Central Administrative Tribunal - Delhi
B N Singh vs M/O Defence on 8 January, 2024
1
Item No. 31 (C-5) O.A. No.2561/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No.2561/2021
This the 08th day of January, 2024
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
B. N. Singh,
Director (Contracts)
MES- 439115
Aged about 58 years,
R/o A-6, Tower 6,
Type-V, East Kidwai Nagar,
New Delhi-110023.
...Applicant
(By Advocate: Mr. Parv Garg with Mr. Pawas Kulshrestha)
Versus
1. Union of India,
Through the Secretary,
Ministry of Defence,
South Block
New Delhi-110011.
2. Engineer-in-Chief,
IHQ of Ministry of Defence (Army)
Coord & Pers Dte/MIS (Civ)
Kashmir House, Rajaji Marg,
DHQ PO, New Delhi-110011.
...Respondents
(By Advocate:- Dr. Ch. Shamsuddin Khan)
2
Item No. 31 (C-5) O.A. No.2561/2021
ORDER (ORAL)
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J) The present Original Application has been filed challenging the Order dated 01.04.2019 and the Order dated 26.12.2019 whereby the respondents have rejected the representation of the applicant preferred against the communicated ACR for the period w.e.f. 01.04.2008 to 30.06.2008.
2. Learned counsel for the applicant submits that the applicant was serving in the Office of the respondents on the post of Superintendent Engineer (QS&C) in Military Engineer Services, MES. He submits that in the ACR for the aforesaid period, the applicant has been graded as 'good' whereas, the benchmark is 'very good'. He further submits that due to some unfortunate incident, the applicant was placed under suspension for the period w.e.f. 23.02.2010 to 12.04.2018. Thereafter, on being reinstated w.e.f. 13.04.2018, he represented to the respondents seeking his consideration for the Non-Functional Upgradation as his juniors had been considered during the period and had been granted the same. In response to his request, the said ACR for the period in question was communicated to him on 10.02.2019 and immediately thereafter, he has represented against the said 3 Item No. 31 (C-5) O.A. No.2561/2021 ACR on each and every point. It is submitted that the applicant has represented against the remarks, grading as well as on the aspect of delay in communicating the ACR. He adds that the Hon'ble Apex Court in the matter of Dev Dutt vs. Union of India, (2008) 8 SCC 725 has held that all entries in the APARs, whether adverse or not, must be communicated to the officer reported upon. In pursuance to the said observation, an OM dated 14.05.2009 has also been issued by the DoP&T. Subsequently, another OM dated 13.04.2010 has also been issued in this regard. He further submits that though the grading in the said ACR is not adverse, the same being below benchmark may impact negatively his career as well as his consideration for grant of NFU and other promotional aspects. Therefore, the same ought to have been communicated to the applicant, in time, as per the instructions issued, vide the aforesaid OMs of DoP&T.
3. Learned counsel for the applicant further relies upon the Judgment dated 03.08.2017 passed by the Hon'ble High Court of Gauhati in Writ Appeal No. 224/2016, titled as The Union of India & 5 Ors. vs. Sri. Sheo Balak Singh. The relevant portion being:-
4
Item No. 31 (C-5) O.A. No.2561/2021 Therefore,, it is submitted that the said ACR be ignored by the competent authority.
4. Learned counsel for the respondents vehemently contests the OA and submits that the representation dated 20.02.2019 of the applicant filed against the adverse grading in his ACR for the period w.e.f. 01.04.2008 to 30.06.2008 was duly examined and disposed of by the competent authority, rejecting his appeal. He submits that the grading in the said ACR was given as per the assessment of the work done by the applicant at that point of time. He further submits that as per the OM referred hereinabove, the respondents were only supposed to communicate the ACRs which were adverse. However, the said ACR for the period w.e.f. 01.04.2008 to 30.06.2008 not being adverse were not communicated to the applicant. Therefore, the non-communication of the ACR cannot go against the respondents.
5
Item No. 31 (C-5) O.A. No.2561/2021
5. We have considered the rival submissions of the parties and also perused the impugned orders. We find that a detailed representation dated 20.02.2019 has been preferred by the applicant ventilating his grievances therein on each and every aspect on the part of the ACR. However, it is unfortunate to note that in the impugned orders, there is no evidence of any application of mind on the said representation, by the competent authority. The law with respect to adverse ACR has also undergone a change. An entry though "good", can have an adverse impact if the bench mark is "very good". Therefore, the same ought to have been communicated to the applicant in time. Admittedly, applicant was placed under suspension in 2010. However, suspension does not mean severance of ties from the employer. Time line has been prescribed by DoP&T for communication of such ACRs. Evidently, the time line was not adhered to by respondents and the applicant cannot be faulted for the same.
6. In view of the above, the impugned orders dated 01.04.2019 and 26.12.2019 are quashed and set aside. The matter is remanded to respondent no.2, to take a fresh look on the representation dated 20.02.2019 and pass a reasoned and speaking order on the same, in the light of law laid down by the Hon'ble Apex Court in Dev Dutt's Case (supra) and the Hon'ble 6 Item No. 31 (C-5) O.A. No.2561/2021 High Court of Gauhati in Writ Appeal No.224/2016 (supra) and our observations above. This exercise shall be done within a period of three months from the date of receipt of a copy of this Order. In case his representation finds favour with the competent authority, he shall be entitled to all the consequential benefits arising thereof.
7. With the above directions, the OA is disposed of. No costs.
(Dr. Anand S. Khati) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Yaksh/