Central Administrative Tribunal - Delhi
Rajiv Kumar Misra vs M/O Finance on 9 August, 2016
O.A.No.681/2015
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.100/681/2015
M.A.Nos.566/2015 & 567/2015
Order reserved on 03rd August 2016
Order pronounced on 9th August 2016
Hon'ble Mr. K.N. Shrivastava, Member (A)
Rajiv Kumar Misra,
Deptt: Central Excise & Service Tax
Group A, Age 52 years
Father's Name : M.N. Misra
Additional Commissioner
Commissioner of Central Excise & Service Tax
143, New Bardwari, PO Sakchi
Jamshedpur, Jharkhand
..Applicant
(Mr. Sumit Kumar, Advocate)
Versus
1. Union of India through Secretary (Revenue)
Ministry of Finance
Department of Revenue
North Block, New Delhi-1
2. The Chairman
Central Board of Excise & Customs
Ministry of Finance, Deptt. of Revenue
North Block, New Delhi- 110 001
3. The Member (Zonal)
Central Board of Excise & Customs
Ministry of Finance, Deptt. of Revenue
North Block, New Delhi- 110 001
4. The Chief Commissioner
Commissioner of Customs
Kolkata Zone
Customs House, Strand Road
Kolkata - 700001
5. The Commissioner
Customs Preventive (West Bengal) Kolkata
Customs House, Strand Road
Kolkata - 700001
2
O.A. No.681/2015
6. Union Public Service Commission
Through its Chairman
Dholpur House, Shahjahan Road
New Delhi- 110 001
..Respondents
(None for respondent Nos. 1 to 5 -
Mr. Amit Yadav, Advocate for Mr. Ravinder Aggarwal, Advocate for
Respondent No.6)
ORDER
This O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985. The reliefs prayed for in the O.A. read as under:-
"I. To quash the order passed by the communication dated 28.01.2014 issued by the Respondent No.1 forwarding the minutes of the Referral Board meeting held on 27.1.2014 whereby the Representation dated 05.12.2013 made by the Applicant for upgrading the grade in the APAR for the periods 01.04.2011 to 30.09.2011 and 01.10.2011 to 31.03.2012 has been rejected; II. To quash the communication F. No. II (39) A 2-ACR/Gr. A/ CCO/RZ/2012/508 dated 24.07.2012 issued by the Respondent No.4 with APAR for the period 2011 to 2012 and direct the Respondent to upgrade the overall grading of the Applicant in APAR for the period 2011 to 2012.
III. To direct the Respondents to grant the applicant consequential relief of promotion to the post of Commissioner as per his seniority. IV. To pass such other order/orders as this Hon'ble Tribunal may deem just and proper in the facts and circumstances of the case."
2. The brief facts of the case are under:
2.1 The applicant is an IRS (Customs & Central Excise) Group 'A' Officer of 1991 batch. He is currently posted as Additional Commissioner of Central Excise, Jamshedpur. The issue relates to his Annual Performance Appraisal Report (APAR) for the year 2011-12. During the first half of the year, i.e., April - September 2011, his reporting officer was Mr. J.K. Jha, Commissioner, Central Excise & Service Tax, Jamshedpur, whereas his 3 O.A. No.681/2015 reviewing officer was Mr. B. Datta, Chief Commissioner, Patna. For the second half of the year, i.e., October 2011 to March 2012, while Mr. J.K. Jha continued to be the reporting officer, but the reviewing officer was Mr. M.D. Singh, who took charge from Mr. B. Datta, as Chief Commissioner, Patna on 01.11.2011 following Mr. Datta's superannuation. The reporting officer gave 5.75 grading to the applicant in the APAR for the first half (April - September 2011). The grievance of the applicant is that the reporting officer deliberately delayed in submitting the APAR for the said period to Mr. B. Datta, the then reviewing officer. He ought to have sent the APAR by the first week of October 2011 but chose to keep it pending with him till 31.10.2011, so that Mr. Datta gets disabled to enter his remarks in the APAR (a retired officer can write APARs of his subordinates within one month of his retirement from service). As a result of it, the APAR for the first half could not be reviewed and thus the grading given by the reporting officer became final.
2.2 As regards the second half of the year, i.e., October 2011 - March 2012, the reporting officer gave a grading of 4.22 to the applicant, which was marginally improved by the new reviewing officer, i.e., Mr. M.D. Singh to 5.
2.3 The adverse remarks in the first half (April - September 2011) was communicated to the applicant by Central Board of Excise & Customs (CBEC) vide letter dated (page 57 of the paper book). The applicant submitted his representation against the said adverse remarks (below benchmark grading) to CBEC vide his Annexure A-5 letter dated 23.12.2011. The applicant received Annexure A-2 communication dated 4 O.A. No.681/2015 24.07.2012 from the Chief Commissioner, Patna, enclosing therewith a photocopy of his APAR for the second half of the year (October 2011 -
March 2012), which contained the below benchmark grading given by the reporting officer as 4.22 and revised to 5 by the reviewing officer. 2.4 The applicant sent his APAR for the first half of the year to Mr. B. Datta, Chief Commissioner (Retired), who, not realizing that he was not authorized to write APAR of the applicant after one month of his retirement, happily entered his remarks as reviewing officer on 28.12.2011 and gave a grading of 9 to the applicant and sent the same to the Member (P&V), CBEC, New Delhi (Annexure A-6).
2.5 The applicant preferred an appeal on 05.12.2013 before the Departmental Referral Board (Annexure A-20) requesting therein for upgradation of his APAR for the year 2011-12. The Referral Board met on 27.01.2014 and decided not to alter the gradings given to him by the reporting and reviewing officers for the said period. The relevant extract from the proceedings of the Referral Board are reproduced hereinbelow:-
"6. The Referral Board after considering the submissions made in the representation dated 5.12.2013 of Shri Rajiv Kumar Mishra in respect of APAR for the Period 1.4.2011 to 30.09.2011 noted that Shri Mishra was not within his rights to send the APAR to the Reviewing Officer for review when the APAR was communicated to him as per DOP&T OM dated 14.05.2009 from the Board Office, that too after the time limit for reviewing of the APAR has already expired. Moreover, there is no record of receipt of any such duly reviewed APAR in the office of Chief Commissioner, Central Excise, Patna. Hence the gradings of this period made by the Reviewing Officer cannot be taken on record.
7. The Referral Board also noted that the Reporting Officer in both the APARs has awarded his grading on the basis of specific observations and cogent reasons in the various columns of the APARs. During the period of report the Reporting Officer has clearly 5 O.A. No.681/2015 brought out instances which indicate the casual approach of the officer reported upon i.e. Shri Rajiv Kumar Misra. Further Shri Rajiv Kumar Misra has only submitted statistical data in support of his request. However, the fact of the issue is that the leverage of such statistical data cannot be extended to Shri Misra as it does not show any contribution on account of his personal initiative.
8. The Referral Board after considering the specific achievements mentioned in the resume, remarks of the Reporting Officer for the period 1.4.2011 to 30.09.2011 and the remarks of the Reporting and Reviewing Officer for the period 1.10.2011 to 31.03.2012, observed that the overall numerical grading of 5.75 awarded by the Reporting Officer for the period 1.4.2011 to 30.09.2011 and the grading of 4.22/5 given by the Reporting/Reviewing Authority for the period 1.10.2011 to 31.03.2012 if fully justified and is commensurate with the descriptive assessment made by them in the relevant columns of the APAR."
2.6 The recommendations of the Referral Board were duly communicated to the applicant vide impugned Annexure A-1 (colly.) letter dated 28.01.2014 by the CBEC. Aggrieved by the said impugned communication from CBEC, the applicant has filed the instant O.A.
3. Pursuant to the notices issued, the respondents filed their counter reply and thereafter the applicant filed his rejoinder. With the completion of pleadings, the case was taken up for hearing the arguments of the parties on 03.08.2016. Mr. Sumit Kumar, learned counsel for applicant and Mr. Amit Yadav, learned proxy counsel for Mr. Ravinder Aggarwal, learned counsel for respondent No.6 argued the case. However, nobody appeared on behalf of respondent Nos. 1 to 5.
4. The learned counsel for applicant, besides narrating the case history and highlighting the issues raised in the O.A., submitted as under:
(i) The reporting officer Mr. J.K. Jha was biased and unfair to the applicant, and that in the previous two years, i.e., 2009-10 and 2010- 6 O.A. No.681/2015
11, he had given a grading of 5 to the applicant in both the years, which were upgraded to 8 & 9 respectively by the reviewing officer, Mr. B. Datta.
(ii) The reporting officer, with a prejudiced mind, delayed the transmission of the APAR of the applicant for the first half of the year 2011-12 to Mr. B. Datta, who was due for superannuation on 30.09.2011. Deliberately the APAR was sent to Mr. Datta on 31.10.2011 so as to ensure that Mr. Datta gets disabled to enter his remarks as reviewing officer.
(iii) The applicant was asked by the CBEC to submit his comments on the below benchmark gradings given to him by the reporting officer for first half of the year, i.e., April - September 2011. He sent the APAR for the said period to Mr. Datta, who was fair enough to upgrade it to 9, as it could be seen from Mr. Datta's letter dated 28.12.2011 to the Member (P&V), CBEC.
(iv) The reporting officer was able to influence the new reviewing officer, Mr. M.D. Singh, who had taken charge of the post of Chief Commissioner, Patna w.e.f. 01.11.2011 from Mr. B. Datta. Consequently, the below benchmark grading of 4.22 given to him by the reporting officer was only marginally improved by the new reviewing officer to 5.
(v) The applicant was also the Incharge of the post of Additional Commissioner of Ranchi Commissionerate and his achievement of 7 O.A. No.681/2015 the additional charge has not been considered by the reporting and reviewing officers.
5. Concluding his arguments, learned counsel for applicant submitted that the applicant is having good service records throughout, and that Mr. J.K. Jha, the reporting officer, with a prejudiced attitude towards him, has spoiled his APAR and as such, in all fairness, the reliefs prayed for may be granted and the O.A. may be allowed.
6. Per contra, the learned proxy counsel for respondent No.6 submitted that the appeal against the below benchmark gradings given to the applicant by his reporting and reviewing officers for the year 2011-12 have been considered by the Departmental Referral Board. The Board, after assessing the service record of the applicant, declined to interfere with the gradings. It was also submitted that the allegations made by the applicant against his reporting officer are unfounded, and that the Department has acted in an objective manner in the matter. Concluding his arguments, the learned proxy counsel for respondent No.6 submitted that the grading given to the applicant is based on his performance and as such the reliefs claimed in the O.A. need to be declined.
7. I have considered the arguments put forth by the learned counsel for the parties and have also perused the pleadings and the documents annexed thereto.
8. I notice that the below benchmark gradings of the applicant for the year 2011-12, on his representation, has been considered by a duly constituted Referral Board of the Department. The Referral Board 8 O.A. No.681/2015 comprised very senior officers of the Department, viz. the Chief Commissioner, Central Excise, Ranchi, the Director General, HRD, CBEC and the Member (ST), CBEC. The Board has considered the subject in great details and finally came to the conclusion that the gradings given to the applicant by the reporting and reviewing officers are not required to be interfered with. The reasoning given for the said conclusion could be seen from the extracts of the proceedings of the Referral Board at paragraph 2.5 of this Order.
9. Undoubtedly, the reporting officer of the applicant (Mr. J.K. Jha), Commissioner of Central Excise, Jamshedpur, ought to have sent the APAR of the applicant for the first half, i.e., April - September 2011 to the Chief Commissioner, Patna (Mr. B. Datta) by the first week of October 2011, taking into consideration the fact that said Mr. Datta was superannuating on 30.09.2011 and within a month thereafter, would get disabled to enter his remarks in the APAR of the applicant as the reviewing officer. The allegation of the applicant that Mr. Jha did it deliberately, knowing very well that the below benchmark grading given by him to the applicant would be upgraded by Mr. Datta and that is why he delayed its submission for a month, certainly has some force. But then the very fact that the Referral Board, an impartial body, comprising very senior officers of the Department, has considered the APAR of the applicant and decided to retain the gradings as they were, would go to show that the case of the applicant has been fairly treated.
10. The applicant's contention that he held additional charge of Additional Commissioner, Central Excise, Ranchi and his performance in 9 O.A. No.681/2015 the additional charge has not been considered, does not merit any special consideration by this Tribunal. After all, the APAR of an officer is written in respect of the substantive post that he holds. I, therefore, hold that the assessment of the performance of the applicant only in his substantive charge of the post of Additional Commissioner, Central Excise, Jamshedpur was absolutely in order.
11. Before parting with this Order, I would also like to comment upon the conduct of Mr. B. Datta, Chief Commissioner (retired). He ought to have realized that after a month of his retirement/superannuation he could not have written APARs of his erstwhile subordinates. Surprisingly, at the behest of the applicant, flouting all the laid down norms, Mr. Datta chose to enter his remarks as reviewing officer in the APAR of the applicant for the first half of the period, i.e., April - September 2011. The respondents were fully justified to ignore the said remarks of Mr. Datta, as the same is non- est in the eyes of law. The criticism of the applicant by the Referral Board for sending his APAR to Mr. B. Datta, Chief Commissioner (retired) was fully justified.
12. In view of the discussions in the foregoing paragraphs, I do not find any merit in the O.A. The same is dismissed. No order as to costs.
13. The M.A. Nos.566/2015 & 567/2015 also stand disposed of accordingly.
( K.N. Shrivastava ) Member (A) /sunil/