# Thakurdeen v. State of U.P. & Ors

- **Citation:** (2025) 9 ILRA 984
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-23
- **Case number:** Writ - A No. 913 of 2022
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/thakurdeen-v-state-of-u-p-ors-54767
- **Pages:** 16

## Text

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984 INDIAN LAW REPORTS ALLAHABAD SERIES
appellants that there was an adoption deed
duly registered which is not available,
therefore, there is secondary evidence. The
case of the appellants in the very first
instance is that there was only a notarized
adoption deed, therefore, the proviso also
does not help the appellants.

9. The appeal lacks merits and it is
accordingly, dismissed.
----------
(2025) 9 ILRA 984
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 913 of 2022

Thakurdeen ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Adarsh Bhushan

Counsel for the Respondents:
Ms. Monika Arya, A.C..S.C.

Issue for Consideration
1. Legality of eleven orders awarding minor
penalty viz. Censure, Adverse entry in Annual
Confidential Report, Withholding of a day's
salary etc.
2. Significance of principle of Audi alteram
partem in the matter of imposing minor penalty.

Headnotes
(A) Service law - UP Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
3(i) and 7 - Minor penalty - Censure -
Allegation of misconduct - Audi alteram
partem - No opportunity of hearing was
provided - Effect :
Held : The impugned order is bad, first, on the
principle of violating the rule of audi alteram
partem, and, also being one made in breach of
Rule 3(i) of the Rules of 1999, governing
imposition of minor penalties on government
servants, serving the State Government of Uttar
Pradesh. The impugned order dated 12.10.2018
is, therefore, fit to be quashed with liberty to
the respondents to pass a fresh order, after
affording
opportunity
of
hearing
to
the
petitioner, if they so desire. [Para 26]

(B) Service law - Award of adverse entry
in Annual Confidential Report (ACR) -
Charge of unauthorized absence - No
opportunity of hearing was afforded -
Effect :
Held : The law would entitle the petitioner to
an opportunity of hearing before he is rated bad
or poor in the ACR for the relevant year - The
part of the adverse entry in the ACR, which by
the first order, withholds the petitioner's
integrity, and by the latter order, classes it as
suspect, is the result of a perverse conclusion -
The consequence would be that the impugned
orders 16.03.2019, 19.07.2019 and 31.07.2020,
insofar as these rate the employee as poor or
bad in his ACR, would have to be quashed with
liberty to the respondents to pass a fresh order,
after granting reasonable opportunity of hearing
to the petitioner. [Paras 32 and 36]

(C) Service law - Withholding of a day's
salary - Imposing of a penalty, which was
not
provided
under
the
law
-
Permissibility :
Held : It is trite law that a punishment, that can
be awarded, is only one, which the Rules
provide. The punishment, to be meted out to an
employee by the employers for a defined
misconduct, is not something for the employers'
fancy or innovation. Only that punishment can
be awarded, which the rules provide; not
anything different - A perusal of Rule 3 of the
Rules of 1999 would show, particularly the part
relating to minor penalties, that there is no
penalty envisaged there, which may authorize
the respondents to withhold one day's salary for
unauthorized absence of an employee - The
impugned
orders
dated
01.04.2019
and
13.06.2019,
imposing
the
punishment
of
withholding a day's salary, are manifestly illegal.
[Paras 37 and 39] (E-1)

Case Law Cited
9 All. Thakurdeen Vs. State of U.P. & Ors.
985
Vijay Singh v. State of U.P. and others, (2012) 5
SCC 242; R.L. Butail v. Union of India and
others, 1970 (2) SCC 876; State of U.P. and
others v. Madhav Prasad Sharma, (2011) 2 SCC
212 - referred to.

List of Acts
Uttar Pradesh Government Servant (Discipline
and Appeal) Rules, 1999; Uttar Pradesh
Government Servant's Conduct Rules, 1956

List of Keywords
Penalty; Mala fide; Personal grudge; Adverse
entry; Censure; Misconduct; Disciplinary action;
Absent from duty; Annual Confidential Report
(ACR); Withholding two increments; Withholding
of a day's salary on two occasions; Minor
penalty; Opportunity of hearing; Major penalty;
Bad
entry;
Unauthorized
absence;
Moral
turpitude; Mischief.

Case Arising From
Various orders, numbering a total of eleven,
passed by Chief Engineer, Dept. of Irrigation
against the petitioner.

Appearances for Parties
Advs. for the Petitioners : Adarsh Bhushan
Advs. for the Respondeents : Monika Arya, Addl.
Chief Standing Counsel

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner, a Senior Assistant
with the Department of Irrigation, Water
Works Division, Jhansi, has challenged a
multitude of orders passed against him,
numbering a total of eleven, by the Chief
Engineer (Nal Koop Madhya), Department
of Irrigation, Lucknow, U.P. and the
Superintending Engineer, Water Works
Division, Jhansi. Initially, when the petition
was instituted, ten orders passed by the two
respondents
above
named,
dated
12.10.2018,
16.03.2019,
01.04.2019,
12.06.2019,
13.06.2019,
19.07.2019,
31.07.2020, 05.09.2020, 01.10.2021 and
18.03.2021, were impugned. Later on, by
amendment, the petitioner added to the cart
of the orders impugned, the order dated
17.01.2023 passed by the Chief Engineer
(Nal
Koop
Madhya),
Department
of
Irrigation, Lucknow, U.P.

2. The petitioner was appointed as
a Junior Assistant on 20.02.2009 with the
Department of Irrigation, Water Works
Division, Jhansi. He was promoted to the
post of a Senior Assistant on 13.06.2016.
The petitioner asserts that he is working to
the satisfaction of the Department and its
various officers. The petitioner asserts that
the various orders passed against him are
the result of mala fides and personal grudge
harboured against him by Ram Pratap
Yadav, Superintending Engineer, Water
Works Division, Jhansi. It is further
pleaded by the petitioner that he has been
targeted by the Superintending Engineer
aforesaid to gratify his ego. It is for this
reason that Ram Pratap Yadav has been
impleaded eo nomine as respondent No.5.

3. The petitioner says that while
posted as a Senior Engineer with the Water
Works Division, Jhansi, he was not allotted
work
earmarked
for
that
position.
Accordingly, the petitioner requested the
Superintending Engineer aforesaid that he
may be allotted work meant for the post
that he occupies. The aforesaid request was
refused by the Superintending Engineer
vide orders dated 11.06.2018, 12.06.2018
and
13.06.2018.
The
Superintending
Engineer passed further orders dated
20.06.2018 and 11.10.2018, saying that the
petitioner had not signed the attendance
register on 09.10.2018 and 10.10.2018,
and, on that account, required the petitioner
by the orders last mentioned to submit his
explanation. On the day following the order
dated 11.10.2018, seeking the petitioner's
explanation, the Superintending Engineer
passed the first of the orders impugned
986 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 12.10.2018, awarding an adverse
entry to the petitioner as a measure of
penalty, without considering the petitioner's
reply.

4. It is next pleaded that the
Superintending
Engineer,
yet
again,
maliciously
passed
an
order
dated
15.11.2018, calling for the petitioner's
explanation regarding his absence from
duty
on
15.11.2018.
The
petitioner
submitted
his
explanation
dated
16.11.2018, in response whereto a memo
dated 03.12.2018 was issued by the
Superintending Engineer, addressed to the
petitioner, saying that the language, in
which the petitioner's reply was couched,
was objectionable, unparliamentary and
based on falsehood. It was remarked that
his
integrity
appeared
doubtful.
The
petitioner was warned to be careful in
future. This order is not under challenge.

5. The petitioner next says that the
Superintending Engineer bears personal
grudge against him and motivated by that,
in the most arbitrary fashion, he issued
show cause notices dated 12.02.2019,
06.03.2019
and
15.03.2019
to
the
petitioner, without any rhyme or reason,
proposing disciplinary action against him
on the ground of misconduct. On
16.03.2019, the Superintending Engineer
carried out an inspection, where the
petitioner
along
with
two
other
employees were absent from duty. The
Superintending Engineer passed an order
on
the
same
day
i.e.
16.03.2019,
withholding the petitioner's integrity
under Rules 2 and 3 of the Uttar Pradesh
Government Servant's Conduct Rules,
1956 (for short, 'the Rules of 1956') and
awarded an adverse entry to him for the
year
2018-19.
The
order
dated
16.03.2019 is under challenge.
6. The Superintending Engineer
further passed orders dated 30.03.2019 and
31.03.2019, saying that the petitioner was
absent from duty for 10 hours 55 minutes.
These orders are said to be highhanded and
the product of malice and personal grudge,
harboured by the Superintending Engineer
against the petitioner. The Superintending
Engineer then passed the third of the orders
impugned, that is to say, the order dated
01.04.2019, withholding one day's salary,
payable to the petitioner. He next passed
another order dated 15.05.2019, followed
by a show cause notice dated 01.06.2019,
asking the petitioner to show cause for his
misconduct on account of unlawful absence
from duty. The Superintending Engineer
then passed the fourth of the orders
impugned, that is to say, the order dated
12.06.2019, awarding adverse entry to the
petitioner for the year 2019-20.

7. The Superintending Engineer
passed another of the impugned orders
impugned,
being
an
order
dated
13.06.2019, withholding a day's salary
payable
to
the
petitioner.
The
Superintending
Engineer
next
passed
orders dated 10.07.2020 and 29.07.2020,
followed by a show cause notice dated
24.07.2020, calling upon the petitioner to
reply and show cause. These three orders
were again followed by the next of the
orders impugned, that is to say, the order
dated 19.07.2019, awarding an adverse
entry in the petitioner's character roll.

8. The petitioner preferred a
representation dated 01.08.2019 against the
bad entry for the year 2018-19, described
as a censure by the petitioner in paragraph
No.18 of the writ petition. A representation
against the bad entry was also filed to the
Chief Engineer, respondent No.2, who
passed
the
order
impugned
dated
9 All. Thakurdeen Vs. State of U.P. & Ors.
987
31.07.2020, affirming the adverse entry
awarded to the petitioner in his character
roll.

9. It is next pleaded by the
petitioner that the Superintending Engineer
by his order dated 05.09.2020, also
impugned, has awarded an adverse entry to
the petitioner in his character roll for the
year 2019-20, according to the petitioner,
without authority of law. The petitioner
says that the Superintending Engineer, by
an order dated 01.10.2021, awarded yet
another bad entry in the petitioner's
character roll, holding his integrity doubtful
for the year 2020-21 without authority of
law. The order dated 01.10.2021 is also
under challenge.

10. Aggrieved by the orders dated
31.07.2020 passed by the Chief Engineer
(Nal
Koop
Madhya),
Department
of
Irrigation, Lucknow, U.P., which are said
to be two in number of the same date, the
petitioner filed Writ-A No.10876 of 2020.
This Court, vide order dated dated
03.12.2020,
directed
the
petitioner's
revisions dated 21.08.2020 and 14.09.2020
against the orders dated 31.07.2020 to be
decided by the concerned Authorities in
accordance with law, within a period of
three months, from the date of production
of a certified copy of the order passed by
this Court in the writ petition under
reference. The Chief Engineer (Nal Koop
Madhya),
Department
of
Irrigation,
Lucknow, U.P., vide his memo dated
18.03.2021,
held
the
petitioner's
representation dated 21.08.2020 against the
order
dated
31.07.2020
not
worth
consideration, since the issue had already
been examined and decided. So far as the
representation
dated
14.09.2020
is
concerned, it was said that it related to the
adverse entry for the year 2019-20, which
is
being
examined
and
necessary
proceedings would be taken.

11. It appears that, apart from the
various adverse entries that were awarded
to the petitioner during the years 2018-19,
2019-20 and 2020-21 for the petitioner's
acts
of
misconduct
noticed
by
the
Superintending
Engineer,
disciplinary
proceedings were also instituted against
him on 31.07.2020. A charge-sheet was
issued to the petitioner, to which he
submitted a reply. An inquiry report was
submitted in the matter on 28.06.2022 and
on
its
basis,
the
Engineer-in-Chief,
Irrigation and Water Works Department,
Government of U.P., Lucknow, passed an
order dated 17.01.2023, punishing the
petitioner with the award of a censure and
withholding of two increments without
cumulative effect (temporarily).

12. The order dated 17.01.2023
was passed during the pendency of this writ
petition and, therefore, challenged by
means of an amendment application, which
this Court granted. Some pleadings were
incorporated,
including
grounds
and
challenged to the last of the impugned
orders, that is to say, the one dated
17.01.2023 passed by the Engineer-inChief.

13. It is in this manner that
aggrieved by as many as eleven impugned
orders, above described, this writ petition
has been instituted by the petitioner.

14. Notice of motion was issued on
21.03.2022 and a counter affidavit filed on
30.04.2022. After the last of the impugned
orders
was
passed
and
amendment
application granted on 08.08.2024, since
respondent Nos.2 to 5 had already filed a
counter
affidavit
to
the
amendment
988 INDIAN LAW REPORTS ALLAHABAD SERIES
application, and, the respondents had
answered the amended pleas subsequently
incorporated, the petition was admitted to
hearing on 08.08.2024. After hearing
learned Counsel for the parties, judgment
was reserved.

15. Heard Mr. Adarsh Bhushan,
learned Counsel for the petitioner and Ms.
Monika Arya, learned Additional Chief
Standing Counsel on behalf of the State.

16. Mr. Adarsh Bhushan, learned
Counsel for the petitioner, has advanced his
submissions on behalf of the petitioner at
great length and criticized the various
orders
impugned
on
their
individual
grounds, that are summarized hereinafter.

17. The impugned order dated
12.10.2018 awarding censure, according to
the learned Counsel for the petitioner, has
been passed by the respondents without
considering the petitioner's replies dated
11.06.2018, 13.06.2018, 15.06.2018 and
21.06.2018. It is, thus, an order passed in
violation of principles of natural justice.
Regarding the impugned order dated
16.03.2019, it is argued that the petitioner
was found absent on 15.11.2018 between
1.00 p.m. to 3.45 p.m., and, also, on
14.03.2019 between 11.15 a.m. to 1.15
p.m., but the allegation shows that
respondent Nos.4 and 5, without calling for
any explanation from the petitioner, have
passed the order impugned, withholding the
petitioner's integrity and giving him an
adverse entry for the year 2018-19. The
order is also criticized as one being in
violation of natural justice.

18. About the next order impugned
dated 01.04.2019, it is submitted by the
learned Counsel for the petitioner that the
petitioner is said to have absented from
duty for five hours on 31.03.2019 and on
this ground, punishment of stoppage of a
days and four hours' salary has been
awarded, which is not one of the
contemplated penalties under the Uttar
Pradesh Government Servant (Discipline
and Appeal) Rules,1999 (for short, 'the
Rules of 1999').

19. So far as the impugned order
dated 12.06.2019 is concerned, it is
submitted that it is about the petitioner's
unauthorized
absence
on
11.06.2019,
regarding which a punishment has been
awarded to him, without calling for his
explanation, showing the 5th respondent's
mala fides. This order is one withholding
the petitioner's integrity as doubtful and
giving him a bad entry for the year 201920. Assailing the impugned order dated
13.06.2019, the submission is that the
punishment awarded to the petitioner is
stoppage of a day's salary, which is not one
of the punishments prescribed under the
Rules of 1999. It is also urged that this
order, though one visiting the petitioner
with adverse civil consequences, has been
passed without opportunity of hearing.

20. The next order that falls in the
line of criticism by the learned Counsel for
the petitioner is the one dated 19.07.2019,
awarding a bad entry in the petitioner's
character roll and withholding his integrity
as doubtful for the year 2018-19. It is
submitted that this punishment has been
awarded
without
calling
for
any
explanation from the petitioner. The order
is, therefore, said to be one in violation of
the principles of natural justice.

21. Learned Counsel for the
petitioner next submits that the order
impugned dated 31.07.2020, rejecting the
petitioner's representation dated 01.08.2019
9 All. Thakurdeen Vs. State of U.P. & Ors.
989
by the Chief Engineer (Nal Koop Madhya),
Department of Irrigation, Lucknow, U.P.,
affirming the adverse entry awarded to the
petitioner in his character roll for the year
2018-19 by the Superintending Engineer, is
manifestly
illegal,
inasmuch
as
the
petitioner has not been supplied the
comments/ report of the Superintending
Engineer,
respondent
No.4,
with
opportunity to make his submissions
thereagainst,
before
rejecting
his
representation dated 01.08.2019. It is
submitted
that
the
report
of
the
Superintending Engineer, which is material
adverse
to
the
petitioner,
has
been
considered by the Chief Engineer behind
his back, while passing the impugned
order, which renders it vitiated by malice in
law. The impugned order dated 05.09.2020
has been assailed by the learned Counsel
for the petitioner on ground that in
awarding a bad entry in his Annual
Confidential Report (for short, 'ACR') for
the year 2019-20 and withholding his
integrity, the Superintending Engineer lost
sight of the fact that for the same
misconduct, he has already been awarded a
punishment vide order dated 13.06.2019,
stopping a day's salary, which is not a
punishment contemplated under the Rules
of 1999. Still, learned Counsel would
submit that giving him a bad entry and
withholding his integrity for the same
misconduct, regarding which he has been
punished with stoppage of a day's salary,
constitutes punishment twice over for the
same wrong or misconduct. He has also
urged that no opportunity has been given to
the petitioner regarding the impugned order
dated 18.03.2021.

22. It is urged that the petitioner's
revision has been rejected by the Chief
Engineer (Nal Koop Madhya) by almost a
laconic order dated 18.03.2021 in a cursory
manner without application of mind to the
petitioner's grievance raised in the revision/
representation. It is next urged that the
impugned order dated 01.10.2021 is bad in
law because in awarding an adverse entry
in the petitioner's character roll for the year
2020-21, his explanation has not at all been
called, which shows the respondents' mala
fides.

23. It is in the last submitted by the
learned Counsel for the petitioner that the
impugned order dated 17.01.2023 has been
passed, awarding a censure to the petitioner
and
withholding
two
increments
in
consequence of proceedings of inquiry held
in breach of Rule 7 of the Rules of 1999.
Elaborating his submissions on this point, it
is argued by the learned Counsel for the
petitioner that no date, time and place has
been fixed by the Inquiry Officer for
holding the inquiry, vitiating it. It is also
urged that no documents have been
supplied to the petitioner in order to enable
him to answer the charge(s), as required by
the Rules of 1999. Learned Counsel
submits that the punishment awarded is
absolutely illegal, being one in breach of
the salutary principles, governing the
holding of such inquiries and Rule 7 of the
Rules of 1999. Learned Counsel for the
petitioner has placed heavy reliance upon
Vijay Singh v. State of U.P. and others,
(2012) 5 SCC 242 in aid of his submissions
on multiple counts, challenging the various
orders
impugned,
and
those
would
presently be considered.

24. Ms. Monika Arya, learned
Additional Chief Standing Counsel, has
supported the orders impugned and submits
that the petition is multifarious because
different orders impugned, giving rise to
distinct causes of action, have been
challenged in one writ petition, which is
990 INDIAN LAW REPORTS ALLAHABAD SERIES
impermissible. She has further argued that
the orders impugned, awarding bad entries
in the ACRs relating to the petitioner, are
not really orders of punishment, but ones of
annual appraisal and assessment of the
employee's performance. These do not
require opportunity to be given, like that in
case of an order awarding punishment,
major or minor. She has next submitted that
so far as withholding of the petitioner's
salary for a day is concerned, that is an
order passed in the exercise of the
employers' jurisdiction to deny wages to an
employee, who does earn it by not working
for the day. Ms. Arya has particularly
defended the order dated 17.01.2023 on
ground that the order impugned awards a
minor penalty, and, therefore, this is not a
case where Rule 7 of the Rules of 1999
would require a date, time and place of the
inquiry to be fixed and notified by the
Inquiry Officer to the parties. She submits
that a minor penalty can be awarded on the
basis of a simple show cause notice.

25.
The
first
of
the
orders
impugned,
to
wit,
the
one
dated
12.10.2018, is not really an order, writing a
bad entry as a matter of the employee's
performance in his ACR. It is an order
referring to a misconduct about the
petitioner's
rude
behaviour
with
his
superior and then punishing him with a
censure to the effect that the petitioner's
conduct
is
being
censured
for
his
indiscipline and rude behaviour. A censure
entry, as distinct from a bad entry in the
ACR, is one of the minor penalties
contemplated under Rule 3(i) of the Rules
of 1999. The procedure for imposing a
minor penalty is envisaged under Rule 10
of the Rules of 1999. Rule 10 reads:

 10. Procedure for imposing
minor
penalties-
(1)
Where
the
Disciplinary Authority is satisfied that good
and sufficient reasons exist for adopting
such a course, it may, subject to the
provisions of sub-rule (2) impose one or
more of the minor penalties mentioned in
Rule 3.

 (2) The Government Servant shall
be informed of the substance of the
imputations against him and called upon to
submit his explanation within a reasonable
time. The Disciplinary Authority shall,
after considering the said explanation, if
any, and the relevant records, pass such
order as he considers proper and where a
penalty is imposed, reason thereof shall be
given.

 (3)
The
order
shall
be
communicated
to
the
concerned
Government Servant.

26. The imposition of a minor
penalty, therefore, requires the Disciplinary
Authority to communicate the substance of
the imputations against the employee
granting him a reasonable time to submit
his explanation. After the explanation is
received or the opportunity forfeited, the
Disciplinary Authority, after considering
the explanation, if any, and the records,
may pass orders that the said Authority
considers
appropriate.
It
is
also
a
requirement of Rule 10 that reasons for
imposing a minor penalty be given. It is,
thus, evident that the imposition of a minor
penalty provided under Rule 3(i) to (v) too
requires adherence to the principles of
natural justice, in particular, the furnishing
of opportunity and giving of reasons. It is
quite another matter that the more elaborate
procedure for holding a departmental
inquiry under Rule 7, where a major
penalty under Rule 3(i) to (iv), falling
under the part, governing 'Major Penalties',
9 All. Thakurdeen Vs. State of U.P. & Ors.
991
is not required to be followed in cases of
imposition of a minor penalty. Ex facie, the
impugned order dated 12.10.2018 has been
passed without any opportunity of hearing
being afforded to the petitioner and it is
definitely an order, punishing the petitioner
for a misconduct imputed to him. The
impugned order is, therefore, bad, first, on
the principle of violating the rule of audi
alteram partem, and, also being one made
in breach of Rule 3(i) of the Rules of 1999,
governing imposition of minor penalties on
government servants, serving the State
Government
of
Uttar
Pradesh.
The
impugned order dated 12.10.2018 is,
therefore, fit to be quashed with liberty to
the respondents to pass a fresh order, after
affording opportunity of hearing to the
petitioner, if they so desire.

27. So far as the orders dated
16.03.2019, 19.07.2019 and 31.07.2020 are
concerned, we propose to consider the
validity of of all the three orders together.
All the three orders are grouped together to
consider their validity because the subject
matter in all the three orders are bad entries
or adverse entries awarded to the petitioner
for the year 2018-19. The order dated
31.07.2020 is an affirmation of the two
orders
by
the
Reviewing
Authority,
awarding adverse entries/ bad entries in the
ACR upon the petitioner, assailing the
award of those entries by the Reporting
Authority. A perusal of the order dated
16.03.2019 indicates that the order directs
the petitioner's integrity to be recorded as
suspect/ withheld on ground of his
misconduct, for speaking falsehood and
unbecoming behaviour. It appears on a
closer perusal of the order that the basis to
withhold the petitioner's integrity and class
it as suspect, is the petitioner's act of
absenting from duty on 15.11.2018 without
information to the petitioner from 1.00 p.m.
to 3.45 p.m., and, again on 14.03.2019,
from 11.45 a.m. to 1.15 p.m.

28. The other limb of the basis to
withhold the petitioner's integrity is that
when called upon to explain his absence,
the petitioner employed objectionable and
unparlimentary language, founding his
explanation on false and concocted facts. It
is also noticed that baseless allegations
were said to be made by the petitioner
against the Superintending Engineer, the
Authority who awarded the adverse entry
dated 16.03.2019. The latter order dated
19.07.2019 shows that for the same period,
that is to say, 2018-19, the petitioner was
awarded an entry in his ACR, classifying
him as bad or poor and his integrity
doubtful. The precise words employed in
the order dated 19.07.2019 are Shreni
Kharab and Satyanishtha Sandigdh. A
reading of the order dated 19.07.2019
together with the impugned order dated
16.03.2019 would show that doing an
appraisal of the petitioner's performance,
the Superintending Engineer, for acts of
absenteeism and impertinent behaviour on
the
petitioner's
part
in
employing
unparliamentary
language
against
his
superiors when asked to explain, withheld
the petitioner's integrity for the year 201819. By the latter order dated 19.07.2019,
the respondents did a final appraisal of the
petitioner's performance and finally rated
his category as poor or bad in the ACR for
the year 2018-19 and integrity suspect. The
order passed on 19.07.2019 is also founded
on the same material, may be incorporating
some later events, where the petitioner has
been found at fault for not doing duties
assigned to him and his rude and
impertinent behaviour. Both these orders or
the last of them, finally awarding a bad
entry to the petitioner in his ACR for the
year 2018-19, has been affirmed by the
992 INDIAN LAW REPORTS ALLAHABAD SERIES
Reviewing
Authority
vide
the
order
impugned dated 31.07.2020.

29. So far as the petitioner's
objection that before awarding these
entries, the petitioner has not been called to
give his explanation, which shows the
respondents' mala fides, is concerned, it
requires some profound consideration.

30. An entry in the employee's
confidential roll is about his performance
and rating done by the employers in the
course of his service during the relevant
period of time. All that is required is that if
the entry is adverse to the employee, it
should be communicated to him, after it has
been awarded. The essential purpose of
writing an ACR, amongst others, is to
enable
the
employee
to
know
his
shortcomings and improve upon them. Still,
since these adverse entries in the ACR can
have some impact on the employees'
avenues of promotion etc., the employee
has opportunity to represent against such
entries to the Reviewing Authority, who
may pass such orders, as he thinks fit, after
appraising the record and the comments of
the
Authority,
awarding
the
entry.
Generally, adverse entries given by the
employers in the ACR are not much open
to intrusion in a secondary review done by
Courts, except when the entry given is
patently illegal or perverse. It is not for the
Court to step into the shoes of the
employers, who are the primary decision
maker in the matter of grading and
appraising
the
performance
of
their
employees and revise those entries

31. Now, the question is if the
employee is entitled to opportunity before
an entry is awarded in his ACR, that rates
him poor or is otherwise adverse to him. As
a rule that is not the requirement for an
adverse entry in the ACR, inasmuch as it is
not a punishment awarded to the employee.
But, there is an exception. ACRs are
generally
non-speaking
and
cryptic
expressions of opinion about the employee,
rating him as poor, good, very good,
outstanding etc., or certifying his integrity
or holding it suspect. No detailed reasons
with reference to specific incidents, acts or
omissions are mentioned in the ACR. If for
some reason, an adverse assessment in the
ACR is backed by specific instances of
action
or
inaction
attributed
to
an
employee, opportunity of hearing him may
become necessary. In cases, such as these,
the imputations that then go in the ACR,
partake of the colour of punishment or
penalty, that is censured in the ACR. In
such cases, as already remarked, the
employee has the right to be heard, may be
not through a very elaborate procedure. In
this context, we may refer to with profit to
the decision of the Constitution Bench of
the Supreme Court in R.L. Butail v. Union
of India and others, 1970 (2) SCC 876. The
decision was rendered in the context of the
Central
Civil
Services
(Classification,
Control and Appeal) Rules, 1965, and the
award of the adverse entry in the ACR
under Rule 11 of those Rules. In R.L.
Butail (supra), it has been held:

 12. On March 3, 1961, an office
order was issued by the Commission which
superseded
all
instructions
issued
previously on the subject of maintenance of
confidential reports. This order applied to
all officers of the Commission, gazetted
and
non-gazetted,
and
also
to
its
subordinate offices. The order once again
recites the importance of preparing and
maintaining confidential reports. Rule 4
requires that such a report should contain
an appreciation of the general qualities of
the Government servant such as integrity,
9 All. Thakurdeen Vs. State of U.P. & Ors.
993
intelligence,
keenness,
industry,
tact,
attitude
towards
his
superiors
and
subordinates,
relations
with
fellow
employees, work-attitudes, etc. and also a
summing-up in general terms of the
government
servant's
good
and
bad
qualities and a categorisation or rating such
as
Outstanding,
Very
good,
Good, Fair, or Poor. Such a
categorisation is, however, not necessary in
the case of officers of or above the rank of
Superintending
Engineer.
Rule
10
expressly provides that the reporting
authority is not required to give any
specific instances of his good or bad work
or conduct upon which the opinion is
based. Rule 28 provides that while
communicating an adverse remark to the
concerned
government
servant
the
substance of such report and not its actual
wording need be conveyed. That is because
the primary object of such communication
is, firstly, that the concerned government
servant may remedy his defects, and
secondly, that it should serve as a timely
warning to the government servant of such
defects which might otherwise deprive him
of chances of promotion in future. Rule 32
entitles a government servant to make a
representation. Such representation would
be examined by an officer superior in rank
to the reviewing officer. That officer would
either reject the representation or alter the
remark where he thinks necessary and in
the event of his finding that the remark is
actuated by malice or is incorrect or
unfounded, he would expunge it. Rule 34
provides that adverse entries relating to any
specific incident will not ordinarily find
place in the confidential record. But, where
a warning is issued as a result of any
specific incident, a copy thereof will
ordinarily be kept in the personal file of the
government servant concerned. In that case
he has to make a specific order to that
effect. But before making such an order he
must give to the concerned government
servant a reasonable opportunity to present
his case relating to the incident. In case
departmental proceedings are instituted as a
result of such an incident and a formal
punishment, such as censure, is awarded, a
copy of the order of such punishment
should
invariably
be
placed
in
the
confidential record of the government
servant.

 13. 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.

 (emphasis by Court)

32.
Here,
a
perusal
of
the
impugned orders dated 16.03.2019 and
19.07.2019 shows that the Superintending
994 INDIAN LAW REPORTS ALLAHABAD SERIES
Engineer has relied upon specific instances
of unauthorized absence, exhibition of rude
behaviour, vis-a-vis superiors etc., as the
basis for awarding the impugned ACR for
the year 2018-19. It is on account of these
specific instances that the law would entitle
the petitioner to an opportunity of hearing
before he is rated bad or poor in the ACR
for the relevant year. This is the principle
laid down by the Constitution Bench in
R.L. Butail.

33. There is another feature and a
distinct part to the orders impugned dated
16.03.2019 and 19.07.2019, awarding an
adverse entry to the petitioner for the year
2018-19.

34. What we notice is that, apart
from rating the employee as poor or bad,
his integrity has been held suspect vide
order
dated
19.07.2019,
after
being
withheld by the order dated 16.03.2019.

35. In order that an employee's
integrity may be classed as suspect, there
must be some act of immorality, like
financial
dishonesty
or
other
moral
turpitude,
affecting
the
employee's
character before his integrity can be classed
as suspect. Here, the conduct of the
employee, appraised during the financial
year 2018-19, shows a case of unauthorized
absence from duty for two days, for some
hours of the duty time, and then,
employment
of
rude
or
impertinent
language by the employee in his written
and oral address to the competent officer of
the employers. The other is about not
performing his assigned duties when asked
to do those by the Superintending Engineer.
The petitioner's conduct again, in using
unparliamentary language and threatening
the Superintending Engineer, may be
instances of insubordination, but certainly
not anything to do with integrity. If every
word of the imputations against the
petitioner, that have been the subject matter
of appraisal in passing the orders impugned
dated 16.03.2019 and 13.06.2016, is
regarded as truthful, a case of withholding
integrity or regarding it as suspect, is not
made out by any standard. The part of the
adverse entry in the ACR, which by the
first order, withholds the petitioner's
integrity, and by the latter order, classes it
as suspect, is the result of a perverse
conclusion. Reference in this regard may be
made to Vijay Singh (supra) relied upon by
the learned Counsel for the petitioner,
where it was held:

 17. In such a fact-situation, the
subordinate officer has to face the adverse
consequences without any fault on his part.
The grievance raised by the appellant that
recording the past criminal history of an
accused is relevant in non-bailable offences
only as it may be a relevant factor to be
considered at the time of grant of bail, and
he did not record the same as it was a
bailable offence, has not been considered
by
any
of
the
authorities
at
all.
Undoubtedly, the statutory authorities are
under the legal obligation to decide the
appeal and revision dealing with the
grounds taken in the appeal/revision, etc.
otherwise it would be a case of nonapplication of mind.

 18. The present case shows
dealing with the most serious issues
without any seriousness and sincerity.
Integrity
means
soundness
of
moral
principle or character, fidelity, honesty,
free from every biasing or corrupting
influence or motive and a character of
uncorrupted virtue. It is synonymous with
probity,
purity,
uprightness,
rectitude,
sinlessness and sincerity. The charge of
9 All. Thakurdeen Vs. State of U.P. & Ors.
995
negligence, inadvertence or unintentional
acts would not culminate into the case of
doubtful integrity.

 (emphasis by Court)

36.
We
are,
therefore,
of
considered opinion that the impugned
orders dated 16.03.2019, 19.07.2019 and
31.07.2020,
insofar
as
these
direct
withholding of integrity and classifying it
as suspect, are bad in law. The consequence
would be that the impugned orders
16.03.2019, 19.07.2019 and 31.07.2020,
insofar as these rate the employee as poor
or bad in his ACR, would have to be
quashed with liberty to the respondents to
pass a fresh order, after granting reasonable
opportunity of hearing to the petitioner in
regard to the specific incidents, on the foot
of which he has been rated adversely. The
other part of these impugned orders, where
the
petitioner's
integrity
was
earlier
withheld and then opined to be suspect,
must be quashed altogether.

37. We next turn to the impugned
orders dated 01.04.2019 and 13.06.2016,
the validity of both of which can be tested
together, as the same point is involved.
These orders direct the withholding of a
day's salary on two occasions, covered by
the two orders impugned. It is trite law that
a punishment, that can be awarded, is only
one, which the Rules provide. The
punishment, to be meted out to an
employee by the employers for a defined
misconduct, is not something for the
employers' fancy or innovation. Only that
punishment can be awarded, which the
rules provide; not anything different. In
State of U.P. and others v. Madhav
Prasad Sharma, (2011) 2 SCC 212, which
was a case arising under the Uttar Pradesh
Subordinate Police Officers/ Employees
(Punishment and Appeal) Rules, 1991, the
Supreme Court held:

 16. We are not concerned about
other rules.