In this case only it is observed that where an officer proceeds to make an adverse report against the integrity of an officer, an onerous obligation is placed on him to be extra conscious and careful. The report regarding doubtful integrity has already been expunged. The case set up by the petitioner is that adverse remarks were endorsed on account of malafides but he has not been able to establish his assertions. In large number of cases, the Courts have come to take a view that the endorsement of remarks in ACR is primarily on the basis of subjective assessment. Reference in this regard can be made to Vijay Parkash Versus State of Haryana, 2000 (1) S.C.T. 1076, Dharam Singh Versus State of Haryana, 2001 (2) S.C.T. CIVIL WRIT PETITION NO.14087 OF 2009 :{ 8 }: 1139 and Om Parkash Conductor Versus State of Haryana and others, 2006(2) S.C.T. 408. As observed in the case of Amrik Singh (supra), while exercising jurisdiction under Article 226 of the Constitution of India, the High Court does not act as an Court of appeal while making adjudication on administrative matters. Recording of annual confidential report is subjective and administrative in nature. (See Kuldip Singh Vs. State of Punjab, 1992 (5) S.L.R 189). In the absence of proof of malafides, no case for interference in exercise of writ jurisdiction is made out. The reference made by the petitioner to the case of S.T.Ramesh Vs. State of Karnataka & Anr., 2007 (2) S.C.T. 238, would not be of any help to the petitioner. This was a case where performance of the officer was assessed as very good, outstanding or excellent but additional remarks were endorsed that he is arrogant and indisciplined officer. The Hon'ble Supreme Court observed that these remarks were out of context and endorsed, ignoring the track record of the officer. It is not a case where the petitioner was assessed as a below average officer. No remarks endorsed, can be said to be out of context in this case. The ratio of law laid down by the Hon'ble Supreme Court in S.T.Ramesh's case (supra) would not be attracted to the facts of the present case. There is, thus, no merit in the writ petition and the same is accordingly dismissed. September 07, 2011 ( RANJIT SINGH ) khurmi JUDGE