Whether adverse remark passed against Judicial officer should be expunged?

 At the same time, condemnation of the Presiding Officer and going to the extent of damning him, albeit, in an oblique manner, may not be justified in the facts of this case. No doubt, it was expected of the Presiding Judge to play more active and positive role. However, if error is committed on that front, it is also not appropriate to arrive at other extreme conclusions against that Presiding Officer in the absence of any cogent evidence against him. We were also informed that the said Presiding Officer is at the verge of retirement and is going to retire within a couple of months, after rendering long service of more than 30 years. This Court has time and again stated that the High Court should not lightly pass strictures against the judges in the subordinate judiciary {See - Awani Kumar Upadhyay v. High Court of Judicature of Allahabad and Ors. MANU/SC/0119/2013 : (2013) 12 SCC 392 and Amar Pal Singh v. State of Uttar Pradesh and Anr. MANU/SC/0495/2012 : (2012) 6 SCC 491}.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 492 of 2014, 

Decided On: 30.10.2017

Dinubhai Boghabhai Solanki Vs. State of Gujarat and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: (2018) 11 SCC 129

Print Page

When trial court should not pass adverse remark against investigating officer?

 No doubt, the criminal Courts have full powers and authority to pass adverse remarks against the investigating officer and witnesses and also has power for issuing directions to the concerned authority to take necessary actions in accordance with the law. But while doing so, they are required to follow the established procedure. This established procedure is that the Presiding Judge should pass first the judgment or order, as the case may be, pointing out the material lapses and lacunas committed and left by the investigating officer in the course of investigation, on account of which the case has ended in acquittal. Otherwise, the case would have been resulted into the conviction of the accused. As stated earlier, the learned trial Judge has passed the directions and the adverse remarks vide the impugned order at a time when the judgment in the case is yet to be passed. Thus, the learned trial Judge has passed the impugned order in gross violation of the established procedure, which deserves to be disapproved by this Court, and the procedure adopted by the learned Judge is liable to be quashed.

Equivalent Citation: 2016CriLJ1740

IN THE HIGH COURT OF MADHYA PRADESH

M. Cri. C. No. 20084 of 2014

Decided On: 26.08.2015

Kamal David and Ors. Vs. State of Madhya Pradesh

Hon'ble Judges/Coram:Rajendra Mahajan, J.

Print Page

When Adverse Remark against judge in Judgment is not expunged?

The appellant in this appeal is a retired Additional Sessions Judge of the State of Orissa. In this appeal by Special Leave, he seeks to challenge the judgment and order dated 20.10.2002, rendered by a learned Judge of the Orissa High Court in suo-moto Criminal Revision No. 367 of 1997, arising out of Session Trial Case No. 187/55 of 1995, to the extent the learned Judge has made certain observations against the appellant who had decided that session case. These remarks were made on account of the appellant not framing the charge under Section 302 of the Indian Penal Code (IPC) against the accused in that case, when the material on record warranted framing of that charge.. That apart, all that the impugned order in Revision has done is to suggest to the High Court Administration, that if the appellant is not yet confirmed, his probation should wait and if he has already been confirmed, his performance be verified before giving him the higher scale. Since the appellant, was already confirmed in service, all that the High Court has done on the administrative side is to check his record, and thereafter to deny him the selection grade. The above observation in the impugned order in Revision is a suggestion to the Administration of the High Court. It is not a case of making any adverse or disparaging remarks as in the three cases cited on behalf of the appellant. In fact, in the first judgment cited by the appellant, in the case of V.K. Jain (supra), the observation of this Court in clause No. I of para 58 is very significant, namely that the erosion of the credibility of the judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter of right. The record of the concerned Judge has to seen, and that having been done in the present case (in pursuance to the observations of the learned Single Judge), and having noted the serious deficiencies, the High Court has denied the selection grade to the appellant. Interestingly enough, in this Appeal by Special leave, the appellant is not directly seeking to challenge the denial of selection grade. He is challenging the observations in the impugned order which led to denial of the selection grade. In our view, the impugned order contained nothing but a correctional suggestion to the High Court Administration which the Administration has accepted.

25. It is only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. It is contended on behalf of the appellant that in any case the suo-moto Revision has not led to the reopening of the case under Section 401 of the Code of Criminal Procedure. In this connection, we must note that by the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years. Therefore, the Revisional Court did not deem it fit to reopen it. The appellant cannot take advantage of this part of the judgment of the Revisional Court, to challenge the observations of the learned Revisional Judge making a suggestion to the High Court to scrutinize appellant's record for the dereliction of duty on his part. The appellant was responsible for an unjustified dilution of the charge and, therefore, the thorough checking of his service record was necessary which is, what is directed in the impugned order.

Supreme Court of India

R.S. Mishra vs State Of Orissa & Ors on 1 February, 2011

Bench: J.M. Panchal, H.L. Gokhale

REPORTABLE

CRIMINAL APPEAL NO. 232 OF 2005

Citation;AIR2011SC1103, 2011CriLJ1654,(2011)2SCC689, 

Print Page

Whether previous remark of dishonesty is washed off by subsequent promotion?

The Honble Apex Court in the case of Badrinath Vs. Government of Tamil Nadu and others, (2000) 8 SCC 395 had an occasion to deal with the washing off theory. It was held that if adverse remarks relate to a period, prior to an earlier promotion, they indeed can be treated as having lost their sting and being rendered weak subject to the rider that if they relate to dishonesty or lack of integrity, they can be considered to have not lost their strength fully so as to be ignored altogether (emphasise mine).

In the context of enunciation by the Honble Apex Court, the fact of the instant case indicate that the petitioner's misconduct for tampering with a certificate issued by the respondent Bank's Jaipur Office in a departmental enquiry culminated in punishment and placing him in the lowest rank of the pay scale. The misconduct pertained to the dishonesty of the petitioner and would not cease to be relevant for assessment of his suitability for promotion from Class-IV to the post of Assistant Care Taker in the Class-III cadre of the Bank even subsequent to his promotion within Class-IV service. 

Rajasthan High Court at Jaipur Bench

Patel Ram Meena vs . Reserve Bank Of India Through ... on 27 July, 2015

S.B. Civil Writ Petition No. 1784/2015

HONBLE MR. JUSTICE ALOK SHARMA

Print Page

Whether annual confidential report is vitiated on the ground that adverse remarks did not contain specific instances?

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 questions 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, therefore, that the adverse remarks did not contain specific instances and were, therefore, 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 therefore, the confidential reports are vitiated.

Allahabad High Court

Desh Bhushan Jain vs State Of U.P. And Anr. on 6 July, 2007

Equivalent citations: 2007 (4) AWC 3209

Bench: R Agrawal, V Nath

Print Page

Whether it is necessary to hear Judicial officer prior to passing stricture against him?

We hold that the adverse remarks made against the appellant were neither justified nor called for. The perusal of the impugned judgment would show that the word "severe strictures" is mentioned whereas no logical reasoning has been given as to what is the fault of the appellant and the High Court has not adduced any finding as to why it has disagreed with the reasoning given by the appellant particularly when the appellant asserted that neither he has rendered any decision as trial Court Judge nor as the first Appellate Court Judge except deciding 12 additional issues on the directions issued by his predecessor. The strictures passed against the appellant are neither warranted nor is in conformity with the settled law as propounded by this Court.

It is settled legal position that no adverse remark can be made against any judicial officer without giving an opportunity to explain the conduct.

SUPREME COURT OF INDIA

Awani Kumar Upadhyay Vs. The Hon'ble High Court of Judicature at Allahabad and Ors.

[Civil Appeal No. 1340-1341 of 2013 arising out of S.L.P. (C) Nos. 18859-18860 of 2012]

P. Sathasivam, J.

Citation;(2013) 12 SCC 392

Dated;FEBRUARY 13, 2013                                                 .

Print Page

Whether Judge can be denied promotion due to adverse remarks recorded by District Judge?

It needs no emphasis that a judicial officer has to be disciplined and must behave as a responsible officer. Indiscipline in the judiciary cannot be tolerated. However, as noted above, the remarks of the District Judge that the appellant was, `irresponsible and indisciplined officer who has no regard for superiors or truth' have been expunged/substituted by the Inspecting Judge. The effect of such expunction/substitution is that the appellant cannot be considered an irresponsible or indisciplined officer on the basis of remarks recorded by the District Judge. The gravity of what has been recorded in column (3) is, thus, lost. Moreover, the root of the problem between the two senior judicial officers appears to be clash of ego. In the words of Samuel Johnson, every man is of importance to himself. The observation noted in column (3), `He never came to me in the chamber or at the residence to discuss any problem relating to Nazarat' indicates that the District Judge was not happy with the appellant for having not given due importance to him.

In our view, the matter for the appellant's promotion in the substantive vacancy in UPHJS which was considered by the selection committee on May 18, 1998 and by the full court on July 11, 1998 needs to be reconsidered in light of the discussion made above and in accordance with law. Since the appellant is likely to superannuate shortly, we expect the High Court on its administrative side to complete this exercise as early as possible and preferably within one month from the date of the communication of this order.

Supreme Court of India

Pratap Singh vs State Of U.P.& Anr. on 15 November, 2011

Author: R Lodha
Bench: R.M. Lodha, Jagdish Singh Khehar

Print Page

Whether it is permissible to entertain representation against annual confidential report after lapse of several years?

In the Government's Instructions dated 28.8.1962, it was
emphasized that in the absence of specified procedure for entertaining the
representations against ACR, the authorities had noted that whenever any
officer in a key position is transferred, certain government servants think that
it is a good opportunity to re-open finally settled cases connected with their
conditions of service or disciplinary matters, which may be even several
years old. There was also a tendency of sending advance copies of
representations to all the higher authorities which was leading to unnecessary
work at all levels. At the same time, it was also necessary to ensure a fair

chance of representation to the government employee. Going by these
considerations the detailed procedure was laid down in those Instructions
dated 28.8.1962.
 It reiterated the tendency to entertain
belated representations qua seniority or seeking ante-dated promotion or
expunction of adverse remarks in ACR or appeals against punishments after
lapse of number of years that too whenever any officer in key position is
transferred. It condemned and deprecated this practice in strong words. It also
highlighted that entertainment of such representations after long lapse of time is
not only in contravention of Rules and settled legal position on the subject but it
also creates unnecessary complications/ litigations and unsettles the settled inter
se relativities. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 392 OF 2008

VINOD KUMAR Vs STATE OF HARYANA & ORS.

Citation; AIR 2014 SC 33

Print Page

Whether theory of washed off adverse remark is applicable to compulsory retirement?

“In view of the above, the law can be summarised to state that

in case there is a conflict between two or more judgments of

this Court, the judgment of the larger Bench is to be followed.

More so, the washed off theory does not have universal

application. It may have relevance while considering the case of

government servant for further promotion but not in a case

where the employee is being assessed by the Reviewing

Authority to determine whether he is fit to be retained in service

or requires to be given compulsory retirement, as the

Committee is to assess his suitability taking into consideration

his "entire service record".

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8245/2013

(Arising out of Special Leave Petition (Civil) No. 17760 OF 2013)

Rajasthan State Road Transport Corp. & Ors.

V

Babu Lal Jangir

Print Page

Whether it is necessary to issue show cause notice to employee prior to passing adverse remarks against him in ACR?

There is no practice or rule of issuing show cause notice to an employee before passing adverse remarks against him/her.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO.663 OF 1994.

Dr. Mrs. Pratibha W/o. Prabhakar Gulhane,

....PETITIONER.

// VERSUS //

1. State of Maharashtra,

S.A.BOBDE AND

M.N. GILANI, JJ.

DATED : OCTOBER 21, 2011.

Print Page