Central Administrative Tribunal - Mumbai
Unknown vs Union Of India on 14 November, 2013
1 OA.135/13 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.135/2013 Dated this Thursday the 14th day of November, 2013. CORAM:HON'BLE SHRI A.J. ROHEE, MEMBER(JUDICIAL) Simon Benjamin Shinde, Deputy Office Superintendent in the office of the Assistant Commissioner, Central Excise, Tax Recovery Cell (TRC), Mumbai III, Grade C, Presently residing at: Sankalp Siddhi, Plot No.183A, Sector 19, Koparkhairne, Navi Mumbai. ..Applicant. Versus 1. Union of India, through the Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi 110 001. 2. The Chief Commissioner of Central Excise, Mumbai-II Commissionerate, 9th Floor, Piramal Chambers, Jijibhoy Lane, Lalbaug, Parel, Mumbai-400 012. 3. The Commissioner of Central Excise, Mumbai-II Commissionerate, 9th Floor, Piramal Chambers, Jijibhoy Lane, Lalbaug, Parel, Mumbai 400012. ..Respondents. Appearances: Shri A.I. Bhatkar, Advocate for the applicant. Shri R.R. Shetty, Advocate for the Respondents. 2 OA.135/13 Reserved on 28.10.2013 O R D E R
By this application under Section 19 of The Administrative Tribunal's Act, 1985, the applicant has challenged the impugned order dated 14.12.2011 passed by Respondent No.3 and thereupon the order dated 22.03.2012 passed by Respondent No.2 in the matter of expunction of adverse remarks in the Annual Confidential Reports of the applicant for the years 2005-06, 2006-07, 2007-08 and 2009-2010.
2. The applicant is working with the Respondents as Deputy Office Superintendent at Mumbai as Grade III employee. For the four years in question adverse remarks were communicated to him by Respondent No.3 some times in the year 2011. On receiving the same, the applicant asked copies of the ACRs for the relevant years and then submitted representation to the Respondent No.3 for expunction of adverse remarks by which his performance was assessed as Just Adequate. According to the applicant on account of this adverse remarks, the department has not considered his case for grant of benefit under 3 OA.135/13 the Assured Career Progression (ACP) Scheme.
3. The Respondent No.3 after giving opportunity of hearing to the applicant by the impugned order dated 14.12.2011 found that there is no scope for any change in the overall grading of those Annual Performance Appraisal Reports (APAR) and hence rejected the representation.
4. Aggrieved by the said order, the applicant filed administrative appeal with the Respondent No.2 challenging the said order passed by Respondent No.3 raising various grounds. After giving full opportunity of hearing to the applicant, the Respondent No.2 passed the impugned order dated 22.03.2012 partly allowing his request so far as the APARs for the years 2005-06 and 2009-10 is concerned and expunged the overall grading as Just Adequate to the one as Good and confirmed the rejection of the representation so far as it relates to expunction of the APARs for the years 2006-07 and 2007-08. This application is, therefore, restricted to rejection of representation by Respondent No.2 regarding expunction of adverse remarks in the APARs of the applicant for the years 2006-07 and 2007-08 4 OA.135/13 only.
5. According to the applicant the APARs of the year 2006-07 and 2007-08 were not written by one Smt.M.M. Patil, Administrative Officer, Bassein Division under whom he was working, as the Reporting Officer although she was available when those APARs were actually written. On the contrary, the APAR for the year 2006-07 was written by Shri D.S. Wayal, Assistant Commissioner who was in fact the Reviewing Officer and the same was reviewed by Dr.B.S. Meena, Joint Commissioner, Marine and Preventive Wing, Customs (Preventive), Mumbai.
6. For the year 2007-08 the applicant worked in Bassein Division from 01.04.2007 to 08.10.2007 and thereafter was transferred to Audit Section of Mumbai-II Commissionerate from 09.10.2007 to 31.03.2008. For the later period, the APAR was written by Shri P.S. Chavan, Superintendent, Audit Section comprising of five months period only and for the previous major period of seven months the APAR was not written by the said Smt.M.M. Patil, Administrative Officer under whom the applicant was working. The report written by Shri P.S. Chavan was reviewed by Shri Sanjay Singhal, the 5 OA.135/13 Assistant Commissioner of Customs.
7. According to the applicant the grounds raised by him in the representation for expunction of grading Just Adequate were not properly considered by Respondents No.2 and 3 and hence it is necessary to quash the impugned orders and to treat the APAR for both the years i.e. 2006-07 and 2007-08 as Good. It is also contended by him that on account of delay in communication of the adverse APAR his case for grant of benefit under ACP Scheme was not considered. Thus, the impugned order is arbitrary and passed without application of mind and is, therefore, liable to be quashed. According to the applicant, the APARs for the year 2006-07 and 2007-08 were written by a person who has no opportunity to supervise his work. It is also contended by the applicant that office did not issue any warning memo or caution memo to him about his work, nor specific instances have been given to justify the adverse remarks, nor at any point of time any drawback in his work was pointed out to him by the superiors so as to give better performance by him in future.
8. On the above grounds, it is prayed to 6 OA.135/13 quash the impugned order and to expunge the adverse remarks in the APARs for the year 200607 and 2007-08 with all consequential reliefs/benefits to the applicant with a direction to the Respondents to consider the applicant's case for grant of benefits under ACP Scheme.
9. On notice, the Respondents appeared and by way of common reply dated 22.07.2013 resisted the application denying all the adverse allegations and averments made therein. The applicant's performance was assessed as Just Adequate by the competent Reporting Officers and on receiving the representation from him the same was carefully considered by both the Respondents. As such, there is no room for holding that full opportunity was not given to the applicant to put his grievance or that Respondents did not apply their mind to the office record and material produced by the applicant. That the expunction is sought mainly on the ground that the officer who was not competent to write the APAR has written it and hence grading cannot be taken into consideration and that no warning or advance notice was given to the applicant before 7 OA.135/13 recording the adverse entries.
10. According to the Respondents, so far as the first ground is concerned it is the settled legal position that competence of the officer who has actually written the APAR cannot be tested by Court of appeal and that no advance notice is required to be given to any employee before making any adverse entry in his APAR. The application, therefore, deserves to be dismissed for lack of merit. Further, the Tribunal cannot re-assess the APAR and cannot sit as the appellate forum. Both the Respondents have elaborately considered the material produced on record and came to a rational conclusion and wherever relief can be given to the applicant the same was given by Respondent No.2 so far as expunction of APAR for the year 2005-06 and 2009-10 is concerned. The principles of natural justice were aptly followed by giving full opportunity to the applicant to make out his case by both the Respondents and hence for this reason also the impugned order is perfectly legal and cannot be quashed.
11. It is also submitted that the applicant was posted in Division Office and the 8 OA.135/13 Assistant Commissioner was also having his office situated in the same premises and as such Assistant Commissioner who has written the APAR for the year 2006-07, had every opportunity to supervise the work of the applicant. It is prerogative of the Reporting Officer to record the grading in APAR according to the performance of the applicant for a particular period. Since APAR was written by Assistant Commissioner, the same was reviewed by the higher authority i.e. the Joint Commissioner. There is no question of these two high ranking officers having any prejudice against the applicant to spoil his career. The elaborate reasons are recorded by Respondent No.2 while passing the impugned order of rejecting the claim of the applicant for the year 2006-07 and 2007-08. Similarly, for the year 2007-08 since the applicant was transferred to another zone his APAR for that year was written by the Office Superintendent and was reviewed by the Assistant Commissioner. No grounds for setting aside or quashing the impugned order are ever made by the applicant. It is, therefore, prayed to dismiss the application.
9 OA.135/1312. On 05.09.2013, the applicant filed rejoinder denying all the adverse allegations and averments made in the reply to which on behalf of the Respondents additional reply/surrejoinder was filed on 14.10.2013.
13. On 28.10.2013 when the matter was called on for final hearing, heard the oral submissions of Shri A.I. Bhatkar, Advocate for the applicant and Shri R.R. Shetty, Advocate for the Respondents. I have carefully gone through the entire case record.
14. On the basis of the submissions made before me and the material produced on record, the only point that arises for my consideration is whether the impugned order dated 22.03.2012 passed by Respondent No.2 in APAR for the years 2006-07 and 2007-08 is concerned is liable to be quashed so far as it relates to confirmation of remarks Just Adequate and the applicant is entitled to any relief on the grounds raised by him? I record my finding in the negative for the following reasons.
REASONS
15. It is obvious from perusal of the pleadings of the parties that the grading in APAR for the years 2006-07 and 2007-08 recorded 10 OA.135/13 by the Reporting Officer and endorsed by the Reviewing Officer, which were confirmed by the higher authority in administrative appeal filed by the applicant, is questioned by the applicant in this proceeding. Writing and maintenance of APARs of the employees is an important administrative function to be performed by the concerned authorities. Formats are prescribed for APARs so as to contain all the material particulars regarding performance, conduct, character, integrity etc. of the employees. All the relevant rules regarding confidential reports are compiled in Chapter 52 in Swamy's Complete Manual on Establishment and Administration for Central Government offices 7th Edition, 1999. It is needless to say that confidential reports of the employees are maintained to assess his performance in duty assigned to him and its grading are considered while granting or refusing promotional post to the employees. In State Bank of India vs. Kashinath Kher (1996) SCC (L&S) 1117, the Apex Court has elaborately stated the object of writing the confidential reports in Para 15 in the following words:
The object of writing the 11 OA.135/13 confidential report is twofold, i.e. to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality and excellence and efficiency of public service. This court in Delhi Transport Corpn case pointed out the pitfalls and insidious effects on service due to lack of objectives by the controlling officer. Confidential and character reports should, therefore, be written by superior officers higher above the cadres. The officer should show objectivity, impartiality and fair assessment without any prejudices whatsoever with the highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. Lest the officers get demoralised which would be deleterious to the efficacy and efficiency of public service.
16. In the subsequent year the Hon'ble Supreme Court again reiterated the above referred principles with certain additions in a case of State of U.P. vs. Yamuna Shanker Misra and another (1997) 4 Supreme Court Cases 7 in the following words:
The object of writing the confidential reports and making entries in them is to give an opportunity to a public servant to improve excellence. Article 51-A(j) enjoins upon every citizen the primary due to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented.12 OA.135/13
The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible the statement of facts on an overall assessment of performance of the subordinate officer. It should be founded upon facts and circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within the knowledge of such officer. Before forming an opinion to make adverse entries in confidential reports, the reporting/reviewing officers should share the information which is not a part of the record, with the officer concerned. This amounts to an opportunity given to the erring/corrupt officer to correct the efforts of the judgment, conduct, behaviour, integrity or corrupt proclivity. If, despite giving such an opportunity, the officer fails to perform the duty or correct his conduct or improve himself, necessarily the same is to be recorded in the confidential report and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.
17. It is, thus, obvious that writing of 13 OA.135/13 APARs of employees is important task and the same should not be done lightly or casually or just as a formality, since its grading would affect the employees career. Grading such as Excellent, Very Good, Good, Just Adequate and Poor about the performance of the employees is prescribed to assess his performance. The Reporting Officer who is the supervising officer having opportunity to watch the day to day performance of the employee is normally entrusted with the duty of writing the APAR of such employee and the same is reviewed by the higher authority, so that no injustice is caused to the employee. In the present case, prescribed Form-II contains elaborate information including personal data, factual evaluation by Reporting Officer, other assessment by Reporting Officer such as quality of work, promptness in attending to work, industry and conscientiousness, supervisory ability, discipline, punctuality in attendance and other observations, if any, and special aptitudes and integrity. Detail instructions for writing the confidential reports are contained in Ministry of Home Affairs OM.No.51/4/64-Estt.(A) 21.06.1965. Part IV of 14 OA.135/13 the report contains remarks of the Reviewing Officer about his agreement or disagreement with the grading recorded by the Reporting Officer and overall assessment of performance and qualities. Thus, it is open for the Reviewing Officer to override the grading recorded by the Reporting Officer however by giving some reasons.
18. On the basis of the above factual position, during the course of arguments the learned Advocate for the applicant has drawn my attention to the contents of the APAR for the year 2006-07 regarding quality of work, promptness in attending to work, industry and consciousness, supervisory abilities, discipline, punctuality in attendance etc. recorded by the Reporting Officer, Shri D.S. Wayal, Assistant Commissioner on 27.06.2007 with further remarks nothing special to mention here and grading his performance as Just Adequate. This grading was accepted by the Joint Commissioner, the Reviewing Officer.
19. It is not disputed that the Reporting Officer was not the immediate supervising officer of the applicant for the year 2006-07, while he was working under the supervision of 15 OA.135/13 the Administrative Officer, Smt.M.M. Patil, however, it is also made clear on behalf of the Respondents that the applicant was working in the same division and the Reporting Officer had sufficient opportunity to watch his performance. Although no reasons are given by the Respondents for failing to write the APAR for the year 2006-07 by the said Administrative Officer still it is the prerogative of the head of the department to direct his subordinate to act as the Reporting Officer and simply because Smt.M.M. Patil has not assessed the performance of the applicant for the year 2006-07, which exercise she did for the previous two years, no adverse inference can be drawn against the Respondents.
20. Similarly for the subsequent year 2007-08 the applicant worked in another division and was transferred to Audit Section in October, 2007, however, for this year APAR for the first part of the year from 01.04.2007 to 08.10.2007 was not written by any authority and for the subsequent period of same duration i.e. from 09.10.2007 to 31.03.2008, it was written by Shri P.S. Chavan, Superintendent whose post is equivalent to that of the 16 OA.135/13 Administrative Officer and it was reviewed by the Assistant Commissioner. On the basis of the entries made in the said report filed on record it is obvious that quality of work was found to be Just Adequate, promptness in attending to work is reported to be Good, whereas industry and consciousness gets the grading as Just Adequate. Similarly supervisory ability is found to be Just Adequate whereas discipline and punctuality was rated as Good. The integrity was also recorded as Good. However, the general assessment is recorded as Just Adequate. It is obvious from the perusal of the impugned order passed by the Respondent No.2 that he has elaborately dealt with the grounds raised by the applicant in his representation and also analyzed the APARs of all four years and for two years he revised the performance of the applicant as Good i.e. upto benchmark and for the rest two years in question, he, however, confirmed the grading of Just Adequate recorded by the Respondent No.3.
21. It is obvious that although the APAR for the first period of six months of the year 2007-08 is not written, no adverse inference 17 OA.135/13 can be drawn against the Respondents. Perhaps this exercise was not done since the applicant was transferred to the Audit Section.
22. Form the above discussion it is obvious that simply because the officer having direct supervision has not recorded the APAR and some other officer higher in rank to him has acted as Reporting Officer and that no APAR was written for part of the financial year and was written for remaining part of the said year, it cannot be said that Respondent No.2 was wrong in rejecting the contentions of the applicant. From perusal of the impugned order it cannot be said that the representation for expunction of grading Just Adequate was not properly considered by Respondent No.3 first and then by Respondent No.2 as Appellate Authority or that there was no application of mind or proper scrutiny of the case by them.
23. During the course of arguments it was contended by the learned Advocate for the applicant that there was delay in communication of the adverse grading in APAR on account of which his claim for getting benefit under ACP Scheme was not considered. It is true that it appears from the record that Just Adequate 18 OA.135/13 grading for all the four years were communicated to the applicant in the year 2010 and there is some delay in communicating the same. However, this was perhaps for the reason that the remark Just Adequate although is stated to be below benchmark Good may not be treated as adverse remark in strict sense and hence initially it was not communicated. It was rightly submitted by the learned Advocate for the Respondents that previously according to judicial pronouncements only adverse remarks in the APARs were required to be communicated. However, later on this view was changed in the case of Dev Dutt Vs. Union of India and others [2008(8) SCC 725 to the effect that every remark should be communicated to the employee which may be Good or adverse for his information with a view to improve his performance in future and to facilitate him to make a representation against it, if he so desires.
24. This being the position on record although there is some delay in communicating the grading in APAR to the applicant, it cannot be said to be fatal with the only difference that had it been communicated earlier, the 19 OA.135/13 applicant would have been in a position to file the representation at the earliest opportunity. The principles laid down in Dev Dutt's case referred above are elaborately considered with approval by the Larger Bench of the Apex Court in a case of Sukhdev Singh Vs. Union of India and others in Civil Appeal No.5892 of 2006 decided on 23.04.2013. It is true that the grading in APAR should be communicated to the employee in reasonable time. However, it cannot be said that simply because some delay occurs on administrative ground in communicating the same, it can always be treated as fatal and on that ground alone the grading recorded by the competent authority can be said to be incorrect and liable to be set aside.
25. It was contended by the learned Advocate for the applicant that no warning memo or caution memo about his work was ever issued to him by the authority, nor specific instances have been given by the Reporting Officer to justify the adverse remark nor at any point of time any drawback in the work of the applicant was pointed out to him by his superior, so as to improve his performance. It is true that 20 OA.135/13 for the work, conduct or performance of the applicant for the years in question there is nothing to show that any warning memo or caution memo was issued to him. However, it is obvious from perusal of various entries made in the APARs of the years in question that the work of the applicant was found to be Adequate and perhaps for this reason there was no occasion for his superiors to issue any warning memo or caution memo. Instructions, if any, for improvement in the performance can be issued even orally by the immediate supervising officers and every time it is not feasible to give written instructions pointing out the drawback unless of course it is of serious nature involving huge financial implications. This being the position it cannot be said that the Respondent No.2 was not justified in confirming the writing of Just Adequate recorded by the Reporting Officer.
26. In this respect it was rightly pointed out by the learned Advocate for the Respondents that although while dealing with the service matters this Tribunal exercises the power of judicial review vested in the Hon'ble High Court in writ jurisdiction, still while 21 OA.135/13 exercising the said power it is not open or permissible for this Tribunal to reappreciate or reassess the material relied upon by the competent and Appellate Authority and take different view. This being so this Tribunal cannot act as Appellate Authority and the scope is limited just to find out if the order passed by the Respondent No.2 is arbitrary warranting inference. It is stated that no allegations of malice or malafides are made against the Reporting Officer and the Reviewing Officer. Although it cannot be said that in cases challenging the grading in APAR such allegations are always required to be made and unless element of malice is alleged and proved the adverse entries in the APAR cannot be expunged. The record shows that full opportunity of hearing was given to the applicant initially by the Respondent No.3 and thereafter by the Respondent No.2 and, thus, there is full compliance of principles of natural justice. In fact grading Just Adequate which is below the benchmark grading Good and above the grading Poor which is in fact adverse report and hence it cannot be said that the view taken by Respondent No.2 is 22 OA.135/13 erroneous. It, therefore, cannot be said that the impugned order passed by Respondent No.2 is arbitrary or illogical in any manner.
27. Before concluding I would like to refer some citations relied upon by the learned Advocate for the applicant. In a case of M.A. Rajasekhar Vs. State of Karnataka & Anr. 1997 (1)AISLJ 45, the Hon'ble Apex Court elaborately considered the nature of inconsistent remarks and advisory remarks in the APAR. However, the facts of the case are totally different although ratio laid down cannot be disputed. It cannot be said that it is in any manner helpful to the applicant for accepting his contentions. Although in the above referred case it is held that the adverse entry in one column inconsistent with other entries cannot be allowed to stand, the same is not the position in the present case.
28. In another case of A.K. Yadav Vs. Union of India and ors. 2002(2) ATJ 423, the Jaipur Bench of the Central Administrative Tribunal considered the adverse remarks and held that Reporting Officer during the course of the year did not make any attempt to bring to the notice of the applicant any shortcomings 23 OA.135/13 on his part and when the representation against the adverse remarks was disposed of without taking into account and examining the issues raised by the applicant, the adverse remarks were quashed. The facts of the case are totally different and as stated earlier in the present case the grading although it is below the benchmark which may not strictly be stated to be adverse. The grading simply indicates that it requires some more efforts on the part of the applicant to improve his performance to bring it upto benchmark Good.
29. In a case of P.K. Shastri Vs. State of M.P. And Ors. 1999(2) SCSLJ 130, the Hon'ble Apex Court held that when an authority directs to record adverse remarks in Confidential reports of the officer, it must first come to the conclusion that the fact-situation is such that it is imperative to make such remarks to set right the wrong committed by the officer concerned. In that case adverse report was recorded against a judicial officer about his performance on the basis of delay in deciding one matter and not following the deadline, which was found to be an isolated instance. In the peculiar facts of that case the adverse 24 OA.135/13 remarks was expunged. Same is not the case of the applicant.
30. Lastly, the applicant relied upon the case of D.R. Jagiya Vs. Union of India and ors 2001(1) ATJ 59 delivered by the Calcutta Bench of the Central Administrative Tribunal. In that case the ACR was written by a person who has no opportunity to supervise the work of the applicant and hence the adverse remarks were quashed. In the present case as stated and discussed above, it cannot be said that the APARs in question were written by a person who had no opportunity to supervise the work of the applicant.
31. As against this during the course of arguments, the learned Advocate for the Respondents placed his reliance on a case of Sukhdev Singh Vs. Union of India and others referred in the earlier part of this judgment and also on a case of State of Orissa and others Vs. Jugal Kishore Khatua 1997 SCC(L&S) 1768 referred in it.
32. In another case of Nutan Arvind (Smt.) Vs. Union of India and another (1996)2 SCC 488, relied upon by the Respondents, the scope and power of D.P.C. i.e. Departmental Promotion 25 OA.135/13 Committee was considered, in which it has been held that Supreme Court cannot sit in appeal over the D.P.C.'s assessment. The facts of the present case are totally different in which findings no question of any decision taken by DPC while considering the claim of applicant for promotional post..
33. In another case of High Court of Judicature at Allahabad through Registrar Vs. Sarnam Singh and another 1999(10) Supreme 310, removal of a judicial officer from the service was considered on the basis of adverse entries. It has been held that opportunity of hearing to the concerned officer before recording adverse remarks in character roll is not required to be given. Thus, this is an exception to the principle of natural justice in which it is not necessary to hear the employee before recording any adverse remarks in his APAR. This case is not in fact applicable in the present case in which the applicant did not allege that he was not heard by the authorities before recording the adverse remarks in APAR.
34. Lastly, in case of R.L. Butail Vs. Union of India and others 1970 S.L.R. 926, the consequence of writing of adverse entries in 26 OA.135/13 the APAR departmental provisions and of imposition inquiry Rule 11 by of of penalty in the referring the the Central Civil Services (Classification, Control and Appeal) Rules in which it is held that Reporting Authority is not required to give specific instances while recording adverse remarks in confidential reports. It is further held that the adverse entry is not equivalent to imposition of penalty which would necessitate an inquiry or giving reasonable opportunity of being heard to the concerned Government servant.
35. From the above discussion it cannot be said that the applicant is successful in establishing any of the grounds raised by him for challenging the impugned order in the limited jurisdiction vested in this Tribunal. Thus, the impugned order passed by Respondent No.2 confirming remarks Just Adequate in the Annual Confidential Reports of the applicant for the years 2006-07 and 2007-08 cannot be said to be an arbitrary exercise of powers vested in him.
36. In the result, the application deserves to be dismissed. It is accordingly 27 OA.135/13 dismissed. However, parties are directed to bear their respective cost of this proceeding.
Mumbai. ( A.J. Rohee ) Date: 14.11.2013 Member (J).
H.