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Akhil Ahmed S/o Abdul Hameed v/s Joint Director of Agriculture & Others


Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

    CRIMINAL WRIT PETITION NO.2708 OF 2011

    Decided On, 29 September 2011

    At, In the High Court of Bombay at Aurangabad

    By, THE HONOURABLE MR. JUSTICE S.S. SHINDE

    For the Appellant: Mrs. Manjusha Deshpande, Advocate. For the Respondents: R1 to R3, D.V. Tele, A.G.P.



Forward Referenced In:-

general :-   1991 AIR (SC) 1216,   Union of India and Others Versus E.G. Nambudiri ]
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general :-   1979 (3) SCR 518,   Gurdial Singh Fijji Versus State of Punjab and Others ]
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Judgment Text

Oral Judgment:

Rule.

2. Rule made returnable forthwith, heard finally with consent of the parties.

3. This writ petition is filed challenging the judgment and order passed by the Industrial Court, Jalna in Complaint (ULP) No.35 of 2005 dated 20th September, 2007. The Petitioner has further sought direction to the Respondents to grant the petitioner benefits under Time scale Promotion Scheme, as provided under the Government Resolution dated 8th June, 1995 with effect from 18th February, 1997.

4. The facts of the case are stated extensively from paragraph 2 to 12 in the writ petition. Those are not repeated herein.

5. It is not in dispute that the remarks in confidential reports for the year 1992-93 till 1997-98, the basis on which respondents have taken decision not to grant time bound promotion to the petitioner, are not communicated to the petitioner. It is the contention of the petitioner that without communicating such adverse remarks in confidential report no time bound promotion can be refused to the petitioner. Learned counsel for the Petitioner, in support of her contention placed reliance upon reported judgment of the Supreme Court in the case of "Gurdial Singh Fijji Versus State of Punjab" reported in 1979 (2) SCC 368. Learned counsel relied on para 17 of the judgment which reads, thus:

"17. The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult to support the non-issuance of the integrity certificate to the appellant. The claim of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleadings, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him." (Emphasis supplied)

6. Learned counsel further placed reliance on judgment of Supreme Court in the case of "Vijay Kumar, I.A.S., Vs. State of Maharashtra and others" reported in AIR 1988 SC 2060. In para 3 and 6 of its judgment, Supreme Court observed, thus:

"3. The main grievance of appellant before the Tribunal was that the confidential report relied upon to deny senior time scale has not been communicated to him. It is not disputed that the confidential report was not sent to the appellant by registered post nor there is any evidence to indicate that it was received by the appellant. The Tribunal after considering the material on record was of opinion that there is no proof that the appellant had received the Government letter containing confidential remarks. Yet the Tribunal proceeded on the basis that there was nothing wrong in relying upon that confidential report to deny benefit, to the appellant. Indeed, the conclusion of the tribunal is very curious. It is a settled principle that an uncommunicated adverse report should not form the foundation to deny benefits to a Government servant when similar benefits are extended to his juniors." (Emphasis supplied)

"6. The denial of senior time scale to the appellant, in any event, is therefore wholly unjustified and arbitrary. We must, therefore, allow the appellant directing the State of Maharashtra to give the appellant senior time scale with effect from the date on which his juniors were given. He should also be given consequential benefits as per rules regulating his service."

7. Learned counsel further placed reliance upon reported judgment of the Supreme Court in the case of "Union of India and others Vs. E.G. Nambudiri" reported in AIR 1991 S.C. 1216. Paragraph Nos.6, 10 and 11 of the reported judgment, read as under:

"6. Entries made in the character roll and confidential record of a Government servant are confidential and those do not by themselves affect any right of the Government servant, but those entries assume, importance and play vital role in the matter relating to confirmation, crossing of efficiency bar, promotion and retention in service. Once an adverse report is recorded, the principles of natural justice require the reporting authority to communicate the same to the Government servant to enable him to improve his work and conduct and also to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. The superior authority competent to decide the representation is required to consider the explanation offered by the Government servant before taking a decision in the matter. Any adverse report which is not communicated to the Government servant, or if he is denied the opportunity of making representation to the superior authority, cannot be considered against him. See: Gurdian Singh Fijji V. State of Punjab, 1979 (3) SCR 518."

"In the circumstances it is necessary that the authority must consider the explanation offered by the Government servant and to decide the same in a fair and just manner. The question then arises whether in considering and deciding the representation against adverse report, the authorities are duty bound to record reasons, or to communicate the same to the person concerned. Ordinarily, courts and Tribunals, adjudicating rights of parties, are required to act judicially and to record reasons. Where an administrative authority is required to act judicially it is also under an obligation to record reasons. But every administrative authority is not under any legal obligation to record reasons for its decision, although, it is always desirable to record reasons to avoid any suspicion. Where a statute requires an authority though acting administratively to record reasons, it is mandatory for the authority to pass speaking orders and in the absence of reasons the order would be rendered illegal. But in the absence of any statutory or administrative requirement to record reasons, the order of the administrative authority is not rendered illegal for absence of reasons. If any challenge is made to the validity of an order on the ground of it being arbitrary or mala fide, it is always open to the authority concerned to place reasons before the Court which may have persuaded it to pass the orders. Such reasons must already exist on records as it is not permissible to the authority to support the order by reasons not contained in the records. Reasons are not necessary to be communicated to the Government servant. If the statutory rules require communication of reasons, the same must be communicated but in the absence of any such provision absence of communication of reasons do not affect the validity of the order." (Emphasis supplied)

"10. There is no dispute that there is no rule or administrative order for recording reasons in rejecting a representation. In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any objection to record reasons. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the Government servant and examine the same, in the light of the Cornments made by the officer awarding the adverse entries and the officer counter-signing the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons."

"No order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex-facie and it is not open to the court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the Government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a court of law it is always open to the competent authority to place the reasons before the Court which may have led to the rejection of the representation. It is always open to an administrative authority to produce evidence aliunde before the court to justify its action."

"11. The President was under no legal obligation to record reasons in rejecting the respondent's representation against the adverse remarks. Consequently, the order of the President was not vitiated in law. The Central Administrative Tribunal committed error in quashing the order of the President as well as the order of the Ministry of commerce dated 6.1.1986. Assuming that there was some defect in the order rejecting the respondent's representation, the Tribunal was not justified in holding that the adverse entries awarded to the respondent should be treated as having been expunged."

8. Relying on the above mentioned reported judgments, learned counsel for the Petitioner would submit that if the adverse remarks in confidential report are not communicated to the affected party, as in the present case to the petitioner, the decision taken by the respondent authorities, not to grant time bound promotion to the petitioner, considering the adverse remarks in confidential reports from 1992-93 to 1997-98 without communicating same to the petitioner, is contrary to the law laid down by the Apex Court. Learned A.G.P. invited my attention to the affidavit in reply and in addition he has submitted that earlier there was no any Government Resolution providing for communication of such remarks in confidential repor

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ts to the employee. 9. As stated earlier, it is evident from perusal of the affidavit in reply filed by the respondents, that the respondents herein have considered the remarks in confidential reports of the petitioner for the period from 1992-93 to 1997-98, and the authorities found that those remarks are not satisfactory. Admittedly, such remarks in confidential reports of the petitioner were not communicated to the petitioner and decision has been taken not to grant the petitioner benefits under time scale promotion scheme. In that view of the matter, in my opinion, the petition deserves to be allowed. In the light of the law laid down by the Supreme Court, there is no manner of doubt that the Respondents have, in utter disregard to the law laid down by the Supreme Court, denied time bound promotion to the petitioner on the ground that the remarks from the confidential reports for the period from 1992-93 to 1997-98 are not satisfactory. In the aforesaid background, this petition succeeds. 10. In the result, rule is made absolute in terms of prayer clause "14. A) 1". Petition stands disposed of. Respondents are directed to grant benefits to the petitioner as claimed by him in the petition within four months from today.
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