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2023 DIGILAW 2669 (PNJ)

Guljar Singh v. State of Punjab

2023-09-02

SANJEEV PRAKASH SHARMA

body2023
JUDGMENT Sanjeev Prakash Sharma, J. This Writ Petition is preferred by the petitioner praying for issuance of directions to the respondents to consider and promote the petitioner on the post of Technical Advisor (Auto) w.e.f. 01.01.1992 when the post fell vacant on account of the refusal for promotion of his immediate senior. Further the petitioner prays for quashing of the adverse remarks entered in the ACR; and order whereby his representation was rejected. Further he prays for quashing of the punishment order dt.26.06.1996 (Annexure P-21) whereby he has been awarded the punishment of censure; and also the order dt.13.11.1999 whereby his Appeal regarding entry of adverse remarks was rejected. 2. The brief facts, as stated by the petitioner, are that the post of Motor Mechanic is to be filled by promotion from the post of Driver and there is further channel of promotion to the post of Technical Advisor (Auto). When the post of Technical Advisor (Auto) fell vacant, the petitioner, who was holding the post of Motor Mechanic, applied for consideration for his promotion to the post of Technical Advisor (Auto). One Kishori Lal, Motor Mechanic, who was senior to the petitioner, refused promotion, but respondent No.3-Additional Director (Admn.), on account of personal vengeance and prejudice, did not allow the petitioner to get promoted to be considered for the said post. Respondent No.3 is stated to have manoeuvred a false complaint against the petitioner from his personal Driver alleging the petitioner to have used caste related abusive language. A charge-sheet was served on the petitioner on 11.04.1994. An adverse remark was also entered in the ACR for the 1993-94 and was transferred from his place of posting i.e. from Chandigarh to Amritsar although there was no post of Motor Mechanic available at Amritsar. 3. The petitioner preferred a Writ Petition i.e. CWP-8132-1994 challenging his transfer alleging malafide against Babu Lal, Additional Director (Admn.). However, as the State conceded that there is no Auto Workshop at any place throughout the State of Punjab except at Chandigarh therefore, the order of transfer was quashed by the Division Bench on 11.08.1994. The allegations of malafide were not gone into as the same were denied. 4. On the basis of adverse remark and the enquiry initiated, the claim of the petitioner for promotion was ignored and a person junior to him was promoted as Technical Advisor (Auto). The allegations of malafide were not gone into as the same were denied. 4. On the basis of adverse remark and the enquiry initiated, the claim of the petitioner for promotion was ignored and a person junior to him was promoted as Technical Advisor (Auto). Learned counsel for the petitioner submits that the petitioner could not have been denied consideration for promotion and at best his case could have been kept in a sealed cover. The petitioner challenged the action of the respondents by preferring a Writ Petition i.e. CWP-7075-1996 alleging malafide. Learned counsel for the petitioner pointed out that the petitioner could not have been ignored from consideration for promotion merely because an enquiry is pending. The Division Bench, while dismissing CWP-7075-1996 on 16.05.1996 has observed as under:- "We find that in the writ petition no prayer has been made by the petitioner for issue of mandamus to the respondents to finalize the enquiry proceedings but even then we f-eel that there is little justification for keeping the matter pending after the enquiry officer has submitted his report. We, therefore, dismiss the writ petition in so far as challenge to Annexure P-3 is concerned but at the same time the respondent No.2 is directed to take final decision in the enquiry proceedings pending against the petitioner within a period of four weeks of the submission of certified copy of this order. It is made clear that in case the petitioner is exonerated in the departmental enquiry, his right to be considered for promotion to the post of Technical Advisor (Auto) shall stand revived and this order of ours shall in no manner adversely aflect that right of the petitioner." 5. The Enquiry Officer did not find the charges proved against the petitioner but the petitioner submits that at the instance of the Additional Director (Admn.), the Director vide order dated 26.06.1996, disagreed with the Enquiry report and without giving a disagreement notice, awarded the punishment of "censure" with a sole purpose to deprive the petitioner from the promotion to the post of Technical Advisor (Auto). The representation made against the adverse remark was also rejected. He therefore, preferred two Writ Petitions; CWP-16739-1994 was filed praying for granting him promotion w.e.f. 1991-92 and another Writ Petition CWP-13783-1999 challenging the rejection of the representation on the adverse remarks entered in the ACR for the year 1993-94. 6. The representation made against the adverse remark was also rejected. He therefore, preferred two Writ Petitions; CWP-16739-1994 was filed praying for granting him promotion w.e.f. 1991-92 and another Writ Petition CWP-13783-1999 challenging the rejection of the representation on the adverse remarks entered in the ACR for the year 1993-94. 6. CWP-16739-1994 was dismissed by the Court vide judgment dated 21.01.2016 with following observations:- "Mr Manuja has produced the original record together with a chart containing the gist of ACRs of the entire period of service spanning 1983-84 to 2010-11. A perusal of the record shows that the petitioner was graded 'Average' in 1989-90 and in 1990-91. In 1990-91 adverse remarks were recorded doubting his integrity but the same was not conveyed. Therefore, they cannot be read against the petitioner. However, in the year 1993-94 he was graded below 'Average' with integrity doubtful remarks on work and conduct. He challenged those remarks and sought their expunction but the request was declined by the competent authority. Therefore, the remarks regarding integrity doubtful in the year 1993-94 stand against the petitioner and to his detriment for purposes of further promotion in view of the instructions dated October 22, 1996 issued by the Punjab Government taking a policy decision that an officer known to be dishonest will not be promoted. The claim of the petitioner for promotion w.e.f. 1991-92 is not tenable since the vacancy was not consumed by the senior who refused offer of promotion for personal reasons. In fact the junior was promoted on April 04, 1996 without any indication in the promotion order whether it was with retrospective effect, that is, from the date when the vacancy occurred in the promotion cadre. The order promoting the junior would thus have to be treated with immediate effect from the date of the order and, therefore, the petitioner cannot build his case on the foundation and for the reason that he deserves promotion from the date when his junior was promoted because on that date, the remarks of integrity doubtful had been recorded. The appeal against recording of integrity doubtful remarks was turned down on November 13, 1997 affirming the opinion of the reporting officer and, therefore, the rejection of the appeal would relate back to the date of recording and conveying the adverse ACRs to him for the period 1993-94 when the petitioner would fall in the eclipse of the integrity doubtful. The appeal against recording of integrity doubtful remarks was turned down on November 13, 1997 affirming the opinion of the reporting officer and, therefore, the rejection of the appeal would relate back to the date of recording and conveying the adverse ACRs to him for the period 1993-94 when the petitioner would fall in the eclipse of the integrity doubtful. No ground is made out to interfere. The petition stands dismissed." 7. The petitioner preferred LPA-636-2016 against the said judgment and the Division Bench vide order dated 11.07.2016 dismissed the said Appeal with the following observations:- "The appellant is aggrieved by the order dated 21.1.2016, whereby his claim for promotion from the date his junior was promoted on 4.4.1996, to the post of Technical Advisor (Auto), has been turned down. We have heard learned counsel for the appellant at a considerable length and gone through the record. Since there were adverse remarks of doubtful integrity for the year 1993-94 which were duly conveyed to the appellant and his representation against those remarks was rejected, learned Single Judge has rightly rejected the appellant's claim. So long as the adverse remarks are not set aside, the embargo created by the Government policy, dated 22.10.1996, against promotion of the appellant would continue to operate. Dismissed." 8. Learned counsel for the petitioner, however, submits that in terms of the observations made by the Division Bench, if the adverse remark is set aside by this Court, the embargo created by the Government Policy 22.10.1996 would not operate and the petitioner would be entitled to claim promotion. It is further submitted that the petitioner had already filed the present Writ Petition much before the decision by the learned Single Judge in the Writ Petition No.16739-1994 or in LPA-66-2016. Learned counsel for the petitioner stated that in spite of his oral prayer, the present Writ Petition was not heard along with the Writ Petition preferred by the petitioner for granting him promotion. Resultantly, the aforesaid orders were passed. The petition challenging the adverse remark and the rejection order still survives. 9. The respondents have objected to the filing of the present Writ Petition on the same cause of action as was filed and prayed in the earlier Writ Petition i.e. CWP-16739-1994 which stood rejected and confirmed by the Division Bench in the LPA. The petition challenging the adverse remark and the rejection order still survives. 9. The respondents have objected to the filing of the present Writ Petition on the same cause of action as was filed and prayed in the earlier Writ Petition i.e. CWP-16739-1994 which stood rejected and confirmed by the Division Bench in the LPA. The respondents have also submitted that the principles of res judicata would apply to the present petition and prayed for dismissal of the Writ Petition. 10. I have considered the submissions of learned counsel for the parties. 11. The principle res judicata although not strictly applicable to Article 226 of the Constitution of India, is a Rule being adopted to discourage unnecessary litigation before this Court. If the facts of the present case are examined, this Court finds that earlier CWP-16739-1994 was preferred by the petitioner wherein he had claimed promotion w.e.f. 1991-92 as Technical Advisor (Auto) on account of his senior foregoing his promotion whereafter he has filed another Writ Petition bearing No. CWP-7075-1996 challenging the provisional promotion given to his junior Gurmeet Singh as Technical Advisor Auto. The Division Bench decided the same holding that the petitioner's right for promotion to the post of Technical Advisor (Auto) shall stands revived upon exoneration in the departmental enquiry. Therefore, the present Writ Petition which has been filed in 1999, after the judgment passed by the Division bench on 16.05.1999, cannot be rejected on the principles of res judicata as the petitioner now challenges the punishment of censure awarded to him in spite of the Enquiry Officer exonerating him from the charges. Similarly, the Division Bench in LPA-636-2016 has also remarked that so long as the adverse remark is not set aside, the embargo created by the Government Policy dated 22.10.1996 against promotion of the appellant would continue to operate. In the present case, the petitioner has challenging the said adverse remark, therefore, this Court will have to examine the case on merits and would not oust the petitioner on the principles of res judicata. On merits - Relating to the ACR for the year 1993-94, 12. In the present case, the petitioner has challenging the said adverse remark, therefore, this Court will have to examine the case on merits and would not oust the petitioner on the principles of res judicata. On merits - Relating to the ACR for the year 1993-94, 12. This Court finds that the petitioner has made allegations against respondent No.3-Additional Director (Admn.), one Babu Lal, and also submits that the Technical Officer has entered adverse remark in the ACR for the year 1993-94 although the same officer had entered the remark of "Very Good" for the year 1992-93. No reasons have come forward for making the adverse entries for the year 1993-94 suddenly except on the basis of pressure exerted by the said Additional Director (Admn.). It has also been pointed that the Additional Director (Admn.) had transferred the petitioner from Chandigarh to Amritsar and the petitioner preferred CWP-8139-1994 before this Court, and this Court had quashed the said transfer order. 13. Further, this Court finds that the charge-sheet was issued to the petitioner on the basis of a complaint of the Driver of the Additional Director (Admn.) alleging that petitioner has made casteist remarks and had made caste aspersions on him. The Superintendent Establishment has also made allegations of having embezzled Rs. 15 Lakhs of amount. The petitioner submits that the charges were not found to be proved against him by the Enquiry Officer, but without giving a dissent note, the disciplinary authority awarded the punishment of "censure" to the petitioner. 14. The petitioner has alleged bias and prejudice against the Additional Director (Admn.), Sh. Babu Lal and he has also leveled allegations against Gurmeet Singh, Technical Advisor. The said allegations are mentioned by the petitioner in his representation at the initial stage. The respondent who has been impleaded a party in person, has not filed any reply or denied the allegations. Therefore, the said allegations stand un-rebutted. In terms of Order VIII Rule 5 of the CPC, any allegations of fact not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. Thus, the allegations of "malice" although may not be strictly proved, shall be drawn on basis of the principle as enunciated hereinabove to be deemed to be proved. 15. Thus, the allegations of "malice" although may not be strictly proved, shall be drawn on basis of the principle as enunciated hereinabove to be deemed to be proved. 15. In Ramesh Chandra v. Delhi University and Others; (2015) 5 SCC 549 , the Supreme Court held as under:- "63. We are not concerned about the bias as alleged against the 2nd respondent-Prof. Deepak Pantal, Ex-Vice Chancellor as it was not accepted in the first round of litigation. However, action of the University can be held to be mala fide and illegal for the reasons as detailed below. 64. Though there was no allegation leveled against the appellant in the (third) chargesheet that he attempted to challenge the powers of the Executive Council with regard to the general control and supervision of the ACBR, as an institution established and managed by the University of Delhi but such charge was held to be proved by memorandum dated 26th March, 2010, as noticed and quoted above. 65. Further one 'note' given by the Registrar and approved by the Vice-Chancellor in regard to the departmental inquiry being relevant, it is desirable to refer and discuss the same. The original 'note' relating to engagement of a retired Judge of the High Court for conducting inquiry was given by Registrar of the University on 3rd April, 2007. From the said note dated 3rd April, 2007 as approved by the Vice-Chancellor, we find that Justice 'X' a retired Judge of the Delhi High Court was appointed as the Inquiry Officer to conduct the Departmental Inquiry against the appellant as prior to his elevation to High Court as a Judge, he was the counsel for the Delhi University. The relevant portion of the note reads as follows: "Justice 'X' (name changed), retired Judge of Delhi High Court had, prior to the elevation to High Court as a Judge, handled Delhi University cases. He is well versed with the Delhi University Acts, Statutes and Ordinances." It was in this background the University decided to engage him as Inquiry Officer. 66. He is well versed with the Delhi University Acts, Statutes and Ordinances." It was in this background the University decided to engage him as Inquiry Officer. 66. We are of the opinion that if an Hon'ble retired Judge of a Court before his appointment as a Judge was a lawyer of any of the party (Delhi University herein), the Disciplinary Authority should not engage such retired Judge as an Inquiry Officer, as the other party may allege bias against the Inquiry Officer and the reputation of the Hon'ble Judge may be at stake. The University is directed not to engage any Hon'ble retired Judge of any Court, who was earlier a counsel of the University as an Inquiry Officer to hold an inquiry against any of its employee." 16. In the case of R.S. Garg v. State of U.P. and Others; (2006) 6 SCC 430 , the Supreme Court has held as under:- 26. "Malice" in its legal sense means malice such as may be assumed for a wrongful act intentionally but without just cause or excuse or for one of reasonable or probable cause. The term malice on fact would come within the purview of aforementioned definition. Even, however, in the absence of any malicious intention, the principle of malice in law can be invoked as has been described by Viscount Haldane in Shearer and Another v. Shields (1914) AC 808 at p. 813 in the following terms: "A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently." 27. The said principle has been narrated briefly in Smt. S.R. Venkataraman v. Union of India and Anr. [ AIR 1979 SC 49 : (1979) 2 SCC 491 ], in the following terms: "Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause." 17. In the case of S. Parthasarathi v. State of Andhra Pradesh; (1974) 3 SCC 459 , wherein Mathew, J observed as under:- "16. In the case of S. Parthasarathi v. State of Andhra Pradesh; (1974) 3 SCC 459 , wherein Mathew, J observed as under:- "16. The tests of "real likelihood" and "reasonable suspicion" are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, be must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision [see per Lord Denning, M.R. in Metropolitan Properties Co, (F.G.C.) Ltd. v. Lannon and Others, etc.]. We should not, however, be understood to deny that the court might with greater propriety apply the "reasonable suspicion" test in criminal or in proceedings analogous to criminal proceedings. 18. From the aforesaid guidelines as laid down by the apex Court, if the facts of the present case, as noted above, are examined, this Court finds that apparently the petitioner has been subjected to a vindictive atmosphere. He was holding a lower post of Motor Mechanic. The adverse remark mentions of lack of complete official work in time, knowledge of Rules and Regulations, administrative control, knowledge of policies and programs of the Government and other short comings as part of the adverse remark. It also mentions of lack of hard work, honesty, co-operation with others for official work, working capacity, work and conduct, writing capacity, punctuality, technical knowledge and ability as not satisfactory. 19. Such remark reflects a working capacity of an individual which cannot be reduced in a particular year alone. It also mentions of lack of hard work, honesty, co-operation with others for official work, working capacity, work and conduct, writing capacity, punctuality, technical knowledge and ability as not satisfactory. 19. Such remark reflects a working capacity of an individual which cannot be reduced in a particular year alone. If an employee has earned a "very good" remark in the previous year, it is not possible that he would, within one year, become an employee who would have so many shortcomings as mentioned above. 20. It is also come on record that the petitioner was never given any warning or memo for improvement of his performance during the course of the year. The adverse remark entered is not, therefore, based on the objective performance of the petitioner but is purely a subjective assessment. 21. While applying the Wednesbury's principle, if we examine the remark as entered in the ACR, one opines that such remark can only be entered where there is some supporting evidence or instances mentioned to substantiate. 22. Considering the specific allegations leveled by the petitioner about the Additional Director (Admn.), who was having a direct control of the department where the petitioner was an employee at a lower echelon of the hierarchy, the possibility of the said Additional Director (Admn.) of influencing the Technical Officer for coloring the ACR of the petitioner cannot be ruled out, especially when the same Technical Officer had given remark of "very good" ACR of the petitioner for the year 1992-93. 23. In Dev Dutt v. Union of India and Others; (2008) 8 SCC 725 , the Hon'ble Supreme Court has held that one must be very cautious entering remarks relating to a Government Servant as the remarks have an effect on the future career of the said employee. 24. In the circumstances, the Apex Court has gone further to observe in Sukhdev Singh v. Union of India and others; 2013 (9) SCC 566 that each and every remark which may not be actually adverse must also be communicated. 25. Thus, this Court reaches to the conclusion that the adverse remark had been written without there being any factual basis and therefore, deserves to be expunged. 26. The appellate authority has failed to take note of the contentions raised by the petitioner nor has it given out any reasons for rejecting the contentions. 25. Thus, this Court reaches to the conclusion that the adverse remark had been written without there being any factual basis and therefore, deserves to be expunged. 26. The appellate authority has failed to take note of the contentions raised by the petitioner nor has it given out any reasons for rejecting the contentions. The appellate authority also does not even mentioned where the concerned reporting officer was asked to give explanation for making such adverse remarks. 27. In Union of India and others v. E.G. Nambudiri ; AIR 1991 SC 1216 , the Supreme Court has observed as under:- "The question is whether principles of natural justice require an administrative authority to record reasons. Generally, principles of natural justice require that opportunity of hearing should be given to the person against whom an administrative order is passed. The application of principles of natural justice, and its sweep depend upon the nature of the rights involved, having regard to the setting and context of the statutory provisions. Where a vested right is adversely affected by an administrative order, or where civil consequences ensue, principles of natural justice apply even if the statutory provisions do not make any express provision for the same, and the person concerned must be afforded opportunity of hearing before the order is passed. But principles of natural justice do not require the administrative authority to record reasons for its decision as there is no general rule that reasons must be given for administrative decision. Order of an administrative authority which has no statutory or implied duty to state reasons or the grounds of it decision is not rendered illegal merely on account of absence of reasons. It has never been a principle of natural justice that reasons should be given for decisions. See: Regina v. Gaming Board for Great Britain ex p. Benaim and Khaida [1970] 2 QB 417 at 431. Though the principles of natural justice do not require reasons for decision, there is necessity for giving reasons in view of the expanding law of judicial review to enable the citizens to discover the reasoning behind the decision. Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen, it is therefore desirable that reasons should be stated. Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen, it is therefore desirable that reasons should be stated. There are however, many areas of administrative activity where no reasons are recorded or communicated, if such a decision is challenged before the Court for judicial review, the reasons for the decision may be placed before the court. The superior authority while considering the representation of a 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. In many cases having regard to infinite variations of circumstances, it may not be possible to disclose reasons for the opinion formed about the work and conduct or character of the Government servant. In the instant case adverse remarks as contained in item Nos. 1 to 4 were expunged but those at serial numbers 5 and 6 were not expunged and the respondent's representation to that extent was rejected. On a careful scrutiny of the two remarks, it would appear that observation contained in Item No. 5 "that nothing adverse has come to notice regarding your integrity" is not adverse to the respondent's work and conduct. These remarks are neutral in nature, and they do not adversely comment upon the respondent's work, conduct or character, though they are no commendatory in nature. As regards the remarks at Serial No. 6, they are self-explanatory, which show that inspite of oral and written warnings the respondent the respondent did not improve. 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 detail judgment or order giving details of the warnings or the material on which he formed opinion. There is no dispute that there is no rule or administrative order for recording reasons in rejecting a representation. The superior authority was not obliged to write detail judgment or order giving details of the warnings or the material on which he formed opinion. There is no dispute that there is no rule or administrative order for recording reasons in rejecting a representation. In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reason. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the Government servant and examine the same, in the light of the comments made by the office awarding the adverse entries and the officer counter-signing the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. No order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the Government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the Government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a court of law it is always open to the competent authority to place the reasons before the Court which may have led to the rejection of the representation it is always open to an administrative authority to produce evidence aliunde before the court to justify its action." 28. Thus, the respondents were required to place before this Court any reasons which may have been mentioned while rejecting the appeal against the adverse remark on the file, but it is apparent that since no reasons have come even on record, the order of rejection is not sustainable. Regarding Punishment of Censure 29. In Punjab National Bank and Others v. Kunj Bihari Misra, 1998 (7) SCC 84 , the Supreme Court has held as under:- "The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. The aforesaid conclusion, which we have arrived at, is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants (supra). While agreeing with the decision in Ram Kishan's case (supra), we are of the opinion that the contrary view expressed in S.S. Koshal and M.C. Saxena's cases (supra) do not lay down the correct law." 30. While agreeing with the decision in Ram Kishan's case (supra), we are of the opinion that the contrary view expressed in S.S. Koshal and M.C. Saxena's cases (supra) do not lay down the correct law." 30. Admittedly, the dissent note was not served on the petitioner. Once the enquiry officer has exonerated the petitioner of the charges, the disciplinary authority could not have held the petitioner guilty of the charges without giving an opportunity of hearing and therefore, the punishment order of "censure" awarded to the petitioner on 09.07.1996 could not be sustainable in law. 31. In view of the aforesaid discussion, this Court finds that the superior officers (respondents No.3 and 4) have misused their positions to deny the rightful claim of the petitioner. The Additional Director (Admn.), Babu Lal, has on the basis of a wrongful enquiry initiated against the petitioner, deprived him of his rightful claim for promotion to the post Technical Advisor Auto w.e.f. 1991-92 and at that relevant time, there is no adverse ACR remark against the petitioner, even later, the adverse remark entered as discussed above is found to be wrongful. This is a case colourable exercise of power. The punishment of censure awarded to the petitioner inspite of being exonerated by the Enquiry Officer, without giving a dissent note, is in violation of principles of natural justice. 32. In view thereof, this Writ Petition is allowed quashing and setting aside the impugned orders dated 04.04.1994 (Annexures P-17), dated 09.07.1997 (Annexure P-21), dated 02.12.1994 (Annexure P-22) and dated 13.11.1997 (Annexure P-27) with further directions to the respondents to consider the case of the petitioner for promotion to the post of Technical Advisor (Auto) from the date provisional promotion was given to Gurmeet Singh with all consequential benefits of salary and arrears. The same shall be calculated @ 9% per annum and released to the petitioner. 33. It is open for the respondents to recover the interest amount from the concerned respondent No.4 who has been found to act maliciously. 34. Pending application(s), if any, stand(s) disposed of.