Judgment:
ORDER
S.R. Nayak, J.
1. This writ petition is directed against the order of the Central Administrative Tribunal, Bangalore Bench, Bangalore (for short, 'the Tribunal'), dated 13th September, 2000 passed in O.A. No. 981 of 1999. In the said original application, the petitioner herein sought for quashing of the communication of adverse remarks under various heading as incorporated in the letter from the Chief Secretary, Government of Karnataka, dated 9-12-1997, addressed to him and marked as Annexure-Al. The Tribunal by its order impugned in this writ petition has dismissed the original application with costs of Rs. 3,000/- payable to the second respondent, namely, Sri C. Dinakar, IPS.
2. The facts of the case, in brief, are as follows.-
The petitioner was selected, to the Indian Police Service in the year 1976 and allocated to Karnataka Cadre. The petitioner has held several posts under the Karnataka State and the Central Government. In the month of April 1997, the petitioner was promoted to the rank of Inspector General of Police. From 1st April, 1996 till 30th June, 1996, the petitioner discharged his duties as Director (Security and Vigilance), KSRTC, in the rank of Deputy Inspector of Police. In the month of July the petitioner was deputed to Olympic Games held at Atlanta, United States of America. The petitioner was an compulsory waiting for some time. On 16th October, 1996, the petitioner was posted, as Deputy Inspector General of Police, CID and he relinquished the said post on 17-4-1997 on his promotion to the cadre of Inspector General of Police.
3. By letter dated 9-12-1997, marked as Annexure-A, the Chief Secretary informed the petitioner that in his Annual Confidential Report for the period from 16-10-1996 till 15-3-1997, the overall performance had been graded as 'average' and certain adverse remarks had been recorded. On receipt of the letter dated 9-12-1997, the petitioner submitted his representation, marked as Annexure-B, as provided by Rule 9 of the All India Services (Confidential Rolls) Rules, 1970 (for short, 'the Rules'). The petitioner received an order dated 19th June, 1999, marked as Annexure-C by which the petitioner's representation for expunging the adverse remarks was rejected. The petitioner aggrieved, by the said order instituted O.A. No. 981 of 1999 before the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 (for short,, 'the Act') seeking expunction of adverse remarks.
4. The 2nd respondent herein made miscellaneous application being M.A. No. 9 of 2000 under Sections 19 and 35-A of the Code of Civil Procedure and also under Section 19 of the Act for awarding damages in his favour and for taking action against the Counsel for the petitioner.
5. The main grounds urged by the petitioner in support of the relief sought by him are that all those adverse remarks are the result of personal bias against him as well as the incompetence, lack of objectivity and frustration on the part of the second respondent, who at the relevant point of time was working as Director General of Police, COD. In addition to the above grounds, the petitioner also attacked the impugned order on the following grounds:
'1. The impugned adverse remarks in the applicant's ACR for the year 1996-97 have been recorded by the reviewing authority (respondent 2) in violation of the mandatory requirements of Rules 5 and 6 of the Rules. Therefore, the said adverse remarks are void and liable to the quashed.
2. The impugned adverse remarks are recorded by respondent 2 in mala fide exercise of the statutory power under Rule 6 of the Rules. Therefore, the said remarks are void and liable to be quashed.
3. The impugned adverse remarks have been recorded in violation of the Scheme of Form II specified under Rule 4 of the Rules and the instructions issued under Rule 10-A of the Rules. The said adverse remarks made in violation of the aforesaid statutory provisions which are mandatory in character, are illegal, void and liable to be quashed.
4. Respondent 1's order dated 19-6-1999 (Annexure-A3) is made in violation of the mandatory requirements of Rule 10 of the Rules. The said order is made without application of the mind and in violation of Article 14 of the Constitution. Therefore, the same is illegal, void and liable to be quashed.
5. The impugned adverse remarks as communicated by respondent 1's letter dated 9-12-1997 (Annexure-Al) and the impugned order dated 19-6-1999 (Annexure-A3) are otherwise unreasonable, unjust and opposed to law and facts. The same are illegal and void'.
6. The original application was opposed by both the respondents by filing reply statements. In the reply statement filed on behalf of the first respondent who is the Government of Karnataka represented by its Chief Secretary, the petitioner's contention that the adverse remarks have been recorded only by the second respondent as the reviewing authority and the second respondent has violated the norms of writing the ACR by himself recording the adverse remarks as if he is the reporting authority is factually not correct; that the adverse remarks for the period between 16-10-1996 and 15-10-1997 have been recorded by the reporting authority as well as the reviewing authority in the respective columns meant for them; the second respondent has not violated any of the provisions of the Rules; as regards the procedure followed by the first respondent in dealing with the representation submitted by the petitioner against the adverse remarks, appropriate actions were taken by the first respondent as per the provisions of the Rules; the adverse remarks written by both the reporting and reviewing authorities were communicated to the petitioner without disclosing the identity of the authorities who wrote the adverse remarks in accordance with the clarification issued by the Government of India, under Rule 8 of the Rules; the comments of the reporting authority and reviewing authority were obtained on the representation submitted by the petitioner for expunction of the adverse remarks and that since both the authorities have justified the adverse remarks recorded by them with sufficient reasons and evidence, the first respondent did not find any reason to expunge the adverse remarks.
7. Before the Tribunal, on behalf of the second respondent's, it was contended that adverse remarks against the petitioner were written for the relevant period when he worked as the Deputy Inspector General of Police, COD and the reporting authority for the petitioner was one Sri Vijay Sasanur, who was the then Inspector General of Police, COD and that the second respondent, who was then working as the Director General of Police, COD was the reviewing authority; the allegations made against the second respondent by the petitioner are motivated, totally baseless and false.
8. In M.A. No. 9 of 2000 filed by the second respondent, the petitioner was arrayed as respondent 1 and the State Government as respondent 3. The following reliefs were sought in M.A. No. 9 of 2000:
'(i) Order payment of costs by way of compensation to the applicant by respondents 1 and 2;
(ii) Direct respondent 3-Government of Karnataka to take disciplinary action against respondent 1 for making very serious, false, reckless and defamatory allegations in abusive language against the applicant in his representation at Annexure-A2 to O.A. No. 981 of 1999;
(iii) Take action against respondents 1 and 2 herein for per jury;
(iv) Take action against respondents 1 and 2 herein for making very serious, false, reckless and defamatory allegations in abusive language against the applicant herein, and order payment of damages to him by respondents 1 and 2; and
(v) Take any other action, including awarding the costs, which his Hon'ble Tribunal considers necessary in the facts and circumstances of this case'.
9. The Tribunal having secured the records of the case and having heard the learned Counsels for the parties, by its order impugned in this writ petition dismissed the original application with costs of Rs. 3,000/-payable by the petitioner to the second respondent. As regards M.A. No. 9 of 2000 filed by the second respondent, the Tribunal having opined that the allegations made by the petitioner against the second respondent are abusive, malicious and have caused acute discomfort and embarrassment to the second respondent personally, has opined that it is appropriate for the Government of Karnataka to initiate suitable action against the petitioner. However, the Tribunal has opined that the learned Counsel for the petitioner is not responsible in any manner for the allegations levelled by the petitioner against the second respondent.
10. We have heard Sri Navkesh Batra, learned Counsel for the petitioner, learned Government Advocate for 1st respondent and Sri C. Dinakar, who is arrayed as 2nd respondent, who appeared in person and submitted his case.
11. The arguments of Sri Navkesh Batra run like this:
The confidential report of an officer constitutes a vital service record in relation to his career advancement and any adverse remarks in the confidential report would mar his career and therefore, it is necessary that in the event of a remark being called for in the confidential record, the authority directing such remarks, must first come to the conclusion that it is imperative to make such remarks to set right the wrong committed by the officer concerned; a decision in that regard must be taken objectively after careful consideration of all materials which are before the authority directing remarks being entered in the confidential report; the petitioner had/has an outstanding and meritorious career before and after the impugned adverse remarks in the Annual Confidential Report for the year ending 31-3-1997; the impugned Annual Confidential Report is for a brief period of four months and 19 days (i.e., 16-10-1996 to 15 3-1997) for which period the 2nd respondent was the reviewing authority as, in the first half, inter alia, the petitioner was deputed to the Olympic Games at Atlanta, U.S.A. and in this brief period there were no targets, no reviews, no feedbacks, no guidelines set by the petitioner's superiors, despite the same being mandatory at law and under the rules and guidelines and in any event, a major portion of this period of Jess than six months, under review, was spent by the Mulla, which ultimately proved that the petitioner's dissent was perfectly correct and the action of the 2nd respondent was wrong and this together with the petitioner making notings in Kannada (in terms of the Government Older) and 2nd respondent withdrawing all powers from the petitioner, there was very little left to review the petitioner's performance; the materials on record would go to show that the 2nd respondent had ill-will, animosity and bias against the petitioner which actuated the impugned averse remarks; the petitioner is a native of Bangalore, who is born, brought up and educated in Bangalore, fluent in written and spoken Kannada and that the adverse remarks that the petitioner's 'expression in Kannada needs improvement' is totally unwarranted and therefore, ought to have been deleted; the reporting and reviewing authorities failed to appreciate the petitioner's knowledge, decision making abilities, principled stand and competence as reflected in the record and therefore, the adverse remarks regarding the petitioner's 'paradigm' is totally uncalled for; respondent 2 had, contrary to Government guidelines/manual orders etc., bypassed the petitioner and other officials and concentrated all powers in his hands and hence the adverse remarks regarding the petitioner's lack of willingness to 'add on more responsibility' and/or the leadership qualities of the petitioner going into 'hybernation' or 'blocking out flow of ideas or new methods of work' are totally uncalled for and unwarranted and ought to have been set aside by the Tribunal; similarly, the adverse remarks regarding the petitioner's appraising ability being clouded by past experience, are unfounded, totally unfair, unwarranted, uncalled for and hence ought to have been deleted; that the 1st respondent failed to appreciate the detailed and specific reply given by the petitioner in his representation to each and every adverse comment/remarks with supporting material and rejected the representation without application of mind and in total disregard of well-established and binding norms and precedents; that the reporting authority as well as the reviewing authority while writing the confidential report of the petitioner completely lost sight of the provisions of All India Services (Confidential Rolls) Rules, 1970 (for short, 'the Rules') and Form II with instructions issued by the Central Government; that the impugned remarks are as vague as they could be; that in Part III of the Form of Confidential Report, the reviewing authority has to agree or disagree with the assessment of the officer given by the reporting authority, but, in the case of the petitioner, the reviewing authority has not only agreed with the assessment of the reporting authority but proceeded to add something more.
12. Sri C. Dinakar, the 2nd respondent who appeared in person, while supporting the impugned order of the Tribunal, would contend that the impugned confidential report written by the reporting authority and the reviewing authority are in perfect conformity with the provisions of the Rules and the instructions issued by the Government of India from time to time. It was highlighted by Sri Dinakar that admittedly the petitioner had very cordial relationship with Sri Vijay Sasanur, I.P.S., the reporting authority and he had absolutely no problem with Sri Vijay Sasanur who was the then Inspector General of Police. C.O.D. If that is so, the remarks written by the reporting authority cannot be faulted or condemned on the ground of mala fide or vindictiveness. The only additions made by the reviewing authority are the following: 'Arrogant officer. His knowledge and work is good, but he cannot be objective and impartial in discharging his duties'. Sri Dinakar would contend that Rule 5(3) of the Rules envisages recording of remarks for a part of the year also and therefore, the recording of the impugned remarks by the reporting authority and the reviewing authority cannot be faulted with. It is pointed out by Sri Dinakar that after receipt of the representation from the petitioner, the Government obtained the remarks of late Sri Vijay Sasanur, the reporting authority as well as the remarks from the 2nd respondent, considered the same and rejected the representation of the petitioner by order dated 19-6-1999. Sri Dinakar would also highlight on the limited scope of judicial review under Article 226 with regard to the adverse remarks recorded by the reporting authority and/or reviewing authority and maintain that no case is made out for interference with the order of the Tribunal, which has, in great elaboration, considered each and every contention raised by the applicant before it and has given cogent and tenable reasons for rejecting the same.
13. Having heard the learned Counsels for the parties, the only question that falls for decision is:
Whether the reporting authority and/or the reviewing authority committed any irregularity or illegality in making the adverse remarks in the service records of the petitioner and whether the rejection of the representation of the petitioner against the adverse remarks by the State Government is justified and legal?
14. The object of writing the confidential reports is two-fold, i.e., to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality, excellence and efficiency of public service. There are number of judgments of the Apex Court to guide the officers/authorities who are vested with power to write the confidential reports of the officers serving under them. What is insisted by these judgments is that the officer or authority who writes the confidential reports should show objectivity, impartiality and fair assessment without any prejudices whatsoever with the highest sense of responsibility to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. It is also emphasized that if the above principle is not adhered to by the officer or the authority concerned who writes the confidential report, his subordinate officers get demoralised which would be deleterious to the efficacy and efficiency of public service. The Supreme Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., : (1991)ILLJ395SC pointed out the pitfalls and insidious effects on service due to lack of objectivity by the Controlling Officer. In para 7 of its judgment in the case of State of Uttar Pradesh v. Yamuna Shanker Misra and Anr., : (1997)IILLJ1SC the Supreme Court stated the object of writing the confidential report thus:
'It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51-A(j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented'. The officer entrusted with the duty to write confidential reports, 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 an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion'.
Further, the Supreme Court in the case of Swatantar Singh v. State of Haryana and Ors., : (1997)IILLJ8SC speaking about the object of writing confidential reports, in para 5, observed thus:
'... the object of writing the confidential reports or character roll of a Government servant and communication of the adverse remarks is to afford an opportunity to the concerned officer to make amends to his remissness; to reform himself; to mend his conduct and to be disciplined, to do hard work, to bring home the lapse in his integrity and character so that he corrects himself and improves the efficiency in public service. The entries, therefore, require an objective assessment of the work and conduct of a Government servant reflecting as accurately as possible his sagging inefficiency and incompetency. The defects and deficiencies brought home to the officer, are means to the end of correcting himself and to show improvement towards excellence. The confidential report, therefore, would contain the assessment of the work, devotion to duty and integrity of the officer concerned'.
15. In the premise of the principles enunciated by the Apex Court in the above noted decisions and several other decisions, it is the contention of Sri Navkesh Batra that in writing the impugned adverse remarks in the service records of the petitioner, the reporting authority as well as the reviewing authority particularly, the reviewing axithority, have not practised objectivity and fairness and, on the other hand, the remarks are tainted by mala fide on the part of the 2nd respondent-the reviewing authority and, therefore, the impugned remarks are required to be quashed.
16. Keeping in mind the principles and norms noted above governing the writing of confidential reports, let us proceed to examine the facts of this case and the contentions raised by the parties. The objections raised by the petitioner against the impugned adverse remarks springs from a fallacious impression that they were recorded by the 2nd respondent in his capacity as the reviewing authority when he was working as the Director General of Police, COD. It is evident that the representation dated 18-1-1998 marked as Annexure-A2 against the impugned adverse remarks communicated to the petitioner, in respect of his ACR for the year 1996-97 for the period 16-10-1996 to 15-3-1997 as well as the grievance ventilated by the petitioner in the original application filed before the Tribunal are based on the impression of the petitioner that all adverse remarks in his ACR for the aforementioned period were recorded by the 2nd respondent as reviewing authority. But, the records placed before the Court would disclose that only the following adverse remark is written by the reviewing authority:
'An arrogant officer. His knowledge of work is good, but he cannot be objective and impartial in discharging his duties'.
All other adverse remarks were recorded by the reporting authority, namely, late Sri Vijay Sasanur. Therefore, the whole basis of attack of the impugned adverse remarks alleging the ill-will and mala fide on the part of the 2nd respondent falls to the ground.
17. The reporting and reviewing authorities write the confidential reports of an officer working under them taking into account the totality of the perception, the conduct, character, the quality of service of the officer concerned, his antecedents inside and outside the office. So long as the confidential remarks are not shown to be an outcome of mala fide, grudge, vindictiveness on the part of the reporting authority or the reviewing authority, the confidential remarks cannot lightly be interfered with by the Tribunal or by the Court.
18. As already pointed out supra, the grounds taken in the original application and the grounds mentioned in the representation of the petitioner at Annexure-A2 are all based on the misconceived perception on the part of the petitioner that the 2nd respondent alone is the author of the adverse remarks and that the 2nd respondent is highly biased against the petitioner and, therefore, he deliberately has authored those remarks against the petitioner as a vindictive measure. As rightly pointed by the Tribunal, strictly speaking, no other ground was made out to assail the impugned adverse remarks, it is true that apart from the adverse remarks recorded by the reporting authority, the 2nd respondent-reviewing authority has made remarks to the effect that the petitioner is an arrogant officer, his knowledge of work is good, but he cannot be objective and impartial in discharging his duties. Even with regard to the above remarks recorded by the reviewing authority, the petitioner has utterly failed to make out any ground on the basis of which we could possibly direct deletion of the above remarks of the 2nd respondent-reviewing authority. Furthermore, the Government, after receipt of the representation of the petitioner at Annexure-A2, sought remarks/comments from the reporting authority as well as the reviewing authority and both the authorities have justified the remarks giving cogent and acceptable reasons. The Government having considered the comments of the reporting authority and reviewing authority and after due application of mind did not think that the petitioner has made out any ground to expunge even those remarks exclusively made by the 2nd respondent-reviewing authority.
19. The impugned adverse remarks are also assailed on the ground that in writing the confidential report, the reporting and reviewing authorities have not adhered to the provisions of the Rules as well as the executive orders/instructions issued by the Government of India under the said Rules. It was contended that confidential report ought to have been written upto 31-3-1997, whereas in the present case, the confidential report was written only upto 15 3-1997 in violation of Rule 5(1) of the Rules and the only possible reason for this defect is that the 2nd respondent was transferred on 15-3-1997 as IGP, Home Guards. We do not find merit in the above contention. It is provided in Rule 5(2) of the Rules that a confidential report shall also be written if the reporting authority or the' members of the service reported upon relinquishes charge of the post and in such a case, it shall be written at the time of relinquishing of his charge of the post or ordinarily within one month thereafter. Though, under Rule 6(1) of the Rules, there is no such specific stipulation that also when the reviewing authority relinquishes the charge of his post, a confidential report shall be written, there is nothing in the Rules to prohibit the Government from allowing the confidential report for being written when the reviewing authority relinquishes the charge of the post on the analogy of the requirement of such report to be written when the reporting authority relinquishes the charge of his post. In the instant case, admittedly, the 2nd respondent was transferred on 15-3-1997 as IGP, Home Guards, and therefore, the confidential report was written, by the 2nd respondent for the year 1996-97. The relevant year 1996-97 came to an end only after 15 days after the date of transfer of the 2nd respondent as IGP, Home Guards and as per the Rules, the ACR of the petitioner for the year 1996-97 had to be written as on 31-8-1997. It needs to be noticed that it is not the case of the petitioner that for that residual period of 15 days, a separate ACR has been recorded. Therefore, it cannot be said that the reviewing authority committed any irregularity in writing the confidential report of the petitioner for the year 1996-97 on 15-3-1997 for the period ending 15-3-1997 when the 2nd respondent relinquished the charge as reviewing authority.
20. It was also contended that the mandatory provisions of Rule 10 of the Rules are violated by the 1st respondent-Government. We do not think so. It is needless to state that the adverse remarks contained in a confidential report are required to be communicated to the concerned member of service in writing and such an opportunity be given to a member to represent to the Government against those remarks which are required to be considered in the light of the provisions specifically made for this purpose under Rule 10 of the Rules. It is true that Rule 10 of the Rules mandates that the 1st respondent was required to consider the representation of the member of the service made against the adverse remarks in consultation with the reporting authority, the reviewing authority or the accepting authority and to pass orders either rejecting his representation or toning down the remarks or expunging the remarks. The only requirement on the part of the Government is to consult the reporting authority and the reviewing authority. The Tribunal has pointed out that in the instant case, the records placed before it would go to show that the Government duly complied with that requirement.
21. The other contention of the petitioner while attacking the procedure is that the Government has not written a speaking order while rejecting his representation made against the impugned adverse remarks. It is not the requirement of law that the Government should state the reasons in the order rejecting the representation, but, when rejection of the representation is challenged, the Government should produce the records and the records so produced should satisfy the Court or the Tribunal, as the case may he, that there existed sufficient reasons/grounds to reject his representation. In the instant case, on receipt of the representation of the petitioner against the impugned adverse remarks, the Government called for the comments of the reporting authority as well as the reviewing authority. The reporting authority and the reviewing authority had furnished extensive comments in respect of each of the adverse remarks. The Government having obtained the remarks of the reporting authority and the reviewing authority, examined the question of justification for writing the impugned remarks and, ultimately, the Chief Secretary to the Government of Karnataka had satisfied himself that the adverse remarks were well-justified and that there was no reason for the Government to expunge any of those remarks. Therefore, the processing of the representation of the petitioner against the impugned adverse remarks and the ultimate decision taken by the Government of Karnataka cannot be faulted with either in terms of law, substantive or procedural or on facts.
22. As regards the observations made and directions issued by the Tribunal while dealing with M.A. No. 9 of 2000 filed by the 2nd respondent, we should state, they are fully justified. The records placed before the Court would show that though the petitioner occupies a high position in a disciplined force, he has freely indulged in character assassination of the 2nd respondent who retired as the Head of the Police force in the State. As rightly pointed out by the Tribunal, the attack on the 2nd respondent is highly irrelevant and unrestrained. The language employed by the petitioner to attack the 2nd respondent borders on abuse. Pleading is essentially meant to aid the Court in the decision making conclusively and effectively and it cannot be a tool for a litigant to abuse or malign the other side. Therefore, we are in full agreement with the observations of the Tribunal that the allegations made by the petitioner against the 2nd respondent are not only unwarranted but also unjustified; they are clearly subversive of discipline particularly in a uniformed service like the police, it is appropriate for the 1st respondent to initiate suitable actions against the petitioner in accordance with law.
23. In the result and for the foregoing reasons, we dismiss the writ petition with costs quantified at Rs. 5,000/- payable to the 2nd respondent, viz., Sri C. Dinakar, within a month from today.