Civil Writ Petition No.20200 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.20200 of 2008 Date of decision:- 23.8.2011 Kiran Bala ...Petitioner Versus Financial Commissioner and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. M.S. Bedi, Advocate for the petitioner. Ms. Anu Pal, AAG Punjab. RITU BAHRI J. This writ petition under Article 226/227 of the Constitution of India for issuance of a writ of certiorari for quashing of Order dated 13.9.2007 (Annexure P-2) whereby her representation against the adverse ACR recorded in the Annual Confidential Reports for the year 2005-06 has been rejected. The petitioner was appointed as clerk in the year 1983 in the office of Financial Commissioner, Punjab. In August 1988 she was promoted as Senior Assistant. The petitioner was supplied the list of ACRs from the year 1983-84 to 2006-07 in pursuance to an application under Right to Information Act on 16.5.2008 (Annexure P-1). Out of these 24 ACRs, petitioner earned one satisfactory, 2 average, 3 good, 14 very good and 4 outstanding reports. For the year 2004-05 she was given average report, which was subsequently expunged by the National Commission. The petitioner was communicated average reports alongwith adverse remarks for the year 2005-06. Her representation against this ACR turned down by order dated 13.09.2007 (Annexure P-2) for 3-4 months i.e. Civil Writ Petition No.20200 of 2008 -2- from 07.10.2005 to 31.10.2006 and was carrying a vindictive attitude towards the petitioner. As per the instructions dated 03.5.1960 the Reporting Officer should have stated that the defects have been brought to the notice of the concerned employee/officer. The Reporting Officer should also gave indication of what efforts were made by way of guidance to get the defects removed. Mr. Bedi, counsel for the petitioner vehemently argued that as per the instructions dated 22.9.1975 the object in recording the ACR is to give reasonable chance to the concerned employee to remove minor defects. Criticism should be communicated promptly and in suitable in the nature of defects be passed on. The above guidelines have not been followed while recording the ACR of 2005-06. The adverse remarks recorded in the ACR of 2005-06 passed on delayed cases for which the petitioner faced disciplinary action. She was given show-cause notice dated 2.11.2007 under Rule 10 of the Punjab Civil Services Rules (Annexure P-5). The petitioner has submitted her reply (Annexure P-6). After affording her a personal hearing, the Secretary to the Government Revenue Department filed the case vide order dated 11.7.2008 (Annexure P-7) with a simple warning. Once the disciplinary case on the same issue, on which the ACR was based, has been filed. The ACR recorded on the same facts need to be expunged. For the year 2003-04 petitioner was given adverse remarks which were expunged on her representation. It is alleged that the recording of the ACR in 2005-06 is due to malafide intentions of Additional Secretary, Revenue- respondent No.2 . He has recorded adverse remarks in the ACRs of Rajinder Singh, Mehar Dass Sharma, Parkash Chand Shukla, the then under Secretary Revenue, S.M. Dubey, the then Superintendent, Gurbax Singh, Rakesh Kumar, D.P. Pandey, Gurdial Singh, Chanchal Singh etc. all senior Assistants. These remarks were either expunged or were found against the principles of natural Civil Writ Petition No.20200 of 2008 -3- justice. Another aspect highlighted is that while recording the ACR of 2005-06 the period from 1.04.2005 to 31.4.2006 which had been sanctioned by the Superintendent of Land Revenue i.e. about four months and 23 days has not been assessed by him. As per the instructions dated 03.5.1960 the officer, who has seen the work of employee for more than three months, is eligible to record the remarks. Ms. Anu Pal, AAG Punjab has argued that the ACR for the year 2005-06 has been recorded after supervising the work. While recording the ACR of 2005-06 there are adverse remarks against ten columns out of 12 columns as recorded by the Reporting Officer. The petitioner had badly delayed some cases and same cases were found unattended. The ACR was accepted by the Reviewing and Accepting Authority. The allegation in the representation is that the Reporting Officer-respondent No.2 was in the habit of recording adverse remarks, has been denied. During his tenure as Additional Secretary Revenue, he had recorded outstanding and very good remarks to the deserving officials/officers. The remarks in the ACR were based on facts and the disciplinary case was disposed of by issuing a warning. The disciplinary case on the issue of delay in cases and absent from seat has been disposed of by issuing a warning. These facts were found correct during the inquiry and no ground is made out to expunge these ACRs as these were based on facts. The reasons recorded while rejecting the representation of the petitioner dated 03.9.2007 has been placed on record. It only goes to show that petitioner Kiran Bala Senior Assistant was given a personal hearing by observing that she had inordinately delayed the cases and rather some cases were left unattended by her. The representation has been rejected. The allegation of malafide intention against Shri Kirpal Singh, Superintendent has been found baseless. The comments of Additional Secretary, Revenue (B) have been accepted. Civil Writ Petition No.20200 of 2008 -4- I have heard learned counsel for the parties and have gone through the case file carefully. The undisputed facts are that the petitioner was assessed for the year 2005-06. The Superintendent while recording her ACR has given adverse comments in 10 columns out of 12 columns. In column No.11 the general view expressed is that she delayed the cases without any reason and did not give appropriate reply for delaying the cases. Sometimes the reply has not been given. She has been assessed as average for this year. This view of the Recording Officer had been accepted by the Revenue Authority as well as Accepting Authority. The petitioner has also faced departmental action whereby a show-cause notice dated 02.11.2007 was issued to her and after considering her reply, she was issued a warning. In view of the fact that she was found guilty in dereliction of duty, she had been issued warning. Therefore, the comments in the ACR of the year 2005-06 were recorded are based on documents/records. The order dated 11.7.2008 issuing warning (Annexure P-7) has attained finality. The ACR on this count itself does not call for expunged. As far as the arguments that the Government instructions dated 3.5.1960 and 22.9.1975 were not followed before recording of ACR. It will not be out of place to mention that these instructions are for the internal consumption of the officers. The lay down guidelines to enable superior officers to assess and guide the officers/employees in discharge of their official duty. The judicial review to examine the recording of ACR by following these instructions is not in the pursue of the writ jurisdiction. While exercising the writ jurisdiction under Article 226 of the Constitution, the Court does not act as an Appellate Authority to a limited scope to interfere in recording of the ACR which was recorded with malafide or by not following the statutory rules. In the present case the assessment of the petitioner has been made on the basis of Civil Writ Petition No.20200 of 2008 -5- documents/facts. She has been found guilty in the disciplinary proceedings by giving a warning vide order dated 28.7.2008. In the facts of the present case, after recording of the ACR the petitioner was held guilty and was issued a warning. The allegation of malafide is liable to be rejected. The test applicable to judge the expression malafide has a definite significant and legal. There must be an existing definition of bias and actions which cannot be attributed to a bonafide action unless it has accompanied with some other factors, which would depict a bad motive or need not on the part of the doer of the act. Mere apprehension of bias administrative action cannot be sustained unless it is co-related to surrounding circumstances in which the necessary conclusion can be drawn against the Reporting Officer. Bias admittedly fairness and reasonableness and as a necessary sequence arbitrariness and malafide creeps in. The Supreme Court in Union of India and others versus Ashok Kumar and others 2006(1) RSJ 21 has explained how the expression malafide can have a definite significance resulting in administrative bias. In the light of the aforesaid principles it can be safely concluded that while deciding the representation made by the petitioner against the adverse remarks, which was sent for comments to the Additional Secretary Revenue in sub paragraph (b) i.e. Accepting Authority. He has sent his comments vide order dated 30.4.2007, which have been reproduced in the replication in the additional affidavit of Ramesh Bhalla, Deputy Secretary to Government of Punjab. As per his comments the allegation of malafide was not made out. The remarks were on the basis of record. As per the details given in Annexure-A and Annexure-2, she was found negligent in handling files in casual and confused manner. She did not submit the arrears report for the year 2005 as compare to the other Assistants working in the branch, who had submitted Civil Writ Petition No.20200 of 2008 -6- the arrear report. Her work has been assessed in detail and it was recommended to reject her representation. The petitioner was afforded a personal hearing on 3.9.2007 by the Competent Authority and by accepting the comments of the Additional Secretary Revenue (B) her report has been duly rejected. As a sequel to the aforesaid discussions, this writ petition does not warrant any admission and is accordingly dismissed. 23.8.2011 ( RITU BAHRI ) Vijay Asija JUDGE