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Judgment
D. K. Seth, J.—An adverse entry was entered in the service record of the petitioner by an office order, dated 15121992 (Annexure12 to the petition) which has been challenged by the petitioner, by means of this writ petition. Before making the said adverse entry, the petitioner was asked to show cause by letter dated 2131992 (Annexure2 to the petition). It is alleged that the question related to the execution of the agreement with M/s G.D. Shukla Construction Company, entered into on 18th October, 1986 by the Chief Engineer, who was empowered to execute such an agreement by resolution dated 2341979. The proposal for the layout plan relating to the schedule of tender for 128 LIG House was approved by resolution No. 493 adopted in the meeting of Allahabad Development Authority, Allahabad ( here in after referred to as ADA), held on 3111987. But the contractor having refused to execute the work at the old rate on 5th March, 1987 the Executive Engineer by Letter dated 731987 decided to discuss the matter with the Chief Engineer. By letter dt. 2341987 the Secretary, ADA asked to start the work after development work is completed, which is Annexure9 to the petition. On the basis of said letter, the petitioner was inducted into the site on 2841987.
On this background Sri A.K. Yog, learned counsel for the petitioner contends that in no manner the petitioner could be held responsible for the alleged misconduct as indicated in the showcause notice dated 2131992, Annexure2 to the petition. Therefore, the order dated 15121992 can not be sustained. Secondly, the contends that it was the Chief Engineer and the Executive Engineer who were to deal with the Contractor with regard to forfeiture of security deposits, etc. The petitioner did not have any such jurisdiction.
The learned Standing Counsel on the other hand contends that the matter being an administrative decision based on the material, which is clearly finding of fact, this Court should not interfere with the same. The learned counsel for ADA on the other hand contends that there is no bar in inflicting enhanced punishment than proposed, if the material produced before the authority warrants the same. According to him the petitioner having not challenged the validity of the proceeding, he cannot reopen the same.
The contention of the learned Counsel for ADA that the petitioner did not challenge the proceeding on account of any infirmity is misconceived. Since Sri Yog had made it clear that despite repeated representations inspection of the relevant documents were not allowed to the petitioner.
Be that as it may as, it appears from the fact that the Chief Engineer is a person responsible for executing the agreement and, fresh agreement having been entered on 25th June, 1987 by the Chief Engineer, any right which he could have under the agreement dated 18101986, appears to have been waived. Inasmuch as it is not disputed that the agreement dated 2561987 was entered into through negotiation with the Contractor by the Executive Engineer and the Chief Engineer, as would appear from Annexure9 to the petitioner. The superior officer without taking steps for forfeiting the security deposits indulged in further negotiation culminating into fresh agreement whereby the agreement dated 18th October, 1986 stood either revoked or renovated, as the case may be. It does not appear that in the said process the petitioner was ever associated. It is also not the case either of the learned Standing counsel or the learned counsel for ADA. Apparently, therefore, it is very difficult to accept that the petitioner had any responsibility towards that end and on the other hand it seems that his superior officers who should have taken steps had avoided the same and sought to inflict uncalled for injury in the service career of the petitioner, in order to save their own skin. It is apparent from the facts disclosed the petitioner cannot be said to be responsible for the same, particularly when he came into picture only on 2841987, pursuant to the order dt 2341987, Annexure9 to the writ petition.
The contents of Annexure9 to the petition clearly indicates that there was specific order that the work should be started after completion of the development work and that the same should be complied with completely and accordingly the Chief Engineer was requested to ask the concerned Executive Engineer to ensure compliance of the order that construction should be started after completion of all the development works. A reading of the said order clearly reveals that the respondents had sought to blow hot and cold in the same breath inasmuch as in the one hand the Chief Engineer is being requested to start construction work after completion of development work and the Executive Engineer was directed to be instructed by the Chief Engineer, as aforesaid. The Executive Engineer since forwarded the said letter to the petitioner on 2841987, there was no scope for the petitioner to disobey the said order. He being the Junior Officer he was bound to carry out the orders as contained in Annexure9 to the petitioner. There was no scope for him to take steps contrary to the said order by forfeiting security amount for not starting the work within time stipulated after 18101986, the date when the work order was signed. The same would have the effect of overridin�the negotiation initiated by letter dated 731987, being Annexure9 to the petition. Therefore by no stretch of imagination the petitioner can be held responsible for the alleged inaction, as pointed out in the letter dated 2131992 (Annexure2 to the petition).
That part in the showcause notice dated 2131992 it was alleged that the petitioner''s action constitute lack of responsibility, indifference and inactiveness. Whereas the order dated 15121992 (Annexure12 to the petition) mentions that the action of the petitioner denoted lack of responsibilities indifference, insubordination and inactiveness. The misconduct of subordination has been introduced for the first time in the impugned order though it was not alleged in the showcause notice. This reflects on two aspects which worked behind the mind of the respondents while passing the impugned order. (Annexure12 to the petition); (1) that the authority has not applied his mind, and (2) the authority was too biased to detect the error in their earnestness to give bad name to the petitioner. Then again when the agreement is to be signed by the Chief Engineer and the Executive Engineer asks for negotiation, resulting into fresh agreement, the finding in the impugned order, Annexure12 to the petition, that the Junior Engineer, was empowered to finalise the tender does not stand to reason. This also reflects total absence of application of mind or biaseness, as the case may be, of unfathomable measure. The facts itself is wholly contrary to the said finding, namely, there being no scope for forfeiture of earnest money, as is apparent from the facts disclosed. The absence of application of mind or biaseness of its extreme kind, as the case may be, writlarge on the face of the order, representing the adverse entry which even includes adverse reflection on the integrity of the petitioner which had never been contemplated in the show cause (Annexure2 to the writ petition). The authority while passing the order appears to have been possessed of deadly closed mind with absolute bias resulting into incorporating something new in the Character Roll which was absent in the showcause notice.
Adverse entries in service record has serious consequences in one''s career. One cannot be subjected to an adverse entry at the whims or caprice of his superiors. Adverse entries are to be made with due care and caution with an open mind and without "being biased. Such entry is to be made after information being given to the person concerned affording opportunity to object to the same. The adverse entry, it is an established principle, does not take effect till the representation against it is decided barring in exceptional cases. This goes to show that such entry cannot be made lightly. The entering of adverse entry is justiciable and therefore, it has to be justified. When challenged the court ows a duty to look into if the same appears justified in the given facts, though not as an appellate authority, but in exercise of revisory jurisdiction. In the (pets and circumstances of the case, in my view, the adverse entry impugned cannot be justified on the facts disclosed.
Therefore, in the facts and circumstances of the case the impugned order cannot be sustained and, as such, is quashed The adverse entry, if any, made in the service record of the petitioner should be expunged. Accordingly, a writ of certiorari do issue. Fresh consideration with regard to remarks should be made ignoring the charges alleged in Annexure2 to the writ petition, with regard to the years 198687. Accordingly a writ of mandamus do issue. The writ petition is thus stand allowed. There will, however, be no order as to costs.