C. N. CHAVDA v. DIRECTOR GENERAL OF POLICE GUJARAT STATE
1990-12-02
C.K.THAKKER
body1990
DigiLaw.ai
C. K. THAKKAR, J. ( 1 ) THIS petition is filed by the petitioner for a writ. of Mandamus quashing and setting aside certain adverse remarks made in his Coincidental Report for the period between 13/10/1986 and 31/03/1987 been illegal ultra vires and violative of the principles of natural justice. ( 2 ) IT is the case of the petitioner that in the year 1986 he was serving as Police Sub-Inspector (P. S. I.) at Porbandar. His father expired on 12/12/1986 and therefore he proceeded on leave up to 31/12/1986 During his absence on 20/12/1986 one Sarman Munja was murdered in a gang war and the name of one Kala Keshav was disclosed who was reported to be absconding. Intensive search was made to trace him out but he was not found. It is the case of the petitioner that though he was not in charge of that case he look rigorous steps to apprehend the absconding accused. As many as 13 raids had been carried out by him in. January 1987 3 raids in February 1987 and 2 raids in March 1987 but Kala Keshav was not found. Ultimately he was apprenhended by the end of 1988 from Jamnagar District by Jamnagar Police Authorities. ( 3 ) THE Confidential Reports for the year 1986-87 had been communicated to the petitioner by a communication dated 21/05/1988 wherein certain adverse entries were made. It was stated that the petitioner could not arrest Kala Keshav a notorious criminal for a sufficient long time. It was also stated that the petitioner was given an enquiry regarding pending muddamal of Porbandar City Police Station on 9/12/1986 and it was not completed by him. ( 4 ) THE petitioner made representation on 2/07/1988 to the reviewing authority explaining the circumstances under which Keshav Kala (sic) could not be apprehended. He also submitted that the enquiry was pending since long even prior to his posting at Porbander and that he was not responsible for the alleged delay. The said representation was however turned down by the reviewing authority and the remarks which were passed against the petitioner were not deleted. A communication was sent to the petitioner on 28/02/1989 Since the adverse remarks were recorded against the petitioner and the representation was turned down the petitioner has approached this Court by filing this petition. ( 5 ) MR.
A communication was sent to the petitioner on 28/02/1989 Since the adverse remarks were recorded against the petitioner and the representation was turned down the petitioner has approached this Court by filing this petition. ( 5 ) MR. A. J. Shah the learned Counsel for the petitioner has raised a number of contentions. He submitted that though adverse entries in the Confidential Reports were for the period between October 1986 and March 1987 they were communicated at a belated stage i. e. after more then one year and therefore they cannot be taken into consideration. He further submitted that though the representation made by the petitioner was rejected by the respondent-Director General of Police no opportunity of hearing was afforded to the petitioner and the said order was therefore violative of natural justice and is required to be quashed. He also submitted that even though a number of submission had been made and material particulars had been mentioned in the representation to the respondent without application of mind by the respondent a cryptic and laconic order has been passed rejecting the representation. No reasons have been in support of the order passed by the respondent and on that ground also the order requires to be quashed and set aside. ( 6 ) MR. A. M. Panchal the learned Assistant Government Pleader on the other hand supported the order passed by the first Authority and confirmed by the respondent herein putting adverse entries in the service record of the petitioner. He submitted that adverse remarks were communicated to the petitioner within a reasonable time and the petitioner was afforded an opportunity to make representation against those remarks which the petitioner has made. After considering pros and cons of the matter the respondent rejected the said representation and it is neither necessary the respondent before rejecting the said representation to hear the petitioner nor to record reasons. The petition therefore requires to be dismissed. ( 7 ) ABOUT recording of reasons in support of the order passed by the respondent herein rejecting the representation made by the petitioner against adverse entries in his Confidential Reports according to the learned Counsel for the petitioner it is necessary for the respondent to record reasons in support of the order.
The petition therefore requires to be dismissed. ( 7 ) ABOUT recording of reasons in support of the order passed by the respondent herein rejecting the representation made by the petitioner against adverse entries in his Confidential Reports according to the learned Counsel for the petitioner it is necessary for the respondent to record reasons in support of the order. My attention is invited by the learned Counsel for the said purpose to a decision of this Court in the case of P. B. Sapre v. Commissioner of Fisheries in Special Civil Application No. 262 of 1980 decided by a Single Judge of this Court (Coram: N. H. Bhatt) on 17/10/1980. In the said decision the Single Judge of this Court has taken the view that while rejecting the representation of an employee against adverse remarks the authority must record reasons. In the case of Union of India and Others v. E. G. Nambudiri (1991) 3 SCC page 38 a similar contention was raised before the Honble Supreme Court and the Honble Supreme Court held that there is no general rule that reasons must be recorded for each and every administrative decision. Order of an administrative authority which has no statutory or implied duty to state reasons or the grounds of its decision will not be rendered illegal merely on account of absence of reasons. The Honble Supreme Court also observed as under:the Superior Authority while considering the representation of the Government Servant against adverse remarks is not required by law to act judicially it is under no legal obligation to record or communicate reasons for its decision to the Government servant. The decision rejecting the representation does not adversely affect any vested right of the Government Servant nor does it visit him with any civil consequences. (Emphasis supplied.)IN the above view of the matter the Supreme Court held that it was not necessary for the Superior Authority to record reasons for rejecting the representation. The Supreme Court also observed. If the superior authority was not satisfied with the explanation of the respondent as contained in his representation what reasons could be stated except that the authority was not satisfied with the explanation. The superior authority was not obliged to write detailed judgment or order giving details of the warnings or the material on which he formed opinion.
If the superior authority was not satisfied with the explanation of the respondent as contained in his representation what reasons could be stated except that the authority was not satisfied with the explanation. The superior authority was not obliged to write detailed judgment or order giving details of the warnings or the material on which he formed opinion. (Emphasis supplied.) ( 8 ) FROM the above decision it becomes clear that whatever might have been stated by this Court the point is concluded by E. C. Nambudiris case (supra) wherein in unequivocal terms the Honble Supreme Court has held that it is not necessary to record reasons by the reviewing authority when the representation made by the employee against the adverse remarks communicated to him has been rejected. In view of E. C. Nambudiris case (supra) the contention raised by the learned Counsel for the petitioner requires to be rejected. ( 9 ) SIMILAR is the legal position regarding observance of the principles of natural justice. The said contention can only be upheld if any action adversely affecting any vested right of the petitioner has been taken. As held by Their Lordships of the Supreme Court in E. C. Nambudiris case (supra) the decision rejecting the representation of a government employee does not affect any vested right of the government servant nor does it visit him with any civil consequences. Thus applying the ratio laid down by the Supreme Court in the instant case recording of adverse entries in the Confidential Reports of the petitioner has neither adversely affected any vested right of the petitioner nor it visited him with any civil consequences and therefore it was not necessary for the respondent authority to afford hearing before rejecting the representation made by the petitioner. The respondent was under obligation to apply his mind to the representation made by the petitioner and when having applied his mind the representation was turned down no fault can be found with the respondent and hence the said contention is also rejected. ( 10 ) HOWEVER so far as the last contention is concerned it requires to be upheld.
The respondent was under obligation to apply his mind to the representation made by the petitioner and when having applied his mind the representation was turned down no fault can be found with the respondent and hence the said contention is also rejected. ( 10 ) HOWEVER so far as the last contention is concerned it requires to be upheld. As stated hereinbefore the adverse entries have been made in the Confidential Reports of the petitioner for a period between 13/10/1986 and 31/03/1987 The said adverse remarks were communicated to the petitioner on 21/05/1988 i. e. after about thirteen months which were received by the petitioner on 24/05/1988 As per the Government Circulars issued from time to time such adverse entries were required to be communicated to the government servants as expeditiously as possible so as to enable them to make representation against those adverse remarks. Even in counter affidavit filed by the respondents it is slated in paragraph 14 that normally adverse remarks should be communicated within a period of six weeks as per Government Circular dated 29/01/1987 In the instant case however the communication was made after more then thirteen months. The question is whether such a belated communication of adverse remarks would be proper and in accordance with law. A similar question arose before the Honble Supreme Court in case of State of Haryana v. P. C. Wadhwa reported in A. I. R. 1987 SC page 1201. In that case adverse remarks were communicated to the petitioner after about twenty-seven months. As per the circular and policy decision of the Government such remarks were required to be communicated to the employee concerned within a period of seven months. Since it was not done the petitioner approached the Court and upholding the contention of the petitioner that there was inordinate delay in communication of adverse remarks the Supreme Court observed as under:the whole object of the making and communication of adverse remark is to give to the officer concerned an opportunity to improve his performances conduct or character as the case may be. The adverse remarks should not be understood in terms of punishment but really it should be taken as an advice to the officer concerned so that he can act in accordance with the advice and improve his service career.
The adverse remarks should not be understood in terms of punishment but really it should be taken as an advice to the officer concerned so that he can act in accordance with the advice and improve his service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case it was communicated to the respondent after twenty-seven months. It is true that the provisions of Rules 5 6 6 and 7 are directory and not mandatory but that does not mean that the directory provisions may not be complied with even substantial compliance will be sufficient. But where compliance after an inordinate delay would be against the spirit and object of the directory provision such compliance would not be substantial compliance. (Emphasis supplied.)THUS according to the Honble Supreme Court the provision relating to communication of adverse entries though directory in nature is required to be complied with substantially. The Supreme Court drew distinction between a mandatory provision and a directory provision. As per settled principle of law if a provision is mandatory in nature it requires to be complied with strictly and exactly. If on the other hand the provision is directory in nature it is not necessary that it must be exactly complied with provided it is complied with substantially. Thus the distinction is of degree only. Even if the provision is directory it cannot be altogether ignored. In Wadhwas Case (supra) adverse remarks as per the rules framed by the Government were required to be complied with substantially since rules in the opinion of the Supreme Court were directory in nature. All the same the Supreme Court held that if the adverse remarks were required to be communicated within a period of seven months and if they were actually communicated after twenty-seven months (i. e. about four times the period prescribed under the Rules) the delay could be said to be unreasonable and it could not be contended that the provision had been complied with even substantially. ( 11 ) IN the instant case in my opinion the ratio laid down by the Honble Supreme Court in case of P. C. Wadhwa (supra) applies with equal force.
( 11 ) IN the instant case in my opinion the ratio laid down by the Honble Supreme Court in case of P. C. Wadhwa (supra) applies with equal force. As per the Government Circulars issued and policy decisions taken from time to time adverse remarks are required to be communicated to an employee within a period of six weeks. My attention was invited by Mr. Panchal the learned Assistant Government Pleader to the latest circular issued by the General Administrative Department on 31/03/1989 wherein more then 50 earlier circulars were considered by the State Government and even in that circular it is specifically provided that adverse remarks are required to be communicated to an employee within a period of six weeks from the completion of the adverse remarks. It is further provided that if any employee is aggrieved by the said remarks he may make a representation within a period of six weeks from the receipt of those adverse remarks. The next sentence is material and in Gujarati it reads as under: translated into English it states that if the competent authority is satisfied that there are sufficient and reasonable grounds for not making representation within the stipulated period of six weeks it may extend the said period considering the merits of the case. Thus the duly is cast on the authority to communicate adverse entries to an employee concerned so as to enable him to make representation to the reviewing authority in accordance with law. If a representation is made after a period of six weeks from the date of communication of adverse remarks the employee is required to show sufficient ground and/or reasons for the delay. By necessary corollary if the authority does not communicate adverse remarks within the stipulated period of six weeks it also must show sufficient grounds and/or reasons for such delay. I am not oblivious of the fact that this is a directory provision and that delay of each and every day need not be explained with mathematical precision. But then the underlying object as laid down by the Honourable Supreme Court in P. C. Wadhwas case (supra) also must be borne in mind. Therefore there may be delay in the part of the authority in not communicating adverse remarks to an employee.
But then the underlying object as laid down by the Honourable Supreme Court in P. C. Wadhwas case (supra) also must be borne in mind. Therefore there may be delay in the part of the authority in not communicating adverse remarks to an employee. If there are sufficient reasons for delay such act may not be interfered by the Court but those reasons must be brought to the notice of the Court when such an action is challenged and the Court must be satisfied. As stated hereinbefore in the instant case the adverse remarks are for the period between 13/10/1986 and 31/03/1987 and they were communicated for the first time in May 1988 that is after more then thirteen months. Apart from satisfactory or sufficient reasons no ground whatsoever has been put forward by the respondent authorities even though an affidavit in reply is filed. In my opinion therefore the contention of Mr. Shah that the communication of adverse remarks was grossly delayed and that those remarks cannot be considered must be accepted. In P. C. Wadhwas case (supra) the Honble Supreme Court held that if the delay was four times it could not be said to be reasonable. In the instsnt case the delay is much more and therefore following the ratio laid down in P. C. Wadhwas case (supra) I allow the petition by directing the authorities not to consider the adverse entries in the Confidential Reports of the petitioner between 13/10/1986 and 31/03/1987 and to ignore those adverse entries. Rule is accordingly made absolute with no order as to costs. (NVA) Petition allowed. .