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2009 DIGILAW 759 (ORI)

GOPABANDHU BISWAL v. UNION OF INDIA (UOI)

2009-10-09

B.N.MAHAPATRA, L.MOHAPATRA

body2009
JUDGMENT : L. Mohapatra, J. - The Petitioner, who was applicant before the Central Administrative Tribunal, Cuttack Bench, Cuttack in Original Application No. 461 of 2000, has filed this Writ application assailing the order of the Tribunal dated 26.9.2001 passed in the aforesaid O.A. 2. The Petitioner is an I.P.S Officer of Orrisa Cadre and at the time of filing of O.A., he was holding the post of D.I.G. of Police. In the said O.A., he prayed for quashing the order dated 13.1.2000 communicating adverse remark made against him for the period from 1.4.1998 to 24.3.1999 and also the order dated 27.5.2000 rejecting his representation for expunction of adverse remark. Counters and rejoinder were filed before the Tribunal and on consideration of the materials placed, the Tribunal came to hold that the Petitioner is not entitled to relief claimed and, accordingly, dismissed the O.A. 3. In course of hearing, Shri Aswini Mishra, learned Senior Counsel appearing for the Petitioner assailed the impugned judgment on the ground that adverse remark had been made without any basis and order of rejection of the representation also suffers from non application of mind. It was also contended by the learned Senior Counsel that there was no basis for making such adverse remark and when the Petitioner submitted a representation for expunction of the said remark on the grounds stated therein, the said representation was rejected without assigning any reason. The representation having been rejected without assigning any reason according to the learned Counsel for the Petitioner, cannot stand the test of law and, therefore, the matter should be remitted back to the competent authority for reconsideration of the representation. Adverse remark communicated to the Petitioner is the subject matter of Annexure I, which is quoted below: Shri H.VA. Suba Rao, I.A.S. ADDL.SECRETARY TO GOVERNMENT GOVERNMENT OF ORISSA GENERAL ADMINISTRATION (S.E.) DEPARTMENT D.O. No. 206/SE. Bhubaneswar The 13.1.2000 Dear Sri Biswal, Review of the confidential report on your work for the year 1998-99 (from 1.4.98 to 24.3.99) reveals that your dedication to duty should improve. You had lost perspective and acted way ward at times. Government hope you will try to improve. If you wish to make any representation against the above adverse remarks, you may do so (in quadruplicate) within 45 days of receipt of this letter. Regards Yours sincerely, (H.V.A. Suba Rao) Shri Gopabandhu Biswal, I.P.S. Commandant, Second Bn. Jharsuguda. 4. You had lost perspective and acted way ward at times. Government hope you will try to improve. If you wish to make any representation against the above adverse remarks, you may do so (in quadruplicate) within 45 days of receipt of this letter. Regards Yours sincerely, (H.V.A. Suba Rao) Shri Gopabandhu Biswal, I.P.S. Commandant, Second Bn. Jharsuguda. 4. As is evident from the above, the first part of the remark is not adverse but is advisory in nature. However, the second part of the remark is adverse. It appears that against the said adverse remark, the Petitioner submitted a representation on 4th February, 2000 for expunction of the same and the 2nd representation was made on 28th February, 2000 for the self same purpose. The representation dated 4th February, 2000 was processed and considered. By letter dated 27.5.2000, the Petitioner was intimated that his representation for expunction of adverse remark has been rejected. 5. The first ground taken by the learned Counsel for the Petitioner is that there were no materials for making such adverse remark. In the representation submitted by the Petitioner on 4th February, 2000, he has stated about his achievement during the relevant period and prayed for expunction of the adverse remark. Law is well settled that neither the Tribunal nor this Court can sit in appeal and decide as to whether there were materials for passing an adverse remark. The Court has to only see as to whether the representation of the Petitioner filed before the competent authority for expunction of adverse remark has been dealt with reasons or not. Therefore, this Court is incompetent to entertain the first ground of challenge regarding non availability of materials for passing the aforesaid adverse remark. So far as disposal of the representation is concerned, undisputedly, rejection order communicated to the Petitioner does not indicate any reasons. We, therefore called upon the learned Counsel for the Central Government to produce the records. From the records, we find that the Deputy Secretary to Government in the concerned Department had given his notes taking into account the grounds taken in the representation filed by the Petitioner. The said report was accepted by the Additional Secretary to Government in the G.A. Department dated 1.5.2000 and the file was placed before the Special Secretary to Government in the G.A. Department for consideration. The said report was accepted by the Additional Secretary to Government in the G.A. Department dated 1.5.2000 and the file was placed before the Special Secretary to Government in the G.A. Department for consideration. The Deputy Secretary in his noties has not only pointed out the justification for such adverse remark but also dealt with the grounds taken in the representation. On perusal of the same, the Special Secretary to Government accepted the reasons and rejected the representation. Therefore, it can not be said that no reasons have been assigned while rejecting the representation against the adverse remark. Though we agree with the learned Senior Counsel for the Petitioner that the order communicating to the Petitioner regarding rejection of his representation does not indicate any reasons, we find that reasons are recorded in the file itself. Reliance was placed by the learned Senior Counsel for the Petitioner on a decision of the Hon'ble Supreme Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others. The Hon'ble Supreme Court in the said decision has held that while considering the representation for expunction of adverse remark, reasons should be assigned. The reasons may not be elaborate but some reasons should be assigned for rejecting the representation. As stated earlier, from the file produced before us, we find that reasons have been assigned for rejecting the representation and, therefore this Court cannot sit in appeal and come to a different conclusion. 6. For the reasons stated above, we do not find any merit in the writ application and, accordingly, dismiss the same. Final Result : Dismissed