R.S. Tokas vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1642 Del

JUDGMENT

S.B. Sinha, C.J.

1. This writ petition is directed against the Adverse Confidential Reports recorded against the petitioner for the years 1977, 1978 and 1981.

2. The petitioner was appointed as a Sub-Inspector (Executive) in the Central Industrial Security Force. He is said to have attended and successfully completed several training courses. In the year 1980, the petitioner became eligible for promotion to the post of Inspector (Executive). He was superseded. The reasons for his supersession appear to be the adverse remarks recorded against him for the aforementioned years. For the year 1977, the following adverse remarks were communicated to the petitioner :

"Sub: Communication of adverse remarks occurring in the ACR for the year 1977

The following adverse remarks appear in your ACR for the year 1977.

 

  16.   Leadership  
   (iii)  Organising ability to work in a team.        Poor
18.   Maintenance of discipline.                    Poor  

 

 This officer sometimes misbehaves with his subordinates.   

 

 (10) Temperament  
   

 (a)    He is calm but does not retain poise at the time of presure of work.  
 

 (b)   Yes, he gets provoked on subordinates.   
 

2. You are advised to benefit from the remarks and make efforts to improve your performance by removing the aforesaid shortcomings.

3. You are further advised that if you wish to prefer an appeal against the communication of the adverse remarks, you should do so within six weeks from the date of receipt of this Memorandum.

4. Please acknowledge receipt.

Sd/-

(N.N. Mohanty)

Commandant"

3. However, the said remarks were expunged by an order of the DIG in the following terms:

"Dt. 18 Sept. 79

Subject: Final orders regarding adverse remarks communicated in respect of No. 7402102 SI R.S. Tokas.

I perused the representation dated 15.6.1978 of No. 7402102 SI R.S. Tokas as well as the comments of the officers. The remarks are modified to read as follows:

16. Leadership:

    (iii) Organising ability:     adequate.
To work in a team.    
 

 18.   Maintenance of discipline : Average.   
 

2. As regards entries under head 'Temperment', it is found that during the year 1977, there were instances where he has shown that he found difficult to control himself. He should benefit by these remarks to improve his performance under the above head.

Sd/-

(P.C. Ratho)

D.I.G. C.I.S.F."

4. For the year 1978, the adverse remarks recorded against the petitioner are in the following terms:

"Sub: Communication of adverse remarks accruing in the ACR for the year 1978. The following adverse remarks appear in your ACR for the year 1978.

   Columns     Remarks
10.   Temperament
(b)    Does he get provoked easily    --   yes.
(c)   Is he able to tolerate difference of opinion?     --   No.
15.   Aptitude for intelligence work   --   Poor.  
 

2. You are advised to benefit from the remarks and make efforts to improve your performance by removing the aforesaid shortcomings.

3. You are further advised that if you wish to prefer an appeal against the

communication of adverse remarks, you should do so within six weeks from the date of receipt of this Memorandum.

4. Please acknowledge receipt.

Sd/-

Commandant CISF-RSP."

5. On an appeal, the said remarks were toned down by the Appellate Authority by an order dated 27th March, 1980 in the following terms:

"Sub: Appeal of SI No. 7402012 R.S. Tokas

Against Communication of Adverse remarks

Perused the representation of SI R.S. Tokas against the remarks communicated to him. The entries are amended as follows:

15. Aptitude for intelligence work. - Average

2. The other remarks have to be kept until he himself earns better remarks on this by showing improvement in the corning periods.

Sd/-

(P.C. Ratho) D.I.G. CI.S.R"

6. For the year 1981, the petitioner was communicated with the following ACR :

"Subject: Communication of adverse remarks in the ACR for the year 1981.

The following adverse remarks appear in your ACR for the year 1981.

Columns Remarks

24. Promptness and accuracy in submission of reports and return to higher authorities.

Slow but accurate.

2. Your are advised to benefit from the remarks and made efforts to improve your performance by removing the aforesaid shortcomings.

3. You are further advised that if you wish to prefer an appeal against the communication of adverse remarks, you should do so within six weeks from the date of receipt of this Memorandum.

4. Please acknowledge receipt.

Sd/-

Commandant

CISF UNIT R.S.P. ROURKELA"

7. The petitioner represented there against pursuant whereto a final order was passed on 26th May, 1933 which is to the following effect:

"Sub: Final order on the representation against communication of adverse remarks.

SI (EX) 7402012 R.S. Tokas has represented against the adverse remarks in his ACR for the year 1981 communicated vide Commandant's letter No. E. 15017/81-82/Conf/279 D/9.2.82. The representation together with the comments of Asstt. Commandant and Commandant RSP, Rourkela have been carefully perused.

2. The remarks have been written on an assessment of the work performance of the officer for the entire year 1981 and the SI (EK) should profit from the same and improve his performance.

Sd/-

(M. Mukherji)

D.I.G. C.I.S.R"

8. The contention of the petitioner is that in the subsequent years, the concerned authorities were required to apply their mind as regards the entries under the head "temperament" having regard to the observations made by the Appellate Authority for the years 1977 and 1978 which having not been done, it must be held, that there had been a total non-application of mind on their part.

9. It has been pointed out that in the counter-affidavit, the respondents stated that the petitioner was superseded on the ground that his Annual Confidential Reports for the years 1977 and 1981 were adverse. Thus, according to the petitioner, it is evident that they had not taken into consideration the ACRs of 1978 and had illegally taken into consideration the purported adverse remarks in ACRs of 1982 which had never been communicated to him.

10. In this connection, our attention has been drawn to the following Government instructions as regards registering of the Confidential Reports :

"25. Manner of disposal of representation.--The following procedure should be adopted in dealing with representations from the employees against the adverse remarks communicated to them :

(1) ... ... ...

(2) ... ... ...

(3) ... ... ...

(4) if, however, feels that the remarks should be toned down, it should make necessary entry separately with proper attestation at the appropriate place of the report; the correction should not be made in the earlier entries themselves.

(5) ... ... ...

When a representation against adverse remarks is wholly or partially upheld, the particulars of the orders based thereon should be recorded in the report itself. If it is decided to tone down the remarks, the Competent Authority may make the necessary entries at the appropriate place of the report under proper attestation. If the remarks are ordered to be expunged, they should not be effectively obliterated both in the confidential report as well as in the copy of

the letter communicating those remarks. A copy of the order based on such a representation should not be kept in the CR File. Where a penalty is set aside on an appeal or review, the copy of the punishment order should be removed from CR File as well as the adverse remarks recorded on the basis of the penalty expunged. In a case where the penalty is modified by the appellate or revising authority, the entry in the confidential report originally made on the basis of the penalty awarded should also be immediately modified accordingly."

[Rules 174(13) and (14) of P&T Manual, Volume III, D.G., P&T., Letter No. 27/ 4/78 --Disc. I, dated the 19th April, 1978 and D.P. & A.R., O.M. No. 51/5/72 - Ests. (A), dated the 20th May, 1972, para 9.5.]

36. Reports received in respect of approved course of training undergone to be kept in confidential report dossier.--(1) The following principles were laid down in O.M. No. 51/2/62 - Ests. (A), dated the 12th April, 1962, for the guidance of all concerned regarding the procedure to be observed for recording the confidential reports of officers who had undergone an approved course of study or training at an institution in India or abroad :

(i) ... ... ...

(ii) The report, if any, received from the Head of the Institution should either be placed in original in the confidential report dossier of the officer or the substance of it entered therein.

(iii) ... ... ...

2. ... .... ..."

11. The learned Counsel for the petitioner also brought to this Court's notice the fact that the petitioner not only attended several training courses, he had also been awarded 13 commendation certifications for his excellent and most satisfactory work which had been recorded in his service book.

12. Learned Counsel would urge that from the counter-affidavit of the respondents, it is evident that the said guidelines were not followed insofar as the purported ACRs had never been entered into the service book of the petitioner, nor have they followed instructions in the matter of recording of the ACRs. In any event, contends the learned Counsel, annual confidential report for the year 1982 had not been considered at all.

13. It has been averred in the counter-affidavit of the respondents :

"5. The answering respondents further submit that the petitioner was given adverse remarks in his confidential reports for the year 1977, 1978 and 1981 and the adverse remarks were duly communicated to him. The representations made by the petitioner against the adverse remarks were also duly considered and appropriate orders were passed thereon. It is emphatically denied that the adverse remarks for the year 1978 has been repeated on the basis of previous unamended remarks for the year 1977 or that there is no basis or ground for

adverse remarks. It is also denied that the ACR for the year 1981 is in violation of any standing instructions issued by the Govt. of India on the subject."

14. So far as the ACRs of 1977 and 1978 are concerned, the same appear to be of similar nature. There is nothing on records to show that whether the petitioner improved himself subsequently or not as regards his temperament had not been considered at all. Furthermore, adverse remarks recorded, if any, for the year 1982, had not been communicated to the petitioner.

15. Recording of the ACRs plays an important role in the service career of an employee. Great care should be taken to record such ACRs. In the instant case itself, as would appear, if an adveree remark for the year 1982 had not been communicated, evidently the same could not have been taken into consideration by the Departmental Promotion Committee.

16. This Court in a recent judgment in Air Vice Marshal M.S. Brar, AVSM, VM v. Union of India and Ors., CW 2600/2002 decided on 11th July noted:

"Principles of natural justice are required to be complied with in such a manner that the affected person may obtain an opportunity to make an effective, purposeful and meaningful representation. Grant of an opportunity cannot be an empty formality. Communication of adverse remarks was to be made in terms of the statutory rules and/or the policy decision issued by the respondents themselves. Such communication having not been made, no reliance thereupon could have been placed by the respondents in passing the impugned order. Furthermore, no reason has been assigned in support of the said order. Such reasons were required to be assigned particularly having regard to the fact that mala fide had been alleged as against the respondent No. 3. In the instant case, the petitioner fulfills the criteria of numerical assessment. He had been denied extension for alleged remarks in his ACR dated 1st December, 1997 and 30th December, 1998. According to the guidelines operating in this behalf, in addition to numerical gradings, pen picture officer i.e., IO, RO and SRO's remarks were also required to be taken into consideration. The guidelines provide for the manner in which the pen picture is required to be written. Had an opportunity been granted to the petitioner, the petitioner could have shown that he did not deserve the adverse remarks.

In Gurdayal Singh Fizzi v. State of Punjab and Ors., , while noting the adverse report, it was found by the Apex Court that the explanation of the officer was not considered and held that the opportunity required to be given in this regard is not an empty formality.

In Union of India and Ors. v. E.G. Namboodri, , while referring to Gurdayal Singh Fizzi v. State of Punjab and Ors. (supra), it was held that communication is necessary to give opportunity of making a representation.

17. It was directed :

"15. Accordingly, taking all facts and circumstances into consideration, we direct the respondents to consider the case of the appellant for promotion to the post of Air Vice Marshal with reference to the year 1988, ignoring the

adverse remarks which have already been expunged. Any such decisif a should be taken within four months from the date of this judgment. The appeals filed on behalf of the appellant as well as Union of India are disposed of in terms of the order passed above."

Reference in this connection may also be made to Maj Gen IPS Dewan v. Union of India and Ors., , wherein the Apex Court has clearly held that when the adverse remarks have been inconsistent with the records, the same have to be ignored. In para 13 of the decision, the Apex Court had considered the work sheet of all the concerned officers.

Yet again in U.P. Jal Nigam v. Prabhat Chandra Jain and Ors., , it was held that before a person is downgraded, an opportunity of hearing is essential.

Yet again in Sukhdev v. Commissioner Amravati Division and Anr., , it was held that adverse remarks must not be vague and the controlling officer should use due diligence."

18. For the reasons aforementioned, we are of the opinion that it is a fit case in which the respondent should consider the matter afresh and in accordance with law as regards grant of promotion to the petitioner. In the event the petitioner is otherwise found to be fit for promotion, we hope and trust that the appropriate Authorities shall consider the matter for giving the promotion with retrospective effect.

19. The DPC should also consider the fact that by reason of the orders passed by the Appellate Authority the adverse comments recorded by the Reporting Authority had been toned down.

20. The petition is disposed of accordingly. However, as nobody appeared for the respondents there shall be no order as to costs.