What is the Legal Meaning of Expunging or Expunction of Adverse Remarks?

Introduction

 

Today we will discuss the meaning of the terms, expunging, expunction and expungement, in reference to adverse marks. This is a question that often comes up in service matters in India. Many a times, adverse entries or remarks are recorded in the service record of governmental employee that comes in the way of promotion or other service benefits of such employees. Similarly, sometimes the Court makes certain remarks about the conduct of the litigating parties or during the course of discussions, certain derogatory remarks are made in the legislature. Let us first understand its dictionary meaning.

 

Dictionary Meaning

 

Black’s Law Dictionary, Eighth Edition (2004), defines as follows: -

 

1. Expunge –

 

a. To erase or destroy;

b. To declare null and outside the record, so that it is noted in the original record expunged, and redacted from all future copies;

c. rescind.

 

2. Expunction –

 

Where it is desired not only to rescind an action but to express very strong disapproval, legislative bodies have voted to rescind the objectionable action and expunge it from the record. When a record has been expunged, the chief legislative officer should cross out the words or draw a line around them in the original minutes and write across them the words, ‘Expunged by order of the Senate (or house), giving the date of the order.

 

 

3. Expungement of record –

 

The removal of a conviction from a personal’s criminal record.

 

Thus, the plain meaning of ‘expunge’ is to rescind or erase or destroy. Let us now understand the meaning and the effect of expunging or expungement or expunction with the help of Judicial Precedents.

 

Important Judicial Precedents

 

1. B.C. Dwivedi v. State of Gujarat, 1995 SCC OnLine Guj 190 - If any adverse material is taken into consideration against a government servant to his/her detriment and such material has later on become non-existent, then his/her case is entitled to be reconsidered on the ground that Article 16 of the Constitution of India mandates fair consideration.

 

2. M. Paramsivam v. Union of India, 2008 SCC OnLine Mad 721 –

 

In case of a matter relating to promotion, tenable explanation or statement is required from the Competent Authority as to how the expunction of adverse remarks had no consequence on grading already made in relation to the government servant whose promotion is in question.

 

3. U.S. v. Abilene & Southern Railway Company, 265 US 274 –

 

“It is a denial of due process for a commission to rest on conclusion upon facts of which he takes judicial notice, where the facts are unknown and there is no way to find them out such facts being withheld from the record”.

 

4. Purshottam Dass Gupta v. Union of India, 1999 SCC OnLine Del 420 –

 

“The authority exercising quasi judicial power is under an imperative constitutional obligation with a sense of official responsibility for impartial with objective consideration of materials available on record.”

5. U.P. Jal Nigam v. S.C. Atri, (1999) 1 SCC 241 –

 

The effect of the order allowing the expunction of the adverse entry would be that on the date on which the government servant was considered for promotion, there existed no adverse entry in his/her character roll. Subsequently, it cannot be said that such government servant was not promoted on account of his unsuitability.

 

6. Baijnath Rajput v. State of M.P., 2005 SCC OnLine MP 324 –

 

 If the adverse Annual Confidential Reports (ACRs) are expunged, it would mean that they were not in existence. An employee is entitled for the benefit after the expunction of his adverse ACRs, otherwise there would be no use for expunging his adverse ACRs. The legal effect of setting aside of adverse remarks would be that the remarks must be treated as non-existent in the eye of law.

 

Conclusion

 

We see that an employee is entitled to claim benefits of the expunging of adverse remarks. However, cogent reasons will have to be cited for expunging of adverse remarks and it would have to be explained how those remarks will affect the career progression of the concerned employee.

 

Similarly, in legislatures too, sometimes certain remarks are made that should otherwise not have been made. Expungement of record is a valuable tool in such situations in the hands of the legislature to strike off such remarks from the record as though they never existed.