Central Administrative Tribunal - Delhi
T.M. Sampath vs Union Of India Through on 19 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.599/2009 New Delhi, this the 19th day of March, 2010 CORAM: HONBLE MR. JUSTICE M. RAMACHANDRAN, V.C. (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) T.M. Sampath, Administrative Officer, National Water Development agency, Flat No.209, Palika Bhawan, R.K. Puram, Sector-13, New Delhi 110 066 Applicant (Applicant in person) Versus Union of India through 1. The Secretary, Ministry of Water Resources, Shram Shakti Bhawan, Rafi Marg, New Delhi 2. The Director General, National Water development Agency, 18-20, Community Centre, Saket, New Delhi 110 017 3. Shri A.D. Chawla, Director (Admn.) & Reporting Officer, National Water Development Agency, 18-20, Community Centre, Saket, New Delhi 110 017 4. Shri N.K. Bhandari, Chief Engineer (HQ) & Reviewing Officer, National Water Development Agency, 18-20, Community Centre, Saket, New Delhi 110 017 Respondents (By Advocate: Shri R.N. Singh proxy for Shri R.V. Sinha) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, a Grade A Section Officer is working as Administrative Officer under the National Water Development Agency (NWDA), a registered Society under the Union Ministry of Water Resources. Through this OA the applicant is challenging the rejection of his representation requesting for expunction of the Average grading in the ACR for he period 23.10.2007 to 31.3.2008.
By way of relief, the OA seeks quashing of the impugned Memo dated 16.2.2009 along with directions for expunging the adverse remarks and the adverse grading in the impugned ACR. Further directions to Respondent No.1 (The Secretary, Ministry of Water Resources) for initiating action against respondents no. 3 and 4 for misusing their official positions for making these adverse remarks and grading without any basis has been sought. Payment of exemplary costs and passing of any further order deemed fit and proper in the facts and circumstances also are part of the relief clause.
2. This is the second round of litigation on this subject. Earlier vide the OA No.282/2009, the applicant had approached the Tribunal with the grievance that his representation to the Director General, NWDA dated 30.10.2008 for expunging the remarks had not been decided. The OA had been disposed in limine vide the Tribunals Order dated 6.2.2009 with a direction to the Respondent No.2 to consider the applicants representation within a period of two months under intimation to him (Annexure A/8).
3. The applicant would defend his case in person. On behalf of the Respondents, learned counsel, Shri R.N. Singh would appear. In response to the OA, a detailed counter affidavit has been filed by the respondents, which has been followed by a rejoinder by the applicant. While dealing with this OA, we have considered carefully the written averments before us as well as the oral submissions on both the sides.
4. A copy of the relevant ACR has been enclosed along with the OA as Annexure A/2. It reveals that Respondent No.3 (The Director (Admn) has recorded his remarks against different columns followed by an overall grading of Average. The same had been accepted by the Respondent No.4 as the Reviewing Officer.
The applicant had made a representation dated 30.10.2008 against the adverse grading in the ACR (Annexure A/3). The main plea taken in this was the Respondent No.3, Director Administration bearing a personal grudge against him. The representation was rejected by the Respondents vide their Order dated 16.2.2009. It is stated that the representation had been examined on the basis of replies furnished by the Respondents 3 and 4 and the request for expunging the grading had not been agreed to by the competent authority. This order has been impugned in the present OA.
5.1 The OA has mainly taken the plea of malafide against the Respondents No.3 and 4 and tried to establish it by a host of arguments. Besides, the impugned remarks are also alleged to be without any factual basis, arbitrary and discriminatory. The applicant, posing it as a case of victimization of a whistle blower, would emphasize alleged lack of objectivity and the remarks and the grading in question not being supported by factual details. Further, the applicant would rely on the decision of the Apex Court in State of U.P. vs. Yamuna Shanker Misra & Ors, {(1997) 4 SCC 7}, to highlight the requirement of objectivity in writing of ACRs.
5.2 Since the main plank of the OA rests on the allegations of malafide against the Respondents, the averments in this regard may be mentioned in some details. (i) As per the applicant, the problem had started as far back as in the year 2002 when he had made a complaint against the then Chief Engineer (HQ), Shri S.B. Suri and the Dy. Director (Admn) Shri S.G. Sood regarding certain financial mal-practices on their part. The substance of these allegations had been upheld by the Appellate Authority (Annxure A/7). (ii) The allegation of harassment of the applicant by the Respondents 3 and 4 regarding creating difficulties in payment of medical reimbursement claims even for the treatment of his dependant widow sister has been cited. (iii) The transfer of the applicant along with his post to Allahabad after the aforesaid complaint of 2002, the stayal of the same by the direction of the High Court, the suspension of the applicant from September 2003 to June 2004 have also been mentioned. (iv) It is stated that after revocation of suspension, the applicant had been posted in the O&M Unit under two different Officers, Shri N.C. Jain, S.E. and Shri Afroz Alam, Deputy Director and had been working under them from January, 2005 to October 2007. It is alleged that despite the pressure on the part of the respondents 3 and 4 to spoil his ACRs, the above Officers had assessed the applicant as Good. (v) In this background the respondents had changed the posting of the applicant and brought him directly under their control with a vindictive attitude of spoiling his ACR. A copy of the representation dated 15.1.2008 for canceling this posting order has also been annexed as Annexure A/6. A perusal of this representation addressed to the Director General, NWDA reveals that while alleging about being harassed by not being given his rightful duties since 2003; the applicant had referred to the present posting order being with an ulterior motive on the part of Shri N.K. Bhandari, CE (HQ) (Respondent No.4) against whom he had made complaints of financial irregularities. It was alleged in this representation also that the applicant had been placed directly under the control of Respondents 3 and 4 with the ulterior motive of spoiling his ACRs.
6. The respondents have opposed the claims in the OA and submitted that it deserves to be straightaway dismissed. The learned counsel, Shri R.N. Singh would submit that the apparent misconception behind the averments by the applicant was evident by the simple fact that the Respondents were being blamed even for events that had occurred prior to the present Respondents being in position. The learned counsel would contend that the impleadment of the respondents 3 and 4 was utterly unnecessary in this case. It would be argued that as the complaint of 2002 was against different officers, posing that as the basis of a possible malafide on the part of Respondents 3 and 4 could not be held as acceptable even by a common logic. Similarly, the issue of transfer to Allahabad, which as per the respondents was on account of administrative exigencies, were prior events. The learned counsel would seek to impress upon us the fact that all the four Respondents have joined the NWDA on deputation, whereas the applicant belongs to that Organization. While the Secretary of the Ministry joined in February 2008, the D.G in December, 2006, The Director (Admn) in August 2006 and the CE (HQ) in September, 2003 (respectively Respondents 1, 2, 3 and 4). The other contentions to support malafide are also rebutted by the Respondents. It is stated that the matter of medical reimbursement had been examined strictly in accordance with the rules. The alleged pressure on the part of the Respondents 3 and 4 for adverse ACR entries during the period 2005 2007 is said to be only a figment of imagination on the part of the applicant. Similarly, the averment that the applicant had been brought directly under the control of Respondents 3 & 4 with any vindictive motive in a conspiracy to spoil his ACR is also strongly rebutted.
As per the Counter Affidavit, in accordance with the instructions, the ACRs are to be recorded based on the performance of an official judged by the Reporting and the Reviewing Officers during the relevant period. The impugned remarks are said to have been recorded strictly in accordance with the instructions. Further, the representation of the applicant is also said to have been considered in true spirits in consultation with the Reporting and the Reviewing Authorities as is required to be done under the instructions, and without any extraneous considerations.
7.1 As per the settled law on the subject of ACRs, they are expected to be fair and objective. We may in this context appropriately refer to the observations of the Honble Supreme Court in S. Ramachandra Raju v. State of Orissa, JT 1994 (4) SC 459, as under:
It is needless to emphasise that the career prospect of a subordinate officer/employee largely depends upon the work and character assessment by the reporting officer. The latter should adopt fair, objective, dispassionate and constructive commends/comments in estimating or assessing the character, ability, integrity and responsibility displayed by the concerned officer/employee during the relevant period for the above objectives if not strictly adhered to in making an honest assessment, the prospect and career of the subordinate officer being put to great jeopardy. xxxxx"
Similar was the thrust of the view taken by the Apex Court in Yamuna Shanker Misras case (supra) being relied upon by the applicant. In this case, as a Service Law, the Apex Court had propounded the principle of objectivity in writing of the Confidential Reports accurately on the basis of facts and overall assessment and held it as a public responsibility of the Reporting/Reviewing Officer.
However, having said that, it is also a fact that the writing of the Confidential Report of an employee essentially remains within the legitimate domain of the executive and is to be regulated in accordance with the relevant guidelines on the subject. Even though adverse remarks may not be totally immune from judicial review, such occasions may be extremely rare and only in cases of patent illegality, arbitrariness and lack of authority, the Courts power of judicial review may be justifiably invoked. The superior Courts have been conscious of this limitation and held that the Courts may in their discretion refuse to entertain a direct review of an adverse remark. In the case of Bharat Ram Meena v. Rajasthan High Court at Jodhpur & Ors., 1997 (3) SCC 233, where the appellant had raised several disputed questions of facts and the remarks were neither found to be arbitrary nor without factual basis, it was held that such remarks could not be quashed in exercise of writ jurisdiction.
7.2 Before we turn to the impugned ACR, it would be in order to record a clear finding that the plea of malafide taken by the applicant in this case is not found to be tenable. We also note that assuming the mantle of a whistle blower the applicant is harbouring such a grievance virtually against a host of senior officials both past and present. Interestingly, whereas the representation against the posting (Annexure-6) alleged malafide against the CE(HQ) (Respondent No.4), the representation against the ACRs stated the adverse gradings to be due to the prejudice on the part of the Director Administration (Respondent No.3) It is a settled proposition of law that allegations of malafide are easily made than made out and the same cannot be acted upon in judicial review unless they are substantiated. On a careful consideration of the averments on both the sides, we do not find the present case as falling in such a category where the impugned action may be said to be vitiated by any malafide on the part of the Respondents.
7.3 The attempt on the part of the applicant to argue before us that the detailed observations in various columns did not lead to the conclusion of overall grading of Average; or that it revealed a non-application of mind and a casual and biased approach is also not borne out by a perusal of the detailed remarks. We find that the Reporting Officer in the columns regarding the self-appraisal by the Officer has made certain factual observations by way of correcting the constraints posed by the applicant that had repeatedly stood in the way of his achieving the target. Again, the reservations on the part of the Reporting Officer regarding the performance of the applicant are evident from his remarks that he performs only as per directions and the level of knowledge in the sphere of work as Average. Again, under column initiative, the Reporting Officer has expressed his reservations by observing needs to take active part in management work. Regarding the column relationship with superiors, colleagues and subordinates and team work, the remarks are just normal. At the same time it is not that the Reporting Officer was blind to the positive aspects of the Officers working attitude towards weaker sections of society, it is stated appears to be sensitive (though surprisingly this has been construed as an adverse remark by the applicant). Again in aptitude and potential, the remarks are he is an energetic person. Yet I have to see his potential. Against the column relating to integrity, nothing adverse has come to notice has been recorded. In most of the remaining columns, the Reporting Officer has observed about not making any comments in view of the brief period under which the applicant had been working under him. On the basis of these remarks, the overall grading has been assessed as Average.
The Reviewing Officer while agreeing with the assessment of the Reporting Officer had made an observation in the column pertaining to any meritorious work being done by the Officer reported upon saying that no meritorious work done during this period. Again in column regarding any special characteristics or abilities justifying selection for special assignment or out of turn promotion, the Reviewing Authority had mentioned No.
The above detailed recounting of the remarks that are sought to be impugned before us, do not even by applying the test of a reasonable person acting reasonably can be termed either as arbitrary or biased or without any application of mind; least of all betraying even prima-facie any evidence of being prompted by any malafide. In this context we may also note at this point the averments in the CA that as the applicant had been keeping himself busy in filing Court cases against the Management on one pretext or the other, during the period under report, the applicants performance in official matters was not upto the mark - justifying the grading as Average. It is also stated that as recorded in Column 11 of the ACR, the applicant is an energetic person, but that he is utilizing the energy elsewhere (para 4.7).
8. In view of the foregoing, we do not find the present one a case where judicial intervention in the matter relating to the character of theACRs would be justified. On the contrary, for want of any arbitrariness, apparent lack of objectivity or malafide, such a view on our part may be a clear transgression of our powers under the judicial review. Accordingly, the OA is found to be bereft of merit and dismissed hereby with no order as to costs.
(VEENA CHHOTRAY) (M. RAMACHANDRAN) MEMBER (A) VICE CHAIRMAN (J) /pkr/