Bal Ravi Dwivedi Vs State of MP

@JUDGMENTTAG-ORDER

Sujoy Paul, J.@mdashBy filing this petition under Article 226 of the Constitution, the petitioner, an Inspector in Police Department, assailed the adverse confidential report for the year ending 2007, dated 31.10.2007 (Annexure P/1). The order dated 2.6.2008, whereby his representation against the aforesaid ACR is rejected, is also called in question in this petition.

2. Shri D.K. Katare, learned counsel for the petitioner, urged that the ACR in question is arbitrary, unjust and passed on irrelevant considerations. He submits that before grading the petitioner as "poor" in the said ACR, the petitioner was not afforded with any opportunity. It is submitted that in the entire assessment year the petitioner was never warned, counseled or informed about any shortcomings. He submits that the State Government has issued the executive instructions to ensure that the ACRs are written in an objective and scientific manner. By taking this Court to executive instructions, Annexure P/5, it is argued that the entry regarding "integrity" cannot be recorded on whims and fancies. A detailed procedure is laid down for making the said entry. In the present case, it is urged that the said procedure is not followed. It is further urged that the petitioner''s detailed representation, in which those grounds were specifically taken, was not properly considered. Annexure P/2 is assailed on the ground that it is based on two specific incidents. The first incident is arising out of complaint of one Shri Nand Kishore. The second incident is arising out of kidnapping of Mukesh Tripathi and Balkishan. It is urged that in both the cases the petitioner is exonerated and no proof was found against the petitioner. It is submitted that the respondents have committed an error of law in relying on those incidents for the purpose of rejecting the application. It is submitted that Annexure P/2 makes it crystal clear that the entire ACR is founded upon those two incidents which were not proved against the petitioner. Thus, the ACR is based on extraneous considerations and, therefore, cannot be permitted to stand.

3. Ms. Nidhi Patankar, learned Government Advocate supported the impugned orders, Annexure P/1 and P/2. By taking this Court to various paragraphs of the return, it is urged that there is no infirmity in the impugned orders. This Court is not obliged to sit as an appellate authority to reappreciate or reweigh the finding recorded by the controlling authority. It is submitted that the controlling authority is the best judge to assess the performance of its subordinate and this Court cannot sit in appeal against the same.

4. I have heard learned counsel for the parties and perused the record.

5. This is trite in law that recording of ACR should not be like a weapon of colonial era. The reporting officer is under an obligation to record the performance of the employee in an objective and scientific manner. It should be the mirror image of the performance of the employee for the period in question. There is no scope of any arbitrary or irrelevant consideration while recording the ACR. The impugned order shows that in character and integrity column of the petitioner, the remark made is "doubtful". The Government has issued a detailed executive instruction dated 19.11.1965, which shows that such remarks can be made only after fulfilling the necessary requirement. The petitioner in extenso has preferred his objection in his representation, Annexure P/8. The respondents have not considered this aspect in Annexure P/2 nor produced any material along with the return to show that the said requirement is fulfilled. This is settled in law that integrity of an employee cannot be held to be "doubtful" in a cursory manner. This view is taken way back by Bombay High Court (DB) in the case reported in Udai Shukla Vs. Union of India (UOI) and Others, . This Court in Rajesh Kumar Saxena Vs. State of M.P. and Another, has taken the same view. Thus, it is clear that the respondents have erred in mechanically recording the entry of "doubtful" against the integrity column. This entry cannot be permitted to stand. It is also noteworthy that the General Administration Department in its circular No. 472/3418/97/9/1 dated 26.3.1998 opined that it will not be justifiable to record an adverse entry before intimating the employee about shortcoming in his work/conduct. It is reiterated that the controlling authority should inform the employee about his shortcomings from time to time. If despite that the work is not improved, ACR can be recorded.

6. The Apex Court in State of U.P. Vs. Yamuna Shanker Misra and another, opined that the object of writing the confidential reports and making entries in them is to give an opportunity to a public servant to improve excellence. Relying on Article 51-A(j) of the Constitution, it is held that it enjoys upon every citizen the primary duty to constantly endeavor to prove excellence, individually and collectively, as a matter of the group. The officer entrusted with the duty to write confidential report, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on overall assessment of the performance of the subordinate officer. It is further held that before forming an opinion to make adverse entry in confidential report, the reporting/reviewing officer should share the information which is not a part of the record, with the officer concerned. This amounts to an opportunity given to erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite giving such opportunity, the officer fails to perform the duty or correct his conduct or improve himself, it may be recorded in the confidential report of the said officer.

7. In the present case, there is no material to show that before writing ACR the petitioner was informed about his shortcomings. For this reason also the ACR is liable to be interfered with.

8. The interference may be made on yet another ground. The rejection order shows that the respondents have taken into account the incidents based on complaint of Shri Nand Kishore. Annexure P/4 dated 9.4.2007 shows that the petitioner was placed under suspension on the basis of said complaint of Shri Nand Kishore. On an enquiry made by SDO (P) Dabra, the allegation/complaint was found to be incorrect. The petitioner was accordingly exonerated and suspension was revoked by treating the said period as spent on duty. After exoneration of petitioner, by no stretch of imagination, such incident can result into recording of adverse CR against the petitioner. Same is the case with another incident relating to alleged kidnapping of Mukesh Tripathi and Balkishan. The petitioner was served with a charge sheet dated 4.12.2007, Annexure P/9. The petitioner submitted his reply against this charge sheet. By communication dated 18.2.2009, the petitioner''s reply was considered and matter/disciplinary proceedings were closed against the petitioner. No departmental enquiry was instituted pursuant to the show cause, Annexure P/9. Annexure P/14 dated 18.2.2009 shows that the enquiry was dropped. However, this incident also became a reason for rejecting the representation of the petitioner, Annexure P-2. After having dropped the proceedings against the petitioner, the ACR and rejecting order cannot be permitted to stand.

9. On the basis of aforesaid analysis and cumulative reasons, stated herein above, the impugned orders are liable to be interfered with. Consequently, impugned orders, Annexures P/1 and P/2, dated 31.10.2007 and 2.6.2008, respectively, are set aside. Petition is allowed. No costs.