Sudesh Kumari vs State of Haryana and Another

G.S. Sandhawalia, J.—The present civil writ petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari to quash order dated 02.03.1989 (Annexure P-1) whereby, the integrity of the petitioner for the year 1985-86 had been found doubtful and she has been found not fit to cross the efficiency bar which has been stopped at the stage of Rs. 1,100/- w.e.f. 01.04.1987 for a period of one year in the grade of Rs. 700-1,250/- Challenge is also to order dated 23.03.1990 (Annexure P-7) whereby, her representation against the adverse remarks has been rejected after due consideration. The pleaded case of the petitioner, who was serving as a Head Mistress in the Government Girls High School, Salwan, is that her efficiency bar was due on 01.04.1987 but was considered in the month of March 1989 w.e.f. 01.04.1987. As per impugned order dated 02.03.1989, it was stopped as noticed above. The petitioner represented on 27.03.1989 that she was never conveyed the adverse confidential report of the year 1985-86 on the basis of which her efficiency bar had been stopped and she could not file representation and explain her position. Accordingly, request was made that she be conveyed the said report so that she could file a representation. Reminder was issued on 28.06.1989 to the respondents. It was further alleged that the petitioner also enquired from the Post Master''s Office, Salwan whether any registered letter in her name had come in the month of March, 1987 and a report was received that no such letter had been issued in the name of the petitioner in the post office. Accordingly, respondent No. 2 conveyed the adverse remarks on 14.08.1989 against which, the petitioner filed representation on 07.09.1989 which was rejected vide the impugned order dated 23.03.1990. The petitioner made a representation that she should be given personal hearing, which was rejected by respondent No. 2 on 26.07.1989 on the ground that no second representation was maintainable. Accordingly, it was pleaded that if the integrity of the employee was doubtful in the confidential report, as per instructions dated 14.01.1982, the claim for crossing of the efficiency bar could not be considered for at least for 10 years. Accordingly, the writ petition was filed on the ground that the said adverse confidential reports were never conveyed upto April, 1987 and have been only conveyed on 14.08.1989 and, therefore, the efficiency bar could not have been stopped and the petitioner should have been allowed to cross the same. It was further pleaded in the grounds that adverse remark in the confidential report was that the petitioner had collected additional amount from the girls students and used to come to school at 7.30 a.m. instead of 7.00 a.m. and the collection did not cast any aspiration regarding the integrity of the petitioner. The session had started from April, 1986 and upto July, 1986, the petitioner had collected tuition fees from the girls students and deposited the same in the government treasury and when in the month of July, 1986, the petitioner received a communication from the government that tuition fees in case of girls had been exempted by the government, then the petitioner had stopped to take tuition fees from girls students. Therefore, the issue of integrity of the petitioner was totally arbitrary and on a wrong presumption.

In the written statement filed on behalf of the respondents, it was pleaded that the case of the petitioner was considered in March, 1989 and it was found from the Annual Confidential Report for the year 1985-86 that some adverse remarks were there with regard to collection of unauthorized money from students which were recorded by the reporting officer. As per instructions dated 14.01.1982, if the action of the official reflected the integrity of the employee, the integrity of the official should be treated as doubtful. The petitioner herself had admitted in the inquiry that she had collected unauthorized money from the girls students for furniture and out of that money collected by her, had given a sum of Rs. 3,000/- to the Sarpanch. She could not produce any document to substantiate this plea and accordingly, the order had been passed recording the stoppage of her efficiency bar. It was submitted that the adverse remarks were conveyed to her vide registered letter dated 09.03.1987. It was admitted that the representation of the petitioner had been received wherein, she had alleged that she had not received any communication regarding adverse remarks which were again conveyed to the petitioner on 14.08.1989. The representation against the said remarks had been rejected being without any merit. The adverse remarks which had been conveyed to her were sent to her vide registered Letter No. 642 dated 10.03.1987 which was not received back in the office of the respondent. The petitioner was again conveyed the adverse remarks on 14.08.1989. The competent authority, after careful consideration, had found that the petitioner had actually collected the unauthorized money from the students and this fact was also established in her representation dated 07.09.1989 and as per the inquiry conducted by the Sub Divisional Education Officer, Hansi. The second representation was rejected since the same was not maintainable. The petitioner was not only responsible for suspected embezzlement, but it was established that she had collected unauthorized money from the girl students amounting to Rs. 3,770/- for furniture. Therefore, the adverse remarks were fully supported by reasons. That an inquiry was conducted on 28.07.1986 (Annexure R-III/T) and the Sub Divisional Education Officer, Hansi had arrived at a conclusion that she had collected unauthorized money amounting to Rs. 3,770/-. Accordingly, the order was justified.

Counsel for the petitioner has accordingly contended that there was no misappropriation of any fees and it was the case of the petitioner that she had deposited the same with the treasury and in her representation had specifically pointed out that she had requested the government to grant sanction so that the amount deposited could be withdrawn and paid back to the students concerned for whom no tuition fees was payable being girls students after receiving of the government letter on 11.07.1986. Accordingly, she was not at fault. Regarding the allegation of collecting money for furniture, it was never the case of the respondents that there was any misappropriation on her part and it was only an issue of collection for the benefit of the school.

Secondly, the counsel contended that the order (Annexure P-7) was a non-speaking order whereby, her request against the adverse remarks had been rejected. Reliance was placed upon the judgment of this Court in Avtar Singh v. State of Haryana and others, 1995(3) R.S.J. 262 to contend that vague and indefinite remarks regarding integrity could cause great injury to the public servant.

Counsel for the State, on the other hand, contended that as per the inquiry dated 28.07.1986, it was established that the petitioner''s integrity was doubtful and, therefore, the order had been rightly passed. It was further submitted that the stoppage of efficiency bar did not amount to punishment under the Rules and would not constitute a penalty. Reliance was placed upon a judgment of Division Bench of this Court in Pushp Lata Vs. State of Haryana and Others, .

In the present case, from the sequence of events and the narration of facts reproduced above, it would be clear that the alleged adverse remarks were recorded firstly on 09.03.1987 on the basis of which, the petitioner was not allowed to cross the efficiency bar w.e.f. 01.04.1987 on the ground that her integrity during the year 1985-86 had been found doubtful. The petitioner has been successfully able to demonstrate that the said adverse remarks, in which there was an allegation that additional amount had been collected from the students, had never been communicated to her by placing reliance upon report of the Post Master''s Office, Salwan that no registered letter dated 09.03.1987 was sent to her from Chandigarh by respondent No. 2. Admittedly, the said adverse remarks were then communicated to her on 14.08.1989 after passing of the order dated 02.03.1989 on the request of the petitioner dated 27.03.1989 and 28.06.1989. Thus, the petitioner had no occasion to represent validly against the said adverse remarks and explain her stand. On supply of the said adverse remarks, she submitted a detailed representation dated 07.09.1989 that the department had taken a decision for the first time in July, 1986 that no tuition fee would be charged from the students of 9th and 10th classes. She had collected the fees from the girl students and deposited the same with the treasury between the period from 11.04.1986 to 11.07.1986. She had received the government letter on 11.07.1986 and thereafter she had not taken any tuition fees from the girls students. The Sub Divisional Education Officer had made an inquiry on 28.07.1986 and all the record was showed to him and she had requested the government to grant sanction so that the amount deposited could be withdrawn and paid back to the students concerned. The remarks given by the Sub Divisional Education Officer were under wrong impression and were baseless and she prayed for the same to be expunged. She also explained that her coming late was also wrong and baseless and no such complaint had ever been received and when any officer came, she was always found in the school. Accordingly, she had prayed that school results for the year 1985-86 were also good and the awarding of the average report was wrong. This representation was rejected by passing the following order on 23.03.1990:-

Reference your representation dated nil on the above mentioned subject.

The representation against the adverse remarks conveyed vide this office letter No. 181/1-86-Estt-T dated 14.8.89 has been rejected after due consideration by the competent authority.

Perusal of the above order would go on to show that the same is totally non-speaking and respondent No. 2 has not taken into consideration the detailed representation filed by the petitioner, as noticed above. Respondent No. 2 was under an obligation to take into account the valid defence raised by the petitioner as she had submitted that the tuition fees collected from the girls students was deposited with the treasury and after the instructions had been received that the amount was not payable, no further collection had been made. The respondents, in their reply to ground (ii) wherein, the said pleadings have been made, have not specifically denied that the amount was deposited in the treasury, therefore, the allegation of collecting money without any authority cannot be substantiated. However, it was submitted that the petitioner had also collected unauthorized money amounting to Rs. 3,770/- from the students for furniture in addition to the fees from the girls students. Reliance thereafter was placed upon the enquiry dated 28.07.1986 (Annexure R-III/T)). A perusal of the same goes on to show that some enquiry had been conducted by the District Education Officer at the spot on the complaint of Hari Singh, Harijan Samiti Sarpanch and Panch etc. on the basis of a letter issued by the District Education Officer, Karnal. The said proceedings show that no such formal show cause notice was ever issued and the Sub Divisional Education Officer had recorded the statement of the Head Mistress, teachers and the students on the basis of the complaints. The report also shows that the complainant Hari Singh had made statement in writing that he did not make any complaint against Head Mistress nor he had any complaint. The said officer had, after taking into consideration the statements, come to the conclusion that in case any money was required for the furniture, the petitioner should have contacted the department and that departmental action should be instituted against the Head Mistress. The allegations of striking off the names of the students for non-payment of the amount was found to be incorrect on examination of the record. The summary procedure of an inquiry without any formal charge sheet or show cause notice to the petitioner could not have been the basis of recording of the adverse remarks, which has led to the stoppage of the crossing of the efficiency bar and has gravely prejudiced the petitioner. Admittedly, there is no allegation that she has misappropriated the amount. She, in her representation, has categorically stated that she deposited the fees in the treasury to which there is no categorical denial whereas regarding the collection of Rs. 3,770/- for furniture, the Sub Divisional Education Officer in his report said that departmental action should be instituted against the Head Mistress and in the written statement, there has nowhere been pleaded that any such action was taken. Thus, the preliminary inquiry, on the basis of which the adverse remarks were recorded, could not be the basis that the efficiency bar of the petitioner could have been stopped. This Court in Avtar Singh''s case (supra), specifically held that while recording such adverse remarks regarding integrity, there should be sufficient material on the record with the reporting officer.

In the present case, this recording in the facts and circumstances, does not seem to be justified. The relevant portion of the said judgment reads as under:-

It cannot be over-emphasised that the column regarding integrity is most vital both to the Government servant as well as the public service. It is well recognized that the integrity of a public servant is as important as his efficiency. A dishonest public servant or one whose integrity is doubtful may cause greater injury to the public interest than an inefficient public servant. Adverse remarks regarding integrity ordinarily constitute sufficient material for superseding a senior official at the time of promotion, for withhold of the efficiency bar and can be used for retirement before superannuation. Therefore, it is imperative that the column regarding integrity is filled with greatest care and caution. "If the adverse remarks regarding integrity are found casual, perfunctory or cryptic or where it is found that the adverse entries have been made for extraneous considerations or there is non-application of mind, the Court will have to scrutinise the challenge to such remarks with greater seriousness. There is no dispute with the proposition that confidential reports are made by a competent officer on the basis of subjective satisfaction and the remarks need not contain reasons. However, at the same time, it is also settled that as and when adverse reports are challenged in a court of law, respondents are required to justify the recording of the remarks on the basis of material available with them. In the present case, the Reporting Officer has not clearly mentioned in the Annual Confidential Report that the petitioner is suspected of corruption or is believed to be corrupt. He has also not indicated that integrity of the petitioner is doubtful. What has been stated is that oral complaints regarding honesty were received. These remarks being vague and indefinite, no action on the part of this could have been taken against the petitioner when his case for promotion came up for consideration. Accordingly, action of the respondents in not considering the case of the petitioner has to be held as arbitrary.

Admittedly, the detailed representation of the petitioner was rejected by a non-speaking order dated 23.03.1990, which has been reproduced above. Lack of reasons itself is a sufficient ground to quash the said rejection of the representation of the petitioner. It has been held in Union of India (UOI) and Others Vs. Jai Prakash Singh and Another, hat reasons show clarity to a decision and in the absence of the same, the person cannot be prejudiced. Relevant paras of the said judgment read as under:-

Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court''s judgment not sustainable.

Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union, 1971(1) All.E.R. 1148 observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree, 1974 L.C.R. 120 it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a. speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.

In normal circumstances, the matter would have been sent back to the respondents for passing an order afresh. However, since the order in question was passed 23 years back, no useful purpose would be served as much water has flown under the bridge after that. The judgment relied upon by the State in Pushp Lata''s case (supra) would not be applicable to the facts and circumstances of the present case since that was regarding the stoppage of the efficiency bar since the employee in that case had failed to secure at least 50% good reports, which was the criterion prescribed. Accordingly, it was held that the action did not appear to be penal. In O.P. Gupta Vs. Union of India (UOI) and Others, , the Hon''ble Apex Court held as under:- It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. Both the Privy Council as well as this Court have in a series of cases required strict adherence to the rules of natural justice where a public authority or body has to deal with rights. There has ever since the judgment of Lord Reid in Ridge v. Baldwin L.R., [1964] A.C. 40 been considerable fluctuation of judicial opinion in England as to the degree of strictness with which the rules of natural justice should be extended, and there is growing awareness of the problems created by the extended application of principles of natural justice, or the duty to act fairly, which tends to sacrifice the administrative efficiency and despatch, or frustrates the object of the law in question. Since this Court has held that Lord Reid''s judgment in Ridge v. Baldwin should be of assistance in deciding questions relating to natural justice, there is always ''the duty to act judicially'' whenever the rules of natural justice are applicable. There is therefore the insistence upon the requirement of a ''fair hearing''. In the light of these settled principles, we have no doubt whatever that the Government acted in flagrant breach of the rules of natural justice or fair play in passing the impugned order. We do not see why the principles enunciated by the Court in M. Gopala Krishna Naidu Vs. State of Madhya Pradesh, should not apply with equal vigour to a case like the present. There is no reason why the power of the Government to direct the stoppage of increments at the efficiency bar on the ground of unfitness or otherwise after his retirement which prejudicially affects him should not be subject to the same limitations as engrafted by this Court in M. Gopala Krishna Naidu while dealing with the power of the Government in making a prejudicial order under FR 54, namely, the duty to hear the government servant concerned after giving him full opportunity to make out his case.

In the present case, as it has been noticed that respondent No. 2 has failed to take into consideration the representation of the petitioner in proper perspective and which has led to adverse civil consequences to the petitioner, as she was barred from crossing the efficiency bar on the wrong presumption that her integrity was doubtful and the adverse remarks which were the basis of stoppage of efficiency bar were never communicated to the petitioner so that she could represent against the same. Keeping in view the above facts and circumstances, the present writ petition is allowed. Order dated 02.03.1989 (Annexure P-1) and subsequent order dated 23.03.1990 (Annexure P-7) are quashed. The petitioner shall be entitled for crossing her efficiency bar with effect from due date with all the consequential benefits. The needful be done within a period of two months from the date of receipt of certified copy of the order.