Central Administrative Tribunal - Chandigarh
H.S. Gill vs Director General on 7 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A. No.131/CH/2013
(Reserved on 30.9.2013)
Chandigarh, this the 7th day of October, 2013
H.S. Gill, s/o Late Sh. Hari Singh aged about 60 years, retired as Security Officer, Central Scientific Instruments Organization (CSIO), Sector 30-C, Chandigarh 160 030 and residing at # C-8, CSIO Colony, Sector 30-C, Chandigarh-160 030.
APPLICANT
BY ADVOCATE: Applicant in person.
VERSUS
1.Director General, CSIR Anusandhan Bhawan, 2, Rafi Marg, New
Delhi 110 001.
2.Director, Central Scientific Instruments Organization, Sector 30-C, Chandigarh 160 030.
RESPONDENTS
BY ADVOCATE: SH. I.S. Sidhu
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER(A):-
1. This OA has been filed under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:-
(i)Issuance of direction to expunge the remaining adverse remarks appearing at columns A-2, A-3 and B-6 (iv) (Annexure A-1) on the same ground by which adverse remarks appearing at columns B-1 to B-4, B6 (i) & (iii), B-7 and B-8 has been expunged by respondent No. 1 vide order dated 16.1.2013 (Annexure A-6).
(ii)Issuance of direction to expunge the Average grading (Annexure A-5) which is below bench mark and recorded on the basis of Annexure A-1 as the respondents had admitted (Annexure A-6) that no material/record is available with them to sustain the adverse reamarks.
2. Averment has been made in the OA that on the recommendations of the Security Advisory Committee, CSIO and as per the requirement of the Scientist-In-Charge, Jaipur Centre, the applicant was temporarily transferred from CSIO Centre Chandigarh to CSIO Jaipur against a non-existent/non-sanctioned post of Security Officer and was asked to act as Security Officer and supervise the work of cleanliness & Guest House. The applicant submitted his ACR form for 2007-2008 and Part II regarding Self Appraisal was filled in as: Posted at CSIO, Jaipur. No work assigned. Duties and responsibilities of security officer were looked after by Sh. A.K. Sharma, S i/C, Jaipur himself. Vide OM dated 1.6.2010, the applicant was communicated adverse remarks from the Confidential Report for the period 2007-2008 and he represented against the same to respondent No. 2 requesting that the adverse remarks in the ACR for the period 2007-2008 be expunged. He also filed OA No. 337/CH/2012 in this regard titled H.S. Gill vs. UOI wherein through order dated 15.10.2012, the respondent No. 1 was directed to pass a detailed and reasoned speaking order within a period of two months. Vide impugned order dated 16.1.2013, respondent No. 1 expunged the adverse remarks mentioned at columns B-1 to B-4, B-6 (i) & (iii), B-7 and B-8 (Annexure A-1) but retained the adverse remarks mentioned at columns A-2, A-3, B(iv) and also the Average grading (Annexure A-5) which is below bench mark.
3. In the grounds for relief, it has been stated as follows:-
(i)The adverse remarks conveyed in respect of the ACR of 2007-2008 (Annexure A-1) recorded by the reporting officer, were without any objectivity, absolutely vague and recorded with malafide intention in order to debar and deny the applicant from next promotion. These remarks were recorded without giving an opportunity to the applicant in writing by informing him of the deficiency noticed so that he could improve his performance and the appeal of the applicant was disposed of in a perfunctory manner without application of mind.
(ii)Although some of the adverse remarks were expunged by respondent No.1, but by not expunging the Average grading which is below the bench mark, the action of the respondents was illegal, arbitrary, discriminatory and violative of Articles 14 & 16 of the Constitution of India.
(iii)The grading of Average by the reporting officer for the period 2007-2008 was based on adverse remarks recorded by him and since many of the adverse remarks had been expunged, it was unfair to continue with the grading of Average.
(iv)The decision of the Tribunal in OA. 578/CH/2003 dated 1.1.2008 has been cited wherein it had been observed that the law is well settled that before recording adverse remarks, the employee is to be given opportunity to correct himself in cases where he did not work objectively or satisfactorily. Reference in this regard is made to the judgement of the Apex Court in Sri M.A. Rajsekhar Vs. the State of Karnataka & Others (JT 1996(7) SC 708). Admittedly, no such opportunity was afforded to the applicant before recording the adverse remarks in his APARs. The same cannot, therefore, be sustained.
(v)The Honble Supreme Court has underlined the need to write confidential reports in an objective, fair and dispassionate manner in S. Ramachandra Raju vs. State of Orissa (JT 1994(5) SC 459). It has been observed that Writing confidential reports bears onerous responsibility on the reporting officer to eschew his subjectivity and personal prejudice or proclivity or predilection and to make objective assessment. The career prospects of a subordinate officer/employee lately depends on the work and character assessment by the reporting officer. So, the latter should adopt fair, objective, dispassionate and constructive comments in estimating or assessing the character, ability, integrity and responsibility displayed by the officer/employee concerned 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 is being put to great jeopardy. It has been further held that Therefore, writing the confidential report objectively and constructively and communicating thereof at the earliest would pave way for amends by erring subordinate officer or to improve the efficiency in service.
The recording of adverse remarks and grading in the ACR of 2007-2008 did not meet the guidance given by the Apex Court from time to time and hence, the remaining adverse remarks appearing at columns A-2, A-3, B (iv) and also the Average grading, be expunged in the interest of justice as the respondent No. 1 had admitted that no material/record was available to sustain the adverse remarks.
4. Written statement was filed by the respondents wherein it has been stated that the competent authority while passing order at Annexure A-6 had considered the matter in right perspective and had accordingly expunged the remarks mentioned therein. However, the overall grading had not been revised by the competent authority. It is the subjective satisfaction of the Reporting and Reviewing authorities and no opportunity is required to be given before recording adverse remarks. The competent authority has considered the records. There is no allegation of malafide or bias against the competent authority deciding the appeal dated 8.2.2011. The order at A-6 is well reasoned. Hence, there is no merit in the OA and the same should be dismissed.
5. Arguments advanced by the applicant in person and the learned counsel for the respondents were heard. Applicant reiterated the points taken in the OA and stressed that the below bench mark grading of Average would affect his promotion prospects adversely and since there is no material on record to justify the below bench mark remarks and grading in the ACR of 2007-2008, the remaining adverse entries below the bench mark level should also be expunged.
6. Learned counsel for the respondents took the preliminary objection in the OA that the DG, CSIR and the Director, CSIO, Chandigarh had been arrayed as respondents, but the institutions to which they belonged, had not been made respondents. He also stated that remarks in ACRs were recorded as per the subjective satisfaction of the recording officer, whether he was a reporting officer, reviewing officer or the accepting authority and there was no requirement that opportunity of hearing be afforded to a person before his ACR was recorded. Learned counsel stated that the order passed by the DG, CSIR on 16.1.2013, was a detailed one addressing all aspects of the matter and no bias or malafide has been alleged against the DG, CSIR. Hence, there was no ground to expunge the remarks recorded by the reporting officer which had been allowed to stand as per DG, CSIRs order dated 16.1.2013. Learned counsel also cited R.L. Butail Vs. UOI, 1970 S.L.R., 926 in support of his contentions where it has been held as follows:-
The contention that the adverse remarks did not contain specific instances and were, therefore, contrary to the rules, could not be sustained. The Rules do not provide for nor require an opportunity to be heard before any adverse entry is made. The contention that an enquiry would be necessary before any adverse entry is made suffers from a misapprehension that such an entry amounts to the penalty of censure set out in r. 11 of the Central Civil Services (Classification, Control and Appeal) Rules. The entry is made under the Office Order of 1961 set out above by way of an annual assessment of the work done by the Government servant and not by way of a penalty under the said Central Civil Services Rules. True it is that such remarks would be taken into consideration when a question such as that of promotion arises and when comparative merits of persons eligible for promotion are considered. But then whenever a Government servant is aggrieved by an adverse entry, he has an opportunity of making a representation. Such a representation would be considered by a higher authority, who, if satisfied, would either amend, correct or even expunge a wrong entry, so that it is not as if an aggrieved Government servant is without remedy.
7. I have given my thoughtful consideration to the matter. It is observed that the applicant was transferred from CSIO, Chandigarh, to CSIO Centre Jaipur, but he has claimed that he was not assigned any duties regarding Security Officer at this establishment since there was no post of Security Guard available there and he could not perform his supervisory duties as Security Officer. Moreover, the CSIO Centre, Jaipur, was on the verge of closure and there was only limited work and limited staff at this location. The relations between the applicant and the Scientist In-Charge Sh. A.K. Sharma appear to have been far from amicable and there could be some element of bias on the part of the Reporting Officer while recording the applicants ACR for 2007-2008. Most of the remarks in the ACR for the year have been expunged by respondent No. 1 while recording his order dated 16.1.2013. The remarks in A-2, A-3 and B(iv) are of a general nature and cannot be construed to be adverse, hence, there is no ground to interfere with the same. However, the overall grading of Average is decidedly below the bench mark and this was presumably based on the contents of the ACR before the remarks at B-1, B-2, B-3, B-4 (i) & (iii) and B-7 and B-8 were expunged. Since these remarks have been expunged the overall grading of Average must also be expunged.
8. The OA is allowed with these observations. No costs.
(RAJWANT SANDHU)
MEMBER(A)
Dated: October 7th, 2013,
ND*