Mohd. Jafar v. State of U. P. — 1990 DIGILAW 916 (ALL)

JUDGMENT M.L.Bhat, J. 1. The petitioner seeks an appropriate writ commanding the opposite parties to expunge the adverse entry in his service record for the year 1980-81 and not to use the same against him. To appreciate the controversy raised by the petitioner in the writ petition It is necessary to give a brief resume of facts, 2. The petitioner upon his promotion as Regional Manager came to be posted in Gorakhpur. On account of his good work the petitioner is said to have been promoted to the said post on 17-11-1979. Prior to this petitioner was working as Assistant Regional Manager at Jaunpur under the control of the Regional Manager, Varanasi. The petitioner was posted at Gorakhpur from 17-11-1979 to October, 1981 Thereafter the petitioner was transferred to Varanasi. An adverse entry for the year 1980-81 was communicated to the petitioner on 17-6-1985 after his retirement. The petitioner is said to have retired on 31-3-1984. A copy of the letter by which the adverse entry was communicated to the petitioner is Annexure 1 to the writ petition. As Assistant Regional Manager the petitioner has earned good entries from the Deputy General Manager, Eastern Zone. From 1-4-1980 to 31-12-1980 the then General Manager could not record any entry in the petitioner's service book. On 31-12-1980 when the petitioner Nvas functioning as Regional Manager in Varanasi Region, one Sri A. K. Das had taken over charge in the department and had given the following remarks against the petitioner "Certain complaints against Sri Jafar were received about irregularities committed by him in making appointments to the post of conductors which were enquired into and a report was sent to Government; otherwise Sri Mar is an experienced and knowledgeable officer. His general reputation for honesty is, good and I certify his integrity." 3. The aforesaid adverse remark is in two parts. The first pari deals with certain alleged irregularities, which are said to have been enquired into, committed by the petitioner in making appointments to the post of conductors. The second part of the entry is in favour of the petitioner which certifies his integrity and reputation for honesty. 4. The alleged complaints, which are referred to in this adverse entry, pertain to the period when the petitioner was Assistant Regional Manager and not the Regional Manager. The second part of the entry is in favour of the petitioner which certifies his integrity and reputation for honesty. 4. The alleged complaints, which are referred to in this adverse entry, pertain to the period when the petitioner was Assistant Regional Manager and not the Regional Manager. The said Sri A. K. Das is said to be only the reporting authority and not the accepting authority. Insofar as recording of and accepting of adverse entry is concerned, the Transport Secretary, who was the appointing authority of the petitioner, is said to have neither approved nor disapproved the said entry. The said entry is said to have been communicated to the petitioner after a lapse of about four years. At the time of receipt of the adverse entry the petitioner was retired for one year and three months. The author of the adverse entry Sri A. K. Das is said to have neither watched the work of the petitioner at Gorakhpur nor seen his conduct there. The petitioner was working at Varanasi at the relevant time when the entry is said to have been recorded. The assessment made by Sri A. K. Das is said to be incorrect. The assessment, by Sri A. K. Das was made during the period when the petitioner was posted at Varanasi on higher post. - 5. The petitioner submitted that there was no complaint against him nor was any enquiry made his presence in respect of any alleged complaint, which is mentioned by Sri A. K. Das while recording the adverse entry of the petitioner. Immediately on receipt of adverse entry the petitioner sent a representation on 3-10-1985 explaining his conduct, a copy whereof is Annexure 2 to the writ petition. The petitioner submits that there is a statutory provision, which requires communication of this entry within 90 days of its order. A copy of the statute on which reliance is placed in this regard is Annexure 3 to the writ petition 6. Vide letter dated 8-6-1987 the petitioner was told that his representation was rejected as being barred by time. A copy of the said letter is dated 8-6-1987 is Annexure 4 to the writ petition. The petitioner made another representation explaining the import and purpose of G. O. No. 3690/ Ka-7 (1) 69 Part-I dated 21-4-1971. Vide letter dated 8-6-1987 the petitioner was told that his representation was rejected as being barred by time. A copy of the said letter is dated 8-6-1987 is Annexure 4 to the writ petition. The petitioner made another representation explaining the import and purpose of G. O. No. 3690/ Ka-7 (1) 69 Part-I dated 21-4-1971. The G. O. prescribes the method, and time of recording of adverse entry, the period within which adders entry is to be communicated to the concerned person and period of filing an appeal against the said entry. The adverse entry is to be recorded latest, by June of the year according to the G. O. referred to above. In the case of the petitioner it is said to have been recorded after three years. The adverse entry is to be communicated latest by the month of August of the corresponding year but in the case of the petitioner it was communicated in June, 1985, after four years. The period prescribed for filing appeal is three months but in the special circumstances it can be extended by a further period. As such the rejection of the petitioner's representation is said to be bad. A copy of the G. O. is Annexure 5 to the writ petition. The petitioner has also referred to another G. O. dated 15-3-1977, a copy whereof is Annexure 6 to the writ petition, which also pertains to the matters concerning adverse entries. The adverse entry is said to have been recorded by Mr. Das when he was Commissioner at Nainital sometime in the year 1983, which is said to be a flagrant violation of the provisions of law. 7. The petitioner submits that the respondents are trying to use the adverse entry pertaining to the year 1980-81 against him after his retirement in order to harass him. Therefore, lib invokes the writ jurisdiction. 8. Counter-affidavit to the writ petition is filed on behalf of the respondent no, 2 alone. In the said counter-affidavit the respondent has given the history of the creation of the U. P. State Road Transport Corporation and has stated how the employees of the said Corporation were to be treated. These employees were previously State Government employees. They were required to give option for being absorbed in the Corporation. In the said counter-affidavit the respondent has given the history of the creation of the U. P. State Road Transport Corporation and has stated how the employees of the said Corporation were to be treated. These employees were previously State Government employees. They were required to give option for being absorbed in the Corporation. But in view of the stay order passed by the Lucknow Bench of this Court in Writ Petition No. 3489 of 1982 the petitioner and others were not deemed to have exercised the option for absorption in the Corporation. Between 17-11-1979 to 10-10-1980 the petitioner has worked as Regional Manager at Gorakhpur and during the aforesaid period a complaint was received on 11-9-1980 from one Smt. Gaura Devi. The Chief Security officer was deputed to hold an enquiry and he after holding enquiry recommended that prima facie the petitioner was guilty and he be placed under suspension and a departmental enquiry be set up against him. Since the petitioner had already retired, w.e.f. 31-3-1984 the State Government directed that pension and gratuity be not paid to the petitioner and a show cause notice was sent to the petitioner on 22-2-1985. The petitioner is said to have filed the writ petition in August, 1986 before this court challenging the order dated 22-2-1985. A Division Bench of this Court considered the said writ petition. The case of the Corporation before the Division Bench was that a notice under Rule 470 (b) of the Civil Service Regulations tot reducing the quantum of pension had already been sent to the petitioner. The hearing of the said case is said to be adjourned and the show cause notice issued to the petitioner for reducing the amount of his pension was not found defective. Thereafter the petitioner is said to have filed this writ petition. The petitioner is said to have been awarded adverse entry in 198U-81 and in September, 1975 also. In 1950 he was twice warned on 24-l0-iy50 and 28-11-1950. Thereafter he was warned on 7-6-1961 and the warning letter was sent in June, 1982 also. 9. The State Government is said to be competent to direct reduction in pension after affording opportunity of hearing to the petitioner under Article 470 (b) of the Civil Service Regulations. The recording of entry of 1980-81 is said to be justified. Thereafter he was warned on 7-6-1961 and the warning letter was sent in June, 1982 also. 9. The State Government is said to be competent to direct reduction in pension after affording opportunity of hearing to the petitioner under Article 470 (b) of the Civil Service Regulations. The recording of entry of 1980-81 is said to be justified. The petitioners period of posting of different places as detailed out in the writ petition is not denied. The petitioner is said to have made unauthorised appointments of conductors during his tenure as Regional Manager, Gorakhpur. It is stated that no doubt the Assistant Regional Manager was appointing authority of the conductors but the petitioner has failed to exercise supervisory powers over the Assistant Regional Managers. Therefore, it was a lapse on his part for which adverse entry was made. He is said to have failed in preventing unauthorised recruitment and he was also a party to those illegal appointments by his conduct. 10. The petitioner was asked to submit his explanation to the show cause notice on 31-8-1986. The explanation received from the petitioner is said to have been forwarded to the State Government and the same was returned to the Corporation with a direction that a para wise narrative be submitted. The State Government also by its letter dated 25-4-1987 had asked the Corporation to make relevant record available to the petitioner, which related to the adverse entry pertaining to the year 1980-81. Accordingly all the documents are said to have been furnished to the petitioner. The State Government is said to have informed the petitioner through the Corporation that since the show cause notice was with regard to the reduction of amount of pension only, the State Government would have no objection to the payment of his gratuity. The memorandum dated 27-1-1985 pertaining to the recording of adverse entry etc. is not strictly applicable to the petitioner's case. The petitioner's representation against the adverse entry is said to have been correctly rejected as it was not filed within time. The petitioner has filed rejoinder affidavit and a supplementary affidavit on 19-12-1989. The petitioner has stated the circumstances under which his previous writ petition was dealt with by the Division Bench, it is stated that the petitioner is aggrieved against the adverse entry pertaining to the year 1980-81, therefore, the history given by the respondent no. The petitioner has filed rejoinder affidavit and a supplementary affidavit on 19-12-1989. The petitioner has stated the circumstances under which his previous writ petition was dealt with by the Division Bench, it is stated that the petitioner is aggrieved against the adverse entry pertaining to the year 1980-81, therefore, the history given by the respondent no. 2 from 1950 is only to mislead the Court. The petitioner has stated that he is not aware of any complaint submitted by one Smt. Gaura Devi nor he is aware of any enquiry conducted into the said complaint by the Chief Security Officer. If any enquiry was to be held it must have been conducted in accordance with law. He has denied the contents of the counter-affidavit and has stated that the respondent No. 2 has mixed up the issues with a view to create confusion in the writ petition. The petitioner submits that he challenges the adverse entry of 1980-tfl on the ground that it was not recorded by a competent authority, and was communicated after five years. Sri A. K. Das is said to have no authority to finalise the entry. The said entry was to be finalised by the Transport Secretary under whom the petitioner was serving. Therefore, Sri A. K. Das was only a reporting authority. The petitioner has referred to various Government orders on which he has placed reliance in the writ petition. It is stated that Mr. A. K. Das could not record any adverse entry against the petitioner, as he had not seen the work of the petitioner nor had he any opportunity to assess his work. About the alleged unauthorised appointments of conductors it is stated that it is the Assistant Regional Manager who is their appointing authority and the petitioner had nothing to do with the same. 11. I have heard the learned counsel for the parties and gone through the material which was placed before me. Alter careful, consideration of the case I am of the opinion that this court is called upon only to decide the validity of adverse entry pertaining to the year 198U-81 recorded by one Mr. A. K. Das against the petitioner and to see the effect of its delayed communication to the petitioner as also the effect of the rejection of the representation of the petitioner against the said adverse entry. A. K. Das against the petitioner and to see the effect of its delayed communication to the petitioner as also the effect of the rejection of the representation of the petitioner against the said adverse entry. All other contentions raised by the respondents in the reply affidavit are alien to the dispute which is to be decided by this order. The petitioner's prayer in this petition is very limited and he challenges the entry of iy80-8i on specific grounds. Therefore, this Court is not concerned with any warning or adverse entry, which is alleged to have been given or recorded against the petitioner from 1950. It is the entry of 1980-81 which is challenged in this writ petition and this Court has to examine whether the challenge to the said entry can be sustained or not. Before coming to grip with the case law cited it is necessary to detail out as to the facts which have emerged from the perusal of the record: insofar as the consideration of validity of adverse entry for the year 1980-81 is concerned. 12. The following points have emerged on which the parties have no dispute: (a) That during the period when the entry pertaining to the year 1980-81 was recorded the petitioner was not serving at Gorakhpur but had been transferred to Varanasi. (b) That the adverse entry pertaining to the year 1980-81 consists of two parts. The first part refers to an alleged complaint having been received in respect of unauthorised appointments of conductors by the petitioner and on enquiry thereon by the Respondent No. 2 the allegations having been found prima facie correct. The second part pertains to the reputation of the petitioner as an honest office and his integrity is certified by the reporting officer. (c) That the said entry was conveyed to the petitioner in June, 1985 whereas the petitioner had retired from service on 31-3-1984. It was conveyed after four years of its reporting. (d) That the representation filed by the petitioner against the said entry was rejected as it was tiled by the petitioner beyond six weeks and the time for filing the representation was not extended by the State Government, The aforesaid points fall within the area of agreement between the parties. There is some disagreement also between the parties with regard to the entry for the year 1980-81. There is some disagreement also between the parties with regard to the entry for the year 1980-81. The disagreement pertains to .the fact that Sri A. K.. Das had the competence of recording the adverse entry against the petitioner, that the complaint received against the petitioner was enquired into and prima facie he was found guilty on enquiry for having appointed conductors in violation of law at Gorakhpur during his tenure there, that the rejection of the representation tiled by the petitioner was not assailable as the same was filed beyond time and there is a disagreement between the parties about the application of Government orders with regard to the recording of adverse entries and matters connected with the adverse entries. 13. The first question to be determined is whether the alleged adverse entry pertaining to the year 1980-81, so far as it relates to the alleged unauthorised appointments of conductors by the petitioner, is concerned, is factually correct or not. It is the case of the respondent no. 2 that the appointments were made by some different officer but the petitioner had failed to exercise supervisory control over the said officer. The appointments of conductors which are said to be unauthorised are not made by the petitioner. Therefore, factually this remark is incorrect. When the petitioner had nothing to do with the appointments of conductors how could he be held responsible for making unauthorised appointments of conductors. From the examination of the entry it appears that the reporting authority was under the impression that the petitioner had made the appointments of conductors which were unauthorised in his view. But on reading the counter affidavit of the respondent it appears that there is an admission on the part of respondent No. 2 that the said appointment's were to be made by the Assistant Regional Manager and not by the petitioner. The allegation of lack of supervision and allegation about making of unauthorised appointments are two different things. The reporting authority has confused the lack of supervision alleged to have been attributed to the petitioner with the act of alleged unauthorised appointments of conductors. Therefore, from a combined reading of the contents of the alleged adverse entry and the counter-affidavit it is to be noted that the reporting authority has factually made an incorrect statement about the petitioner while making the adverse entry in his confidential roll during the year 1980-81. Therefore, from a combined reading of the contents of the alleged adverse entry and the counter-affidavit it is to be noted that the reporting authority has factually made an incorrect statement about the petitioner while making the adverse entry in his confidential roll during the year 1980-81. This is one, aspect of the matter. Another aspect of the matter, which would make the alleged adverse entry untenable, is writ large on the record.. It appears from the reading of the alleged adverse entry that some enquiry was made against the petitioner in respect of the complaint received from one Smt. Gaura Devi about the alleged unauthorised appointments of conductors and the allegation was found prima facie correct. The petitioner has stated that no enquiry was conducted in his presence nor was he associated with the enquiry which was got conducted into the allegations by the respondent no. 2. It is not the case of the respondent No. 2 that the enquiry was conducted in the presence of the petitioner. Therefore, what has gone on record against the petitioner is based on some sham enquiry, which was violative of the principles of natural justice. Any enquiry in which the petitioner was to be indicted for his alleged lapse of having made, unauthorised appointments of conductors was necessarily to be conducted in the presence of the petitioner and he was required to be heard in respect of the complaint made by Smt. Gaura Devi, who appears to have been a Member of the Legislative Assembly then. If any complaint was received against the petitioner, it was imperative for the respondent No. 2 to ask the petitioner to explain in the allegations levelled against him and if the petitioner had failed to do so, preliminary enquiry could be conducted and if there was a prima facie case a regular enquiry could be ordered by the respondent no. 2. The said enquiry was to be conducted after affording the petitioner a reasonable opportunity of being heard. Without adopting the procedure established by law and against the principles of natural justice the respondent no. 2 could not hold the petitioner guilty of any charge at his back without affording him an opportunity of being heard. If this allegation was grounded on some facts, the petitioner should have been dealt with accordingly. Without adopting the procedure established by law and against the principles of natural justice the respondent no. 2 could not hold the petitioner guilty of any charge at his back without affording him an opportunity of being heard. If this allegation was grounded on some facts, the petitioner should have been dealt with accordingly. And he could even be punished but recording of the guilt of the petitioner without any proof or without any enquiry into the allegation recorded in the annual confidential report and without hearing the petitioner, is unwarranted and opposed to the guarantees contained under Article 14 of the Constitution of India. 14. For the simple reason that the petitioner has been castigated or indicted at his back without hearing him the alleged adverse entry about his unauthorised act reflected in the annual confidential report cannot be looked into for any purpose whatsoever. Such an entry is recorded allegedly on the basis of some enquiry which enquiry was not in accordance with the rules of natural justice nor in accordance with the rules framed under the statute. Therefore, I have no hesitation in declaring that the first part of the alleged adverse remark which says that the petitioner had made unauthorised appointments of conductors and on enquiry the allegation was found prima facie correct is non-est. It is now well established that the administrative action have to conform to the rules of natural justice. If an employee is likely to be affected by administrative action he is to be given an opportunity of being heard before administrative action is taken against him. This is an elementary principle of the system on which our law is founded. No-body was to be condemned unheard was a concept followed by the Greeks and for centuries this was followed in various systems of Government in many parts of the world. Even before the commencement of the Constitution this principle was adhered to by us also. After having our Constitution this principle received a constitutional guarantee and today our system of administrative law is developed to - such an extent that anything done dehors of Article 14 of the Constitution is to be struck down. We have in all matters, which have the effect of jeopardising or affecting fundamental rights or civil rights of the citizens adhered to the principles of natural justice. We have in all matters, which have the effect of jeopardising or affecting fundamental rights or civil rights of the citizens adhered to the principles of natural justice. Wherever principles of natural justice are not observed the action taken, which adversely affects the right of a person, is deemed to cut at the very roots of the guarantees enshrined under Article 14 of the Constitution. The method of observance of principles of natural justice may differ from case to case but any order affecting civil rights of a person must be passed only after the principles of natural justice are observed. 15. De Smith in his treatise on Judicial Review of Administrative Action IV Edition in Chapter concerning principle and scope of judicial review, has said that natural justice generally requires that person likely to be directly affected by proposed administrative action, decision or proceedings be given adequate notice of what is proposed so that they may be in a position ; (a) to make representation on their own behalf, or (b) to appear before enquiry, if one is to be held; and (c) effectively to prepare their own case and to answer the case (if any) they have to meet. 16. Even in administrative action if a person is likely to be affected by the said action, observance of principles of natural justice is imperative. In Maneka Gandhi's case, reported in AIR 1978 SC 597 the Supreme Court has high-lighted the importance of observance of the principles of natural justice and has, to a larger extent, extended its dimensions by judicial interpretation. In an administrative matter, which concerned a citizen's right to travel abroad the State had put an embargo on the same, the Supreme Court held that embargo was bad because before imposing the restriction on traveling the petitioner in that case was not heard and that was held to be violative of principles of natural justice. In the present case, apart from the fact that the allegation levelled against the petitioner is factually incorrect because he was not authorised to appoint bus conductors, the said remark is recorded in flagrant violation of the principles of natural justice. There was no basis for the respondent no. In the present case, apart from the fact that the allegation levelled against the petitioner is factually incorrect because he was not authorised to appoint bus conductors, the said remark is recorded in flagrant violation of the principles of natural justice. There was no basis for the respondent no. 2 to rely on the allegation which was not supported by any evidence and which had no basis: Because the allegation seemed to have been held prime facie correct at the back of the petitioner and without affording him any opportunity of being heard is not to be acted upon. 17. The second part of the entry certifies the reputation and integrity of the petitioner. That could not be ignored because for his integrity and honesty the petitioner should not suffer. 18. The another important aspect of the case is that the adverse entry for the year 1980-81 on which the respondents have relied and have proposed to take action against him was conveyed to the petitioner after about four years. The petitioner had retired on 31-3-1984 and the adverse entry was communicated to him in June, 1985. The belated communication of the alleged adverse entry is viewed with suspicion by the various High Courts and the Supreme Court. In the case of State of Haryana v. P. C. Wadhwa, 1987 (2) SCC 602 , it was held that the adverse remark communicated after 27 months was Improper. Under law it was required to be communicated within seven months. Though the provision where under the adverse remarks was required to be communicated within seven months was held to be directory, the communication after inordinate delay was not held to be even substantial compliance with the directory provisions of law. It was further held that the whole object of making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performance, conduct or character, as the case may be. The adverse remark is not to be understood in terms of punishment but really it should be taken as an advice to officer concerned so that he may act in accordance with the advice and improve his service career. The object of making of adverse remarks would be lost if they are communicated to the officer concerned after inordinate delay. The adverse remark is not to be understood in terms of punishment but really it should be taken as an advice to officer concerned so that he may act in accordance with the advice and improve his service career. The object of making of adverse remarks would be lost if they are communicated to the officer concerned after inordinate delay. Therefore, belated communication of adverse remark to the petitioner would defeat the very object of the purpose. There is no reason given by the respondent no. 2 as to why this remark was communicated to the petitioner after such inordinate delay. 19. It is strange to note that the petitioner's representation against the said alleged adverse remark was rejected on the ground that it was belated. IT is true that it was not filed within six weeks but that could not be the reason for rejecting the representation of the petitioner against the said remark. The respondent no. 2 had the power to extend the time beyond six weeks. In view of the conduct of the respondents in communicating the adverse remark to the petitioner after four years they could not be heard to say that the petitioner's representation was barred by time. The alleged adverse remark against the petitioner has remained on the record because of the lapse of the respondents and because of their failure to observe the rules of natural justice while recording the adverse remark and by rejecting the petitioner's representation. Under the various Govt., orders referred to above adverse entry was to be conveyed and communicated to the petitioner within six weeks. He could make a representation within six weeks against the adverse entry and in special circumstances the time could be extended by another six weeks. The petitioner had filed the representation within 12 weeks. Therefore, it could not be rejected. 20. The belated communication of the adverse entry and refusal of the respondents to consider his representation is discussed because the point was argued by the learned counsel for the parties, otherwise in view of my finding given on the validity of the adverse remark, the discussion on this aspect of the case was not essential. It is held that the adverse entry is recorded without any factual basis and the allegation is held to be prima facie proved in violation of the principles of natural justice. It is held that the adverse entry is recorded without any factual basis and the allegation is held to be prima facie proved in violation of the principles of natural justice. Therefore, the alleged adverse entry is to be ignored from consideration. However, the petitioner and the other side argued in the alternative about the requirements of law insofar as the communication of the adverse entry and the representation against that is concerned, I have, therefore, expressed my opinion on that aspect of the case also. I need not go into other aspects of the case such as competence of Mr. A. K. Das to confirm the adverse entry and the adverse entry having been written by Sri A. K. Das when he had no occasion to judge the performance of the petitioner at Gorakhpur because during his tenure Sri A. E. Das was not posted in that zone. This aspect of the case has paled into insignificance in view of my finding about the alleged adverse entry, so far as it castigates the petitioner for having made unauthorised appointments of conductors, being non-existent. 21. As a result of the aforesaid discussion it is to be held that the alleged adverse entry for the year 1980-81 against the petitioner, so far as it accuses him of having made unauthorised appointments of conductors, which was found prima facie proved on enquiry, is to be declared non-est and this alleged adverse entry is without any factual foundation and is violative of the principles of natural justice. Therefore, it is to be directed that the said entry could not be used against the petitioner for any purpose whatsoever. 22. The writ petition is accordingly allowed and the respondents are commanded by a writ of mandamus not to use the alleged entry for the year 1980-81, insofar as it holds the petitioner guilty of making unauthorised appointments of conductors which was held to have been prima facie proved 'on enquiry and not to use the same against the petitioner to his detriment in any manner and not to rely on the said alleged adverse entry against the petitioner for any purpose whatsoever. There will be no order as to costs. Petition allowed.