The State of Haryana and Others vs Mohinder Singh

Tejinder Singh Dhindsa, J.—The State of Haryana is in second appeal before this Court.

The plaintiff -Mohinder Singh, ASI filed a suit for declaration in terms of pleadings that he was an employee of Haryana Police and was posted at Police Station Sadar Dabwali as ASI bearing No.237/H. Adverse remarks were recorded in his ACR for the period 3.11.2002 to 31.3.2003 and the same were conveyed to him on 15.7.2003. His representation against the same was rejected vide order dated 28.10.2003 and even his appeal before the Director General of Police, Haryana was also rejected on 4.2.2004. The plaintiff sought a declaration against the order dated 15.7.2003 conveying the adverse confidential reports, as also the subsequent orders dated 28.10.2003 and 4.2.2004, whereby his representation and the appeal against the same had been rejected, stating the same to be illegal, contrary to law being non-speaking and having been passed without affording him any opportunity of hearing. It was pleaded that the adverse remarks have been recorded without any basis and that he had been working in the Police Department since 23.4.1973 and there had been no complaint regarding his work and conduct. The plaintiff also stated that the relevant instructions with regard to recording of ACRs have been violated inasmuch as the adverse remarks have not been communicated to him within the stipulated period of six weeks from the time the same were recorded.

The defendants filed a joint written statement stating that the adverse remarks were based upon the work and performance of the plaintiff having been adjudged and the plaintiff having not effectively checked the illegal trade of sale/smuggling of narcotics as also the activity of satta gambling in the area of Police Station Sadar Dabwali. Accordingly, the conduct of the plaintiff was not found upto the mark and the adverse remarks were recorded in the ACRs for the period 3.11.2002 to 31.3.2003.

On the pleadings of the parties, the following issues were framed by the trial Court:

Whether the orders dated 15.7.2003 and 28.10.2003 passed by defendant No.3 and the order dated 4.2.2004 passed by defendant No.2 are wrong, illegal, against law and facts and the same are liable to be set aside?OPP

Whether the suit is not maintainable? OPP

Whetherthe plaintiff has no cause of action to file the present suit?OPD

Relief.

The trial Court upon hearing the parties dismissed the suit of the plaintiff, vide judgment and decree dated 15.2.2008. Being aggrieved, the plaintiff-respondent preferred a civil appeal and vide impugned judgment and decree dated 10.11.2009 passed by the District Judge, Sirsa, the appeal has been accepted whereby the judgment and decree dated 15.2.2008 passed by the trial Court has been set aside. Consequently, the suit of the plaintiff has been decreed in his favour and the order dated 15.7.2003, whereby adverse remarks had been conveyed for the period 3.11.2002 to 31.3.2003, has been set aside. Consequently, the subsequent orders rejecting the representation and appeal have been set aside and the adverse remarks recorded in the ACRs for the period in question have been expunged. The State of Haryana is in second appeal against the said judgment and decree dated 10.11.2009 passed by the District Judge, Sirsa.

I have heard Ms.Tanish Peshawaria, Deputy Advocate General, Haryana, appearing for the appellants and Mr.DN Ganeriwala, learned counsel for the respondent.

The first Appellate Court has recorded a clear finding that the defendant-appellants have not been able to show any material on the basis of which the adverse remarks were recorded against the plaintiff-respondent for the period 3.11.2002 to 31.3.2003, vide Exhibit P12. It has also been noticed that in the impugned ACR, reliance has been placed on a letter dated 28/SCN (Steno) dated 12.3.2003, Exhibit P6. Against this, the plaintiff-respondent had filed reply Exhibit P8 and only a warning was issued to him vide order, Exhibit P9. It would be pertinent to take a note of the fact that the first Appellate Court has noticed that earlier adverse remarks were conveyed to the plaintiff-respondent vide letter No.867 dated 2.9.2003 for the period 1.4.2002 to 3.11.2002 against which a representation, Exhibit P10, had been filed and the adverse remarks were expunged vide memo No.84 dated 27.11.2004, Exhibit P11.

The first Appellate Court has recorded that since the Department had only issued a warning in respect to the letter dated 12.3.2003, there could be no justification in recording adverse remarks in the ACR in question by placing reliance upon such letter. Still further, as per testimony of Suresh Kumar, Steno DW1, no show cause notice or departmental enquiry had been initiated by the Department against the plaintiff-respondent for the period in question. It is in pursuance to such reasoning that the first Appellate Court accepted the appeal and decreed the suit of the plaintiff-respondent and thereby expunged the adverse remark in the ACR for the period 3.12.2002 to 31.3.2003.

There would be no dispute with the proposition that recording of ACRs would be in pursuance to a subjective satisfaction of the Reporting Officer. Under normal circumstances, the Courts would be reluctant to interfere in such subjective satisfaction. However, judicial scrutiny in the matter of recording of adverse remarks would certainly be open in case the employee would demonstrate clear and open bias at the hands of the Reporting Officer against him or in the eventuality of there being patent arbitrariness in recording of the same and also if the adverse remarks recorded are based on no material whatsoever. In the facts of the present case, the clear finding recorded by the first Appellate Court is that for the period in question, no departmental enquiry had been conducted or show cause notice had been issued to the plaintiff-respondent. In the adverse remarks that had been expunged, reliance had been placed upon a show cause notice dated 12.3.2003 against which the plaintiff-respondent had submitted a reply and the same had been filed in terms of having issued a simple warning.

No other material had been placed before the Court so as to justify the recording of the adverse remarks. Under such factual background, the findings recorded by the first Appellate Court are based upon due appreciation of evidence and are binding on the High Court while exercising jurisdiction u/s 100 of the CPC in the second appeal.

Learned counsel for the appellants has not been able to show as to how the findings of the first Appellate Court are perverse.

No question of law, much less substantial question of law, arises for determination in the second appeal.

The present appeal must fail and is, accordingly, dismissed.

Appeal dismissed.