Central Administrative Tribunal - Delhi
Jaydeep D. Tatmia vs The Comptroller & Auditor General Of ... on 11 March, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.2889/2013 New Delhi, this the 11th day of March, 2014 HONBLE SHRI G. GEORGE PARACKEN, MEMBER (J) HONBLE SHRI P.K. BASU, MEMBER (A) Jaydeep D. Tatmia Residing at V-12, A.G. Colony, Bajaj Nagar, Jaipur-302015 ....Applicant (Through Ms. Haripriya Padmanabhan with Sh.Vikramaditya, Advocates) Versus 1. The Comptroller & Auditor General of India Pkt. No.9, Deendayal Upadhyay Marg At New Secretariat New Delhi-110024. 2. Union of India, Through its Secretary, Department of Expenditure, Ministry of Finance, North Block, New Delhi-110001.Respondents By Advocate: Shri Gaurang Kanth, Advocate) ORDER Mr. P.K. Basu, Member (A):
The applicant is an officer of 1996 batch of the Indian Audit and Accounts Service. He received his due promotions in the Junior Time Scale, Senior Time Scale and Junior Administrative Grade upto 2005. In the period 31.10.2007 to 31.03.2008, his reporting officer was Mr. P.K. Tiwari. Mr. Tiwari rated the applicant as `outstanding for the period 31.10.2007 to 31.03.2008. However, the applicant received a communication from the respondents seeking representation against adverse entries, in his Annual Performance Assessment Report (APAR) for the period 1.04.2008 to 31.03.2009. In the said APAR, the applicant was graded as only `good by the reporting officer, Mr. P.K. Tiwari. The applicant made his representation against this. Again he was communicated that his APAR for the period 1.04.2009 to 31.08.2009 was graded as `good by the reporting officer Mr. Tiwari but the reviewing authority had changed this grading to `very good, recording that the grading has been very strict on different aspects. After 18 months of his representation against the adverse entries made in his APAR of 2008-09, the applicant was sent order dated 7.01.2011 by the Deputy Comptroller and Auditor General (Dy. CAG), who decided to retain the overall grading of the applicant as `good. However, the remark on integrity was modified to beyond doubt and some remarks were decided to be expunged and some retained. The remarks were retained on the basis of the responses of the reporting officer to the representation of the applicant, copy of which was not given to the applicant before the final decision on his appeal. However, the applicant could obtain a copy of the comments of the reporting officer pursuant to an RTI inquiry. An appeal was preferred by the applicant against the order of the competent authority for the APAR of 2008-09 and ultimately the Comptroller and Auditor General of India (CAG) vide letter dated 1.12.2011 informed the applicant that the appeal was not maintainable. Aggrieved by the CAG order, the applicant submitted a Presidential Memorial.
2. The grievance of the applicant is that the respondents promoted many persons who were on the same level of seniority as the applicant as well as those junior to him to the Senior Administrative Grade - I (SAG-I) but the applicant was not promoted along with his peers. On 19.07.2012, the Ministry of Finance informed that the original representation of the applicant should have been disposed of by the CAG and not the Dy.CAG. Therefore the competent authority (CAG) passed an order but decided to retain the grading of `good and remarks in the APAR of 2008-09. The order of the competent authority dated 3.01.2013 was communicated to the applicant. The competent authority reasoned its order by saying that achievements of targets may not be the sole criteria in judging the overall performance of the officer. The manner in which the targets were achieved was also to be taken into consideration. However, the applicant alleges that various other issues raised by him were not dealt with in this order. The applicant submits that his APAR from 2001 to 2012 would show that he has received the grading of `outstanding in 8 out of 14 APARs. In remaining 6, only two were `good and the remaining four were very good.
3. Heard both the parties.
4. The applicant alleges that due to some difference of opinion between him and Mr. P.K. Tiwari over disciplinary proceedings against one Mr.V.K. Rathod, Sr. Accountant, Mr. Tiwari, as reporting officer, has for malafide intentions graded him `good with several disparaging remarks. It is argued that because of Mr. Tiwari giving below bench mark grading and the adverse remarks, the applicant has been deprived of his promotion despite having unblemished and clean record since the applicant joined and even beyond 2008-09.
5. The applicants counsel further argued that when the reporting officer submitted the APAR along with his remarks to the reviewing authority (Ms. Bharti Prasad), the reviewing authority did not accept the remarks of the reporting officer and, in fact, recorded that the grading on various aspects has been strict and directed the reporting officer to communicate the whole report to the applicant for its comments before it is reviewed by her. It may be worthwhile to see the remarks of Ms. Bharti Prasad, which were as follows:-
I have quickly gone through Shri Tatamiyas representation sent by his letter No.Sr.DAG/A&F/OW/32 dated 9 July, 09, to the Reporting Officers assessments under the various attributes. He has strongly refuted these comments and has provided copies of documents (1 to 91 p) in support of refutation/comments especially for Pt.II, B 3.
The Reporting officer may review these and in light of his review may make considered appropriate/necessary modifications and revisions in the ACR.
I do not accept some of the assessments as indicated within as these are vague (Pt.III A2 and 3) and minor (Pt.III B2 and 4).
I also do not accept the Reporting Officers General Assessment in Pt IV 3. Thereafter, the reports were communicated to the applicant and the applicant made his representation on 9.07.2009. The reporting officer submitted his comments in November, 2010, as stated by the applicant. By that time, Ms. Bharti Prasad had retired on superannuation and one Shri Narendra Singh had joined in her place. After the superannuation of Ms. Bharti Prasad, Shri A.N. Chatterji assumed the charge as Dy. CAG in her place as reviewing authority. His tenure was from July 2009 till April 2010. Thereafter Shri A.K. Banerjee was the reviewing officer from May 2010 till October 2010. Shri Narendra Singh was made the reviewing authority from November 2010 till November 2011. The representation made by the applicant, as already stated, was not put up either before Shri Chatterji or Shri Bajerjee but with unconscionable delay before Shri Narendra Singh. Shri Narendra Singh thereafter on the representation dated 9.07.2009, passed an order on 7.01.2011 i.e. almost after 1-1/2 years by which he ordered that the grading of `good be retained but some of the remarks could be expunged. This was confirmed by the CAG vide his order dated 5.09.2012. The applicant alleges that the reporting officer deliberately delayed presenting his representation so that Ms. Bharti Prasad, Shri Chatterji and Shri Bannerjee all leave the post and waits till Shri Narendra Singh joins. Interestingly, it would be seen from the APARs from 2001-2012 that it is only Shri Tiwari who has rated him as `good for 2008-09 and Shri Narendra Singh has endorsed that `good. Shri A.N. Chatterji had rated him as `very good from 1.04.2009 to 31.08.2009 and thereafter one Shri Pramod Kumar, AG and Shri Narendra Singh, Dy. CAG had rated him `outstanding from 1.09.2009 to 31.03.2010 and 1.04.2010 to 3.01.2011. Other than this, he has always received mostly `outstanding or `very good as his grading except for the period 1.04.2005 to 31.03.2006 when he was graded `good but in this case there was no review so in a sense this was incomplete. The applicant has relied on the judgment of the Honble Supreme Court in State of M.P. and others Vs. Vishnu Dutta (VS) Dubey and others, 1995 Supp (4) SCC 461 in which the Court had held as follows:
Service Law Annual Confidential Report Judicial review Tribunal quashing adverse ACR of respondent for the year 1983-84 on the ground that there was no factual basis for recording it Held, though normally Tribunal was not supposed to go into the merits of ACR and quash it, considering the fact that the service record of the respondent from 1959 to 1983 had been excelled and that he had received 45 awards, interference with the order of the Tribunal was not called for. He has also relied on P.K. Shastri Vs. State of M.P. and others, (1999) 7 SCC 329 in which the Honble Supreme Court held as follows:
Be that as it may, we think that the CRs of an officer are basically the performance appraisal of the said officer and go to constitute vital service record in relation to his career advancement. Any adverse remark in the CRs could mar the entire career of that officer. Therefore, it is necessary that in the event of a remark being called for in the confidential records, the authority directing such remark 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. A decision in this regard must be taken objectively after careful consideration of all the materials which are before the authority directing the remarks being entered in the CRs. On the question of general principle of writing ACRs, the applicant relied on S.T. Ramesh Vs. State of Karnataka and another, (2007) 9 SCC 436, in which the Honble Court held that the ACRs should be used as a tool for human resource development and not for fault-finding process. In para 43 of the judgment, the Court held as follows:
43. In order to satisfy ourselves we had called for the entire service record of the appellant and upon perusal of the same, we find that the remarks of the reporting office for the period in question were contrary to his consistent performance. The observation of Respondent 2 that the appellant was an arrogant officer is followed by his remark that his knowledge and work is good. Such an observation, in our judgment, cannot be the basis of an overall rating of average.
6. In fact, it was emphasized that the same P.K. Tiwari had assessed the applicant `outstanding prior to this period and similarly Shri Narendra Singh had also assessed him as `outstanding for two successive periods. The applicant has pointed out that after expunction of remarks, the only adverse remarks which were remaining after the review were regarding (i) ill prepared affidavit in a compassionate appointment; (ii) adopting dilatory tactics in the disciplinary case; and (iii) misutilising delegated powers. In respect of all the three, the applicant had given detailed responses along with documentary evidence, however, none of the impugned orders dealt with any of the submissions made by the applicant. In fact, it is pointed out by the applicant that in reply to para `H of the OA which deals with the issue of filing of affidavit, the respondents had stated that It is denied that the stricture was passed not because of the ill prepared affidavit but because the Accountant General passed a non-speaking, sketchy and one sentence order. It is further clarified by the respondents in their reply that the contents of the present ground are also denied for want of knowledge w.r.t. proceedings before Honble CAT, Ahmedabad. The respondents placed before us the order of the Ahmedabad Bench of the Tribunal in OA 342/2008, Shri Rajdip Rameshbhai Nagrale Vs. Union of India and ors., in which the Tribunal had made the following observations:
While passing the impugned order, the competent authority has not considered this and other aspects. The application has been disposed off by one sentence only. It shows non-application of mind.
7. The respondents claim that there was no malafide on the part of Shri Tiwari or Shri Narendra Singh as Ms. Bharti Prasad had retired in between and it was not an intentional delay as claimed by the applicant. It is argued that since the applicant had made a detailed representation, it took time for the reporting officer to give his detailed comments on each and every issue raised by the applicant and the delay was not intentional. The respondents also rely on the following judgments to elaborate as to the law laid down by the Honble Supreme Court/ High Court of Gujarat at Ahmedabad/ High Court of Delhi regarding when an action will be taken as malafide and that malafides have to be clearly pleaded and proved and cannot be inferred or presumed:
Union of India (UOI) and ors. Vs. Ashok Kumar and ors., AIR 2006 SC 124 where the Honble Supreme Court observed as follows:
Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill- will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. Rajendra Roy Vs. Union of India and anr., AIR 1993 SC 1236 in which the Honble Supreme Court observed that:
In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions. Vakhatsinh Hemtaji Parmar Vs. Union of India and ors., Special Civil Application No.1837/2006 decided by the Honble High Court of Gujarat at Ahmedabad, wherein the Honble Court observed as follows:
8. In the present case, the petitioner has no where stated that his transfer is a result of malafide exercise of power and is, therefore, vitiated on that account. Malafides have to be clearly pleaded and proved and cannot be inferred or presumed. The argument advanced by the learned counsel for the petitioner has been repudiated by the Supreme Court in Rajendra Roys case (supra) in the following terms:
7.It may not be always possible to establish malice in fact in a straight-cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions.
9. The petitioner has neither laid a firm foundation on which to rest his vague use of the word `malafide nor is there any specific averment as to which authority has acted in a malafide manner and in what way the conditions of his service have been altered to his detriment due to such action. No motive has been imputed to any authority and it has not been established that the action of the authority in transferring the petitioner was not bona fide or in a routine manner, but was an outcome of malice. On the basis of these judgments, it is claimed that the applicant has not been able to prove that there was malafide and is just basing his allegations on surmises.
8. The respondents also raised the question of scope of judicial interference by this Tribunal and relied on the following judgments:
Amrik Singh Vs. Union of India and ors., AIR 2002 SC 2382 where the Honble Supreme Court observed as follows:
It is a well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions have nexus to the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether process in reaching decision has been observed correctly and not the decision as such. In that view of the matter, we think there is no justification for the High Court to have interfered with the order made by the Government. Raj Kumar Kapoor Vs. Union of India, WP (C) 129/2012 decided on 9.01.2012 by the Honble High Court of Delhi. The Honble High Court held as follows:
Court could not interfere with assessment made by superiors of Petitioner, unless it was shown to be arbitrary or suffering from vice of breach of some Rule or Regulation, which applied to Petitioner No material had been placed, which would indicate that remarks recorded by Reporting Officer and grades given to Petitioner, in ACRs for relevant years were arbitrary Reporting Officer had justified grading given by him by giving details of types in which delay, carelessness and non-application of mind on part of the Petitioner was noticed by him No breach of any Rule or Regulation was even alleged. The respondents also cited the judgment of the Honble High Court of Delhi in Rajinder Singh Sehrawat Vs. Union of India and others, 93 2001 DLT 417 in which, while discussing the issue as involved in the present case, the Court held as follows:
The adverse entries made in the ACR in question are not in keeping with the petitioners past excellent record yet the tribunal did not make any attempt to find out the real cause for his sudden down grading in the said ACR. Needless to emphasize that sudden downgrading in the ACR of an official/ employee must be informed by discernible reasons.
9. We have gone through the facts of the case in detail and also the law cited by both sides. The question to be decided is whether or not malafide is proved in this case and whether there is ground for judicial intervention.
10. Needless to say that the Indian Audit and Accounts Service is one of our premier services which has earned a very good name not only in our country but also internationally including multilateral agencies and the United Nations. Therefore, in order to preserve that level, it is incumbent upon senior members of the service to be very careful while appraising performance of their juniors. While doing so, they should be completely free from personal prejudices and bias. The applicant, in our view, has been able to establish prejudice and malafide on the following grounds:
The language of the entries made by Shri Tiwari initially is extremely harsh which is not borne out by the assessment of the same officer for the long period from 2001 to 2012 where he has been assessed as `outstanding/ `very good. As a result, several of his remarks were expunged by higher authorities;
It is clear, as has been pointed out by the applicant as also from the documents that the Ahmedabad Bench of the C.A.T. has passed strictures against Shri Tiwari for being negligent in his work, which show non-application of mind and disposal of an application by one sentence only. The reporting officer Shri Tiwari in his note says that it is the duty of the applicant to point out to him that he had to give a detailed order. This argument is ridiculous. A Principal Accountant cannot take this stand. He is the incharge and in an important matter like court case, he should himself have read the file and the order of the Tribunal and then passed an order. Instead of taking a serious note of the stricture that he has got, he is blaming his subordinates. He does not display good leadership quality.
When the representation of the applicant was filed way back in July 2009, it seems very strange to us that it takes such a long period for the reporting officer to give his comments and by the time, Ms. Bharti Prasad, Shri A.N. Chatterji and Shri A.K. Banerjee joined as Dy. CAG and left and only after that, he sends his comments to Shri Narendra Singh who joined later and took 1-1/2 years to settle the representation. This cannot be mere coincidence.
The applicants contention appears to be true that despite his explanation to three adverse comments that remained in his ACR, none of the orders passed by the respondents have touched upon them.
Except Shri Tiwari, in his long career, he has not earned `good grading except in one year as pointed out earlier when he was graded `good but there was no review of that ACR. It is pointed out that Shri Chatterji has rated him `very good and Shri Narendra Singh, on two occasions, has rated him `outstanding.
Shri Tiwari himself has assessed him `outstanding as pointed out by the applicant.
11. In S.T. Ramesh (supra), it has been held that the confidential report should be used as a tool for human resource development and not for fault-finding process. In this case, this ratio does not seem to have been followed. Similarly in P.K. Shastri (supra), Justice Santosh Hegde has also held that the authority directing entry of adverse remark must first come to the conclusion that in the fact situation it is imperative to do so to set right the wrong committed by the officer concerned.In State of M.P. Vs. Vishnu Dutta (supra), the Honble Supreme Court has held that the complete service record of the officer needs to be seen while considering his case for promotion.
12. It would be a fair conclusion from the above that the reporting officer clearly was biased and his actions were malafide.
13. We feel that this matter is completely covered by the judgments of the Honble Supreme Court in the above three cases. As a result, the ratio laid down by the Honble Supreme Court in Amrik Singh (supra) would not apply in the present case as in that matter the Court, after having gone through the concerned file and records, came to the conclusion that Prima facie, we cannot say, having gone through those records, that these notings are baseless. In this case, the facts are different, as pointed out above, this is surely a case of malafide. It is covered by the judgment of the Honble High Court in Raj Kumar Kapoor (supra) as it has been held in that case that the Court could not interfere with assessment made by superiors of petitioner, unless it was shown to be arbitrary or suffering from vice of breach of some Rule or Regulation, which applied to petitioner. Clearly, in this case the remarks should be held to be arbitrary and malafide, as has been viewed earlier. In fact the Honble Supreme Court in Rajendra Roy (supra), Ashok Kumar (supra), Vakhatsinh Hemtaji (supra) and Lt. Col. M.P.S. Gill (supra) has laid down the principle that the Tribunal will interfere if there is malafide or any violation of service rules without any proper justification. In this case, malafide comes out clearly.
14. In conclusion, we hold that there has been clear bias on the part of the reporting officer and malafide action in ruining the applicants APAR so that he is deprived of his promotion. Plethora of judgments cited by both sides clearly explain the settled law in this regard which is that while recording confidential reports, the superiors should be extremely careful and use it as a tool for human resource development and not for fault-finding process especially in this case when we are dealing with a premier service with an outstanding record, as mentioned earlier. The reporting officer has clearly allowed his personal ego (for being pulled up by CAT, Ahmedabad Bench) to settle scores with his subordinate by spoiling his confidential reports and thus violated the rules to be followed in this regard. In a malafide manner, he has made entries some of which ultimately got expunged. It is also established that the allegation he made against the applicant regarding the court case is actually his fault and he is trying to pass on the buck to his subordinate. The delay made by him in deciding the representation could not be reasonably explained and the conclusion could only be that he was waiting for Ms. Bharti Prasad, Shri A.N. Chatterji and Shri A.K. Banerjee to retire or get transferred so that he could get his way to retain the adverse remarks and grading of the applicant. This is sinister!. Further, we also take note of the fact that this applicant has generally been rated as `outstanding/ `very good over the past ten years and the sudden down grading is an aberration especially because Shri Tiwari and Shri Narendra Singh have themselves rated him as `outstanding for different periods.
15. We, therefore, have no doubt in our minds that injustice has been done to the applicant and we, therefore, quash the impugned orders dated 7.01.2011, 5.09.2012 and 3.01.2013 and set aside the grading of `good for the year 2008-09 and the respondents are directed that APAR (2008-2009) of the applicant be treated as above benchmark (i.e. at least very good) and thereafter consider the case of the applicant for all due promotions. This exercise should be completed within a period of three months from the receipt of a copy of this order. No costs.
( P.K. Basu ) ( G. George Paracken ) Member (A) Member (J) /dkm/