Central Administrative Tribunal - Ernakulam
V.J.Xavier vs Union Of India Represented By Secretary on 14 August, 2015
Author: P.Gopinath
Bench: P.Gopinath
o;? CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Applicaton No.817/2012
Friday this the 14th day of August 2015
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER
V.J.Xavier,
S/o.Joseph,
Skipper-in-Charge,
Central Institute of Fisheries Nautical
and Engineering Training Unit, Chennai.
Residing at Velivil House, BTS Road,
Devankulangara, Edappally, Kochi b� 24. . . . . Applicant
(By Advocate Mr.T.A.Rajan)
Versus
1. Union of India represented by Secretary,
Government of India, Ministry of Agriculture,
Department of Animal Husbandary, Dairying and Fisheries,
New Delhi -110 001.
2. Secretary to Government,
Ministry of Agriculture,
Department of Animal Husbandary, Dairying and Fisheries,
New Delhi - 110 001.
3. The Director,
Central Institute of Fisheries Nautical and Engineering Training,
Foreshore Road, Kochi - 16.
4. The Deputy Director,
Central Institute of Fisheries Nautical
and Engineering Training Unit,
No.59 S.N.Chetty Street,
Royapuram, Chennai - 13. . . . . . Respondents
(By Advocate Mr.Sreenath.S.,ACGSC)
This application having been heard on 4th August 2015 this Tribunal
on 14th August 2015 delivered the following :
ORDER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant was working as Skipper-in-Charge under the Respondent Nos.2 and 3. He is aggrieved by the adverse entries in the Annual Confidential Report for the year 2009-2010 and the order rejecting the representation submitted against the adverse entries. In his Confidential Report for the period from 1.4.2009 to 31.3.2010 adverse remarks were reported against the following heads as given below :
1 General intelligence and keenness He is intelligent but he has not to learn shown keenness to learn and do not have inclination for learning works.
2 Attention to record management He is maintaining registers and and routine aspects of works such log books of the vessel. It was as proper maintenance of basic noticed, he has not maintained data, log sheets, guard files consumable stoke register record recording, indexing and weeding in proper order. of files.
3 Technical competence He is competent as Bosun, but he did not carry out his duties effectively.
4 Knowledge of subject matters, He does not know office office procedure, rules and proceedings in respect of his regulations and instructions withclaims, overtime works, availing particular reference to the work of week end holidays, allotted to him and proficiency in compensatory off, and his their application. projection of the issues on regular basis effected the work.
5 Presentation of the case or data He has been submitting of notes, quality of noting/drafting letters for works related to him on regular basis and he has practiced of these works.
6 Promptness in disposal of work He is as usual in general way for disposing of his duty jobs. He has not been making required efforts to clear side by other boats at jetty for M V Skipper II sailing and not undertaken duty as required for government need.
7 Initiative and originality He has not shown effective initiative and originality and poor in initiative and originality for the institute need, carrying out works for the office.
8 Assessment on officers He has not shown interest and performance of the task assigned keenness to sail vessel regularly to him vis-a-vis targets if any. for completing programme target.
He had shown his performance as Skipper in Charge in a usual way and not taken proper responsibilities as a Skipper-in Charge. He is unwilling to communicate with Boats concerned at jetty and M V Skipper II staff for clearing and arrangement of sailing M V Skipper II.
9 Has the officer shown any He has not shown his active
organizing capacity as willingness to move vessel M V
supervisory ability. Skipper II for effective efficient
programme of M V Skipper II and
not undertaken effective
supervisory duty.
10 Willingness to undertake greater He is officiating as Skipper.
responsibility However, he defied supervisors directions.
11 Relationship with public He is not coordinating and not communicating with the people, public for clearing of side by boats concerned and others attached - related people at jetty for M V Skipper II operations.
12 Relationship with fellow Not so cordial with the ship staff
employees of the vessel M V Skipper II.
13 Amenability to discipline He is not obeying office
instructions.
14 Punctuality in attendance He is not regular in duty since he
has been applying frequent leave
almost many occasions and it is
affected vessel operations.
15 Integrity He has been asked to prove his
integrity of claim vide office
communication FM.18/04/2007
Accts.
16 Has the officer been reprimanded He had been warned many times
for indifferent work or for other regarding leave duty and vessel cause during the period under jobs related issue.
report. If so please give
particulars
17 Has the officer done any No.
outstanding or notable work
meriting commendation.
18 Overall assessment Below average.
2. The applicant has filed Annexure A-2 representation to the 3 rd respondent to expunge the above adverse remarks. However, vide Annexure A-3 the 3rd respondent rejected the same. Thereafter the applicant submitted Annexure A-4 appeal to the 2 nd respondent against Annexure A-3 order for expunging the adverse entries in the Confidential Report. But the 2nd respondent has not considered and disposed of Annexure A-4 appeal. Respondents submit that Annexure A-4 appeal has been disposed of by the 1st respondent vide Annexure A-5 order dated 11.9.2013 stating that after due consideration it is felt that the decision taken by the CIFNET vide their letter No.5.1.2010-APAR dated 17.2.2011 appears to be in order. Applicant submits that Annexure A-5 order is not a reasoned order. Therefore the applicant has approached this Tribunal seeking the following reliefs :
1. Call for the records leading to Annexure A-1, Annexure A-3 and Annexure A-5 and set aside them.
2. Declare that the adverse reports recorded in Annexure A-1 Confidential Report are arbitrary, unjust and illegal.
3. Direct the respondents 3 and 4 to expunge the adverse reports recorded in Annexure A-1.
4. Award costs of and incidental to this application.
5. Grant such other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
3. Respondents submit that the applicant is working at Central Institute of Fisheries Nautical and Engineering Training Unit, Chennai as Bosun. He is posted as Skipper-in-Charge on board the departmental vessel. They submit that Annexure A-1 Annual Confidential Report for the period 1.4.2009 to 31.3.2010 has been written and reviewed by the competent authorities against which the applicant has vide Annexure A-2 dated 6.10.2010 represented to expunge the adverse entries. It is submitted that the applicant is in the habit of taking leave frequently which has adversely affected the vessel operations. The applicant does not perform his works or duties effectively and has not shown any interest and keenness to sail the vessel regularly for completing target programmes. Inspite of repeated warnings he was not regular in duty and he has been frequently applying for leave on many occasions and this has affected the vessel operations. Annexure A-1 has been written by the competent authorities by assessing and considering the applicant's performance in all respects. The competent authority after carefully examining the representation vide Annexure A-3 communication dated 17.2.2011 informed the applicant that the adverse entries in his ACR for the year 2009-2010 are retained. Annexure A-3 has been issued after careful examination by thoroughly and objectively assessing the work and properly considering and appreciating all the points raised by the applicant in Annexure A-2 representation. The applicant has then submitted Annexure A-4 appeal dated 8.3.2011 and the same is under consideration. They submit that the contention of the applicant that he has not been given an opportunity to improve by way of advice/warning etc is not substantiated. The respondents have given the details of the official communications made to the applicant to prove the same which reads as follows :
1. Annexure R-1 Memorandum No.26-9/2009/OPN dated 22.7.2009 directing the applicant to be available at duty station and not to avail holiday permission on regular basis, in public interest.
2. Annexure R-2 Memo No.6-3/2009-Adm. Dated 5.8.2009 has been issued to the applicant for his applying for repeated leave as it affects vessel operation and he has been directed to function as a responsible Government servant.
3. Annexure R-3 Note no.26-9/2009/OPN dated 6.8.2009 has been issued to the applicant for carrying out the sailing as per order.
4. Annexure R-4 Note No.26-9/2009-Opn dated 30.10.2009 issued to the applicant for non sailing of the vessel.
5. Annexure R-5 Memorandum No.PF.269/Adm dated 23.11.2009 has been issued to the applicant showing his way of working and directing him to operate the vessel with responsibility in public interest.
6. Annexure R-6 Report dated 7.1.2010 of the Operation section shows the way of functioning of the applicant.
7. Annexure R-7 Memorandum No.13-1/2009-Accts dated 15.2.2010 has been issued to the applicant for mismanagement and regimentation in the vessel.
8. Annexure R-8 Office Order No.26-09/2009/OPN dated 22.2.2010 issued to the applicant for his frequent availing of leave and holiday permission.
9. Annexure R-9 Note No.26-9/2009-Opn dated 23.3.2010 has been issued to the applicant for non sailing of the vessel.
10. Annexure R-10 Note No.26-09/2009-Opn dated 23.3.2010 has been issued to the applicant informing that he has not shown any interest to achieve the vessel operation targets.
4. All the above communications shows the shortcomings of the applicant and proves that the respondents have made efforts to correct the applicant and given him fair chance and therefore the contention of the applicant that he was not given an opportunity to overcome the defect are totally denied. The performance of the applicant as reflected in the above Annexures has also been reflected in his Annual Confidential Report.
5. We have heard the learned counsel appearing for both parties and also gone through the documents/annexures produced by the parties. Applicant is challenging the adverse reports recorded in Annexure A-1 Confidential Report (hereinafter referred to as CR) and prays for expunging the adverse reports in the document. Annexure A-1 (1-8) the CR of the applicant for period 1.4.2009 to 31.3.2010 is the impugned order in the case. Annexure A-2 is the representation of applicant for expunging the adverse remarks in CR for period 1.4.2009 to 31.3.2010. The applicant in the said representation says he was not given any memo or warning on the facts noted in the adverse remarks. The applicant in his representation contends that before adverse remarks are recorded in CR, an opportunity should have been given to the employee to improve by way of advice/warning pointing out the defects in his work. A perusal of Annexure R-1 to R-10 reveals that they are communications sent to the applicant on 22.7.2009, 5.8.2009, 6.8.2009, 30.10.2009, 23.11.2009, 7.1.2010, 15.2.2010, 22.2.2010, 23.3.2010 and 23.3.2010. That is, in a period covering nine months, the applicant was issued nine memorandums pertaining to various aspects of his work. Annexure R-1 memo dated 22.7.2009 informs applicant about availing 43 days holiday permission in 2008 and 16 days holiday permission from May 2009 onwards. He was also informed that he cannot avail holiday permission on a regular basis and he should be available at the duty station, Chennai. It is further clarified that his presence is required for any kind of abnormal weather situations and sea conditions and safety concerns of the vessel. In Annexure R-2 memo dated 5.8.2009 the applicant is informed that he has availed leave of 28 days in four spells during the period 18.5.2009 to 31.7.2009 whereas, as per standing instructions, only three spells of leave are permitted in a year. It is also stated in the said memo that he as Skipper and leader of the vessel has left the duty station without proper handing over of duty charge and inventory of ship. He has also not furnished his residential address in duty station, Chennai to the office even after repeated instructions. He was also informed that as Skipper and leader of the vessel, the vessel's operation was not satisfactory as it has not been operated since November 2007 for fishing operation. In Annexure R-3 memo he is informed that MMD Surveyor Radio has been surveyed, inspected and certified for operation with existing establishment and equipment and he was advised to carry out the sailing programme as per order, failing which a case of dereliction of duty would be initiated against him. In Annexure R-4 the applicant is informed that the fresh batch of trainees have completed three months and have to be trained in overnight out at sea conditions. The applicant as Skipper-in-Charge has not agreed for sailing of MV Skipper II boat for overnight voyage which was not acceptable in public interest. The applicant was also informed that all pending issues will be sorted out by the operation section with the cooperation of the Skipper (the applicant) and the sailing programme as per schedule should be conducted for completion of HQ fixed target and training. Hence he was informed of completion of target in a very open manner in the letter. This letter dated 30.10.2009 was finally not issued as the applicant accepted the sailing order to sail as per schedule on 3.11.2009 ie. 3 days after the letter was ready for issue. In Annexure R-5 OM applicant is warned of violating office procedure by not routing a submission through proper channel ie. the operation section. The applicant informed operation section on 28.10.2009 and 29.10.2009 that he would not sail the vessel for overnight voyages from 3.11.2009 onwards. He refused to receive the sailing order and left the vessel on 30.10.2009 at 15:30 hours.
He was regularly running away from duty station without intimation to office. Para 2 of the memo states that the applicant as Skipper of the vessel was available in the vessel at dry dock for eight months and he has not effectively functioned to get repairs done to the vessel. He was also informed that he was doing everything unbecoming of a Skipper. He was also informed that he was recommending leave letter of staff at the eleventh hour and requesting for substitutes. He was also informed that as per norms leave letters were required to be submitted sufficiently in advance, except in urgency so as to enable office to arrange substitutes. He was also directed in the OM to follow Government procedures. He was also directed to operate the vessel with responsibility in public interest. Annexure R-6 is signed by four officials of the CIFNET, Chennai, and though not issued to applicant, lists the shortcomings of the applicant and in one line in para 7 sums up the matter that, as Skipper-in-Charge he has stated that he is not responsible for problems/defects on board the vessel, whereas he was fully responsible as Skipper-in-Charge on board vessel. Annexure R-7 is a memo issued to applicant for not accepting Messing Allowance along with other ship staff including tenure and casual hands, which act was representative of mismanagement by the Skipper-in-Charge and regimentation in the vessel. In Annexure A-8 the applicant is informed that he as Skipper and the Bosun of the ship are in the habit of applying for leave/holiday permission at the same time leaving no Skipper-in-Charge to look after the vessel. The Bosun has been acting as Skipper-in-Charge whenever the Skipper proceeds on leave. The applicant and Bosun were therefore advised to plan their leave in a manner so that at least one of them will be available for public duty at the duty station. Annexure R-9 is a note calling for explanation of the applicant for not sailing late at 10:50 hours on 19.3.2010 and not sailing on 22.3.2010 for training. Vide Annexure R-10 the applicant's leave for period 24-26 March 2010 is not accepted by competent authority as the vessel Skipper II's operational target for the month of March 2010/financial year is not completed. He is also informed that he has availed 105 days leave for period January 2009 to February 2010 in 14 spells. He is also informed that he has not shown any interest to achieve the vessel operational targets. He is also advised to apply for leave in April 2010.
6. A perusal of the gist of the ten annexures and from the submissions made it is seen that ample and sufficient opportunity was given to the applicant by pointing out his shortcomings and non-performance. As drawn from various documents submitted by the applicant, as Skipper of the vessel he was responsible for keeping the vessel in good running condition. The responsibility for non-running of ship by ensuring that its shortcomings are adequately attended in cooperation with the appropriate officials of the respondent organization was attributed to applicant. As Skipper-in-Charge of vessel he was fully responsible for problems, defects on board vessel and its rectification and he cannot pass on the responsibility to others. The memos issued to him vide Annexure R-1 to R-10 (excluding R-6) are in the nature of advice/warning pointing out specifically the areas of work in which he had to effect improvement. The applicant was in charge of a training vessel and his attitude to work should have been exemplary for the trainees to absorb and emulate.
7. The CR of the applicant for period 1.4.2009 to 31.3.2010 was also perused in detail. Under the head 'Technical competence' the report is 'He is competent as Bosun but he did not carry out his duties effectively.' The word 'competent' and the words 'did not carry out his duties effectively' are contradictory. A competent person would generally carry out his duties effectively. Hence this remark under 'Technical competence' needs to be expunged as it does not properly express what the reporting officer desires to convey 'the competency' or 'did not carry out his duties effectively'. Annexure A-3 and A-5 could have been better speaking orders bringing out the shortcomings recorded in Annexure R-1 to R-10.
8. The writing of a CR should be performance oriented and based on an objective assessment of the officer reported upon. There may be cases where a specific case may not be important enough or merit disciplinary proceedings but may require a mention in annual performance report in order to increase the awareness of an officer. Such a step may be taken after the officer reported upon has been given a reasonable opportunity by bringing his shortcomings to notice. The applicant has been given ample opportunity and notice of his shortcomings vide Annexure R-1 to R-10 in writing and had sufficient qualitative and result oriented advice in the same. Hence it cannot be said that he was not advised before the writing of the annual performance report. Each of the documents Annexure R-1 to R-10 was a mini performance appraisal in various areas of the applicant's work and an attempt to bring to his notice that the boat of which he was a Skipper was a training vessel with a training target he had to achieve by ensuring maximum number of sailing days - which target was lost in his various attempts to point out shortcomings thrust upon others and leave application. There is no office which works in 100% perfect condition. It is dependent on the person manning it to make a success of targets fixed, by overcoming the shortcomings and despite lack of facilities. This should not be overlooked even in the worst case scenario. The applicant in the OA crowded and surrounded himself with opportunities of non-performance.
9. The applicant by his frequent leave applications on his own and his bosun's behalf was ensuring that the vessel would not be in a position to sail out at sea. Being a training vessel he should have ensured a better example for those trained.
10. The applicant's prayer for expunging adverse reports recorded by respondents 3 and 4 cannot be granted as adequate warning and opportunity was afforded to the applicant to improve himself vide Annexure R-1 to R-10 (except R-6). The O.A is accordingly dismissed. No order as to costs.
(Dated this the 14th day of August 2015)
P.GOPINATH JUSTICE N.K.BALAKRISHNAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp