State Of Maharashtra vs Shri R.B. Sharma & Others
2001 Latest Caselaw 1227 Del

ORDER

Khan,(J)

1. Parties are contesting this litigation for about three decades now and R-1, an Indian Police Service Officer, has spent his whole service life in it. Though he stands compulsorily retired by now, he is still fighting it out in a "never say die" approach.

2. R-1 was initially on a short commission with Army from 1964. He later entered IPS in 1968 and was allotted to Maharashtra State Cadre. He was struck by misfortune on 23.4.73 when he was discharged from service after completing probation. He challenged this in CWP 136/74 before this court which was allowed and his order of discharge quashed with consequential benefits by order dated 11.1.79. Petitioners took Appeal (LPA No.63/79) against this but failed. He was consequently reinstated in service as SP by order dated 27.1.82 but without any consequential benefits. While he was engaged in seeking enforcement of writ court order and its benefits, petitioners recorded adverse ACR against him for 1983-84 and 1985-86. He sough expunging of the first ACR and succeeded because the Reporting Officer of this ACR one Mr.S.D.Rege admitted vide his communication dated 15.3.85 that these were wrongly recorded at the behest of some officials though there was nothing wrong about R-1 `s performance.

3. R-1 made representation against the second ACR for 1985-86 on 30.12.86 alleging that it was vitiated by bias, prejudice and subjectivity which was rejected by petitioners. He then submitted a Memorial to President which was also dismissed. He finally approached CAT in OA 335/92 on the ground that the disputed ACR was actuated by petitioners' bias as they harboured hostility against him because of his success in litigation and that this reporting officer Narayanaswamy and accepting officer V.K.Saraf were his Enquiry Officers in the departmental inquiry conducted against him and thus could not be expected to have acted fairly and objectively in recording his ACR. His further case was that if petitioners had granted his consequential benefits within time, these officers would have been incompetent to record his relevant ACR in terms of Govt.Notification dated 20.2.80.

4. Petitioners justified the controversial ACR and submitted that it was recorded on proper evaluation of R-1's work and conduct and that they had rightly rejected his demand for its expunction after it was found that the ACR was based on careful assessment of material and R-1's performance and conduct. They also disclosed that R-1 was compulsorily retired from service by order dated 2.2.94 which he had challenged in OA 131/94 before CAT, Bombay and wherein disputed ACR also figured and received approval and, therefore, its validity could not be quashed.

5. Tribunal accepted all the contentions of R-1 and negatived those of petitioners noticing that parties were involved in a long drawn litigation and that Reporting Officer and Reviewing Officer had held departmental enquiry against R-1 at the relevant time and that his first reporting Officer Mr.Rege had given a clean chit to him culminating in expunging of his adverse ACR for 1983-84. While dealing with this aspect, it found:-

"Though this may not be a sufficient reason to characterise the action as colourable, the argument of Applicant (R-1) that the circumstances might have influenced the decision of those officers in adjudging his work and conduct can't be brushed aside."

6. Both sides have undertaken a repeat exercise before us and all that falls for consideration is whether the controversial ACR for 84-85 was vitiated because it was tainted with petitioners personal/departmental/administrative bias and whether R-1's challenge to his compulsory retirement in OA 131/94 could have any bearing in the matter.

7. It is no more res-integra that rule against bias is equally applicable to administrative action. It is also well settled by now that test to determine whether a decision was actuated by bias was not whether it was in fact affected by it but whether act situation of the case was such as to give rise to " real likelihood of bias" in the decision or whether there was a reasonable suspicion that bias operated in it. It is also not in disputed that writing of ACR was an administrative act and its purpose was to fairly and objectively assessed the work, conduct, performance and character of an official which assessment was required to be brought home to him to ensure his effective efficiency and enable him to improve wherever he was found wanting. It was not be used as a medium/instrument to punish or to wreak vendetta and the Authority entrusted with recording it was under an obligation to record it correctly, faithfully, fairly and objectively because it has the consequence to make and mar the service record of an employee.

8. Having said, we have little doubt that the controversial ACR in the present case was tainted by petitioner's administrative/departmental, if not personal, bias and the reasons for this are not far to seek. In fat, such bias is writ large and apparent on the face of record which shows that R-1 was engageged in a survival battle against petitioners right from 1974 when his career was cut short after his discharge from service. While petitioners were contesting this litigation, they were at the same tile holding departmental inquiry against him and writing his ACRs. The Reporting and Reviewing Officer M/s.Narayanaswamy and Saraf of the controversial ACR were admittedly his by itself was enough to raise the apprehension/ likelihood of their harbouring bias in recording of this ACR. It is a different matter whether they, in fact, did so out of bias and whether if affected their assessment. But so long as they remained pitted against R-1 on behalf of the department, likelihood of their bias operating in their action/decision could not be ruled out. The departmental hostility against R-1 was also manifest from their own functionary Mr. S.D.Rege spilling the beans in his letter dated 15.3.85 and admitting that R-1's adverse ACR for 83-84 was tutored and manipulated and that otherwise there was nothing wrong with his performance, apart from petitioners's over l conduct denying fruits of writ court order to R-1 for about 19 years. If he was granted the consequential relief within reasonable time, he would have ranked for senior to all the officers who authored his adverse ACR for 84-85 and these officers would have been incompetent to writ this ACR at all. Pursuant to writ court order, he was finally deemed promoted as Selection Grade S.P. on 1.1.78 and DIG on 5.9.81. If he was treated to be holding rank/post of DIG on 5.9.91, all officers connected with recording of the disputed ACR could not have recorded it in terms of petitioner's Notification dated 20.2.80 whereby his ACR for the relevant year was to be initiated by IGP, reviewed by Home Secretary and accepted by Chief Secretary. It is also not understandable how the controversial ACR recording his assessment as DIG prior to it in 1981 - a contradiction in terms indeed.

9. Petitioner's contention that R-1 could not be allowed to pose a new challenge to this ACR which was the subject matter of his OA 131/94 at CAT, Bombay is misconceived because his challenge in that OA was specifically directed at his compulsory retirement and not this ACR, as found by Tribunal in the impugned order. He was, therefore, neither estopped to question this ACR in a separate OA nor was it barred by any principle of resjudicata as such.

10. We accordingly hold that controversial ACR for 1984-85 was vitiated by petitioner's bias in the facts and circumstances of the case and deserved to be expunged from record and that Tribunal had rightly ordered its expunction by impugned order which is affirmed and this writ petition dismissed.

11. While dismissing this petition, we deem it just and appropriate to record that R-1 had contested this litigation for years with his back to the wall. He had barely entered service when he was discharged and pushed into this litigation. He succeeded and was ordered to be reinstated in 1979 but was, in fact, reinstated in 1982. Consequential benefits were not granted to him for 19 long years and he was compulsorily retired from service soon after. He has surely not enjoyed the fruits of this litigation though he has spent his whole service career in it. He would, therefore, deserve to be compensated at least to meet his litigation expenses. Petitioners are accordingly directed to pay him R5,000/- as litigation expenses within one month from receipt of this order.