Central Administrative Tribunal - Delhi
Shri P.P. Singh vs Union Of India: Through on 29 May, 2015
Central Administrative Tribunal Principal Bench OA No. 1126/2012 Reserved on: 29.01.2015 Pronounced on:29.05.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Shri P.P. Singh, S/o Shri Ram Chand Dhaliwal, ACIO Grade-I, Under Director/IB, Govt. of India, Ministry of Home Affairs, North Block, New Delhio -Applicant (By Advocate: Ms. Meenu Mainee) -VERSUS- Union of India: Through 1. Secretary, Ministry of Home Affairs, North Block, New Delhi 2. Director/IB, Ministry of Home Affairs, North Block, New Delhi 3. Asst. Director (ACR) Ministry of Home Affairs, North Block, New Delhi -Respondents (By Advocate: Shri T.A. Ansari) O R D E R Dr. B.K. Sinha, Member (A):
In the instant OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant impugns the following five orders of the respondents:
i) The memorandum dated 08.07.2010 communicating the below benchmark ACRs of the applicant for the years 2006-07 and 2007-08 inviting representations to the competent authority within 15 days of the receipt of the communication;
ii) Memo dated 09.11.2010 communicating rejection of the representation for upgrading of the ACRs for the years 2006-07 and 2007-08 by the competent authority;
iii) The order dated 21.10.2011 rejecting the representation of the applicant made in response to communication of the ACRs on 08.07.2010 following the OM dated 13.4.2010;
iv) A communication dated 08.06.2011 communicating the ACRs for the years 2006-07 and 2007-08 as per the directive in OM dated 13.4.2010 enclosing the ACRS in full and inviting representations; and
v) Memo dated 11.07.2011 communicating the rejection of the representation of the Applicant dated 21.06.2011 for upgrading the ACRs for the period 2006-07 and 2007-08.
2. The applicants case, briefly stated, is that he was recruited as Junior Intelligence Officer Grade-I following his selection by the Service Selection Commission on 15.01.1982. He was subsequently promoted as ACIO-Grade II in 1990 and ACIO Grade I in 2001. The applicant was subsequently transferred to Sangrur where he served under one A.K. Sharma, who acted as DCIO up to 31.03.2010 and subsequently under one VK Goel, DCIO. On 08.07.2010, the respondents issued a memo communicating the below benchmark Average ACRs for the years 2006-07 and 2007-08 whereupon the applicant submitted his representation which had been rejected by the impugned order dated 09.11.2010. The applicant thereupon filed OA No. 4106/2010 before this Tribunal which was disposed of vide order dated 18.08.2011 directing the respondents to deal with the representation of the applicant by a speaking and reasoned order. The respondents have, however, rejected the representation of the applicant vide the impugned order dated 21.10.2011 making reference to some of the earlier correspondences.
3. The applicant has prayed for quashing the impugned orders and for placing the ACRs of the applicant before the DPC ignoring those for the years 2006-07 and 2007-08 and all other un-communicated Adverse reports made earlier.
4. The respondents have filed a counter affidavit denying the averments of the applicant. It has been submitted that as per the DoP&T OM dated 10.04.1989, average performance was not to be interpreted as adverse remarks but rather as a routine and distinguished. These remarks in respect of 2006-07 and 2007-08 were not communicated to the applicant in due course. The DoP&T vide its OM dated 14.5.2009 and 13.04.2010 made provisions for communicating the below benchmark ACRs/APARs. However, a proposal for exemption of the respondent organization-IB from communicating the full text of the ACRs to the individual concerned was submitted to the Government and was pending decision. As such, only below benchmark ACRs Average grading for the period 2006-07 and 2007-08 were communicated to the applicant vide the Order dated 08.07.2010. His representation seeking upgradation of the ACRs was considered by the competent authority and was rejected. The applicant was provided full copies of the ACRs vide OM dated 08.06.2011 following UPSCs advice and the DoP&T directives pursuant to the proposal of the respondents seeking exemption from communicating full ACRs/APARs.
5. The respondents have further submitted that the applicant was posted as ACIO-I at Sangrur w.e.f. 5.1.2006, but it is denied that he discharged the duty of DCIO on the retirement of incumbent of that post. In fact, he was posted as outpost in-charge in the capacity of ACIO-I under the supervision of ACIO/AD Patiala.
6. The respondents have further submitted that cash rewards given to the officers do not justify the performance during the whole year as they are given in recognition of performance of particular tasks. The applicant had been given several instructions orally as well as in writing about his poor performance and for bypassing his superior officers with the advise to improve his performance and to consult his immediate superior officer DCIO Patiala before sending inputs of sensitive nature to SIB Patiala. He further failed to make sufficiently robust arrangement for manning the Sangrur office during his absence. In view of these facts, his representation for upgradation of the two ACRs, namely, 2006-07 and 2007-08 were rejected along with reasons Copies of the full ACRs and remarks of the different recording authorities were communicated to the applicant vide memo dated 08.06.2011, in compliance to the DoP&T OM dated 13.4.2010.
7. The respondents have denied the charges leveled against one SS Multani, DCIO, who had graded the applicant Average for the period 2008-09 and Good for the period 2009-10 on the ground that it was strictly in relation to his performance. In response to his representation dated 08.04.2011, the ACR for the period 2008-09 was upgraded as Very Good.
8. The applicant has also submitted rejoinder denying the averments made in the counter reply.
9. The applicant has relied upon the case on Abhijit Ghosh Dastidar vs. Union of India & Ors., (2009) 16 SCC 146 to contend that any remarks not communicated as per law laid down in Dev Dutt vs. Union of India, (2008) 8 SCC 725, were to be ignored by the DPC while considering promotion.
10. The applicant has also relied upon the Sukhdev Singh vs. Commissioner, Amrawati Division & Anr. [(1996) 5 SCC 103] to contend that before making any adverse entry, sufficient opportunity should have been provided to the applicant to improve his conduct.
11. The applicant has also alleged malafides against one SS Multani, the then DCIO and his reporting officer at Sangrur, who would not hesitate to sacrifice his conscience even for a cup of tea. The two grounds alleged by the applicant were that the decision to deny him promotion has been taken on the basis of un-communicated ACRs and before grading ACRs as Average, no opportunity had been given to him to improve his conduct.
12. We have examined the pleadings as well as documents submitted by the rival parties. We have also patiently heard the arguments advanced by their respective counsels and on the basis thereof, we find that the following three issues need to be decided in order to arrive at a specific conclusion:-
(i) Whether the case of the applicant is covered by the decision of the Honble Supreme Court in Abhijit Ghosh Dastidar (supra)?
(ii) Whether the opportunity has been given to the applicant to improve his conduct before recording ACRs for the years 2006-07 and 2007-08 as Average?
(iii) Whether the conduct of the said SS Multani can be said to be one actuated by malafide?
13. We would like to take up the issue by defining the scope of judicial intervention in matters of recording ACRs. The subject has been dealt with in detail in Pala Singh Tanck Vs. Union of India (OA No. 1111/2011 decided on 05.01.2015). In the said case, this Bench had arrived at the decision that the Tribunals/Courts are not to act as superior recording authorities and the scope of judicial intervention is limited only to the instances where the ACRs recorded are hit by mala fide or have been recorded by incompetent authorities or in contravention of some provisions of the Rules.
14. Insofar as the first issue is concerned, it was held clearly by this Tribunal in the case of Pala Singh Tanck Vs. Union of India (supra) that the courts are not to step into the shoes of super recording authorities. In other words it is not for the Courts/Tribunals to say that whether an employee deserved to be graded 9 or 6. This also stands to logic as the court/tribunal has never supervised the functioning of the employee. In the instant case, we find that it is an admitted position that as per OM dated 10.04.1989, Average ACRs were not considered to be Adverse and hence were not to be communicated. However, the picture changed dramatically after the judgment of the Honble Supreme Court delivered in the case of Dev Dutt Vs. Union of India (supra) in compliance of which, the OM dated 13.04.2010 was issued. The relevant portion of this order is being extracted for easy reference and further clarity on the matters as below:-
Subject: Below Benchmark gradings in ACRs prior to the reporting period 2008-09 and objective consideration of representation by the competent authority against remarks in the APAR or for upgradation of the final grading.
The undersigned is directed to say that prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to the concerned officer for representation, if any to be considered by the competent authority. The question of treating the grading in the ACR which is below the benchmark for next promotion has been considered in this Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication. It may be noted that only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years.
2. As per existing instructions, representations against the remarks or for upgradation of the final grading given in the APAR (previously known as ACR) should be examined by the competent authority in consultation, if necessary, with the Reporting and the Reviewing Officer, if any. While considering the representation, the competent authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. This would imply that the competent authority shall take into account the contentions of the officer who has represented against the particular remarks/grading in the APAR and the views of the Reporting and Reviewing officer if they are still in service on the points raised in the representation vis-a-vis the remarks/gradings given by them in the APAR. The UPSC has informed this Department that the Commission has observed that while deciding such representations, the competent authorities sometimes do not take into account the views of Reporting / Reviewing Officers if they are still in service. The Commission has further observed that in majority of such cases, the competent authority does not give specific reasons for upgrading the below benchmark ACR/APAR gradings at par with the benchmark for next promotion.
3. All Ministries / Departments are therefore requested to inform the competent authorities while forwarding such cases to them to decide on the representations against the remarks or for upgradation of the grading in the APAR the decision on the representation may be taken objectively after taking into account the views of the concerned Reporting / Reviewing Officers if they are still in service and in case of upgradation of the final grading given in the APAR, specific reasons therefor may also be given in the order of the competent authority.
Thereafter, the respondents communicated the ACR gradings but did not communicate the full text of the ACRs. Here, the reason for not communicating the full text of the ACRs, including remarks of the various recording authorities appears to be that the respondent-department, considering the covert nature of its operations, was not prepared to share the contents of the remarks recorded by different recording authorities and had submitted a proposal to this effect to the DoP&T. However, in view of the UPSC advice rendered in this matter, a communication dated 08.06.2011 was made communicating the full text of the ACRs, following which the impugned order dated 21.10.201 rejecting his representation for upgradation of the ACRs for 2006-07 and 2007-08 was passed, which is challenged in the present Application.
15. We find from perusal of the order dated 21.10.2011 that there is an application of mind by the competent authority and the case has been dealt with in full. The competent authority has duly considered the representation, the materials available on record and found that the applicant had submitted incorrect facts in his representation that following the retirement of one AK Sharma, DCIO, Sangrur, he had held the charge of the DCIO. It is stated that the charge of the DCIO Sangrur was being held additionally by the DCIO Patiala. The said order also gives details of the documents which were consulted while considering the representation of the applicant and has listed out the irregularities and shortcomings of the applicant, including his poor performance of a casual contract handled by him, his negligence towards duty in not attending to his cell phone after office hours and not making necessary arrangements at the post while he was on station leave. The competent authority found that his conduct in bypassing his immediate superior authority in submitting reports is a grave lapse.
16. In the case of Abhijit Ghosh Dastidar, the applicant was a Postmaster General, who was not fit for promotion to the Higher Administrative Grade, Group A. He approached the Patna Bench of this Tribunal, which directed the authorities not to take note of the order of caution dated 22.9.1997 and order of adverse remarks dated 09.06.1998, yet the applicant was not considered for promotion as he was not having the benchmark Very Good. He had relied upon the case of Dev Dutt Vs. Union of India (supra) that un-communicated below benchmark remarks could not form the basis for consideration of promotion. Pursuant to the directions of the Patna Bench dated 09.09.2002, a review DPC was held but it did not find the applicant suitable for promotion. However, the regular DPC found him suitable for promotion in March, 2003. The Honble Supreme Court directed that the entries of Good should not have been taken into consideration as they had not been communicated.
17. However, we find that the facts in the instant case are different. The question of communication of below benchmark entries did not arise, as the practice was not to communicate the Average ACRs under the terms of DoPT OM dated 10.04.1989. However, in wake of Dev Dutt case (supra), the DoPT issued OM dated 13.4.2010 and the entries were communicated for the years 2006-07 and 2007-08. We have also taken note of the fact that the Department, in the interest of the nature of the organization, approached the DoP&T for exemption from communicating the full text of the ACRs. Subsequently, when this failed to materialize, the full text of the ACRs were communicated vide OM dated 08.06.2011 to the applicant. His representation has been duly taken into consideration, as detailed above and accordingly rejected. Thus, the respondents are not to be faulted on this account.
18. We also find that every pronouncement of the superior court does not attract the doctrine of stair decisis and the ratio should be the same. (Bank of India & Anr. vs. K.Mohandas & Ors. [(2009)5 SCC 313]. Hence, we do not find that the judgment in Abhijeet Ghosh Dastidar is attracted to the facts of this case.
19. Insofar as the second of the issues is concerned, we find that the respondents have given several instances where the applicant had been warned to improve his conduct. For instance, vide communication dated 03.10.2007, the Assistant Director/P has issued memo stating as under:-
Memorandum Recent Review of Source/Contacts/CCs has shown that the performance of the following assets of your unit is very dismal:
1. PB - 64
2. CC Sant
2. The Deputy Director has desired that the unit in-charges should ensure that Handling Officers are accordingly briefed to show immediate improvement in performance of these assets.
20. Again, in respect of the inputs sent through the FAX, the JDD/P had made the following observations:-
NO NEED FOR SUCH INPUTS TO BE SENT ON FAX ACIO SNAGRUR SHOULD HAVE CONTACTED DCIO PATIALA AND THEN A PROPER ASSESSMENT SHOULD HAVE BEEN SENT.
21. There are several other instances, which have been cited where warnings had been given. Hence, we find that the case of the applicant that no warning had been delivered to him and that Average ACRs came as bolt from the blue is not substantiated by the facts. The facts are to the contrary. Hence, we find that there is no merit in this issue and it is accordingly decided against the applicant.
22. In respect of the third issue, we find that the said SS Multani has not been made a party. When malafide of serious nature has been alleged against a person, it is just and proper that he should have been made a party. It goes without saying that the onus of proof lies heavy on the person who alleges malafide. Moreover, we are also swayed by the fact that the said SS Multani, while recording Average ACRs for the years 2006-07 and 2007-08, had also recorded Good in the year 2008-09. Surely, the applicant does not propose to contend that this was on account of extraneous consideration. Without going further into this matter, we dismiss this allegation as unfounded and unsubstantiated.
23. Finally, summing up the case, we find that in matters of ACRs, the respondents have acted as per the Government instructions and that adequate warnings had been delivered to the applicant before recording his ACRs for the years 2006-07 and 2007-08 as Average. We have also found that the charges of malafide alleged against the said SS Multani are un-substantiated and cannot be relied upon.
24. We are also constrained to observe that the organization, which the applicant serves, is responsible for internal security of the country. The applicant himself has no insignificant role in safeguarding the security of the country, but we find him making wrong submissions. Hence, in view of the issues as decided, we find that there is no merit in the case and the same is dismissed without costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/