Central Administrative Tribunal - Delhi
Sh. K.K. Bhardwaj vs Union Of India Through on 2 July, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1465/2012
Reserved on : 29.05.2013.
Pronounced on :02.07.2013.
Honble Sh. Shekhar Agarwal, Member (A)
Sh. K.K. Bhardwaj,
S/o late Sh. Pyare Lal,
R/o J-253 Second Floor,
Saket, New Delhi-17. . Applicant
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Union of India through
The Secretary,
Ministry of Home Affairs,
Govt. of India,
New Delhi.
2. Director General,
National Crime Records Bureau,
Ministry of Home Affairs, Govt. of India,
East Block-7, R.K. Puram, New Delhi-66.
3. Assistant Director (Admn.),
National Crime Records Bureau,
Ministry of Home Affairs, Govt. of
India, East Block-7, R.K. Puram,
New Delhi-66.
4. Joint Assistant Director(DCT),
National Crime Records Bureau,
Ministry of Home Affairs, Govt. of
India, East Block-7, R.K. Puram,
New Delhi-66. . Respondents
(through Sh. R.N. Singh, Advocate)
O R D E R
The applicant has sought the following relief:-
(i) That the Honble Tribunal may further graciously be pleased to pass an order of quashing the impugned adverse remarks and grading in the ACR/APAR of the year 2008-09 in Col.22 & 23, declaring to the effect that the same are illegal and arbitrary and liable to be expunge, with direction to the respondents to upgrade the grading of the applicant in ACR/APAR of the year 2008-09 accordingly.
(ii) That the Honble Tribunal may further graciously be pleased to pass an order of quashing the impugned order dated 04.04.2012 by which the representation of the applicant in respect of Col. 22 & 23 of the ACR/APAR 2008-09 has been rejected with the further direction to the respondents not to consider the ACR/APAR 2008-09 for any purpose including for promotion/MACP of the applicant.
(iii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.
2. Facts of the case are that the applicant was working as Data Processing Assistant (DPA)-B with the respondents. Vide Memorandum dated 26.02.2010 he was communicated ACR/APAR for the year 2008-09 containing the following adverse remarks in Columns 22,23 & 24:-
22. Overall Assessment: The Official wastes/consumes his energy in unwarranted issue rather than contributing potentially to office duties.
Grading : Average.
Recommendations: Needs to improve inter personal communications skills specially with seniors. The applicant represented against these remarks on 05.03.2010. On 15.04.2010 the Reviewing Authority Joint Assistant Director issued a clarificatory letter justifying the adverse remarks. In the light of the clarifications received the applicant made another representation on 21.04.2010 in continuation of his earlier representation. Vide Office Memorandum dated 02.11.2010 the applicant was informed that the competent authority had expunged the remarks of the Reviewing Authority in Column-24. However, his representation against other remarks/gradings was rejected. Against the order dated 02.11.2010 the applicant again submitted a detailed representation to Secretary, Ministry of Home Affairs on 09.11.2010. On 10.01.2011 the applicant was informed that the competent authority after having reconsidered the matter had rejected his representation in absence of any new ground. On 11.01.2011 the applicant appealed to the competent authority but this was rejected on 08.02.2011. The applicant then filed OA-810/2011 before this Tribunal. This was disposed of by order dated 18.11.2011, which reads as follows:-
11. Resultantly, the Original Application succeeds with the directions to the respondents to place all the representations of the applicant against adverse remarks before the Competent Authority who should be the Authority superior to the Reviewing Officer and the appropriate orders need to be passed by the Competent Authority within a period of 9 weeks from the date of receipt of a certified copy of this order. No costs. In compliance of the order of the Tribunal the Director General i.e. Respondent No.2 passed an order dated 04.04.2012 by which the applicants representation was rejected. Aggrieved by the same, the applicant has filed this O.A. before this Tribunal.
3. Learned counsel for the applicant argued that the Reporting Officer while recording his assessment for the year 2008-09 has given the following remarks:-
1. He is cordial with everybody.
Qualities of leadership Yes Intelligent and good grasping power.
Disciplined.
Devoted to duty.
Aptitudes and skills in maintenance of equipment. Good.
Knowledge of crime records and maintenance Good.
Expression : Capable to communicate with brevity and accurately.
Takes initiative with judgment.
His services can be potentially utilized in other branches.
Integrity: Beyond doubt. The Reviewing Officer also in Column-21 of the ACR has recorded Yes, I fully agree with the assessment of the Reporting Officer. Therefore, in such a situation there was no justification for granting grading as average. Learned counsel argued that the Reviewing Officer was unhappy with the applicant because he had been seeking information under the RTI Act. Learned counsel further stated that while RTI Act provides that No suit/prosecution or other legal proceedings shall lie against any person for anything which is done in good faith or intended to be done under this Act or any Rule made therein, yet the applicant has been penalized for seeking information under this Act. The applicant has also been penalized for submitting representation to higher authorities though every representation he had made was for genuine reason. Applicants counsel further stated that the applicant had got good grading in previous years and therefore down grading it to average was without reasons and justification. He also stated that no memo/charge sheet or advisory notes in respect of these remarks were ever communicated to him. Also he stated that decision on the representation was communicated to the applicant after a lapse of more than six months against the prescribed limit of 45 days making it illegal in the eyes of law.
4. In their reply the respondents have stated that assessment of performance of an officer is to be done by the Reporting and Reviewing authority and this Tribunal may not like to substitute its own finding qua such assessment while exercising the power of judicial review. Further, they have stated that the respondents have neither violated any statutory provision nor infringed any right of the applicant and therefore no cause of action has accrued to the applicant. On these issues they have relied on Apex Courts ruling in the case of Ekta Shakti Foundation Vs. Govt. of NCT of Delhi & Ors., AIR 2006 SCC 2609 in which it has been held that the Courts should not act as an Appellate Authority while exercising the power of judicial review of administrative action.
5. The respondents have gone on to state that the applicant had been directed to attend Common Integrated Police Application (CIPA) training from 13.10.2008 to 24.10.2008 but did not do so sincerely. When his explanation was sought in writing he destroyed the official papers instead of furnishing his explanation. Consequently, the applicant was directed to explain his misconduct vide Memorandum No. Ops(104)/DIS/48/00/NCRB dated 16.10.2008. Instead of regretting his act of misdemeanor, the applicant accused his superior of falsehood denying that he destroyed any official document. The applicant was also advised to adhere to normal office timings in future.
6. In addition to all this, the applicant had been engaged in seeking unfruitful information in respect of the same Branch/Organization in which he was working by way of filing applications under the RTI Act, 2005 leading to wastage of official time, energy and resources. At occasions, he indulged in heated arguments when he was never given verbal instructions with regard to official work. On the basis of above, the respondents have stated that the remarks recorded in the ACR of the applicant were justified.
7. I have heard both parties and perused the material placed on record.
8. One of the grounds taken by the applicant was that no memo or charge sheet or advisory note was issued to him during the relevant period. From the reply of the respondents it is evident that this was not so. His explanation was sought for not being sincere in attending the training. Again on 16.10.2008 his explanation was sought for destroying official documents. On 03.11.2008 he was advised to adhere to normal office timings. Verbally he was instructed on different occasions for paying attention to his official work. Thus, the ground taken by the applicant does not appear to be tenable.
9. Applicant has argued that he has been penalized for seeking information under the RTI Act though the Act itself provides for immunity for any action taken in good faith. Applicant has argued that he had only exercised his rights as a citizen and this should not be held against him. However, the respondents have stated that the applicant was wasting precious office time and resources for seeking unproductive information under the RTI Act. They have given a list of applications in their counter of various subjects on which he had sought information. This is as under:-
(i) Whereabouts of various officers Attendance Registers and exemption from signing the attendance register by some officers of the Bureau.
(ii) Whereabouts of Personnel deputed for JSO certification, expenditure, criterion for nomination for training etc. and (appeal thereof).
(iii) Claiming nigh duty allowance (an appeal thereof.)
(iv) Role of NCRB in CIPA, CIPA vis-`-vis CCIS etc. While it cannot be disputed that the applicant as a citizen had right to seek information under the RTI Act, yet the respondents are right in saying that precious office time and resources should not have been wasted on the same. During office hours the applicant was expected to discharge his official duties. Beyond office hours he could have spent time drafting applications under the RTI Act. The applicant himself has not denied that he has been making these applications. On the basis of above I come to the conclusion that the applicant did spend considerable time in doing work other than that related to his official duties. This, therefore, justifies the remark made in Column No.22 by the Reviewing Officer. Moreover, if the officer had not been concentrating on his official work and indulging in activities which were not related to his official duties, the grading of average given by the Review Officer also cannot be said to be wrong. In any case, as laid down by the Apex Court in the case of Ekta Shaktri Foundation (supra) it is not for the Courts to substitute their assessment in judicial review for the assessment made by the Reporting/Reviewing Officer.
10. The next ground taken by the applicant was that when the Reviewing Officer had agreed with all the remarks given by the Reporting Officer as mentioned in Para-3 above, there was no justification in giving average grading. In this regard, I am inclined to agree with the observations of the Director General of NCRB who has decided the representation of the applicant. Director General has observed that the assessment made by the Reporting Officer is too sketchy/cryptic and general in the sense that it leaves the scope for modification to objectively reflect the performance of the applicant.
11. Lastly, the applicant has also not presented any material before me to establish that his performance was better than average grading that he has got. Merely because his grading in previous years was better than average, cannot be a ground for upgrading his rating, particularly considering the conduct of the applicant during the relevant year when he was cautioned several times.
12. On the basis of above, I come to the conclusion that there is no merit in the contention of the applicant. The O.A. is dismissed. There shall be no order as to costs.
(Shekhar Agarwal) Member (A) /Vinita/