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PETITIONER: HARYANA WAREHOUSING CORPORATION

       Vs.

RESPONDENT: RAM AVTAR & ANR.

DATE OF JUDGMENT:       17/01/1996

BENCH: KIRPAL B.N. (J) BENCH: KIRPAL B.N. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1996 AIR 1081            1996 SCC  (2)  98  JT 1996 (1)   702        1996 SCALE  (1)489

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T KIRPAL,J.      This is  an appeal  by special  leave  challenging  the order of  the Punjab  & Haryana High Court which had allowed the respondent’s  Writ Petition  challenging the decision of the appellant  to the  effect that  the respondent  was  not allowed to cross the efficiency bar.      The  respondent   had  joined  the  service  under  the appellant as  Mali-cum-Chowkidar in  1972. According  to the appellant, the  respondent was not discharging his duties to the best  of his ability and honesty. It was alleged that on 9.3.1987 the  respondent attempted to misappropriate one bag of wheat  from the  godown of  the appellant  but was caught red-handed.  The  respondent  confessed  to  his  guilt  and requested that  he may be excused. On an earlier occasion he had failed  to perform  a night duty and had also misbehaved with his  senior officer.  Vide his  letter dated 26.2.1987, the  respondent  had  admitted  having  committed  the  said mistakes and again requested that he may excused.      In respect  of the  year 1986-87,  an adverse entry was recorded in  the respondent’s  Confidential  Report  to  the effect that  his honesty and integrity was doubtful and that he had  not been  attending his  duties efficiently  and had been lazy,  undisciplined and  was not performing his duties satisfactorily. This  adverse report  was  conveyed  to  the respondent who  submitted his  objections on  5.12.1987, but the same were rejected.      The respondent  was in the pay-scale of Rs. 800-15-1010 EB-20-1150 and  his case  had to  be considered for crossing the efficiency  bar w.e.f. 1.2.1988. On the consideration of the respondent’s  entire record  of service,  including  the adverse entries,  decision was  taken not  to allow  him  to cross the  efficiency bar  for a  period of one year and the matter was  to be reviewed thereafter. In the following year i.e. 1987-1988,  the respondent  was assessed  as  ’average’

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the, taking his record into consideration, he was again held up at  the efficiency bar stage of Rs. 1010 for another year w.e.f. 1.2.1989 vide order dated 5.4.1989.      The aforesaid  two orders  relating to  the stoppage at the efficiency  bar and  for deleting the adverse remarks in the Confidential  Report for  1986-87 were challenged by the respondent in  High Court by filing a Writ Petition No. 1836 of 1990.  The same  was, however,  dismissed by  a  Division Bench of  Punjab &  Haryana High  Court vide its order dated 11.7.1990.      The case  of the  respondent was  again considered  for crossing of efficiency bar w.e.f. 1.2.1990. Vide order dated 6.8.1990, it was again decided to stop the respondent at the efficiency bar stage for a further period of one year w.e.f. 1.4.1990. This led to the filing of the second Writ Petition being Civil  Writ Petition  No. 5848  of 1991 from which the present appeal  arises, where  apart  from  the  prayer  for quashing the  aforesaid order  dated 6.8.1990,  it was again prayed by  the respondent  that the  adverse report  for the year 1986-87  should be  quashed. The  case of the appellant herein before  the High Court was that earlier Writ Petition for  substantially   the  same   relief  had   already  been dismissed. Further  more, the  case of  the  respondent  was stated  to   have  been  reviewed  in  accordance  with  the provisions of  Rule 4.8  of the  Punjab Civil  Service Rules Vol. 1,  Part-1 as applicable to the Government employees in Haryana and  also as  per the  instructions dated  29.1.1974 issued  by  the  Haryana  State  Government  as  amended  by instructions dated 24.11.1974.      By the impugned judgment dated 6.8.1991, the High Court came to  the  conclusion  that  the  principles  of  natural justice had  been violated  as  the  petitioner  (respondent herein) was not afforded an opportunity of being heard or to represent his  case before  the orders  stopping him  at the efficiency bar were issued. It was further observed that the right of  an employee  to have  his case  for  crossing  the efficiency bar  being considered  every year  could  not  be taken away  by any  executive order. While allowing the Writ Petition, the  appellant herein  was directed  "to afford an opportunity to  the respondent  to explain  the position and represent his  case regarding  the adverse  material on  the basis of  which he  was to  be  stopped  from  crossing  the efficiency bar".      It  was  contended  by  the  learned  counsel  for  the appellant that  the High  Court erred  in assuming  that the case of  the respondent  for crossing the efficiency bar was not considered  every year.  The positive averment which had been made  is that  his case  was considered  every year  in accordance with  the rules.  It is further contended that no opportunity of explaining is required to be given before the case of  an  employee  is  considered  with  regard  to  the crossing of  efficiency bar.  As far as the consideration of the adverse material is concerned, it was submitted that the adverse material  for the year 1986-87 had been forwarded to the respondent  who had  filed his  objections but  the same were rejected. Therefore, the principles of natural justice, even if they were applicable, had not been violated.      The main  contention which  has been urged on behalf of the respondent  was that  the principles  of natural justice were attracted and that no opportunity has been given before passing the  orders whereby  the respondent was communicated the decision  of the appellant not to allow him to cross the efficiency bar.      The High Court, in our opinion, was not right in coming to the  conclusion that  any opportunity  should  have  been

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granted to  the respondent  before an  adverse  decision  is taken with  regard to  non-crossing of  efficiency bar. Rule 4.8 of  Punjab State  Service Rules  provides that  where an efficiency bar  is prescribed  in a  time  scale,  the  next increment above  the bar  is not  to be given to an employee without the  specific sanction of the authority empowered to withhold increments,  provision  does  not  contemplate  any hearing being  granted to  an employee  before a decision is taken  with   regard  to  permitting  or  non-permitting  an employee to  cross the  efficiency bar.  Note-3 to  the said Rule, on  which reliance  was placed  by the learned counsel for the  respondent, merely  provides that  the cases of all officers held  up at  the efficiency  bar should be reviewed annually with  a view  to determine  whether the  quality of their work  has improved  and generally  whether the defects for which they were stopped at the bar have been remedied to an extent  sufficient to warrant the removing of the bar. In the instructions dated 29.1.1974 issued by the Haryana State Government, it is stated in para 4 as follows:      "It is  thus not  necessary before it is      decided to stop a Government employee at      an  efficiency  bar  to  inform  him  in      writing of  the grounds  on which  it is      proposed to  take such action. The order      stopping an  employee at  an  efficiency      bar should  however be  a speaking order      and it should give sufficient details so      that,  the   employee  can,   if  he  so      desires, make  a representation  against      the same.  It is  desirable  that  every      case should  be scrutinised carefully by      the Departments  and good  reasons given      in support of an order of stoppage." The validity  of the  aforesaid instructions  had  not  been challenged and,  in any  case, it  appears to  us  that  the stoppage of  an employee at the efficiency bar is not by way of punishment  and does not cause any stigma on an employee. When an  efficiency bar  is inserted in a time scale it only means that at that stage annual increment is not as of right but the bar will be removed, and an employee allowed further increments,  if   the  authority   concerned  comes  to  the conclusion that  such an  employee is  not  inefficient.  An opinion to  this effect  has necessarily  to be a subjective one though it must be based on relevant facts. It is further seen that  in the aforesaid instructions, it has been stated that an  order stopping  an employee  at an  efficiency  bar should be by speaking order and sufficient details should be given so  that an  employee can,  if he  so desires,  make a representation against  the same.  Besides providing  for  a post facto  hearing, a  concept which  is not unknown to the principles of  natural justice,  the speaking order which is passed can also be subjected to judicial review, as has been done in  the present  case. The  passing of  speaking order, however, does  not mean  that before the authority concerned comes to  the conclusion  of stopping  of a  person  at  the efficiency bar  stage, an  opportunity of  hearing  must  be given to  him. Consideration  of all  material before taking the decision is sufficient compliance of the requirement.      A decision  not to allow the crossing of efficiency bar is required  to be  taken on  the basis of the record of the employee concerned.  In the  instant case, there was adverse entry which  was recorded for the year 1986-87 in the annual Confidential Report  of the  respondent.  The  said  adverse entry had  been communicated to him and the objections filed thereto were  considered, but  were rejected. The High Court

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was, therefore,  not right  in coming to the conclusion that the principles  of natural  justice were not complied in the present case.      From the  facts as  narrated hereinabove,  it  is  also apparent that  the case  of  the  respondent  regarding  the crossing of  the efficiency bar had been reviewed every year in accordance  with the provisions of the aforesaid Rule 4.8 and, therefore,  the High  Court was not correct in assuming that this had not been done in the instant case. The earlier Writ  Petition  which  had  been  filed  by  the  respondent challenging the  adverse entry  for the year 1986-87 and the stoppage at  the efficiency  bar in  the first two years was dismissed. In  the judgment under appeal, the High Court has not even referred to the filing of the earlier Writ Petition 1836/1990 and its dismissal vide order dated 11.7.1990. This is unsatisfactory to say the least.      For the aforesaid reasons, the judgment under appeal is set aside.  This appeal is allowed. There shall be, however, no order as to costs.