Satbir Singh vs State Of Haryana And Others

Jagmohan Bansal, J

As common issues are involved in the captioned petitions, with the consent of both sides, the same are hereby disposed of by this common order. For the sake of brevity and convenience, facts are borrowed from CWP No.14397 of 2015.

The petitioner (in CWP No. 14397 of 2015) is seeking setting aside of orders passed by departmental authorities whereby he was awarded punishment of stoppage of three annual increments with permanent effect.

In CWP No.32291 of 2019, he is seeking setting aside of adverse remarks recorded in his Annual Confidential Report (‘ACR’) for the period from 2006-2007.

The petitioner joined Police Force as Constable on 03.10.1989. He was promoted from time to time. In 2006, the respondent initiated departmental inquiry against him alleging that he has forged signatures and stamp of District Inspector. At that point of time, he was posted as Reader of the District Inspector of Police, Narnaul. The said office was concerned with registration of vehicles. Chief Minister Flying Squad conducted an inquiry and found that Darshan Singh who was working as Typist in Court Complex was going to submit files for registration of vehicles after getting affixed forged seal and signatures of District Inspector, Narnaul. The respondent registered FIR No.69 dated 28.03.2006 under Sections 420, 467, 478, 471 and 120-B of Indian Penal Code, 1860 at Police Station City Narnaul. The petitioner was not named in the FIR. The Inquiry Officer found him innocent in the preliminary as well as regular departmental inquiry. The Superintendent of Police, Mahendergarh i.e. Disciplinary Authority accepted report of Inquiry Officer and dropped the matter on 13.10.2008.

The Inspector General of Police (‘IGP’), Rewari in exercise of power conferred by Rule 16.28 of Punjab Police Rules, 1934 (as applicable to State of Haryana) (for short ‘PPR’) issued show cause notice dated 15.04.2011 calling upon the petitioner to show cause as to why punishment of stoppage of five increments with permanent effect should not be awarded to him. He filed reply to show cause notice and IGP, Rewari vide order dated 04.10.2011 awarded him punishment of stoppage of three increments with permanent effect. It is apt to mention here that IGP, Rewari awarded punishment of 5% cut in pension to Inspector Ran Singh who had conducted investigation of aforesaid FIR. The petitioner preferred an appeal which came to be dismissed by Director General of Police, Haryana (‘DGP’) vide order dated 25.05.2012. He preferred CWP No.13207 of 2012 before this Court which came to be disposed of vide order dated 30.10.2014 with a direction to Director General of Police to pass fresh order. In compliance of aforesaid order, DGP passed order dated 05.02.2015 whereby petitioner’s claim was rejected.

Besides aforesaid punishment, the Additional Director General of Police (‘ADGP’), Rewari directed the Superintendent of Police (‘SP’), Palwal to downgrade petitioner’s ACR as per Government Instructions dated 22.10.2001. SP, Palwal issued a show cause notice dated 07.10.2019 calling upon the petitioner to show cause as to why his ACR should not be downgraded. SP vide order dated 15.10.2019 downgraded petitioner’s ACR for the period from 2007-08. The respondent claims that petitioner’s ACR for 2007-08 was inadvertently downgraded whereas it should be 2006-07. As per Government Instructions dated 15.05.1990, no fresh show cause notice is required for downgrading ACR where ACR is downgraded while passing punishment order, however, another show cause notice is required where punishment is already awarded. The petitioner claims that he has preferred representation against aforesaid adverse remarks before IGP, Rewari whereas respondent is denying receipt of said representation.

Learned counsel for the petitioner submits that petitioner was deputed for Lower School Course on 09.01.2006. He completed said course on 30.06.2006. During said period, he did not perform duty of Reader to District Inspector. The alleged offence took place during the aforesaid period, thus, it was unwanted and undesirable to implicate him in the said offence. He was not named in the FIR. He was found innocent in the preliminary as well as regular departmental inquiry.

Learned State Counsel reiterates findings of the departmental authorities and submits that no interference is warranted. The petitioner belongs to a disciplined force, thus, his conduct must be above board. He is bound to maintain high standards of discipline.

On being asked, learned State counsel expressed his inability to controvert that petitioner was undergoing training and was not holding charge of Reader to District Inspector at the time of alleged offence.

Heard the arguments and perused the record.

It is a settled proposition of law that punishment should be incommensurate to alleged offence. The principle of proportionality should be followed by all quasi-judicial and judicial authorities while awarding punishment irrespective of nature of offence. As per principle of proportionality, even punishment prescribed by legislation must be incommensurate to alleged offence. If punishment is disproportionate to alleged offence, it is violative of Article 14 of the Constitution of India.

The alleged offence took place in 2006. The petitioner, at the time of commission of alleged offence, was not posted as Reader to District Inspector, Narnaul. He was found innocent by authorities in preliminary as well as regular departmental inquiry. The Disciplinary Authority on 13.10.2008 accepted report of Inquiry Officer. IGP, Rewari issued show cause notice on 15.04.2011 i.e. after the expiry of 2½ years from the date of order passed by Disciplinary Authority. Thereafter, impugned order was passed in exercise of power conferred by Rule 16.28 of PPR. Said Rule for the ready reference reads as:

“16.28. Powers to review proceedings.– (1) The Inspector-General, a Deputy Inspector-General, and a Superintendent of Police may call for the records of awards made by their subordinates and confirm, enhance, modify or annul the same, or make further investigation or direct such to be made before passing orders. The State Government may also call for the records and review the awards made by the inspector General of Police Punjab or by any other authority subordinate to him.

(2) If an award of dismissal is annulled, the officer annulling it shall state whether it is to be regarded as suspension followed by reinstatement, or not. The order should also state whether service previous to dismissal should count for pension or not.

(3) In all cases in which officers propose to enhance an award they shall, before passing final orders, give the defaulter concerned an opportunity of showing cause, either personally or in writing, why his punishment should not be enhanced.”

Power conferred by Rule 16.28 of PPR is not unbridled or unguided. No limitation period under Rule 16.28 has been prescribed, however, it is settled proposition of law that in the absence of prescription of particular period, the authorities are bound to exercise power within a reasonable period. It depends upon facts and circumstances of each case that what would be the reasonable period. In the instant case, the petitioner was subjected to departmental inquiry and Disciplinary Authority accepted report of Inquiry Officer. In the show cause notice as well as punishment order, there is nothing disclosing that any new material came on record which compelled the IGP, Rewari to exercise its power under Rule 16.28 of PPR after the expiry of 2 ½ years from the date of order passed by Disciplinary Authority. The order of Reviewing Authority was bad in view of common principles of limitation period.

As per aforesaid Rule, IGP is empowered to call record of awards made by his subordinates and enhance the punishment. The said power cannot be exercised whimsically and without evidence on record.

In the present case, IGP, Rewari exercised power of review, however, no reason much less plausible reason was recorded to set aside order of Disciplinary Authority and award major punishment of forfeiture of three increments with permanent effect. The Appellate Authority i.e. DGP as well mechanically dismissed petitioner’s appeal. There was no application of mind judiciously. The petitioner was not implicated in aforesaid criminal case. He was found innocent by Disciplinary Authority as well as Inquiry Officer. The respondent has attempted to justify its action on the ground that punishment was awarded to Inspector Ran Singh for not properly investigating the matter. Inspector Ran Singh was investigating aforesaid FIR. He was not Inquiry Officer. The inquiry was conducted by Deputy Superintendent of Police and report was accepted by SP who was an I.P.S. Officer. In these circumstances, IGP while acting as Reviewing Authority was bound to bring on record concrete evidence before awarding major punishment. Had action been taken against Deputy Superintendent of Police who conducted departmental inquiry or SP who exonerated the petitioner, the situation could be little different, however, petitioner could not be implicated on the sole ground that punishment has been awarded to Inspector Ran Singh for not properly investigating criminal case.

There is another issue i.e. downgrading of ACR. By order dated 05.10.2015 passed by this Court in CWP No.20171 of 2010, matter with respect to adverse remarks in ACR was referred to Hon’ble the Acting Chief Justice to constitute a Larger Bench to resolve the issue because of divergence of opinion expressed by different Division Benches of this Court.

The matter came up for consideration before the Full Bench of this Court which finally adjudicated the issue vide judgment dated 14.08.2024 passed in CWP No.20171 of 2010. Relevant extracts of the judgment are reproduced as below:

“22. After considering the entire gamut of law we are of the opinion that writing of confidential reports is in public interest. It is the periodic assessment by the superior officer of the work done by his subordinate. The primary object of writing of confidential reports is to give an opportunity to the public servant to improve excellence. This is in furtherance of Article 51-A(j) of the Indian Constitution as per which upon every citizen is the primary duty to constantly endeavour to prove his best, individually and collectively. Confidential reports are also maintained by the government and other organizations to assess the employee’s service record at the time of consideration of his case for grant of increments, promotions, retention in service etc.

Writing of confidential reports is an administrative function. It should be done objectively and fairly. Subject to the confidential report being a bonafide opinion of the reporting officer and not based on his whims, the Courts would normally refrain to interfere with the recording thereof. The reason for such reluctance is because the officer who is entrusted with the duty of writing confidential reports is best suited for this job as it is he under whose watch is the officer whose confidential report is being written.

Recording of confidential reports is not a penalty but these reports and in particular entries doubting the I attest to the accuracy and integrity of this order/judgment. employee’s integrity would certainly prejudice the employee’s career. Even a solitary entry of doubtful integrity in the employee’s confidential reports can propel his ouster from service. It could also adversely impact the grant to him of increments, promotions etc. Thus, recording of the entry with regard to doubting the employee’s integrity must be only after the employee’s work and conduct has been assessed objectively and dispassionately. To hold otherwise could invite mischief. Such an entry should not be based on the reporting officer’s mere notion or supposition or assumption.

The entry of doubting of his subordinate’s integrity to be recorded in his ACR should be such which would be acceptable by a reasonable man on the given material. In these cases “material” may or may not be limited to written complaints or tangible evidence as many a times such evidence is not easily forthcoming. “Material” on which confidential reports of such nature can be based could be substance, matter, data, information etc. Repeated verbal complaints or even discreet enquiries conducted qua the concerned officer or even receipt of information from a reliable source would constitute “material” leading to doubting of his integrity. There may also be instances where an entry of doubtful integrity could be based on the overall bad reputation of the employee over a prolonged period of time as such an officer would not become suddenly dishonest. In this regard there may not be found any tangible material against the employee but in these circumstances bona fide recording of an entry doubting his integrity which is based on information from reliable source(s) could be upheld when put under judicial scrutiny. One of the reasons behind holding so is because it is not uncommon that the corrupt are clever enough not to leave any tangible trace of their wrong doings. In these peculiar circumstances, in public interest, even in the absence of concrete or material evidence bona fide doubting of the employee’s integrity based on information received from different but reliable sources would be sustainable. However, in such circumstances, while recording/ approving adverse entries of doubtful integrity the reporting and/ or the approving officer has to exercise extreme caution. In a given case, the Court, while exercising judicial scrutiny may still quash the adverse entry pertaining to doubting of the employee’s integrity if it finds that the same is based on “no material whatsoever” but while doing so the Court would also exercise caution and keep in mind the nature of the function being discharged by the employee concerned and the nature of the exercise undertaken by his reporting officer at the time of recording the ACR in question.

In the light of the afore discussion, we humbly declare that Des Raj’s case (supra) and D.N. Dalal’s case (supra) to the extent that they hold that adverse reports doubting the officer’s integrity to be legally sustainable, are required to be backed by tangible material, are not good law. 26. Having answered the question referred to us as above, we direct listing of the petition before an appropriate Bench, as per roster, for decision on merits.”

[Emphasis supplied]

In the case in hand, SP recorded adverse remarks on petitioner’s ACR for the period from 2006-07 on the direction of ADGP, Rewari. Exercise of power by any authority at the behest of higher authority is bad in the eye of law especially when remedy of appeal or revision is available to said higher authority. Concededly, SP is Disciplinary Authority of officers upto the rank of Sub-Inspector. He is competent to record ACR. ADGP, Rewari directed the SP to downgrade petitioner’s ACR.

The impugned order is further bad on account of violation of principle of reasonable period of limitation. The respondent has downgraded petitioner’s ACR on the basis of Government instruction dated 22.10.2001 As per aforesaid instructions, Disciplinary Authority may downgrade ACR either at the time of awarding punishment or subsequently. The respondent has formed an opinion that adverse remarks can be recorded at any point of time. As stated hereinabove, in the absence of prescribed period of limitation, the authority is duty bound to take action within reasonable period of limitation. The respondent has recorded adverse remarks in petitioner’s ACR after 11 years. By no stretch of imagination, such period can be called as reasonable period of limitation. The adverse remarks were recorded on account of aforesaid punishment of forfeiture of increments. As order of punishment stands set aside, adverse remarks recorded in ACR needs to be set aside.

In the wake of above discussion and findings, this Court is of the considered opinion that present petitions deserve to be allowed and accordingly allowed. Impugned orders awarding punishment of stoppage of three annual increments with permanent effect and recording adverse remarks in ACR are hereby set aside.

The respondent shall restore three increments retrospectively and release arrears without interest within six months from today, failing which respondent would be liable to pay interest on arrears @ 9% per annum from the expiry of said period.