Warehousing Corporation Vs. Ram Avtar & Anr  INSC 86 (17 January 1996)
B.N. (J) Kirpal B.N. (J) Verma, Jagdish Saran (J) Kirpal,J.
1996 AIR 1081 1996 SCC (2) 98 JT 1996 (1) 702 1996 SCALE (1)489
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.
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
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.
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'
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
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.
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.
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".
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.
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.
High Court, in our opinion, was not right in coming to the conclusion that any
opportunity should have been 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:
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.
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.
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 was, therefore, not right in coming to the conclusion
that the principles of natural justice were not complied in the present case.
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.
the aforesaid reasons, the judgment under appeal is set aside. This appeal is
allowed. There shall be, however, no order as to costs.
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