Central Administrative Tribunal - Delhi
Sh. Sovinder Jit Singh vs Union Of India on 27 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1063/2014 Reserved On:17.07.2015 Pronounced On:27.07.2015 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Sh. Sovinder Jit Singh, Aged 38 years, S/o Sh. Mahenderjit Singh, R/o IV- 1/57, Ist Floor Gopinath Bazaar, Delhi Cantt. New Delhi-110010. Applicant By Advocate: Shri Harpreet Singh. Versus 1. Union of India, Through Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi-110 001. 2. The Chief Commissioner of Income Tax, Delhi-I, C.R. Building, I.P. Estate, New Delhi. 3. The Commissioner of Income Tax, Delhi-XII, D Block, Vikas Bhawan, I.P. Estate, New Delhi. 4. Sh. Aroop Kumar Singh, Additional Director of Income Tax (Inv.), O/o The Director General of Income Tax, 3rd Floor, ARA centre, E-2, Jhandewalan Extension, New Delhi-110055. .Respondents By Advocate: Shri R.N. Singh. ORDER
G. George Paracken, Member(J) Applicant has filed this Original Application challenging the impugned order dated 11.03.2011 by which he has been communicated the adverse remarks in his ACR for the financial year 2009-2010. The said letter reads as under:-
URGENT CONFIDENTIAL F.No. CCIT/ACR/Personnel/NG/2010-11/2850 OFFICE OF THE CHIEF COMMISSIONER OF INCOME-TAX DELHI-1, C.R. BUILDING, I.P. ESTATE NEW DELHI.
Dated : 11th March, 2011 ShriSovinderJit Singh, Inspector, O/o CIT (Central)-III, E-2, ARA Centre, JhandewalanExtn., New Delhi-110 002.
Sub: Communication of Adverse Remarks in the ACR of SovinderJit Singh, for the F. Y. 2009-10 Reg Please refer to the above.
In this connection, I am directed to enclose herewith a copy of your duly completed ACR for the F. Y. 2009-10 in accordance with the provisions contained in DOP&Ts O.M. No.21011/2005-Estt.(A)(Pt.-II) dated 14.05.2009. It may also be informed that the following adverse remarks have been given in your aforesaid ACR by the Reporting Officer, ShriAroop Kumar Singh, Addl. CIT and the Reviewing Officer, Shri G.K. Matheshwari, CIT has also agreed to it:
Column No. Particulars Remarks Column No.12 Comments of the Reporting Officer on Column 11 i.e. resume of the work done during the year Performance rated as Inadequate Column No.15(i) Drafting & Noting Inadequate Column No.15(ii) Resourcefulness Inadequate Column No.15(iii) Promptness in Disposal Inadequate Column No.16 Punctuality Inadequate Column No.17(i)& (ii) Relations with Superiors and Colleagues Inadequate Column No.20 General Observation Overall performance is rated Inadequate Column No.23 General Assessment Inadequate The detailed reasons offered by the Reporting Officer for the adverse remarks recorded in your ACR have also been annexed with the aforesaid ACR.
If you wish to make any representation against the above said adverse remarks, you may do so in writing (in duplicate) within 15 days of the receipt of the communication. No request/communication on the basis of the above remarks will, however, be entertained after the said time limit.
Receipt of the above communication may be acknowledged.
Yours faithfully, Sd/-
(SUBHASH CHAND) INCOME TAX OFFICER (HQRS. PERSONNEL), NEW DELHI. He is also aggrieved by the order dated 10.08.2011 rejecting his representation dated 13.04.2011 against the aforesaid adverse remarks except for expunging the one in column No.15(i) regarding Drafting and Noting. The said letter is also reproduced as under:- F.No. CCIT/ACR/Personnel/NG/2011-12/1476 OFFICE OF THE CHIEF COMMISSIONER OF INCOME-TAX DELHI-1, C.R. BUILDING, I.P. ESTATE NEW DELHI.
Dated :10th August, 2011 ORDER WHEREAS, on receipt of communication of adverse remarks and copy of ACR for the F.Y. 2009-10 in terms of provisions contained in DoPTs OM No. 21011/1/2005-Estt. (A) (Pt.II) dated 14.05.2009, ShriSovinderJit Singh, Inspector has made the representation dated 13.04.2011 for expunction of adverse remarks in his ACR for the F. Y. 2009-10.
2. AND WHEREAS, the representation submitted by ShriSovinderJit Singh for expunction of adverse remarks in the ACR for the period 2009-10 has been considered by the Chief Communication of Income Tax (CCA), Delhi-1, New Delhi.
3. AND WHEREAS, on perusal of the comments made by the Reporting and Reviewing Officers of ShriSovinderJit Singh in the ACR for the period 2009-10, the Competent Authority has come to the conclusion that the adverse remarks given in the ACR of ShriSovinderJit Singh be sustained except column No.15(i) regarding Drafting & Noting. Hence, the adverse remarks given in the ACR against column Nos.12, 15(ii) & (iii), 16, 17(i) & (ii), 20 and 23 are sustained.
4. The representation dated 13.04.2011 of ShriSovinderJit Singh, Inspector, addressed to the CCIT (CCA), is disposed of accordingly.
Sd/-
(SUBHASH CHAND) INCOME TAX OFFICER (HQRS. PERSONNEL), NEW DELHI.
2. According to the Applicant, he had an unblemished career from the date of his appointment on 24.01.2003 as all his ACRs before and after the ACR in question were either graded as Very Good or Outstanding. Further, during the period from 01.04.2009 to 31.03.2010, he was posted under three reporting officers as under from 01.04.2009 to 15.06.2009 for 76 days, from 15.06.2009 to 08.09.2009 for 84 days and from 09.09.2009 to 31.03.2009 around 7 months for which period the disputed APAR pertains to. According to him, the Respondent No.4, namely, Shri Anoop Kumar Singh, Additional Commissioner of Income Tax, Range 36 spoiled his ACR for the said short period out of malice and his remarks are contrary to his actual performance. He made a representation against each of those remarks on 08.10.2010. As regards the comments serious attitudinal problem is concerned, he stated that his attitude towards work assigned to him was finish the work before it finishes you and thus very serious about dealing with the work assigned to him to the best of his ability and to the satisfaction of his superior officers. In doing so, he might have deviated a little from the routine and might have given few additional inputs with the purpose of the completion of the work effectively within the set time frame and probably, his suggestion or deviation could have caused Sh. Aroop Kumar Singh Sir, Addl. CIT to write such remarks. As regards the adverse comments work shirker and does not take interest in most of the office work, he has stated that from April 2003 to July 2006 while he was posted in the Investigation Wing in Gurgaon, he took part in numerous search and survey operations in all parts of North West region, Kolkata and Mumbai and put in a lot of effort to learn and understand the procedure and other things related to search and survey operations. Many officers and staff wanted him to be a part of their team as he had become well versed with the work relating to search and surveys. He never sought exemption from search and survey duty knowing fully well that it was strenuous and was extremely tiring. He got engaged on 6 August 2005 and even on 05.08.2005 he was on search duty in PDMREA group of cases, Bahadurgarh (Haryana) and he did not deserve to be termed as the work shirker. Moreover, even upto the period under consideration, he has been in Range 36 from August 2007 and none of his previous Officers have ever commented adversely upon his working. Furthermore, while posted in the said Range 36 and in Ward 36 (2), New Delhi notices were issued u/s 143(2) by the ITO, Ward 36(2), New Delhi and the last date for the service of those notices was 30th September. Out of the notices sent by post, 30 notices were received back unserviced on 26th September but he took it as a challenge and managed to serve 29 out of 30 notices in a single day and the balance one was served by morning of the next day itself even though it involved travelling all over Delhi and his officer was astonished to see that. In those circumstances, he could understood the importance of timely service of notice under section 143 (2) and the confidence of his officer in him grew manifold. He neither sought exemption from duty nor refused any work assigned to him by the investigation wing or other Charges. As regards the adverse remarks neglected work related to record management, monitoring of reports he has stated that he started the system of proper filling of the correspondence in respective file folders according to subject of correspondence. Proper file folders were made for each type of correspondence. The suggestions of Sh. Aroop Kumar Singh, Add. CIT regarding making file folders with respect to certain correspondence was also invaluable. After the correspondence was seen by Sh. Aroop Kumar Singh, Addl. CIT, he segregated the letters and arranged the files in proper place with the names marked on the top left corner of the letter. All the letters and correspondence so marked were replaced in respective folders. There was not a single instance where any letter or correspondence required by Sh. Aroop Kumar Singh, Addl. CIT was not provided to him. The said file management system was in stark contrast to the situation when he took over as Inspector of the Range office in September 2009. There was practically no management at all. Letters, pending or otherwise were placed in a single file folder. To search our recent letters, one had to go through the entire file. Files for different correspondence were there, but they were not updated for quite sometime but he painstakingly put in a lot of effort in segregating, sorting and the compiling the pending correspondence and replace them accordingly in respective file folders trying to streamline the letter and correspondence management in the Range office. As regards the adverse remarks deliberately delayed reports or not executed the work assigned he has stated that the Range office was a link between the Circle/Wards and Higher Authorities. Any report sought by Higher Authorities was to be compiled by taking inputs from the Circle/Wards. Whenever any report on information was sought by Higher Authorities, he saw to it that the relative correspondence was passed on to the respective Circle/Wards even by taking out copies of correspondence and circulating them among the Circle/Wards. But mostly, the feedback from the Circle/Wards itself was delayed and he had to personally to go to the concerned AOs and staff of Circle/Wards, which in turn, delayed the receipt of information and subsequent compiling of the reports. That was the primarily reason why some of the reports were delayed but there was no deliberate action on his part whereby he had kept the complete report from Circle/Wards and not compiled them and not forwarded to higher authorities. As regards the adverse remarks appeal orders not circulated in time he denied that he undermine the importance of appellate proceedings and appellate orders of the Department. The appeal orders usually were quite bulky and they were received in the Range office from time to time. He got the appeal orders photocopied, arranged them in such a manner that the original order was passed on to the AO and the photocopy remains in the Range office. Sometimes, when there was no one to do the photocopy, he himself took out the photocopies and made proper sets for circulation by the daftary/peon and even went to the Circle/Wards to give those appeal orders. Only once on a Friday when the sets of appeal orders were personally photocopied be him and made ready to be delivered in the respective Circle/Wards, he had asked the daftary/peon to circulate them but they failed to do so. On Monday, believing that the appeal orders would have been circulated and placed in proper file, he did not made enquiry. Subsequently, higher authorities started asking about the CSR in the cases. On Friday, it was discovered that the daftary/peon had in fact not circulated the appeal orders. When he asked the daftary/peon about that he simply said that he had forgotten about it. But before Sh. Anoop Kumar Singh, Addl. CIT, he took the responsibility for the delay even when he was not at fault. But, there was no loss of revenue or otherwise or any date of limitation being missed. Other than that, there was no second incident whereby the appeal orders were delayed to be delivered to the respective A.O.s. As regards the adverse remarks APR of ACIT, Circle 36(1), New Delhi he has stated that the APR of the then ACIT, Circle 36(1) New Delhi, Sh. D.G Pansari was received in the Range office on 18.01.2010. At that time, he was preparing for his Delhi Judicial Services Exam which was to be conducted on 14.02.2010. The said APR was to be transmitted to the CCIT Office. As he was preoccupied with the preparation for the exam, unfortunately, he had to take leave for 17 days i.e. from 27.01.2010 to 12.02.2010 for deep study and preparation which further delayed the information being forwarded to Higher Authorities. Upon his return from leave, he discovered that there is a lot of correspondence to be arranged which had piled up owing to his absence. Subsequently, he discovered that the APR had not been forwarded but he immediately put up the forwarding letter before Sh. Aroop Kumar Singh Sir, Addl. CIT and forwarded the letter the higher authorities. Sh. Aroop Kumar Singh, Addl. CIT asked him to explain the reason for the delay to which he said that there was an inadvertent omission on his part and he promised to be more careful in future. As regards adverse remarks careless attitude and no meaningful contribution he has stated that the Inspectors work in Range Office was purely mechanical and routine leaving scope for growth and learning and whatever routine was followed, it was being continued. But he took the initiative of proper placement of correspondence and streamlining of receipt and dispatch system thereby trying to establish that no letter or correspondence could ever be lost. As regards adverse remarks impediment in smooth functioning of the office he has stated that sometimes when the seat of TA/LDC was vacant, he himself received letters and other correspondence and put the same promptly before Sh. Aroop Kumar Singh, Addl. CIT and entered the letters in the receipt register and not put off the work present before him. In the absence of TA/LDC, he made entries in the dispatch register with respect to the various letters, reports, etc., being sent out but never considered any work big or small but considered the timely execution of the work paramount and without thinking twice, did the TA / LDC job on hand. That was not an isolated event but there have been many such occasions when he made entries in the receipt and dispatch register. As regards adverse remarks habitual late comer and forced to take half day CL he has stated that the distance from my residence to office is about 22 kms. On my way to office i.e from Janak Puri, I had to face many traffic jams particularly at Sagarpur crossing, Kirby Place crossing, Dhaula Kuan, Panchscheel crossing and ITO crossing. The traffic jam sets in at about 8.00 a.m. and includes school traffic. However hard I tried, I had to face traffic jams and unruly traffic and I managed to reach office just around 10.30 a.m. I switched over to commuting by Metro Rail, but it too had its fair share of technical problems which were beyond my control. On few occasions when I had to take half-day CL was once when I had to go urgently to the doctor with my wife. I duly informed Sh. Aroop Kumar Singh Sir, Addl. CIT and Sir, very calmly said that after coming to office; I should apply for half-day CL, which I complied with. As regards adverse remarks relations with superiors and colleagues were never cordial he stated that there was not a single incident whereby his relations with his seniors or colleagues were questioned and his relation with all the Officers posted in the Range was amiable and he showed utmost respect to all of them and never refused any work given by them. Once, he was deputed to go to CBI Office on behalf of the Inspector of Ward 36(3), New Delhi, and he complied with the instructions as the Inspector posted in Ward 36(3) was on leave. His relations with his peers and colleagues were very good and they saw him as a cheerful, helpful and trustworthy colleague. He was the most approachable person in the Range office as he never refused any assistance he could offer to anybody, be it a colleague or the staff working in the Range or even the general public. As regards adverse remarks words/action amounted to insubordination he has stated that he was the only Inspector posted in the Range office and there was no person, like Office Superintendent to help him in the performance of his duties. The peon posted in the Range was on sharing basis with a ward. The TA and LDC had the same duty of maintaining the receipt and dispatch register. The LDC was an aged fellow who was due to retire very soon and was not asked to do much work owing to his age and health status. With such inadequate support staff also he never complained but only requested for proper infrastructure in the form of only a file cabinet, which was never arranged. Such request should not have been taken as insubordination as he, being a Punjabi and having a Punjabi accent, might have said something which would have conveyed a different meaning altogether as opposed to what he actually meant to say. But such words should not have been construed as insubordination. As regards adverse remarks sulking mood for being posted in Range office he has stated that he had been posted in Range office since August 2006. Posting in assessment area at that stage of his career was an opportunity and a learning phase for performing his duty effectively as an A.O. in future. He had only requested once to Sh. Aroop Kumar Singh, Addl. CIT to post him either substantively or additionally with any A.O of any Ward in Range 36, New Delhi, which he refused. As regards adverse remarks arrogant behaviour with colleagues, use of highly offensive language which deeply hurt the sentiment of persons he has stated that he never behaved arrogantly with any colleague. No colleague has ever had any reason to have any issue with him as he never ever used offensive language which might hurt the sentiments of the persons. Even if, by remotest of chances, any such incident has happened, it should have been brought to his knowledge first hand. As he was the most soft-spoken person of the Range he could never ever think of using offensive language and hurting the sentiments of his colleagues. Further, he has stated that during the preceding six years beginning from January, 2003 when he joined the Respondent-Department as Inspector, he worked with different Reporting/Reviewing Officers and none of them, without any exception, made any adverse remarks against him. In the succeeding five years also he has never been asked to give any explanation for any other adverse remarks in any of his ACRs. Moreover, the ACR for the period 01.04.2008 to 31.03.2009 was written by Shri Sandeep Bandhu, the then Additional CIT, Range 36, New Delhi and he gave him Outstanding rating in all the columns as per the copy of the ACR made available to him. The nature of duties performed by him during that period and the period under consideration was the same. Therefore, such a contrast in the remarks for the same work, in the same environment with the same supporting staff, in such a short period of time was really surprising. He has, therefore, requested the Reviewing Officer to expunge those adverse remarks in his ACR.
3. However, the Reviewing Authority referred the matter to the Reporting Officer again and sought his comments and he offered them which are as under:-
1.Comments in respect of Col. 12 & 15:
In the self appraisal, Sh. Sovinderjeet Singh, ITI has listed some of the main duties assigned to him. Since 09.09.2009 I have been personally monitoring the performance of Sh. Sovinderjeet Singh, ITI and I found it inadequate. He has displayed serious attitudinal problems. He is a work shirker and does not take interest in most of the office work. He had neglected the work relating to record management, monitoring of reports and other functions which an Inspector is supposed to perform when posted in Range office. At times he had deliberately delayed the reports or not executed the work assigned to him. For example, on many occasions the appeal orders were not promptly passed on to the AOs when the work was assigned to him. Even the Annual immovable property return of ACIT, Cir. 36 (10), New Delhi was not promptly put up when the same was marked to him. These are only illustrative examples. This kind of careless attitude was visible almost throughout. He had hardly made any meaningful contribution to the official work and at times he has also acted as impediment in the smooth functioning of the office.
2.Comments in respect of Col. 16:
Punctuality has been a major problem with Sh. Sovinderjeet Singh, ITI. He has been a habitual late comer to the office. He was repeatedly reminded about punctuality and at times he was forced to take half day CL for late coming.
3.Comments in respect of Col. 17(i) & 17(ii):
His relations with seniors and colleagues were never cordial. His words and actions, at times, amounted to insubordination. He would simply ignore the work assigned to him, without any valid reason. Instead of maintaining the office decorum and being guided by the wisdom of the superiors, he would follow his own agenda and most of the times he was in sulking mood for being posted in Range office.
His choice of words, while interacting with superiors, were also found to be highly objectionable. He either lacks manners or he deliberately use intemperate language. Either way it is not good for office decorum.
With colleagues also he behaves arrogantly and at times uses the language which was highly offensive and it deeply hurt the sentiments of the persons. This was verbally communicated to me by various officials.
4. According to the Applicant, the aforesaid procedure adopted by the Reviewing Officer is against the instructions issued by the DOP&T vide OM No.21011/1/2005-Estt.(A) (Pt.II) dated 14.5.2009. The relevant portion of the said OM reads as under:-
(ii) The full APAR including the overall grading and assessment of integrity shall be communicated to the concerned officer after the report is complete with the remarks of the Reviewing Officer and the accepting authority wherever such system is in vogue. Where Government servant has only one supervisory level above him, as in the case of the personal staff to officers, such communication shall be made after the reporting officer has completed the performance assessment.
5. After receipt of the aforesaid comments, the Respondents, vide their letter dated 11.3.2011, furnished him the copy of the ACR for the period in question duly completed by the Reviewing Officer but confirming the adverse remarks recorded by the Reporting Officer. The Applicant again made a detailed representation against the aforesaid adverse remarks but the Respondent No.2 disposed of the same, vide the impugned letter dated 10.8.2011, stating that the adverse remarks made against column No. 15(i) were expunged and the remaining adverse remarks were sustained. As the Applicant was still aggrieved, vide letter dated 19.9.2011, he requested the Additional Commissioner of Income Tax (Personnel) to supply him certain documents relevant to his case for making a further representation. On receipt of the aforesaid documents, he made a review application dated 16.9.2013 to Respondent No.2 and requested for expunction of the remaining adverse remarks also. But the said representation was rejected vide letter dated 20.9.2013 on the ground that it was not possible to entertain another representation from him.
6. The Applicant has also stated that he had earlier filed OA No. 952/2014 before this Tribunal but it was dismissed as withdrawn vide order dated 20.03.2015.
7. It is in the above facts and circumstances of the case, he has filed this OA seeking the following reliefs:-
(a) Quash and set aside the impugned order dated 10.8.2011 to the extent it partly rejects the representation of the applicant and also quash and set aside impugned rejection order dated 20.9.2013 passed by Respondent No.2;
(b) Quash and set aside the adverse remarks recorded in his ACR for the year 2009-2010 pertaining to Column no.12, 15(ii) & 15 (iii), 16, 17 (i) and 17 (ii), 20 and 23 recorded by the Reporting Officer and confirmed by the Reviewing Officer in the facts and circumstances explained hereinabove.
) award the costs of the application; and
(d) pass such further order or orders which this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case.
8. In support of the aforesaid reliefs, the applicant has taken the following grounds:-
(i) The impugned adverse remarks in the ACRs have been recorded by the Reporting Officer in a most arbitrary and perverse manner and they do not, in any manner, reflect his actual working. The Reviewing Officer also did not apply his mind on his representation but by a one line order, confirmed the adverse remarks made by the Reporting Officer.
(ii) The impugned remarks reflect the abject malice, if not in law but in fact, which was being harbored by Respondents No.3 & 4 against him.
(iii) It is trite that no person can overnight become either incompetent or dishonest. For the preceding years and for the subsequent years, he was given either Outstanding or Very Good ratings in his ACRs. The various ACR gradings given to him are as under:
2012-13 Outstanding 2011-12 Outstanding 2010-11 Very Good 2009-10 The ACR in issue 2008-09 Outstanding 2007-08 Very Good Further, during the period 2007-08, 2008-09 & 2009-10, he was attached to the same office but it was only due to the mala fide attitude of the Reporting Officer towards him he was given the impugned adverse remarks.
(iv) The impugned adverse remarks in his ACR are vague in nature as no specific instance/incident find mention in them. Whereas in terms of Para 174 (4), (8), (10), (11) and 6 of the P&T Manual, Vol. III, specific instances are mandated.
(v) The Reporting Officer has relied upon extraneous material to record adverse entries in his ACR. While recording an entry against column No. 16, he has stated that the applicant was a habitual late comer and was often forced to take half day CL for late coming. But the applicant was under the supervision of Respondent No.4 [i.e. the Reporting Officer] for only 6 months and 21 days w.e.f. 9th September 2009 to 31.3.2010 and during that period, only 2 Half Day CLs on 14.1.2010 and 15.1.2010 were availed of by him. Further, the Reporting Officer referred to the leaves taken by the applicant during the subsequent period for the purposes of writing adverse remarks in the ACR.
(vi) Against Column No. 17(i) & 17(ii), the Reporting Officer remarked that the applicant had strained and not very cordial relations with his senior and colleagues. In order to substantiate such a finding, he relied upon the version narrated to him by one Sh. D.G. Pansari, ACIT, Cr. 36(1) with whom he was posted earlier.
(vii) The impugned order dated 10.8.2011 whereby the representation of the applicant was disposed of is non speaking in nature inasmuch as no reasoning is discernible from it whereas rules of natural justice require that any order which entails civil consequences must be well reasoned and speaking in nature.
(viii) The impugned rejection order dated 20.9.2013 is bad and illegal in as much as Respondent No.2 failed to appreciate that his second application was not a fresh appeal but it was an application seeking review of order dated 10.8.2011 whereby his earlier representation was allowed in part. The reliance upon GOI OM dated 30.01.1978 by respondent No.2 was also misplaced and misconstrued as it only prohibits further memorial of appeal and does not restrict the right of an employee to prefer a review. Further, he could file Review Application only after he had been supplied with the relevant documents and other material on which the Reporting Officer had based his comments.
9. The learned counsel for the Applicant has also produced the copies of his confidential reports of the Applicant for the period from 01.04.2008 to 31.03.2009, 01.04.2009 to 31.03.2010, 01.04.2010 to 31.03.2011, 01.04.2011 to 31.03.2012, 11.10.2011 to 31.03.2012 and 01.04.2012 to 31.03.2012. Except for the period from 01.04.2009 to 31.03.2010, the Applicant was graded either as Very Good or Outstanding.
10. The Respondents have filed their reply stating that grading in the Confidential Report is based on the performance and conduct of the employee concerned and no legal right vests with the employee to seek any particular grading. They have also stated that the Applicant has not shown violation of any of his fundamental and/or statutory right or infringement of any of the policy of the Government. Therefore, no cause of action has accrued to the Applicant in filing of the OA. Secondly, they have stated that this OA is barred by limitation as the order under challenge is dated 10.08.2011 and the subsequent impugned letter dated 20.09.2013 is only a disposal of his representation made much later which was not permissible under the rules.
11. On merits, they have stated that the impugned order has been passed by the Competent Authority in accordance with the relevant rules and instructions on the subject and they do not suffer from any illegality and infirmity. They have also denied the contention of the Applicant that the impugned order dated 10.08.2011 is non-speaking. They have pointed out that in para 3 of the order it has been specifically mentioned that on perusal of the comments made by the Reporting and Reviewing Officer in the ACR for the period 2009-10, the competent authority has come to the conclusion that the adverse remarks given should be sustained except the one in column 15(i) regarding Drafting and Noting. Accordingly, the adverse remarks given in Column No.15(i) have been expunged and the adverse remarks given in column Nos.12, 15(ii) and (iii) 16, 17 (i) and (ii), 20 and 23 have been sustained. As regards the other contention of the Application that his application seeking review of the order dated 10.08.2011 was misconstrued and rejected vide order dated 20.09.2013, according to them, it was not considered as there was no such rule permitting to file second application against adverse remarks.
12. We have heard the learned counsel for the Applicant Shri Harpreet Singh and the learned counsel for the Respondents Shri R.N. Singh. We find substantial merit in the contention of the learned counsel for the Applicant. The object of writing the confidential report is to make the public servant aware of his abilities and pit falls. It is necessary that every employee should know his defects and how he could remove them. Every Reporting Officer should realise that it is his duty not only to make an objective assessment of his subordinate work and qualities but also to give him at all times the necessary advice, guidance and assistance to correct his faults and deficiencies. The endeavour of the Reporting Officer is more on finding out the good qualities of his subordinates and to encourage them. But the subordinates are found persistently not amenable to corrections and discipline, there should be recording of adverse entries in their ACRs. In State of U.P. Vs. Yamuna Shankar Mishra 1997 (4) SCC 7, the Apex Court has held as under:
The object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51A(j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.
13. Further, it is well recognized that the ACRs are the tools in the hands of the administration to assess the suitability of the public servant for the specific job and his capabilities to achieve excellence. Therefore, the subjective human element, out of conscious or unconscious bias, shall be contained to the minimum. It is very important both in the interest of efficiency of the service and also of the official concerned that the reports are written with the greatest possible care so that the work, conduct, character and capabilities of the officers reported upon can be accurately judged from the recorded opinion. Officers recording remarks must realize the importance of those entries as their own competency will be judged partly from the confidential remarks they record about officers working under them.
14. The Applicant is a young Inspector in the Respondent-Income Tax Department. He has to go a long way in his career. Admittedly, he was adjudged as a Very Good/Outstanding officer by all his Reporting Officers and Reviewing Officers from the very beginning of his service in the year 2003. Suddenly for a brief period, exactly 6 months and 21 days, if he has been assessed inadequate in almost all respects, there shall be something drastically wrong in the assessment made by the Reporting Officer. As a guiding principle, in Para 178(9) of Department of Posts and Telegraph Manual, which can no doubt be followed by other departments also, No employee should be adversely affected by prejudicial reports recorded without fullest consideration. In order to avoid such possibilities, the procedure prescribed is 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 employees 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. Further according to the D.P. & A.R. OM No.51/3/74-Estt.(A) dated 23.07.1975 confidential reports should, as a rule, give general appreciation of the character, conduct and qualities of an officer reported upon and a reference to a specific incident should be made, if at all, as for example, inefficiency, delay, lack of initiative, judgment, etc. Specific incidents on the basis of which penalties have been awarded in the course of departmental proceedings must, however, be indicated.
15. However, in this case, it is seen that both the Reporting Officer and the Reviewing Officer were not only unfair in their approach but also totally negative towards the Applicant. The one word remark of the Reporting Officer on all the qualities and abilities of the Applicant was Inadequate. He did not mention a word as to how and in what manner the Applicant was found totally inadequate. The Reporting Officer did not find any good quality in the Applicant whereas he was adjudged as an Outstanding/Very Good Officer by all his previous and later Reporting/Reviewing Officers. Moreover, we find that the Reviewing Officer was also not taking an objective assessment of the work and conduct of the Applicant. He was expected to consider the remarks of the Reporting Officer in a dispassionate and an independent manner and to say whether he agreed with them or not. If he is not, the reasons for his disagreement and the extent of this disagreement are to be mentioned in clear terms. Instead of doing so, he invited representation on the adverse remarks recorded by the Reporting Officer. Even though such a procedure was not prescribed, it by itself was not wrong. But what the Reviewing Officer next did was absolutely illegal and wrong. He referred the Applicants representation to the same Reporting Officer to offer his comments which amounts to an appeal from Caesar to Caesar. Obviously, the Reporting Officer has to substantiate his remarks. As rightly submitted by the learned counsel for the Applicant, aforesaid procedure adopted by the Reviewing Officer is contrary to the instruction issued by the Department of Personnel and Training vide OM No.21011/1/2005-Estt.(A) (Pt.II) dated 14.5.2009 wherein it has been held that the full APAR including the overall grading and assessment of integrity shall be communicated to the concerned officer after the report is complete with the remarks of the Reviewing Officer and the accepting authority wherever such system is in vogue. As held by the Apex Court in the case of Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others 2003 (2) SCC 111, when a thing is to be done in a particular manner it should be done in that manner and not in any other manner. The relevant part of the said judgment reads as under:-
It is well-settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The state and other authorities while acting under the said Act are only creature of statute. They must act within the four-corners thereof.
16. It is also seen that the Applicant has made a very detailed representation on each of the adverse remarks made by the Reporting Officer. However, the Competent Authority, vide its order dated 16.08.2011 rejected the said representation by a bald and non-speaking order. None of the submissions made by the Applicant were considered. In Kumari Shrilekha Vidyarthi etc. etc. Vs. State of U.P. & Others AIR 1991 SC 537, the Apex Court has observed as under:-
..Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that be you ever so high, the laws are above you'. This is what men in power must remember, always.
Again the Honble Supreme Court in Zenit Mataplast P. Ltd v. State of Maharashtra, AIR 2009 SC (Supp) 2364 held that every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. The relevant part of the said order reads as under:-
20. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism and nepotism. The decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, but if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law (vide S.G.Jaisinghani V. Union of India & ors., AIR 1967 SC 1427; Haji T.M. Hassan Rawther V. Kerala Financial Corporation, AIR 1988 SC 157).
17. In view of the above facts and circumstances of the case, we are of the considered view that the impugned ACR of the Applicant for the year 2009-10 written by the Reporting Officer and reviewed by the Reviewing Officer is non-est in the eye of law and accordingly the same is quashed and set aside. Accordingly, this OA is allowed and the impugned orders dated 10.03.2011, 10.08.2011 and 20.09.2013 are also quashed and set aside. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh