Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 1473 (PNJ)

Sunil Dutt v. State of Haryana

2012-10-12

A.K.SIKRI, RAKESH KUMAR JAIN

body2012
JUDGMENT Mr. Rakesh Kumar Jain, J.: - The appellant was enrolled as a Constable in the Haryana Police on 02.03.1984, promoted as Head Constable on 01.11.1998 and as Assistant Sub Inspector on 08.09.2003. He was conveyed adverse remarks for the period 01.04.2006 to 31.03.2007 on 07.09.2007, which read as under:- “1. Honesty Dishonest 2. Moral Character Below average 3. Reputation regarding encourage Below average Co-operation and proper behaviour with public 4. Reliability Not reliable 5. General remarks An officer of below average category” 2. The appellant made a representation for expunging the adverse remarks but it was rejected on 29.12.2009 with the observation “considered and rejected”. Although as per Rules, second representation against adverse remarks was not maintainable, but the appellant filed second representation on 19.01.2010 to the Director General of Police, Haryana which too was rejected on 02.04.2010. 3. The appellant filed CWP No.7540 of 2010 in which the adverse remarks and the orders rejecting his representations were assailed on the ground that the adverse remarks were recorded against him due to his false implication in case FIR No.9 dated 05.02.2007, under Sections 7/13/49/88 of the P.C. Act, registered at Police Station SVB, Gurgaon in which he has already been acquitted by the Special Judge, Gurgaon on 08.12.2008 and the departmental inquiry initiated vide order No.5846-53 dated 08.02.2007 has also gone in his favour as he was exonerated on 02.04.2009. However, the said writ petition was withdrawn as the appellant could not attach the documents to show that the adverse remarks were recorded on the basis of aforesaid criminal case. Thereafter, the appellant filed an application dated 03.05.2010 under the Right to Information Act, 2005, seeking documents on the basis of which the adverse remarks were recorded by the reporting officer. The Public Information Officer-cum-Deputy Commissioner of Police, Headquarters, Gurgaon, vide office memo No.363-D/RTI dated 04.06.2010, supplied photocopy of the comments offered by the reporting officer Sh. Hanif Qureshi, IPS, vide memo No.10909 dated 09.09.2008. The appellant then filed CWP No.11971 of 2010 challenging the order dated 07.09.2007 by which adverse remarks were conveyed, order dated 29.12.2009 by which his first representation was rejected and order dated 02.04.2010 rejecting his second representation. 4. Hanif Qureshi, IPS, vide memo No.10909 dated 09.09.2008. The appellant then filed CWP No.11971 of 2010 challenging the order dated 07.09.2007 by which adverse remarks were conveyed, order dated 29.12.2009 by which his first representation was rejected and order dated 02.04.2010 rejecting his second representation. 4. The writ petition was dismissed by the learned Single Judge with the following observations:- “I have considered the assertions and counter assertions respectively made by the learned counsel for the petitioner and respondents Annexure P-4 are the remarks which have been conveyed to the petitioner and are adverse to him. A perusal of the same does not reveal that they are based on any allegations of corruption which led to the registration of FIR against the petitioner, however, they do describe the petitioner as dishonest and also officer below average and unreliable. It is in the decision rejecting his representation that there is some material to suggest that it relates to the incident of alleged corruption in which the petitioner faced trial as also some information provided to the petitioner under the query posed by him in Right to Information Act but this itself does not conclusively establish that this was the sole reason to declare the petitioner as dishonest. Even if it is so the remaining columns also do not reflect upon the petitioner flatteringly as he has been described as an officer below average and unreliable, which necessarily does not lead to an inference that it is based solely on the incident leading to his trial in a case under Prevention of corruption Act.” 5. In this appeal, learned counsel for the appellant has submitted that the finding recorded by the learned Single Judge, while dismissing the writ petition, is due to misreading of order dated 09.09.2008 (Annexure P-10) as the adverse remarks recorded by the reporting officer are solely based upon the criminal case registered against the appellant in which he has already been acquitted. The relevant para of that letter dated 09.09.2008 is reproduced as under:- “The defaulter, while posted as Incharge Police Post Arjun Nagar, under PS City Gurgaon, was caught by the State Vigilance Bureau, Gurgaon, red handed while taking Rs.10,000/- from one Sh. Chitresh Adlakha s/o Sh. R.S.Adlakha, H. No.518/2, Gali No.7, Madanpuri, Gurgaon, as bribe for hushing up the complaint submitted against him by Shri Arun Kakkar. Chitresh Adlakha s/o Sh. R.S.Adlakha, H. No.518/2, Gali No.7, Madanpuri, Gurgaon, as bribe for hushing up the complaint submitted against him by Shri Arun Kakkar. A case FIR No.9 dated 5.2.2007 under section 7(49) 88 of P.C. Act was registered against him at Police Station, State Vigilance Bureau, Haryana, Gurgaon, on this count and he was arrested in the said case. This misdemeanour proved the representationist to be a dishonest and unreliable official, who possessed a loose moral character. So, he was graded as ‘dishonest’ against the column of ‘Integrity’. His moral character was also, therefore, adjudged to be ‘Below Average’, and he was over all graded as an official of ‘Below Average’, category against the column of ‘General Remarks’. It is thus evident that the adverse remarks recorded in his ACR for the period from 1.4.2006 to 31.3.2007 are based on material evidence and have legal value.” 6. Counsel for the appellant has further relied upon a Division Bench judgment of this Court in the case of Randhir Singh, ASI v. State of Haryana and others, CWP No.867 of 2007 decided on 29.03.2007, to contend that once the basis of recording adverse remarks does not survive, the said remarks deserve to be expunged. 7. Learned State counsel has submitted that although the appellant has been acquitted in the criminal case by the Court of Special Judge, Gurgaon and has been exonerated in the departmental inquiry which was initiated because of the registration of that criminal case, yet no fault can be found with the adverse remarks recorded by the reporting officer as he has found the appellant an officer of below average and not reliable. He has also submitted that adverse remarks in the service record need not be supported by any accompanying record or detailed reasons as it can be based on personal knowledge of the reporting officer. In support of his contention, he has relied upon a judgment of the Division Bench of this Court in the case of Davinder Singh v. State of Haryana and others, 2011(4) SLR 210. 8. We have heard counsel for the parties and perused the record with their able assistance. 9. In support of his contention, he has relied upon a judgment of the Division Bench of this Court in the case of Davinder Singh v. State of Haryana and others, 2011(4) SLR 210. 8. We have heard counsel for the parties and perused the record with their able assistance. 9. The admitted facts are that the appellant was involved in a criminal case registered vide FIR No.9 dated 05.02.2007, under Sections 7, 13/49/88 of the P.C. Act at Police Station SVB, Gurgaon but acquitted by the Special Judge, Gurgaon on 08.12.2008 as the prosecution had failed to prove its case. It is equally true that the appellant was exonerated on 02.04.2009 in the departmental inquiry initiated against him vide order No.5846-53 dated 08.02.2007. It is also not disputed that registration of criminal case was due to acceptance of bribe for hushing up a complaint, but the reporting officer has categorically observed that this misdemeanor of the appellant proved him to be a dishonest and unreliable official who possessed a loose moral character and was, thus, graded as “dishonest” in the column of “integrity” and his moral character was also adjudged “below average” and he was over all graded as an official of “below average” category in the column of “General Remarks”. Thus, the material is before the Court on the basis of which adverse remarks are given by the reporting officer but the very basis of that adverse remarks has already been extinguished due to acquittal of appellant in the criminal case and exoneration in the departmental inquiry. 10. In Randhir Singh, ASI’s case (supra), relied upon by the appellant, the said official was communicated adverse annual confidential report for the period 1.4.1995 to 02.07.1995 in which his integrity was recorded as doubtful and he was considered to be unreliable. The said official made a representation on 23.11.2001 which was declined on 08.04.2002. On the basis of said adverse remarks, a regular inquiry was conducted in which he was held guilty and was inflicted with the punishment of stoppage of two increments with cumulative effect on 25.05.1995 against which he filed an appeal which was dismissed on 16.07.1996. The said official filed Civil Suit against order dated 25.05.1995 and order dated 16.07.1996 which was decreed on 24.05.1999, orders dated 25.05.1995 and dated 16.07.1996 were set aside and the department was given liberty to initiate fresh inquiry in accordance with law. The said official filed Civil Suit against order dated 25.05.1995 and order dated 16.07.1996 which was decreed on 24.05.1999, orders dated 25.05.1995 and dated 16.07.1996 were set aside and the department was given liberty to initiate fresh inquiry in accordance with law. The said order of the Trial Court was not assailed by way of an appeal and despite liberty granted to hold fresh inquiry, the State Government filed it on 11.07.2002. After order of the Civil Court, representation was made by the said official on 11.08.2003 seeking expunction of the adverse remarks which was expunged by the Director General of Police, Haryana on 26.08.2003, but the successor Director General of Police, Haryana, issued show cause notice to the said official on 05.07.2006 that the adverse remarks conveyed to him on 30.09.1995 have been wrongly expunged. Finally, after taking reply, the Director General of Police, Haryana, vide order dated 19.10.2006, held that the erstwhile Director General of Police had wrongly and unauthorizedly expunged the remarks by entertaining a second representation against the Government instructions dated 22.03.1971. Against the said order, the said official filed the writ petition in which it was alleged that the second representation was filed on 11.08.2003 which was based on the decision of the Civil Court in which he was absolved of the allegation made earlier. In this background, the learned Division Bench passed the following order:- “In our view, the claim of the petitioner was liable to be adjudicated upon its merits based on the judgment and decree dated 24.5.1999. In this behalf it would be pertinent to mention that the annual confidential report for the period 1.4.1995 to 2.7.1995 (which has been extracted herein above) clearly reveals that the same was based on the allegations, wherein in a departmental enquiry was conducted against the petitioner and the petitioner had been found guilty, and inflicted with the punishment of stoppage of two annual increments with cumulative effect. So far as the aforesaid factual position is concerned, there was no difference of opinion between learned counsel representing the rival parties. However, the aforesaid factual position underwent a change, with the passing of the judgment and decree at the hands of the civil judge at Sirsa dated 24.5.1999. So far as the aforesaid factual position is concerned, there was no difference of opinion between learned counsel representing the rival parties. However, the aforesaid factual position underwent a change, with the passing of the judgment and decree at the hands of the civil judge at Sirsa dated 24.5.1999. The findings recorded in the departmental enquiry which constituted the foundation and the basis of the annual confidential report dated 30.09.1995 were set aside in the judgment and decree dated 24.5.1999. In sum and substance, therefore, the very basis on which the annual confidential report (under reference) was recorded, had been annulled in the judgment and decree dated 24.5.1999. No only that, although liberty was given by the trial Court to the respondents to held a fresh enquiry yet, after a conscious application of mind, the Government by its order dated 11.07.2002 decided to file the matter that being so we have no doubt in our mind, that the allegations contained in the charge sheet were considered to be unjustified by the respondents themselves. Since the basis of the aforesaid charge sheet was treated as unjustified by the State Government itself. It is apparent that the adverse remarks recorded thereon were wholly unjustified in the facts and circumstances of this case. We are therefore satisfied that the former Director General of police was fully justified in passing the order dated 26.08.2003 by which he ordering the expunction of the remarks communicated to the petitioner on 30.09.1995.” 11. Insofar the judgment relied upon by the learned State counsel in Davinder Singh’s case (supra) is concerned, in that case, Davinder Singh was appointed as a Constable in Haryana Police. The said official was conveyed adverse remarks in which his honesty was recorded as “doubtful”. His representation was rejected on 29.05.2008 which order was challenged by him by way of writ petition but during the pendency of the writ petition, a show cause notice was served upon him proposing to retire him compulsorily in public interest which was put into effect, as a result of which the said official challenged the order of compulsory retirement by way of separate writ petition. He had submitted that one FIR No.4 dated 03.01.2007 was registered against him under Sections 344, 383 and 34 IPC at Police Station GRP, Hisar but in the final report, he was not named as an accused nor summoned by the Court and the Chief Judicial Magistrate, Bhiwani, acquitted him on 06.12.2008 in the said case and in the departmental inquiry also, he was eventually conveyed with the punishment of Censure on 16.07.2008. In the said case, grievance of the said official was that the adverse remarks were recorded in violation of Government instructions dated 12.12.1985 which requires that if adverse remarks of `doubtful integrity’ are to be recorded then the reporting officer must clearly state that the officer is suspected of corruption or is believed to be corrupt. This opinion should also be supported by reasons by the reporting officer. The learned Single Judge agreed to the contention of the said official by placing reliance on instructions dated 12.12.1985 which requires recording of reasons in support of an entry concerning doubtful integrity, but the Division Bench found the view of the learned Single Judge unsustainable holding that to insist on material, objectivity and reasons for recording ‘integrity doubtful entry’ is not within the legal parameters. 12. As a matter of fact, the judgment relied upon by the learned State counsel in Davinder Singh’s case (supra) is not applicable to the facts and circumstances of the present case in which reasons have been disclosed by the reporting officer in his order dated 09.09.2008 in which he has specifically said that because of the registration of criminal case against the appellant on account of accepting bribe he has been found to be dishonest and below average. Thus, all the remarks in the annual confidential report for the period 01.04.2006 to 31.03.2007 have originated from the registration of the criminal case under the P.C. Act in which the appellant has been honourably acquitted and has been exonerated for the said charge in the departmental inquiry. Thus, in our considered opinion, the judgment relied upon by learned counsel for the appellant in Randhir Singh, ASI’s case (supra) is fully applicable instead of the judgment relied upon by the learned State counsel in Davinder Singh’s case (supra). 13. Thus, in our considered opinion, the judgment relied upon by learned counsel for the appellant in Randhir Singh, ASI’s case (supra) is fully applicable instead of the judgment relied upon by the learned State counsel in Davinder Singh’s case (supra). 13. In view of the aforesaid discussion, the present appeal is allowed, order of the learned Single Judge is set aside and consequently, the writ petition filed by the appellant is allowed, as prayed for.