Central Administrative Tribunal - Bangalore
Kalaiarasi R vs Central Silk Board on 18 September, 2024
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O.A.Nos.170/000610/ 2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00610/2023
Order Reserved on: 6.9.2024
Date of Order: 18.09.2024
CORAM:
HON'BLE MR.JUSTICE B.K SHRIVASTAVA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
Mrs.Kalaiarasi R, 42 years
Stenographer Grade I
Central Silk Board
Ministry of Textiles, Govt. of India
BTM Layout, Madiwala
Bangalore - 560 068 ...Applicant
(By Advocate Sampangi Ramaiah)
Vs.
1. The Joint Secretary (Silk)
Ministry of Textiles
Government of India
New Delhi - 110 011
2. The Member Secretary
Central Silk Board
Ministry of Textiles, GOI
Madiwala, Hosur Road
Bangalore - 560 068
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3. The Director (Finance)
Central Silk Board
Government of India
Ministry of Textiles,
Madiwala, Hosur Road
Bengaluru - 560 068
......Respondents
(By Advocate Shri.Vishnu Bhat for R 1 to 3)
ORDER
PER: DR. SANJIV KUMAR, MEMBER (A)
This Original Application has been filed under Section 19 of the Administrative Tribunals Act 1985 to seek the following reliefs:
" (i) Issue a Writ of Certiorari or any other order quashing the Impugned Order No.CSB-
8(1)/2016-ES.II dated 21/29.08.2023 passed by the 2nd respondent which has been produced as Annexure A1 as the said order is illegal, unjust, arbitrary, capricious, irrational and violate of Articles 14, 16 and 21 of the Constitution of India, apart from being contrary to the principles of rules of natural justice.
(ii) Issue a Writ of Mandamus or any other appropriate Writ, Order or Direction, directing the respondents to consider the applicant's plea for promotion at par with her junior with all consequential benefits.
(iii) Pass any such other orders or issue such other directions as this Hon'ble Tribunal deems fit in the facts and circumstances of the case in the interest of justice and equity. " 3
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2. This Original Application is filed on various grounds as narrated in paragraphs 5(a) to 5(f) of the Original Application. The brief facts of the applicant are that the applicant is aggrieved by the impugned order No.CSB-8(1)/2016-ES.II dated 21/29.08.2023 of respondents (Central Silk Board) who have refused to expunge false adverse remarks made in the applicant's APAR of 2015-16 and to consider her promotion at par with her junior. A copy of the impugned order dated 21/29.08.2023 is produced as Annexure A-1. It is submitted by the applicant that the alleged adverse remarks made on 26.10.2016 i.e., in the year 2016-2017. The word used by the Reporting Officer i.e. 'Recently' is not clear, whether it pertains to 2015-16 or 2016-17, since it is made in the year 2016-17 without any specific incident. Cryptic, vague remarks made, which have got no specific incident, date, or place. As per existing procedure, before marking such an entry, the Reporting Officer should satisfy himself that his own conclusion has been arrived at only after a reasonable opportunity has been given to the official to present her case relating to that incident. No such opportunity was given to the applicant before making such remarks in the APAR. The applicant further contends that every warning/reprimand/displeasure issued in writing 4 O.A.Nos.170/000610/ 2023/CAT/BANGALORE need not automatically find a place in the confidential report. Only cases in which despite such warning, etc., the officer has not improved, appropriate mention of such warning, etc., may be made in the confidential report.
3. The applicant further contends that as per existing Rules for confidential reports, 'Cryptic, vague or non-committal remarks are to be avoided. Sometimes entries may not be sufficiently meaningful. Such reports should be returned to the Reporting Officer for reconsideration, amplification, or explanation.' The applicant further mentions that there should be no hesitation on the part of the Reporting Officer to record adverse remarks in justified cases. Such entries should, however, be based on established facts and not on mere suspicion. Remarks like 'doubtful character', and complaints received about taking illegal gratification, are not permissible. It should be ensured that no employee is adversely affected by prejudicial reports recorded without proper consideration.
4. The applicant further contends that the Reporting Officers are required to maintain memorandum of services in respect of each officer employed under them. All instances of good and bad work 5 O.A.Nos.170/000610/ 2023/CAT/BANGALORE coming to the notice of the reporting officer should be promptly noted in the memorandum of services. The Memoranda of service should, invariably, be consulted at the time of writing of annual reports. The entries in the memo. of services should be based on facts and documentary evidence. The memo. of services making transfer, promotion or writing special reports. For writing the annual report, only those entries in the memo which pertain to the year of the report should be taken into account as the memo of services is the sole basis for writing the annual reports. The applicant further contends that it is very clear that no such memo of services has been maintained or served to the applicant. Without any memoranda, specific incident, giving any opportunity for improvement, reasonable opportunity of hearing, contemplating any disciplinary action, simply recording of vague and cryptic remarks in the APAR is not permitted, which is void and unsustainable under law. In fact, the said remarks does not constitute as an adverse remarks, which are administrative device in the nature of displeasure, caution, reprimands or advisories to the applicant without its finality. Hence, the applicant says that on this ground alone, alleged adverse remarks are liable to be set aside along with the impugned order. 6
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5. The applicant further contends that procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation as prescribed vide DoPT O.M dated 14th September 1992 has not been followed by the 2nd respondent, since it does not arise at all. The applicant further contends that based on the simple advisory remarks on the APAR, promotion of the applicant has been withheld for about 2½ years without any justification. It was stated that the DPC at its meeting held on 27.01.2020 did not recommend her case for promotion, without any grounds. It was also not reviewed after 6 months. However, it was stated to have been considered by the DPC in its meeting held on 24.6.2022 for her promotion. Reason for withholding promotion for about 2½ years is not forthcoming. Hence, on this ground also alleged adverse remarks are liable to be set aside along with the impugned order.
6. The applicant further contends that despite repeated requests made by the applicant vide her letters dated 27.1.2020, 5.3.2020, 8.6.2020, 10.6.2020, 10.07.2020, 11.11.2020, 1.7.2021, 15.7.2021 and 30.7.2021 with a request to expunction of adverse remarks and 7 O.A.Nos.170/000610/ 2023/CAT/BANGALORE to consider her case for promotion w.e.f 3.2.2020 as per seniority. Further, even after her promotion, applicant also requested vide representation dated 27.3.2023 to consider her promotion at par with her junior who was promoted w.e.f 3.2.2020 ignoring applicant's seniority. The same has not been considered by the 2nd respondent (Central Silk Board) and a biased decision has been taken against her with malafide intentions and ulterior motives, despite having excellent and unblemished records in her career.
7. The applicant further contends that in accordance with DoPT O.M No.F.No.11012/12/2016-Estt.A.III dated 6th December, 2016 warning, letter of caution, reprimands or advisories administered to Government servants do not amount to a penalty and, therefore, will not constitute a bar for consideration of such Government servants for promotion. Hence, totally aggrieved by the orders passed by the respondents, the applicant has approached this Tribunal for reliefs as sought for.
8. On notice, the respondents have filed their reply statement wherein they have defended their decision and countered the arguments of the applicant. A rejoinder has also been filed by the 8 O.A.Nos.170/000610/ 2023/CAT/BANGALORE applicant reiterating their stand as in the O.A.
9. The case came up for final hearing on 6.9.2024. Shri.Sampangi Ramaiah appeared for the applicant and Shri.Vishnu Bhat appeared for the respondents and both were heard.
10. We have carefully gone through the entire records and considered the rival contentions.
11. The basic facts of the case is not disputed. It pertains to the APAR of the applicant for the assessment year 2015-16 having two disputed alleged entries in Columns 6 and 13 with following remarks:
The question in the APAR Remarks of Reporting Officer column Column No.6: Trustworthiness in Trust worthy, but recently handling secret and top secret tampered some records in matters and papers foreign affairs section Column No.13: General Good, Recently quarreled with assessment of personality, fellow employees in Foreign character, and temperament, affairs section including relations with fellow employees, amenability to discipline etc. 9 O.A.Nos.170/000610/ 2023/CAT/BANGALORE
12. Against which the applicant had made a detailed representation dated 5.12.2016 for expunging of the alleged adverse remarks as well as for up-gradation of her grading. The same was disposed of on 02/07.03.2017 by the competent authority and after that the Departmental Promotion Committee did not consider the promotion of the applicant noting the said "alleged" adverse entries and only after being aggrieved by that, the applicant filed a memorial against the order of competent authority dated 02/07.03.2017 to the competent authority on 8.6.2020 with a prayer that these two adverse remarks are arbitrary, illogical and false and such an act never existed as was established by the Vigilance Committee constituted by the Central Office, keeping in view her length of service ahead and humbly prayed to the highest authority of Central Silk Board, Hon'ble Member Secretary, to consider her appeal to expunge these two adverse remarks from her APAR of 2015-2016 and render justice to her by considering her promotion as per her seniority and pave the way forward for her career.
13. Pursuant to which, the competent authority examined the case and passed the following order (the challenged impugned order): 10
O.A.Nos.170/000610/ 2023/CAT/BANGALORE " Sub: Disposal of Appeal/Memorial made by Ms.R.Kalaiarasi, Stenographer, CSB-regarding Ref: Her Memorial dated 8.6.2020 Ms. R. Kalalarasi while working as Stenographer (Grade-II) has preferred an Appeal / Memorial dated 08th June 2020 with a request to expunge the adverse remarks recorded in her APAR for the year 2015-16. Her Appeal / Memorial was referred to the Ministry of Textiles, New Delhi by the CSB, Bengaluru for disposal by the Joint Secretary (Silk) Ministry of Textiles, New Delhi, who is the Vice Chairperson, CSB as her earlier representation dated 05-12-2016 for upgradation of the grading recorded in her APAR for the year 2015-16 was rejected by the Member-Secretary, which was communicated to her vide CSB's Intimation No.CSB-8(1)/2016- ES II dated 07-03-2017.
2. It has been observed that the Reporting Officer in column-6 of the said APAR had recorded that Ms. R. Kalaliarasi tampered some records in Foreign Affairs Section. Further, in column-13, he had recorded that she quarrelled with fellow employees in Foreign Affairs Section. Ms.R. Kalaiarasi kept quiet after receipt of said Intimation dated 07.03.2017 and did not take any action to represent against non-
communication of decision with regard to the adverse remarks recorded in her APAR for the year 2015-16. It was only after she came to know that the DPC at its Meeting held on 27.01.2020 did not recommend her case for promotion, she had submitted a representation dated 27.01.2020 requesting for promotion which was disposed of by the CSB in rejection vide Intimation dated 27.02.2020. Thereafter, she preferred the Appeal / Memorial dated 08- 06-2020 for expunction of adverse remarks. Considering the above serious adverse remarks 11 O.A.Nos.170/000610/ 2023/CAT/BANGALORE recorded by the Reporting Officer and also the fact that the time limit prescribed for submission of Memorial is only six months in terms of Ministry of Home Affairs O.M. No.21011/1/77- Estt. A dated 30.01.1978 (para vi), the said Appeal/Memorial preferred by Ms.R.Kalaiaraisi on 08.06.2020 has been rejected by the Vice Chairperson, CSB as she had preferred her Appeal /Memorial after a period of more than three years from the date of CSB's Intimation dated 07.03.2017. When the time limit allowed for preferring a Memorial is six months, condonation of delay in submission of her Appeal/Memorial for an excess period of 2½ years has not been considered by the Vice Chairperson, CSB.
3. This issues with the approval of the Vice Chairperson, CSB."
14. Simple examination of this order indicates that the preferred memorial was not disposed of on merit, but it was disposed only on the limited ground that it was filed after more than 2½ years from the date of CSB's intimation dated 7.3.2017, whereas when the time limit allowed for preferring a memorial was only six months. It was concluded that the condonation of delay in submission of her appeal/memorial for an excess period of 2 ½ years has not been considered by the competent authority.
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15. Now this order has been challenged on various substantive grounds. We note there was some delay in giving the memorial by the applicant, but she has explained sufficiently why she was under
an impression that the said entries were nullified, as she has shown on record that there was a vigilance inquiry on the related matter and the same was closed without any adverse action at the level of the Secretary, Central Silk Board in the year 2017, and the authority who decided the applicant's representation against her APAR of 2015-2016 had maintained complete silence on the said issue of the two alleged adverse entries; and further on record they were not even recorded and identified as adverse entries. However, only when authorities, to the surprise of the applicant, used those entries adversely against her to deny her promotion subsequently at the time of DPC, the applicant came to know their nature and found reason and occasion to file a memorial against it. We are of the considered view that the applicant has thus sufficiently explained the delay in filing the memorial.
16. We have gone through the details of the records and we find that the original record presented before us in the sealed cover as well as the pleadings of both the parties before us do not shed much light on the nature of these two adverse remarks, as to whether they 13 O.A.Nos.170/000610/ 2023/CAT/BANGALORE were "adverse" or "advisory" as it was not clearly noted in the APAR of 2016-2017.
17. It is also pertinent to note that the detailed representation of the applicant dated 5.12.2016 for expunction of adverse remarks with 12 paragraphs leading finally to the request in paragraph 12. It reads as follows:
"Sub: Annual Performance Assessment Reports (APAR) - Communication of the entries for fairness & transparency in public administration
- reg.
Ref: 'Intimation' bearing No. CSB-8 (1)/2015 - ES-II dated 21-11-2016 (received on 22-11-2016 at 5.15 p.m.).
With reference to the subject and reference cited above, I wish to submit the following few lines with a fond hope that your kind self would render justice appreciating the genuineness involved in the plea made therein.
2) I had received an overall grading 'Outstanding' in respect of my performance during the Year 2012-2013 and 2013-2014 by my Reporting Officer, Shri K. K. Shetty, Joint Secretary (Technical), CSB, Bangalore.
3) And in spite of the letter of appreciation / Certificate issued to me during the period 2014- 15 by Ms. Ishita Roy, the then Member Secretary & CEO of the CSB, my grading (for the said period) stood reduced from Outstanding 'to' Very Good. On receipt of the same (i.e. my 14 O.A.Nos.170/000610/ 2023/CAT/BANGALORE APAR pertaining to the period 2014-15), I immediately approached my Reporting Officer (the said Shri K. K. Shetty), prior to giving my representation; and he agreed that due to large number of APARS to be written by him, he inadvertently graded me 'Very Good' and assured me that my APAR grading would be enhanced in the next Year (i.e.2015-16).
Believing this, I did not submit any representation seeking up-gradation of my grading. A copy of my APAR pertaining to the said Year, i.e. 2014-15, is enclosed as Annexure- IV for kind perusal.
4) Whereas to my surprise, subsequently, certain adverse remarks/comments are incorporated in my APAR pertaining to the recent period, .e. 01- 04-2015 to 31-03-2016 (2015-16); at Column No. 6 [ Titled "Trustworthiness in handling secret and top secret matters and papers"], it has been stated as "Trustworthy. But recently tampered some records in Foreign Affairs Section "; and at Column No. 13 [ Titled "General assessment of personality, character and temperament, including relations with fellow employees, amenability to discipline, etc." ], it has been mentioned as " Good. Recently quarrelled with fellow employees in Foreign Affairs Section.
5) In this context, it may please be noted that during the said period, i.e. 2015-2016, I had not received any sort of adverse communication - since I had not committed any wrongdoing. 1 being a Junior Stenographer, was doing merely typing works the texts of which were dictated to me by the In-charge of Foreign Affairs Section (FAS); and I did not handle any files independently pertaining to the FAS. My services were exclusively utilised for the works of International Sericultural Commission (ISC). 15
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6) It may also be taken into consideration that, indeed, I was discharging more volume of works (that are listed out separately as Annexure-l copy enclosed), than what I had reflected in my APAR Part-Il (Self Appraisal) (2015-16), due to the lack of space in the APAR format 6)
7) I also wish to draw your kind attention to the fact that you had appreciated my performance and works in the open forum during the SAARC Meeting held at Mysore in August 2015 and also had issued me an appreciation letter. A copy of the same which speaks for itself is enclosed as Annexure-II.
8) The duties and responsibilities of a Junior Stenographer as given in the CSB Website http://www.csb.gov.in/assets/Uploads/rti- files/item-02-a.pdf, under the head "JOB CHART FOR VARIOUS CADRES IN THE CENTRAL SILK BOARD" are highlighted and attached as Annexure-III.
9) Sir, you have always been encouraging the CSB employees in your speech on several occasions that an employee should be motivated and appreciated during his / her service period and not to praise a lot just on the day of his/her retirement or so.
10) To sum up, I humbly appeal before you to take note of the fact / ground reality that the adverse remarks that have been incorporated in my latest APAR, i.e. the one pertaining to the period 2015-2016, are totally false and are far from truth. Such unpleasant remarks are recorded in my said APAR, at the behest of Shri R. Dileep Kumar, Assistant Superintendent (Technical) (ISC), CSB, Bangalore.
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11) To my utter dismay and misfortune, the said Shri K Shetty, Joint Secretary (Technical) has believed the wrong/false information provided to him by the said Shri R. Dileep Kumar bent upon tarnishing my career for reasons best known to him.
12) Against this backdrop, I plead before you to kindly interfere in the matter, to order for the expunction of the adverse remarks incorporated at Column Nos. 6 & 13 of my APAR (2015-2016), 10 upgrade my grading from 'Very Good 'to' Outstanding' and to thereby render justice to me. For such an act of kindness, I shall ever be grateful to you sir. "
18. Clearly this representation requested two different sets of relief, first was about the up-gradation of the general grading from 'Very Good' to 'Outstanding' and the second one was to expunge the adverse remarks in columns 6 and 13 of the said APAR for the assessment year 2015-2016. The same was sent for the comment of the Reporting Officer who had examined the same and had confirmed the grading in APAR for the year 2015-2016 as 'Very Good' as he had not noticed any exceptional qualities and outstanding performance as ground for such exceptional grading and hence, the grading cannot be changed, but the Reporting Officer 17 O.A.Nos.170/000610/ 2023/CAT/BANGALORE maintained complete silence in his comments on the other serious issue raised.
19. Evidently on record there were no comment on the other two alleged remarks. Even it is not very clear in the record regarding the nature of the two alleged remarks as to whether they were adverse or advisory in nature and if there were any preceding documentary or justifiable basis for noting such remarks in the APAR. And based on the inputs from the Reporting Officer, the Competent Authority vide its letter dated 2/7.3.2017 noted the following and informed the applicant accordingly:
"INTIMATION Sub: APAR for the year 2015-16-Request for modification / Upgradation of grading - reg. With reference to her representation dated 05.12.2016 Smt. R. Kalaiarasi, Stenographer (Grade-II), NSSO, Bengaluru is hereby informed that her request for modification / upgradation of grading awarded in her Annual Performance Assessment Report for the year 2015-16 has been examined. After points raised in her representation and also the comments offered by the Reporting Officer, the Competent Authority has ordered that the grading of VERY GOOD awarded to her in her APAR for the year 2015-
16 will hold good and no modification is needed, 18 O.A.Nos.170/000610/ 2023/CAT/BANGALORE Accordingly, the grading awarded in the APAR for the year 2015-16 shall stand.
This issues with the approval of the Competent Authority."
20. However simple examination of this order shows that this order was also completely silent on the first and more important issue raised and on the consequent request of the applicant in her representation dated 5.12.2016 where she pleaded before the authorities to interfere with the alleged two adverse entries in her APAR column Nos.6 and 13 for the year 2015-2016 and to expunge them. We note that from the documents placed before us we find that the authorities are completely silent on the two alleged adverse entries and none of them had applied their mind on the same. In our considered opinion rightly the applicant believed that the authorities have ignored those two entries, and they were not anymore adverse and potent.
21. The applicant has asserted that there was a vigilance case related to the same matter which is not denied by the other side, but the same was evidently closed in 2017. Hence, the applicant had 19 O.A.Nos.170/000610/ 2023/CAT/BANGALORE thought that this matter had been closed and it will not affect her career. Hence, she had not given her memorial in time.
22. She has also filed before us many commendation letters of Member Secretary, Central Silk Board which are produced as Annexure A2 dated 26.2.2013, Annexure A3 dated 6.3.2015, Annexure A4 dated 4.9.2015 and Annexure A5 dated 20.4.2016 and she argues that in the light of her good work and good conduct, the two entries in column nos.6 and 13 are not justified as they were not supported by any evidence or even proceeded by either show-cause notice, cautionary letter or advisory letter etc. We also did not find any relevant documentary evidence or even assertion of the Reporting Officer that those entries are from his personal knowledge nor the Reporting Officer has paid attention to that when in the representation dated 5.12.2016, these two entries in columns 6 and 13 were contested and in the absence of any cogent substantiation from the Reporting Officer those entries may not be considered to be justified as adverse entries. They could have been labelled as advisory but they should have been clarified clearly in the APAR in writing whether those were adverse or advisory. 20
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23. The applicant further asserts that unless any warning/censure etc are issued after show-cause notice, the department could not have acted on such entries considering that adverse entries and not given her promotion. And this is supported by the DoP&T O.M dated 6.12.2016 in F.No.11012/12/2016-Estt.A-III wherein it is mentioned as follows:
"OFFICE MEMORANDUM Subject: CCS (CCA) Rules, 1965 --
Clarification regarding effect of warning, censure etc. on promotion.
The undersigned is directed to refer to this Department's O.M. No. 11012/6/2008- Estt.(A) dated 7th July, 2008 on the above mentioned subject and to say that vide para 2(iii) of the said OM, it was instructed that where a departmental proceeding has been instituted, and it is considered that a Government servant deserves to be penalized for the offence/misconduct, one of the prescribed penalties may only be awarded and no warning, recordable or otherwise, should be issued to the Government servant. However, while considering cases for empanelment, the ACC has observed that in many cases, rather than exonerating the officer or imposing a penalty on him, administrative warning is issued even when disciplinary proceeding were drawn against him. Administrative warning is not recognized as a penalty.
2. In view of the above, the following position as contained in various instructions issued so far 21 O.A.Nos.170/000610/ 2023/CAT/BANGALORE on warning/Censure etc. are reiterated for strict compliance:-
(i) As clarified in the Ministry of Home Affairs O.M. No. 39/21/56-Estt.(A) dated 13 th December, 1956, warning is administrated by any authority superior to a Government employee in the event of minor lapses like negligence, carelessness, lack of thoroughness, delay etc. It is an administrative device in the hands of superior authorities for cautioning the Government employees with a view to toning up efficiency and maintaining discipline. There is, therefore, no objection to the continuance of this system. However, where a copy of the warning is also kept in the Confidential Report dossier, it will be taken to constitute an adverse entry and the officer so warned will have the right to represent against the same in accordance with the existing instructions relating to communication of adverse remarks and consideration of representations against them.
(ii) Where a departmental proceeding has been instituted under the provisions of CCS(CC&A) Rules 1965, after the conclusion of disciplinary proceedings, the officer is either exonerated or where it is considered that some blame attaches to the officer, he should be awarded one of the recognized statutory penalties as given in Rule 11 of the CCS (CCA) Rules, 1965 i.e. at least 'Censure' should be imposed. In such a situation, a warning, recordable or otherwise, should not be issued.
(iii) Warning, letter of caution, reprimands or advisories administered to Government servants do not amount to a penalty and, therefore, will not constitute a bar for consideration of such Government servants for promotion.
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3. All the disciplinary authorities in Ministries/Departments are, therefore, requested to keep in view the above guidelines while dealing with disciplinary case against the Government servants.
4. Hindi version will follow."
24. We are surprised that on the touchstone of the above circular an entry which was made in Column 6 and 13 of APAR of the applicant for the year 2015-2016 was without any preceding documentary basis, and accordingly the same will be considered as unauthorised and irresponsible entry. And hence we are of the considered view that usage of such redundant entries in APAR in DPC and depriving the official due promotion would be unjustified and impermissible.
25. The applicant further pointed out that the Rule 174(1) pertaining to Confidential Record of work and conduct of officers of the Department, which is at Annexure A-9 of P&T Manual Volume III and its paragraph (7) of the said order states that all instances of good and bad work coming to the notice of the reporting officer should be promptly noted in the memo. of services and the memoranda of service should, invariably, be consulted at the time of 23 O.A.Nos.170/000610/ 2023/CAT/BANGALORE writing of annual reports. It also says that the memoranda of services in respect of an officer should be a complete and continuous record of his service and accordingly, it should not be destroyed after the annual report has been written and its entries should be based on facts and documentary evidence. We note that nothing resembling such memo of service has been placed before us by the respondents.
26. In paragraph 8, it mentions that the Reporting Officer feels that although a specific incident is not important enough to call for disciplinary proceedings, it is important enough to be specifically mentioned in the confidential report, he should, before making such an entry, satisfy himself that his own conclusion has been arrived at only after a reasonable opportunity has been given to the official reported upon to present his case relating to that incident. The authority issuing a warning should not normally be one lower than the Reporting Officer. Further, once investigation are started into specific allegations, the case should not be closed by the issue of a warning without the knowledge of the competent disciplinary authority. Unless so ordered by any higher authority it would be in the discretion of the Reporting Officer either to record or not to 24 O.A.Nos.170/000610/ 2023/CAT/BANGALORE record such a warning. We further record that the present case of the respondents fails to satisfy the criterion discussed above.
27. In paragraph 9, further specifically enjoins that no employee should be adversely affected by prejudicial reports recorded without fullest consideration. It says that the memo. of services should invariably be consulted at the time of writing the annual report though the report itself should necessarily be based on the employee's performance during the year as a whole and where an adverse remark is recorded in respect of an official having consistently good record, some details regarding the same should invariably be given; the report should give a clear opinion on the main points like character, integrity, industry, etc; there should be no hesitation on the part of the reporting officers to record adverse remarks in justified cases. Records placed before us do not qualify well on this count also.
28. In paragraph (10) it says that while recording adverse remarks, the reporting officer should indicate the efforts made by him to get those defects removed. He should also provide necessary training 25 O.A.Nos.170/000610/ 2023/CAT/BANGALORE wherever possible. Records placed before us do not satisfy well this criterion also.
29. Paragraph 12 more specifically speaks of adverse remarks whether they relate to remediable or irremediable defects should be immediately communicated to the officer concerned by the countersigning authority when one is prescribed and by the reporting officer in other cases. Only such of the adverse entries as are accepted by the countersigning authority, if any, need be communicated. The countersigning authority should, therefore, normally, indicate whether it agrees or disagrees with the remarks of the reporting officer. It should also record additional remarks wherever necessary, if the report is too brief, cryptic or vague. Along with the adverse entry, the substance of the entire report including what may have been stated in praise of the officer should also be communicated. The improvements made in respect of the defects mentioned in the earlier report should also be communicated to the officer in a suitable form.
30. Paragraph (13) mentions that representation against adverse remarks should be made through proper channel within six weeks of 26 O.A.Nos.170/000610/ 2023/CAT/BANGALORE the date of communication. However, the competent authority may, in its discretion, entertain representations made beyond this time if there is satisfactory explanation for the delay. All such representations against adverse entries should be decided expeditiously by the competent authority.
31. In the light of the above, it is clear that the authority had inherent power to condone the delay. Considering this provision even the authority who examined the memorial had inherent power to condone delay in exceptional and deserving cases. This particular case as there was ample ground for the condonation of delay and so the case was good enough to be re-examined, both the reporting officer and the officer who disposed of the representation of the applicant failed in their respective duties to examine the crucial issue raised, and they remained silent on the most important contention of the applicant. Hence the officer who received and examine the memorial could have condoned the delay and examined the issue on merits afresh and passed a speaking order based on available evidences.
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32. About the representation, how it has to be examined, paragraph 13(iii)(c) mentions that the representations against adverse remarks should be examined by the competent authority in consultation, if necessary with the reporting officer and countersigning authority, if any;
Paragraph (d) mentions that if it is found that the remarks were justified and that the representation is frivolous, a note may be made in the confidential report of the petitioner that he did not take the correction in good spirit.
In paragraph (e) it mentions that if the competent authority feels that there is no sufficient ground for interference, the representation should be rejected and the petitioner informed accordingly.
Further in paragraph (f), it says that if, however, it feels that the remarks should be toned down, it should make the necessary entry separately with proper attestation at the appropriate place of the report; the correction should not be made in the earlier entries themselves.
In paragraph (g), it mentions that in the rare event of the competent authority coming to the conclusion that the adverse remarks was inspired by malice or was entirely incorrect or 28 O.A.Nos.170/000610/ 2023/CAT/BANGALORE unfounded, and therefore deserves expunction, it should order accordingly. Before, however, taking such an action, it should bring it to the notice of the Head of the Circle or Telephone District or other Administrative Office if it does not occupy that position and obtain his concurrence.
In paragraph (h), it mentions that no memorial or appeal against the rejection of the representation should be allowed six months after such rejection.
33. The sum and substance of the above said provisions are that the adverse entries in the APAR are to be carefully recorded based on substantive evidence and it should not be vague. After seeing the records and considering rival contentions, we do not find that in this particular case adverse entries in the APAR were recorded carefully based on substantive evidence. Unexplained silence of the reporting officer in his comment dated 26.12.2016 on the important alleged "adverse" entry issue raised in the representation of the applicant dated 5.12.2016 shows his negligence, carelessness, mischievousness and incompetence, which is required to be noted in his APAR, through due process to avoid any such recurrence.
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34. The applicant has also filed a self-contained report of the vigilance section dated 12.1.2017 on the complaints and counter complaints levelled against each other by Shri.R.Dileep Kumar, Assistant Superintendent (Technical), ISC/FAS, CSB, Bangalore and by Smt.R.Kalaiarasi, Stenographer (Grade-II), then working at ISC/FAS (Now at NSSO, CSB, Bangalore) wherein following 5 issues were listed:
(i) At the time of her leaving the Section (consequent on her relieving at the ISC Selection subsequent to her transfer) on 23.09.2016, she abruptly left on her Table all the papers/documents pertaining to the ISC Account, instead of formally handing over them to him (the said Shri.R.Dileep Kumar/being the official in-charge of the Section).
(ii) She has failed to hand over to him the soft copies of the documents that were available in the computer which she was using-during her tenure at the ISC Section.
(iii) She also did not hand over to him the hard copies of the set of the important documents (cash book, etc.) along with the handing over report; on the other hand, she had justified the said act of omission on her part by defending that since the said documents were of confidential nature, she had sent the same (to him) through e-mail.
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(iv) During his leave of absence from duty (i.e. 06/09/2016 to 14/09/2016), she resorted to extract certain print-outs from his computer.
(v) During the course of holding of an ISC Congress in Thailand (organized by the ISC), she had shown an indifferent attitude for carrying out the assignments pertaining to the event. "
35. Based on the inquiry, the vigilance section made the following observations and comments:
"3) Observations & Comments: On a close perusal and on having had an in-depth/careful examination of the issues involved as a whole, it is observed that the unpleasant scenario as a whole involving the above complaints and the counter complaints has arisen solely due to lack of interpersonal relationship and as a result of personal differences that arose between the said Shri R. Dileep Kumar and the said Smt. R. Kalaiarasi, having nothing of the sort of Public interest or so however, there remains the fact that a major part of her reply / defence statement [narrated above at Para 2 (i) to (v)) cannot be brushed aside as totally unacceptable : on the other hand, her defence appears to be convincing and logical to a considerable extent, specifically with regard to her averments which are indicated at Para 2 (ii), (iii) & (v).
4) Her averment that her good work / commendable performance has fetched her letters of appreciation from the former and the incumbent Member Secretary is worth mentioning; similar is her defence made to the effect that being just a Junior Stenographer she had to discharge works / responsibilities 31 O.A.Nos.170/000610/ 2023/CAT/BANGALORE unmatching / unrelated to her designation: the said Shri R. Dileep Kumar has resorted to level a series of allegations against her (after her shifting from the ISC Section) with a view to put her in a bad spot; it is because it is apparent that she, once who was in his good books, had, at a later stage, developed egoistic / personal differences with him over a period of time.
5) And, the role played by the said Shri R. Dileep Kumar is indeed not at all appreciable. The irony is that he had apparently misused his significance (in the ISC Section) to over step his limits in handling a woman employee, causing much embarrassment, vis-à-vis this unpleasant episode, which would have totally been avoided had he displayed a dignified, prudent and a responsible attitude
6) The interaction had [by Shri M. Mukunda, Assistant Director (Admn. Accts.)) with Dr. Jula S. Nair, Scientist-D, now at NSSO, Bangalore [who was earlier closely associated with the ISC Section's activities] reveals that she had a difficult time while was working with him (the said Shri R. Dileep Kumar) who, in her assessment, was in the habit of passing unwanted / irrelevant comments on ladies and to put them to discomfiture showing an objectionable way of behaviour; and as per the versions of the said Smt. R. Kaliarasi, he used to ask her to stay back at the Office in late / evening hours and even on holidays without any pressing / valid necessity of immediate / time bound nature and he, on a number of occasions, compelled her to travel with him to various places in the guise of official necessity and no woman can work with him without a sense of embarrassment.
7) And Smt. P. Sowmya, Assistant (Technical) stated [during an informal discussion in the issues involved] that there existed no truth in the 32 O.A.Nos.170/000610/ 2023/CAT/BANGALORE allegation levelled by the said Shri R. Dileep Kumar; she stated that the said Smt. R. Kalaiarasi had handed over all the relevant documents at the time of her departure from the ISC Section; she (the said Ms.P.Sowmy) expressed that she too find it difficult in working with him due to his unpleasant/unwarranted comments about women;
no female employee can be at ease when she has to work with him. However, she was reluctant to give any written statement.
8. Similarly, not in the good taste are the utterances made on two occasions somewhere during the 2nd week of November, 2016 by the said Shri.R.Dleep Kumar [before Shri.M.Mukunda, Assistant Director (Admn. & Accts.)] claiming that he extended to the said Smt. R.Kalaiarasi all financial benefits and other facilities by recommending to the higher authorities an amount of Rs.5000/- per month as a honorarium, and arranged to allot the Staff Quarters to her on out of turn basis, she was given very comfortable stay in Star Hotels while on Tour, even though she was not entitled for such facilities and so many other concessions for which she was not eligible and that in spite of his such 'helping nature' , she had turned against him and so on. It remains unanswered as to why he took such unwarranted measures in favour of her.
9) Against this backdrop, it is opined and observed that there perceptibly exists some sort of behavioural problem with the said Shri.R.Dileep Kumar while dealing with female employees.
10) Nevertheless, there is no specific and clear complaint of the nature of sexual harassment against him either from the said Smt.R.Kaliarasi or from any of the female officials whose names figure above. As such, no action can be taken against him on this particular aspect.
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O.A.Nos.170/000610/ 2023/CAT/BANGALORE 11 ) At the same time, there exist enough grounds to arrive at the presumption (though not conclusion) that he had resorted to misuse the significant position and importance given to him (in the ISC Section), by having given room for such unsavoury state of affairs due to his immature way of functioning in such an important wing of the CSB which has got not only national but also international importance. "
36. They made certain recommendations as per noting dated 3.5.2017. The Member Secretary of Central Silk Board recorded as follows:
"I have gone through the report and I have discussed the matter both with Dileep Kumar and Kalaiarasi and they have informed that they are not intended in continuing the issue further. Hence in the interest of Organisation, the issue is closed without any further action.
Simple examination of this leads us to the conclusion that if this case was the only case related to the two entries, then after the above quoted noting by the competent authority automatically the alleged adverse entries in the APAR of 2016-2017 of the applicant should have been expunged.
37. This incident need to be examined by the competent authority vis-à-vis recorded alleged adverse remarks in the APAR for which 34 O.A.Nos.170/000610/ 2023/CAT/BANGALORE no specific basis is forthcoming from any of the other record presented before us.
38. The respondents have filed one guidelines on treatment of effect of penalties on promotion - role of Departmental Promotion Committee dated 28.4.2014. But this is not the case of penalty, but adverse entry where allegation is that it is without any justification. Hence these are irrelevant as far as this case is concerned. We find this circular further supports the case of the applicant only as Departmental Promotion is denied to someone based on entries which are not supported by any rigorous justifications comparable to penalty etc.
39. The applicant has filed Ministry of Home Affairs Memo dated 30.1.1978 with her rejoinder which inter-alia other things mentions that only one representation against adverse remarks (including reference to 'warning' or communication of the displeasure of the Govt. or reprimands which are recorded in the confidential report of the govt. servant) should be allowed within one month of their communication. While communicating the adverse remarks to the Govt. servant concerned, this time limit should be brought to his notice.35
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40. It is indicative of that the types of comment which are contested in the present O.A may not be considered as adverse. At the most they may have been advisory in nature. But unless there were some justifiable basis for these entries such general remarks which is not identifiable with any date, instance, person etc., which cannot precisely be identified, understood or responded to should not find their way into an APAR.
41. Further DoP&T O.M dated 6.12.2016 (Annexure A-25) mentions of CCS (CCA) Rules , 1965 - clarification regarding effect of warning, censure etc. on promotion and it speaks of warning letter of caution, reprimands or advisories administered to government servants do not amount to a penalty and, therefore, will not constitute a bar for consideration of such government servants for promotion.
42. And based on this argument of the applicant, merely some vague entries in her APAR of 2015-2016, which were made without any basis of ground, cannot be sufficient to not to give her due promotion and she is entitled for promotion from the date of her 36 O.A.Nos.170/000610/ 2023/CAT/BANGALORE junior is promoted and so she should get relief which also appears to be relevant in the matter. We record that as far as records placed before us are concerned we categorically find it buttresses the case of the applicant.
43. After considering all this, it is very clear that when the first representation was given by the applicant on 5.12.2016, all the issues raised therein were not adequately examined by the competent authority. The comments of the Reporting Officer dated 26.12.2016 which is on record as Annexure R-2 filed by the respondents reads as follows:
" NOTE Sub Communication of APAR for the year 2015- 16-Furnishal of comments as Reporting Officer - Reg.
With reference to Note No.CSB/8(1)/2016-Est- II dated 08-12-2016 on the captioned subject, I am furnishing below my comments as Reporting Officer on the representations received from Smt. Kalaiarasi, Stenographer (Grade-II) on the grading awarded in her APAR for the year 2015- 16 I hereby confirm the grading in APAR for the year 2015-16 as "Very Good"
The above grading has been given after careful analysis based on work performance and not 37 O.A.Nos.170/000610/ 2023/CAT/BANGALORE inadvertently as reported by the official vide point No. 3 of the representation. I have not made any assurance to the official to upgrade the grading as mentioned in the representations.
As per rule the official should not be graded outstanding unless exceptional qualities and performance have been noticed. I have not noticed any such exceptional qualities and outstanding performance as ground for such exceptional grading."
44. This shows that the Reporting Officer has been silent on the main issue and the contentions raised about the two "alleged adverse entries" and his silence in the said Note damages the case of the respondents completely. The Reporting Officer should have given clear indication of what were the basis for writing such entries. In the absence of any 'identified and recorded' basis, those entries will become vague and perverse. Unexplained silence of the reporting officer on the precise and clear contention taken and raised in the representation by the applicant will only appear to be irresponsible, mischievous, incompetent, negligent and careless, which attracted action against him the author of such entries.
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45. The APAR's are an important document and it should be written with due caution and care. It cannot be based on whims and fancies of some one. In Column No. 6, regarding trustworthiness in handling secret and top secret matters and papers, it is written that 'Trust Worthy. But recently tampered with some records in Foreign Affairs Section'. This is a very serious allegation neither it mentions which record, which date or does it pertains to the same assessment year and if such serious issue was found, what action had been taken to obtain explanation from the delinquent? We do not find on records placed before us, that if the said entry was serious enough to record it in APAR the authority concerned did any due diligence to issue any show cause or to issue any cautionary letters or to institute disciplinary inquiry etc. against the delinquent? In the absence of any document, any reference date, any file number; such comment would appear to be arbitrary non-substantiated, non-speaking and perverse.
46. Similarly in Column no.13, it is mentioned that 'General assessment of personality, character, and temperament, including relations with fellow employees, amenability to 39 O.A.Nos.170/000610/ 2023/CAT/BANGALORE discipline etc.' The remark was 'Good. Recently quarrelled with fellow employees in Foreign Affairs Section.' Again which date such quarrel happened, with whom she quarrelled and if there was indeed such quarrel, was there any report of it or any preliminary inquiry was held and if such preliminary inquiry found some prima-facie substance which did not justify any Disciplinary Action, but was important enough to issue any advisory or a cautionary letter or to initiate disciplinary inquiry or to enter it and record in the APAR of the concerned etc are not substantiated from the records. In the absence of any such document and specification, the "alleged two adverse entries" also becomes arbitrary, perverse irresponsible and without any basis.
47. We find that there were very mechanical approach to disposal of the representation of the applicant dated 5.12.2016 vide comments of the Reporting Officer dated 26.12.2016 and the disposal of representation by the competent authority dated 2/7.03.2017 and there are sufficient grounds to give relief to the applicant as there are convincing ground for condonation of delay for the memorial, and to consider the disposal of representation of the applicant vide their order of the authorities dated 2/7.3.2017 as incomplete, and to direct 40 O.A.Nos.170/000610/ 2023/CAT/BANGALORE the authorities to reconsider the representation of the applicant dated 5.12.2016 which pertains to the two alleged adverse entries, and dispose them of afresh after seeking comments from the reporting officer and examining the entire records and giving ample opportunity to the applicant to be heard. Although before us nothing is placed which justified the alleged adverse entries in the APAR of 2015-2016 of the applicant, but we would like to give benefit of doubt to the Department, as they may have something more in their records, and we should not decide this case finally merely on the ground that the reporting officer and the authority deciding the representation of the applicant were completely silent on the two alleged adverse entries in the APAR. Hence we are inclined to enable them to decide the said contentions of the applicant afresh; and consequently we pass following orders:
48. We hereby condone the delay and allow this Original Application, and set aside the impugned order dated 21/29.08.2023 No.CSB-8(1)/2016-ES.II passed by the 2nd respondent (Annexure A1) and declare the communication (along with its preceding processes and enclosures) dated 7.3.2017 No.CSB-8(1)/2016 ES.II as incomplete, and remit the case to the 41 O.A.Nos.170/000610/ 2023/CAT/BANGALORE Competent Authority among the respondents, who shall obtain the fresh comments of the reporting officer in four weeks time on the two alleged adverse entries in Column 6 and 13 of the APAR of 2015-2016 of the applicant and pass a speaking order in further four weeks time thereafter. If there are anything on records which required further giving hearing to the applicant, due opportunity shall be provided to her forthwith. The respondents shall complete the whole process in four months time from the date of getting the certified copy of this order. If it is found by the authorities that there was no justifiable basis for such two alleged adverse entries in the APAR of the applicant for the year 2015-2016, they shall also grant the applicant all the consequent reliefs, as admissible based on eligibility, through due process.
49. All associated Miscellaneous Applications are disposed of accordingly. No order as to costs.
(DR. SANJIV KUMAR) (JUSTICE B.K.SHRIVASTAVA) MEMBER (A) MEMBER (J) /SV/