In CWP-5520-2020-PUNJ HC- “Petitioner has been disciplined, honest, reliable and good official”, holds P&H HC while setting aside non-speaking order recording adverse entries in ACR of Haryana Police constable who was exonerated from all corruption charges Justice Jaishree Thakur [06-05-2022]

Read Order: Bhim Singh v. State Of Haryana and Others

Monika Rahar 

Chandigarh, May 07, 2022: While dealing with the grievance of a Haryana Police constable who was aggrieved by non-consideration of his candidature for promotion due to the fact that adverse entries (from December 21, 2016, to March 31, 2017) were made in ACR on account of his involvement in a criminal case in which he was already acquitted, the Punjab and Haryana High Court has allowed the prayer of the petitioner constable while holding that the past record of the petitioner reflected that he had been a disciplined, honest, reliable and a good official.

Also, the Bench of Justice Jaishree Thakur held, “The Reporting Officer has not given any reason as to why she suspects the integrity of the petitioner to be doubtful.”

The Court added that neither was she competent at that relevant time to record the ACR for the period from December 2016 to March 2017, as the petitioner was arrested on March 18, 2017 and therefore, the Reporting Officer did not have an occasion to observe his work and conduct for a minimum period of three months as stipulated under a circular by Punjab Government. 

On this aspect alone, the Court made reference to the Supreme Court in Amrik Singh v. State of Haryana 1995(3) S.C.T. 617 wherein the Top Court after taking note of the government instructions which clearly enjoined upon the officer making adverse remarks regarding integrity to give reasons as to why he suspected the integrity recorded to be doubtful. On that basis, it was held by Apex Court that the respondent acted in a casual manner casting aspersion on the integrity of the petitioner in the said writ petition. 

In brief, the facts were that the petitioner was recruited as Constable in 2000 in the Haryana Police and was promoted to the rank of officiating Head Constable in 2010. He was awarded more than 31 commendation certificates on account of his excellent work. 

The petitioner was falsely implicated in a criminal case registered under Sections 7/13 of the Prevention of Corruption Act, 1988. He was acquitted by the court of Additional Sessions Judge, Palwal in 2018 while noting that the prosecution failed to prove unequivocally the demand and acceptance of illegal gratification and the recovery thereof from the accused. The

petitioner was acquitted of all the charges levelled against him and no appeal was filed by the State. 

Based on the FIR, a departmental enquiry was held by the Superintendent of Police, Palwal and the Enquiry Officer (in 2019) exonerated the petitioner from all the charges levelled against him. The Superintendent of Police, Palwal after scrutinizing the report of the Enquiry Officer, agreed with the findings and treated his suspension period as a period spent on duty for all intents and purposes. 

However, the then Superintendent of Police, Palwal, on the very basis of the criminal case and departmental enquiry, recorded adverse remarks in the ACR of the petitioner for the above-stated period which were conveyed to him, vide endorsement dated May 2017. Against this, the petitioner filed a representation to the Additional Director General of Police, Rewari, which was rejected. Based on the adverse entries, the petitioner was ignored for promotion to the next higher rank of Assistant Sub Inspector. 

Aggrieved against the adverse entries for the said period and the consequent denial of promotion based on the adverse entries, the instant writ petition has been filed.

The petitioner’s counsel argued that the petitioner was falsely accused in the FIR and that he was exonerated of all charges. The Counsel also added that the petitioner was exonerated by the Enquiry Officer and the Superintendent of Police, Palwal filed the departmental enquiry (in 2019) and treated the suspension period as spent on duty. 

Further, it was submitted that that adverse entry could not have been recorded as they pertained to the period December 2016 to March 2017 and since he was arrested on March 18, 2017, the period is less than 90 days (i.e. 87 days). It was also submitted that the work of the petitioner was observed for a period of less than 90 days and, therefore, there was a clear contravention of the Punjab Government circular May 03, 1960, which stipulated that the work and conduct of a person has to be observed for at least a minimum period of three months. It was further submitted that the petitioner obtained his ACRs for the past 10 years and no such adverse entries was reflected therein.

The State Counsel supported the impugned order by contending that the integrity of the petitioner was doubtful as an FIR was registered against him under the Prevention of Corruption Act. It is argued that the recording of the Annual Confidential Report was a matter of subjective satisfaction of the officer concerned and the correctness thereof cannot be doubted.

After considering the rival submissions, the Court held outrightly that it found substance in the submission of the petitioner’s counsel on the recording of the adverse remarks based on observation, for 87 days, of the petitioner’s conduct. In this regard, the Court observed that the petitioner was arrested on March 18, 2017, making it a period of less than 90 days from December 21, 2016, to March 18, 2017, and, therefore, by virtue of the circular issued by the Punjab Government on May 03, 960, no Reporting Officer should have recorded the remarks unless he saw his work and conduct for at least three months. 

“This fact has not been taken into consideration by the Additional Director General of Police, South Range, Rewari, while passing the impugned order dismissing the representation”, the Court held. 

Also, on further reading of the impugned order, the Court was of the opinion that it was not a reasoned order. The representation was dismissed by stating that there was no reason to disbelieve the punishing authority i.e. Superintendent of Police, Palwal who actually saw the working of the representations for a sufficient period of time. This was not considered by the Court to be a “reasoned order” especially when contention was raised that the ACR for a period of 87 days could not have been recorded. 

Further, the Court noted, 

“A fact that could not be ignored is that the State did not choose to file an appeal against the order exonerating the petitioner on legal advice received. He stood reinstated and the period of suspension regularized.”

Further, on the argument of a blot on the integrity of the petitioner, the Court was of the opinion that the confidential report for the period from December 2016 to March 2017 did not furnish any adequate reasons as to why the integrity of the petitioner was found to be doubtful for the period in question. The Court noted that in the preceding years, there was no report regarding his integrity being doubtful and that the reports which were obtained for the previous years under the provisions of the RTI Act reflected that the petitioner was a disciplined, honest, reliable and a good official. 

Applying the same ratio in the instant case, the Court opined that the Reporting Officer neither give any reason as to why she suspected the integrity of the petitioner to be doubtful, and nor was she competent at that relevant time to record the ACR for the period from December 2016 to March 2017 as admittedly the petitioner was arrested on March 18, 2017, and, therefore, the Reporting Officer did not have an occasion to observe his work and conduct for a minimum period of three months as stipulated under circular dated May 03, 1960.

Consequently, the writ petition was allowed. The adverse entries were set aside, while further holding that the order passed on the representation was totally non-speaking, that too was set aside. As far as the claim of the petitioner for promotion was concerned, the respondents were directed to consider his case for promotion to the post of officiating Assistant Sub Inspector from the date his juniors were promoted.