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Naunihal Singh Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 642 of 1968
Judge
Reported inILR1971Delhi269; 1971LabIC1267
ActsConstitution of India - Article 226 and 311
AppellantNaunihal Singh
RespondentUnion of India and ors.
Advocates: V.M. Tarkunde,; Daljit Singh,; Niren De,;
Cases ReferredM. K. Mathalla v. N. N. Wanchoo and
Excerpt:
(i) constitution of india, article 226--confidential report--review by court. ; that the court cannot review the contents of the impugned confidential report made by the speaker of the lok sabha in proceedings under article 226 of the constitution of india. ; (ii) constitution of india, article 226--adverse remarks in confidential report made by highest authority--non-revision of same in spite of representation--whether invalidates the confidential report--scope of interference by court.; that the highest authority is presumed to act with a sense of responsibility and objectivity and in the absence of anything to show that the adverse remarks were actuated by malice or tainted with something as might show mala fide, the remarks made by such an authority cannot be quashed in writ.....h.r. khanna (1) shri nau nihal singh petitioner by means. of this petition under article 226 of the constitution of india has prayed for the issuance of a writ to quash the impugned annual confidential report made by shri hukam singh, the then speaker of the lok sabha, as well as the order for the petitioner's reversion to his parent office. (2) the respondents imp leaded in the petition are (1) union of india through the secretary to the ministry of defense, new delhi, (2) shri hukam singh, ex-speaker. lok sabha, at present governor of rajasthan, (3) the speaker of lok sabha and (4) s. l. shakder. secretary, lok sabha. (3) the impugned order, which was received by the petitioner on june 16, 1965 read as under :- (4) the services of shri nau nihal singh. officiating p. s. to speaker, lok.....
Judgment:

H.R. Khanna

(1) Shri Nau Nihal Singh petitioner by means. of this petition under Article 226 of the Constitution of India has prayed for the issuance of a writ to quash the impugned Annual Confidential Report made by Shri Hukam Singh, the then Speaker of the Lok Sabha, as well as the order for the petitioner's reversion to his parent office.

(2) The respondents imp leaded in the petition are (1) Union of India through the Secretary to the Ministry of defense, New Delhi, (2) Shri Hukam Singh, Ex-Speaker. Lok Sabha, at present Governor of Rajasthan, (3) The Speaker of Lok Sabha and (4) S. L. Shakder. Secretary, Lok Sabha.

(3) The impugned order, which was received by the petitioner on June 16, 1965 read as under :-

(4) The services of Shri Nau Nihal Singh. officiating P. S. to Speaker, Lok Sabha, and permanent Stenographer of the defense Headquarters arc replaced at the disposal of the Chief Administrative Officer. Ministry of defense, New Delhi, with effect from the 21st June. 1965.' The impugned confidential report, which bears the date July 22. 1965, is as under :-

Lok Sabha Secretariat Confidential Report Year/Period from 1-7-63 to 20-6-65 1. Name in Full: Shri Nau Nihal Singh 2. Designation and class of service : P.S. to Speaker, Lok Sabha. Class Ii (Gazetted). 3. X X X X 4. X X X 5. X X X 6. X X X X X 7. X X X X X 8. X X X X X Assessment By The Reporting OFFICER. 9. Trust-worthiness in handling confidential, secret and top secret matters and papers. Doubtful 10. Prompt attendance to calls from officers. 11. Capacity to control personal staff Good, but by his too much rigidity of the officer concerned, he displeased every one. 12. Screening and submission of cases Fair in proper order. 13. Regularity and punctuality in Good. attendance. 14. Skill in drafting. Not very good. 15. Proficiency and accuracy in Did not do any such work during stenographic-work. this period. 16. Intelligence, keenness and industry. Intelligence Good Warned as Keenness & he got himself Industry. busy with other jobs not connected with his duties. 17. Maintenance of engagement diary Good. and submission of necessary papers for meetings, interviews etc. 18. General assistance in ensuring Good. that matters requiring attention are not lost sight of. 19. Initiative and tact in dealing Initiative he had, but tact he with telephone calls and visitors. lacked 20. Nature of other duties, if any, on I had got certain suspicious and which employed and whether they thereforee did not entrust much to were carried out satisfactorily. him. 21. Relations with Members, Officers Not very happy. and fellow employees. 22. Brief mention of any outstanding X or notable work, if any, meriting special commendation. 23. Has he been reprimanded for I had to warn him more than once. different work or for other causes during the period under report? If so, give brief particulars. 24. Remarks as to defects in character, He got much too ambitious wanted indebtedness etc., which may me to confirm him in this post. militate against efficiency and Rules did not allow. He tried to suitability. pressurise me in many ways. He even created scenes to blackmail 25. Fitness for promotion. me. His demands were unreasonable. I refused to agree. His approaches 26. General assessment of good and bad and threats both failed. He suffered qualities, including personality, suffered from frustration and became disposition. etc. useless for my purpose. I had to send him back to his department. He had capacity to work, initiative and ambitious desire to become rich very soon he conducted himself in such a manner that his honesty and loyalty both appeared doubtful. Signature of the Reporting Officer sd/-HUKAM Singh 22-7-1965 Name in block letters (HUKAM SINGH) Designation: Speaker Seen by Secretary on 7-1-66 Sdl-S.L. Shakder 7/1

(5) The petitioner joined the Ministry of defense as a Stenographer on March 5. 1949, and was confirmed in the said post on January 10, 1956. In 1961 the petitioner was drawing a basic salary of Rs. 350.00 in the grade of 210-530. In March, 1961, the Lok Sabha Secretariat informed the office of the Chief Administrative Officer, Ministry of defense, that it was proposed to offer the petitioner the post of Personal Assistant to the Deputy Speaker, Lok Sabha. Enquiry was made if the petitioner could be spared for the said appointment. Respondent No. 2 was at that time the Deputy Speaker of the Lok Sabha. B An intimation was thereafter sent that the services of the petitioner could be spared for appointment as personal Assistant to the Deputy speaker. The petitioner was relieved petitioner was relieved of his duties in the Ministry of defense on July 15, 1961, and he assumed the charge of the duties of Personal Assistant to Deputy Speaker. Lok Sabha, from the same date. In letter dated July 17, 1961, which was sent by the Air Headquarters, Ministry of defense, to the Secretary, Lok Sabha, it was stated that the petitioner was granted a lien on his substantive appointment of Stenographer in the Armed Forces Headquarters till the time he reverted to Armed Forces Headquarters or got confirmed in Lok Sabha. It was added that the petitioner would be treated on deputation and leave salary and pension contributions would be borne by the Lok Sabha. After the general elections of 1962, respondent No. 2 was elected Speaker of the Lok Sabha. On May 4, 1962. the petitioner was appointed to officiate as Private Secretary to the Speaker with effect from April 24, 1962. The pay of the petitioner was fixed at Rs. 650'- per mensem under Fundamental Rule 35 until further orders. On October 12, 1962. an order was issued to the effect that the appointment to the post of Private Secretary to the Speaker would be on tenure basis. On November 1, 1962, a letter was sent by the Under Secretary of the Lok Sabha Secretariat to the Pay and Accounts Officer to the effect that the petitioner had been allowed to draw pay of Rs. 700.00. i.e., the minimum of the time scale of pay of the post of Private Secretary to the Speaker with effect from October 24, 1962. The revised scale was then fixed at Rs. 700-40-900. On May 6. 1964 , the petitioner made a representation to respondent No, 2 for being confirmed in the post of Private Secretary to Speaker. According to the petitioner, the said representation was made over by respondent No. 2 to respondent No. 4 for doing the needful. Respondent No. 4, however, put pressure on respondent No. 2 not to confirm the petitioner. This allegation has been denied by the respondents. According to respondent No. 4 he was asked by respondent No. 2 to examine the question of the confirmation of the petitioner. The petitioner was then informed that as the post of Private Secretary to Speaker was a tenure post he could not be confirmed under the rule.

(6) To similar effect is the affidavit of respondent No. 2. He informed the petitioner that his confirmation in the post of Private Secretary to Speaker was not possible under the rules.

(7) In the meantime, the petitioner's term of deputation, which had been earlier extended up to August 31. 1962. was extended from time to time. The last letter in this connection was dated August 6. 1964. H addressed by the Lok: Sabha Secretariat to the Chief Administrative Officer, Ministry of defense. According to this letter 'the period of deputation of Shri Nau Nihal Singh. permanent Stenographer of Afaq on deputation with this Secretariat as officiating P.S. to Speaker has been extended for one year. i.e, up to 31st August, 1965, for the present.'

(8) On May 31, 1965, a letter was addressed by the Lok Sabha Secretariat to the Air Headquarters to the effect that it was proposed to revert the petitioner to his parent office in the near future. The Air Headquarters was asked to intimate immediately the date from which the services of the petitioner might be replaced at its disposal.

(9) On June 5, 1965, the petitioner made a representation to respondent No. 4 asking for his confirmation in the post of Private Secretary to Speaker. On June 16, 1965. the notification reproduced above was received by petitioner. According to the petitioner, the above notification resulted in a loss of emoluments of Rs. 450. per mensem to him. It had also the effect of reverting him from the status of a Gazetted Officer to that o,f a non-Gazetted employee. On July 2, 1965, respondent No. 2 is stated to have made the impugned confidential re- port reproduced above.

(10) The petitioner to whom the above report till then had not been communicated sent representation by registered post on April 22, 1966, to respondent No. 2. In that representation it was stated by the petitioner that he had discharged his duties as a Private Secretary with efficiency, initiative and loyalty. Request was made by him for the cancellation of the notification of June 16. 1965. On May 17. 1966, a letter was sent by the Lok Sabha Secretariat inviting reference to the petitioner's representation of April 22, 1966. It was stated in that letter that as the petitioner's services were no longer required by the Lok Sabha Secretariat he was reverted to his permanent post. The petitioner, it was added, had no right to be considered for confirmation in the Lok Sabha Secretariat.

(11) In May, 1966, the petitioner also met respondent No. 2 and ex- pressed his resentment against the order reverting him to his parent department. According to the petitioner, respondent No. 2 then blamed the petitioner for hobnobbing with Members of Parliament. The petitioner denied the charge and added that if any Member of Parliament had said anything about the petitioner's reversion it must have been done at his own by that member. Respondent No. 2 is then stated to have lost his temper and repeated the charge that the petitioner was hobnobbing with Members of Parliament and was also responsible for having questions put against him through Members of Parliament in the Lok Sabha. The petitioner felt that respondent No. 2 had been poisoned by some one against the petitioner. According further to the petitioner he told respondent No. 2 that the latter had succumbed to cowardice and to outside pressure in harming his interests. The above allegations have been denied by respondent No. 2. According to him the petitioned called on him on May I, 1966, and told him how had he felt about the reversion. The petitioner also threatened respondent No. 2 with dire consequences for removing him from the post of Private Secretary adding that he was going to do something drastic within a day or two. When the petitioner adopted a threatening attitude, he was ordered to leave the house and the Superintendent of Police Security was informed of the position.

(12) The case of the petitioner further is that in March, 1967, Shri 1. K. Gujral, Minister of State for Parliamentary Affairs, decided to appoint the petitioner as his Additional Private Secretary. Shri Gujral thereafter directed his Secretary to send for the petitioner's annual confidential reports before sending formal orders of appointment. The Secretary, Parliamentary Affairs Department, requested the Chief Administrative Officer, Armed Forces Headquarters, to send the personal file and annual confidential reports of the petitioner for the perusal of Shri 1. K. Gujral. The Chief Administrative Officer, Armed Forces Headquarters, on going through the records found that though the service book and other records concerning the petitioner had been sent by the Lok Sabha Secretariat immediately after his reversion order in July, 1965. the annual confidential reports for the four years that the petitioner had spent in the Lok Sabha Secretariat had not been sent by the said Secretariat. The Lok Sabha Secretariat was accordingly contacted and requested to send the petitioner's annual confidential reports for the perusal of Minister of State for Parliamentary Affairs. On the following day the annual confidential reports of the petitioner were sent by the Lok Sabha Secretariat and were shown to Shri Gujral. Shri Gujral thereupon changed Ills view and declined to appoint the petitioner as his Additional Private Secretary.

(13) In April, 1967, the petitioner addressed a communication lo the Chief Administrative Officer. Ministry of defense, protesting against the retention of his confidential reports by the Lok Sabha Secretariat till March, 1967. Tn paragraphs 4 and 5 of that communication the petitioner stated:

'4. I am shocked to reliably understand that one of these reports has now either been forged or replaced or some report has been added in which some adverse remarks are said to have been given. 5. If the above is true, it is a very serious matter as I further learn that I was selected and appointed very recently by a Central Minister as his Additional P. S., and the above- mentioned forged or added document appears to have torpedoed the case.'

(14) Request was made by the petitioner in that communication to enlighten him about the facts immediately so that he could seek suitable remedy. On May 15. 1967, the copy of the confidential report dated July 22, 1965, reproduced above was sent to the petitioner. According to the petitioner, the above-mentioned report was a fabricated document and was prepared on a date subsequent to the one on which it purported to have been made. The report was also stated to be actuated by malice and to be not objective and true. On May 31. 1967, the petitioner made a representation to the Chief Administrative Officer, Ministry of defense, protesting against the above confidential report. He also requested that he might be heard in person. Complaint too was made by the petitioner that the report was not communicated to him immediately or within a reasonable time. In November, 1967, a reply was sent to the representation of the petitioner wherein it was stated inter alia:

'(B) It is indicated in the report itself that Shri Singh was warned by the Speaker. In any case, the adverse remarks have since been communicated to Shri Singh in writing. The fact that this was not done earlier does not invalidate the report; (c) All administrative matters relating to the staff of the Lok Sabha Secretariat are entirely within the jurisdiction of the Speaker. Since the Speaker himself has recorded the report on Shri Singh, no representation to the government in regard to the adverse entries made by the Speaker can be entertained.'

(15) On February 24. 1968, the petitioner sent notice under Article 361(4) of the Constitution to respondent No. 2 who had before that been appointed the Governor of Rajasthan. The present petition was thereafter filed on July 15, 1968.

(16) The petition has been resisted by the respondents and the affidavits of Shri R. D. Jain, Assistant Chief Administrative Officer, Ministry of defense, Shri Hukam Singh respondent No. 2, Shri Avtar Singh Rikhy, Deputy Secretary, Lok Sabha Secretariat, and Shri S. L. Shakdher, respondent No. 4, have been filed in opposition to the petition. Shri Hukam Singh in the course of his affidavit has stated that as recorded by him in the confidential report, the petitioner had lost his confidence and had been warned by respondent No. 2 more than once and told to either go back to his parent department or find another job elsewhere. Respondent No. 2 at the request of the petitioner also helped him to get a suitable job elsewhere on humanitarian grounds. According further to Shri Hukam Singh. the petitioner represented to him several times that he should be confirmed but whenever such a request was made, Shri Hukam Singh refused to accede to the request and informed the petitioner that he had got the matter examined and as the post of Private Secretary to Speaker was a tenure post. it was not possible to confirm him under the existing rules. As regards the impugned confidential report, Shri Hukam Singh has stated that it was written by him in his own hand and was signed by him on July 22, 1965. in the usual course of his duties. The report was stated to be an objective assessment of the work and conduct of the petitioner made by Shri Hukam Singh in his capacity as Speaker of the Lok Sabha.

(17) We have heard Mr. Tarkunde on behalf of the petitioner and the Attorney-General on behalf of the respondents, and are of the opinion that the petition merits dismissal. Before proceeding further we may state although an allegation was made in the petition that the impugned confidential report had been made subsequently and had been ante-dated. Mr. Tarkunde on behalf of the petitioner at the time of arguments has submitted that in view of the denial of that allegation by Shri Hukam Singh this Court should not go into that disputed question of fact in this writ petition. According to Mr. Tarkunde, he would assume for the sake of arguments and for the decision of this case that the impugned confidential report was made by Shri Hukam Singh on July 22, 1965. the date mentioned in the report. The learned Attorney-General, in view of the above stand of Mr. Tarkunde. has stated that this Court might refrain from going into the above disputed question of fact and that the present petition may be decided on the assumption that the report as made on July 22, 1965. We consequently have proceeded upon the above assumption.

(18) Another fact, of which mention may be made, is that although some allegations were made by the petitioner in the writ petition against respondent No. 4. at the hearing of the petition nothing has been said about that by the learned counsel for the petitioner. Likewise, Mr. Tarkunde has not addressed any argument to show that the petitioner, who was holding the post of Private Secretary to Speaker on deputation, was entitled to that post as of right.

(19) There is also nothing to show that Shri Hukani Singh was actuated by malice towards the petitioner when he made the impugned confidential report. According to the affidavit of Shri Hukam Singh, the said report embodied objective assessment of the work and conduct of the petitioner made by him. Nothing has been brought to our notice as to why the above statement of respondent No. 2 be not accepted.

(20) It appears that the petitioner felt disgruntled on being reverted from the post of Private Secretary, for which he had earlier been selected by respondent No. 2, and out of sheer resentment against such reversion and the adverse remarks in the confidential report, the petitioner made the allegation of malice against respondent No. 2. No effect has been made to substantiate this allegation. It is also significant that the entries in the impugned confidential report did not absolutely far the petitioner with black brush, they also contained reference to some of his good qualities and highlighted the fact that those qualities were somehow dominated by the overpowering ambition of the petition. It is also obvious that this Court in these proceedings cannot review the contents of the impugned confidential report. The said report had sensually to incorporate the assessment made by respondent No. 2 regarding the performance of the petitioner as his Private Secretary.

(21) The first contention, which has been advanced by Mr. Tarkunde. is that even though the petitioner was holding the post of Private Secretary to the Speaker on deputation, as the impugned order reverting him to his parent office was made without holding a proper enquiry. the same was liable to be quashed. It is urged that the said order resulted in evil consequences for the petitioner. In this respect we * find that the substantive rank of the petitioner was that of a Stenographer in the Armed Force Headquarters, Ministry of defense. He was at the relevant time on deputation in the Lok Sabha Secretariat and was officiating as Private Secretary to the Speaker. As the petitioner lost the confidence of the Speaker and was found by him to be not suitable for the job, he was sent back to his parent office. The post of Private Secretary in the very nature of things is one of special confidence and absolute trust in the person holding that post and it is manifest that when such a person ceases to enjoy the confidence and trust of his boss, he cannot be allowed to retain that post. There was nothing in the order whereby the petitioner was sent back to his parent office as cast a stigma upon him. In view of all the circumstances, the impugned order cannot be said to entail evil consequences and the lack of an enquiry would not stamp it with infirmity or illegality.

(22) It is well settled that the provisions of Article 311 . also apply to temporary holders of civil post. Equally well settled is the proposition that a reduction in rank may be by way of punishment or it may be an innocuous thing, lf the government servant has right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If. however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government, has, by contract, express or implied, or under the rules, the right to reduce him to lower post does not mean that an order of reduction of a B servant to a lower post or rank cannot in any circumstances be a punishment. See in this connection P. L. Dhingra v. Union of India, : (1958)ILLJ544SC , in that case laid the following test for determining whether reduction is or is not by way of punishment :

(23)THE real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under tire rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of title expression 'terminate' or 'discharge' is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to. If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank.'

(24) In the State of Punjab and another v. Sukh Raj Bahadur, : (1970)ILLJ373SC the following propositions on a conspectus of the earlier cases were laid down:-

1.The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case. the motive behind it being immaterial. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment. no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution. 5. If there be a full-scale departmental enquiry envisaged by Article 311 i.e. an Enquiry Officer is appointed, a charge-sheet submitted, Explanationn called for and considered, any order of termination of service made thereafter will attract the operation of the said article'

(25) It is also well established that the form of order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. It may be that an order which is innocuous on the face of it and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is mere motive or is the very foundation of the order. See in this connection The Slate of Bihar and others v. Shiva Bhikshlik Mishra, 1970 Slr 863 ('), and Appar A par Singh v. The State of Punjab 1971 Slr 71).

(26)AT the same time it has to be borne in mind that a Government servant, who is officiating in a post, has no right to hold it for all time. It is an implied term of the officiating appointment that the Government servant would have to be reverted if his work was found unsuitable. In such a case a reversion on the ground of unsuitability is in consonance with the terms on which the officiating post is held,. Such a reversion in rank cannot be considered to be a reduction in rank by way of punishment to which Article 311 of the Constitution could he attracted.

(27) Keeping the above principles in view. we are of the opinion that the impugned order of reversion was not by way of punishment. It may be that the unsuitability of the petitioner for the post of Private Secretary to the Speaker induced respondent No. 2 to direct that the petitioner be sent back to his parent office, it cannot be said that such unsuitability was the very foundation of the order so as to make it to be one by way of punishment. So far as the impugned confidential report is concerned, it came into existence only after the . order for reverting the petitioner to his parent office was made. There was nothing, as stated earlier, in the said order which attached any stigma to the petitioner. In the case of Jasbir Singh Bedi v. Union of India and others, Civil Appeal No. 1272 of 1966(5), decided by their Lordships of the Supreme Court on January 12, 1968. the appellant, who was a clerk in Assam Rail Link Project, was appointed as Vigilance Inspector in 1960. In December, 1964, the Additional Member (Vigilance) Railway Board made certain adverse re marks in his inspection note against the appellant and suggested that he should be reverted to his parent department as early as possible. On February 2. 1965 an order was issued stating that the appellant was reverted to his parent department with immediate effect. The appellant thereupon moved the Court to quash the order of his reversion. Being unsuccessful in the High Court, the appellant went up to the Supreme Court. It was argued on behalf of the appellant that assuming that the appellant was appointed in a temporary capacity as Vigilance Inspector, the order of reversion was illegal because it was made by way of punishment and the provision of Article 311(2) of the Constitution would be attracted. The above contention was repelled and it was observed :

'BUT in the order of reversion dated February 2, 1965 no reason has been given and there is nothing in that order to show that there was a stigma attached, to the appellant. In the Inspection Note of December, 1964 the Additional Member (Vigilance) Railway Board has said that the performance of the appellant while officiating as Vigilance Inspector was not impressive and only one case was initiated by him as against 17 surprise checks conducted by him. It was also stated therein that the reputation of the appellant did not appear to be very good and it was thereforee necessary to send him back to his normal duties on administrative grounds. It is well established that a Government servant who is officiating in a post has no right to hold it for all time and the Government servant who is given an officiating post holds it on the implied term that he will have to be reverted if his work was found unsuitable. In a case of this description a reversion on the ground of unsuitability is an action in accordance with the terms on which the officiating post is held and not a reduction in rank by way of punishment to which Article 311 of the Constitution could be attracted. It was argued on behalf of the appellant that the order of reversion was made by way of punishment. But there are no express words in the order of reversion dated February 2, 1965 which would throw a stigma on the appellant. It is, of course, well-settled that temporary Government servants are also entitled to the protection of Article 311(2) of the Constitution in the same manner as permanent Government servants if the Government takes action against them meeting out one of the three punishments, namely, dismissal/removal or reduction in rank (See Parshotam Lal Dhingra v. Union of India, 1958 Sc 828.)(') But this protection is only available where the dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise.'

(28)THEIR Lordship further observed in the above-mentioned case :

'IN the present case, however, the order of reversion dated February 2, 1965 does not show on the face of it that any stigma was cast on the appellant and, though the Inspection Note of the Additional Member (Vigilance) Railway Board may constitute a motive for the reversion of the appellant, it is not possible to hold that the reversion of the appellant was by way of punishment and the provisions of Article 311 of the Constitution are consequently applicable to the case.'

(29) The observations reproduced above, in our opinion, have a direct bearing on the present case. As stated above, the annual confidential report in respect of the petitioner was made after the order for his reversion to his parent office. Had the report been made even before the impugned order of the petitioner's reversion to his parent office and had the said report constituted a motive for the reversion order, the above observations would plainly be attracted. The fact that the present case related to confidential report and Jashir Singh Badi's(5) case related to an Inspection Note would in principle make no difference.

(30) It has been argued on behalf of the petitioner that the reversion order should be taken along with the impugned confidential report and the same had stood in the way of the petitioner being appointed. Additional Private Secretary to Shri 1. K. Gujral. As such. the reversion order, according to the learned counsel, should he taken to have entailed evil consequences for the petitioner. In this connection we find that there is nothing to show that the fact of his reversion stood in the way of the petitioner being appointed Additional Private Secretary to Shri Gujral. Indeed, the case of the petitioner is that despite the reversion order he was considered for the post of Additional Private Secretary to Shri Gujral. It was the perusal of the annual confidential report which made Shri Gujral to change his view. There is nothing to show that the said confidential report was circulated. The fact that it was sent on being requisitioned by the Parliamentary Affairs Department would not render the order of reversion as vocative of Article 311(2) of the Constitution. We may in this context refer to the case of Bijoy Kumar Mukherjee v. State of Bihar and others. Civil Appeal No. 168 of 1967 ('), decided by their Lordships of the Supreme Court on March 4,1971. In that case the services of the appellant, who held a temporary post of Regional Transport Officer and Secretary, North Bihar Regional Transport Authority were terminated. The appellant challenged the above order. One of the contentions raised on his behalf was that after the termination of his services when the appellant applied for another job, the Government gave information to the new employer that the services of the appellant had been terminated because he had not been found suitable. It was urged that the giving of that information showed that the appellant's services had been terminated as a measure of punishment. The above contention was repelled in the following words:

(31) Another point mentioned by the learned counsel for the appellant was that, subsequently, the appellant applied in another department for appointment in a public sector industry and, on enquiry, the Government gave information to the new employer that the services of the appellant had been terminated because he had not been found suitable. It was urged that giving of this information indicated that the appellant's services had been dispensed with as a measure of punishment; and the order of termination of service was void for want of compliance with the requirements of Article 311(2) of the Constitution. The order, by which the services of the appellant were terminated, was an order of termination implicate and did not contain any reflection on the conduct or work of the appellant. The mere fact that, subsequently, the Government gave intonation on enquiry as to the background reasons which led the Government to terminate the services cannot convert that order into an order of dismissal so as to attract the provisions of Article 311(2) of the Constitution.'

(32) There is also no force in the contention advanced on behalf of the petitioner that the impugned confidential report is liable to be quashed as being vocative of principles of natural justice. A confidential report has to reflect the assessment made regarding the B qualities, performance and progress of a Government servant by the superior authority. It is essentially an estimate of the character and capacity of the official concerned by the reporting authority. Such an assessment and estimate have to be made in a dispassionate and objective manner. It is, however, not essential that the Government servant should be heard in respect of confidential report before the report is made. No rule making it imperative to hear a Government servant in respect of the proposed confidential report has been brought to our notice. It cannot in the circumstances bs said that the making of the impugned confidential report before giving an opportunity to the petitioner would be in violation of the principles of natural justice. We may in this context refer to the case of R. L-Butail v. Union of India and others. 1970 Slr 926 Shelat, J., speaking for the Court, while dealing with an electrical engineer in the Central Water and Power Commission observed :

'THESE rules abundantly show that a confidential report is intended to be a general assessment of work performed by a Government servant subordinate to the reporting authority, that such reports are maintained for the purpose of serving as data of comparative merit when question of promotion, confirmation etc, arise. They also show that such reports are not ordinarily to contain specific incidents upon which assessments are made except in cases where as a result of any specific incident a censure or a warning is issued and when such warning is by an order to be kept in the personal file of the Government servant. In such a case the officer making the order has to give a reasonable opportunity to the Government servant to present his case. The contention, thereforee, that the adverse remarks did not contain specific instances and were, thereforee, contrary to the rules, cannot be sustained. Equally unsustainable is the corollary that because of that omission the appellant could not make an adequate representation and that thereforee the confidential reports are vitiated. Further, the rules do not provide for nor require an opportunity to be heard before any adverse entry is made. The contention that an enquiry would be necessary before an adverse entry is made suffers from a misapprehension that such an entry amounts to the penalty of censure set out in rule 11 of the Central Civil Services (Classification. Control & Appeal) Rules.'

(33) Grievance has also been made by the petitioner that the details and specific instances have not been given in the confidential report. In this respect: we are of the view that the confidential report represented the overall assessment made by respondent No. 2 regarding the performance of the petitioner and the lack of details and specific instances would not in any way affect its validity. The contention that adverse remarks in a case like the present should contain specific instances was also repelled in R. L. Butail's case (supra). Column No. 23 of the impugned adverse report regarding the brief particulars of the reprimands would not go to show that it was necessary to give the instances in respect of matters for which adverse remarks were B made.

(34) It has been pointed out on behalf of the petitioner that it was essential to communicate to him the impugned adverse remarks made in his confidential report. So far as this aspect of the matter is concerned, we find that the confidential report was communicated to the petitioner. There was no doubt some delay in communicating that report to the petitioner, but that fact would not justify the quashing of the report.

(35) Argument has also been advanced on behalf of the petitioner that the refusal of the Government to entertain the representation against the adverse entries made by the Speaker, as mentioned in the communication from Ministry of defense in November, 1966, would vitiate the confidential report. Reference in this connection is made to the instructions issued by the Ministry of Home Affairs regarding representation against adverse remarks to an authority superior to the one making the adverse remarks. Tn this context we find that so Far as the Lok Sabha Secretariat is concerned the Speaker is the highest authority. The Ministry of defense in the circumstances informed the petitioner that no representation against the adverse remarks made by the Speaker could be entertained by the Govern- ment. The fact that there is no higher authority than the Speaker to whom representation can be made against the adverse remarks made by him would not, in our opinion, constitute a ground for the quashing of these remarks in a writ petition. The highest authority is presumed to act with a sense of responsibility and objectivity and in the absence of anything to show that the adverse remarks were actuated by malice or tainted with something as might show malai fide, the remarks made by such an authority cannot be quashed in writ proceedings. The concept of revision of adverse remarks in a confidential report on the representation of the official concerned by a superior authority necessarily presupposes thatthe remarks are made by an officer subordinate to the superior authority. Such a concept would manifestly be not attracted when the adverse remarks in the confidential report are made not by a subordinate officer but by the very highest in the heirarchy. The fact that no revision of the adverse remarks by a superior authority in such a case is possible would not invalidate the confidential report containing adverse remarks.

(36) Reference on behalf of the petitioner has been made to the case of Vaidyanath Prasad v. State of Bihar (Palna). 1969 Slr 648. In that case the petitioner was ignored from promotion on the basis .of adverse remarks in a confidential report which had not been communicated to him. The order of promotion of other officials in the circumstances was quashed. This case has no bearing on the present case because no order of promotion is sought to be quashed by the petitioner. Another case referred to on behalf of the petitioner is M. K. Mathalla v. N. N. Wanchoo and another. 379 1970 Dlt 10 The petitioner in that case challenged the legality of the Government's action in issuing a circular letter to all Secretaries and Special Secretaries to the Government of India and Chief Secretaries of the State Governments. In that letter remarks against the integrity of the petitioner were made and it was observed that it would be inappropriate for the petitioner to be associated with any organisations (Committees or Boards) of the Government R of India or Public Undertakings. A Division Bench of this Court held that as the letter involved civil consequences it could only be issued consistently with the rules of natural justice after the petitioner had been informed of the evidence against him and after he had been given an opportunity of being heard. There is no parallel. in our opinion, between the facts of the cited case and those of the present case. As mentioned earlier, no circular letter containing the adverse remarks against the petitioner has been issued by the respondents.

(37) In the result, the petition fails and is dismissed with costs.


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